Rolling out his order to require vaccinations or testing at restaurants, bars and sports venues, Minneapolis Mayor Jacob Frey knew he had the power to enforce the mandate almost anywhere in the city. Almost.
In Minneapolis, there is a huge strip of land where no mayor has authority: the University of Minnesota. Through a privilege that dates back to the territorial days of the state, the school enjoys broad autonomy from the legislature and governor. In fact, it’s the regents of the U of M – not legislators, governors, or members of the city council – who decide what happens within campus boundaries (and sometimes even outside those boundaries). limits).
This “constitutional autonomy,” as former House research counsel Deborah K. McKnight described it in a frequently cited analysis, is “a legal principle which makes a state university a separate department of government, and not merely an agency of the executive or legislative branch”.
How (and why) the U has so much power
Fred Morrison, a retired law professor at the U of M Law School, said the U of M’s unique status means that while the school may not quite be a fourth branch of government, it separates it from the other three.
“It creates a buffer between the politics of the Legislative Assembly and the academic values of the University,” Morrison said. “It’s that buffer that makes it work.”
An example of this buffer came during the Vietnam War, when Minneapolis police wanted to come to campus during protests. “The Regents said, ‘We have our own police,'” Morrison recalled. “We will call you if we need you. »
Fred Morrison
The controversy in Florida over whether the school administration can prevent professors from testifying in election-related lawsuits illustrates how a school’s lack of autonomy from political institutions can play a role. “In Minnesota, that would be unthinkable,” Morrison said.
So politicians who have a beef about a U decision or action may complain about it or try to cajole it. But they can’t order changes. Additionally: Courts have limited the ability of state budget makers to impose conditions on state appropriations that make up a large portion of U of M funding. Once regents are appointed in joint sessions of the House and Senate, they collectively decide how the U of M is run.
McKnight described the tensions between the university and politicians like this: “The promotion of professionalism and academic freedom in state universities is still as important as it was when the autonomy provisions were adopted for the first time. At the same time, the legislator has an interest in monitoring and having some impact on the university’s share… which comes from state appropriations. Case law and legislation reflect the effort to balance these tensions.
This authority does not extend to schools in the Minnesota state system, which did not exist when initial authority was granted to the U of M by the territorial legislature in 1851 – or when that authority was included in the first state constitution in 1858.
Once enshrined in the Constitution (“all rights, immunities, franchises, and endowments heretofore granted or conferred upon the University of Minnesota shall continue unto the university”), university autonomy, or even its existence, cannot be modified without a constitutional agreement. amendment and a majority vote of the people.
In 1999, when a bipartisan group of lawmakers introduced a constitutional amendment to remove home rule, it was not heard in the House or the Senate.
U status is also extremely rare, giving it greater autonomy than all but three of the U.S. state university systems. Calling them “the big three,” an analysis of the issue by Neal H. Hutchens, assistant professor of law at Barry University’s Dwayne O. Andreas Law School, concluded, “Michigan, California, and Minnesota remain the states with the strongest judicial recognition of constitutional autonomy, not only in the number of cases, but also in the language used by state courts to describe the legal protections that result from constitutional autonomy. .”
And while 19 other states have some form of constitutional autonomy for their flagship universities, McKnight writes, only a handful have seen that concept fully supported by state courts.
“Choose your fights”: How? ‘Or’ What the U exercises its autonomy
The U of M, while exempt from the executive order of Minneapolis Mayor Jacob Frey, imposed its own vaccine or test mandate for the indoor gathering a few days later. This is not an uncommon response, with administration and regents often following a declaration of independence in an effort to do something to reduce conflict with state or local government.
MinnPost photo by Peter Callaghan Cam Gordon
Cam Gordon, the former city council member who for 16 years represented Ward 2, which borders the Minneapolis campus, has repeatedly clashed with the self-governance provision. Gordon said his constituents often bring him concerns or complaints about the university that he has little power to address.
In 2016, when the university sought to purchase land outside campus boundaries to place a sports bubble which had to be moved from another location. But to clear the ground, the historically significant electric steel lift the grain complex should be demolished.
The city attempted to employ its historic preservation ordinance requiring a study of the significance of the complex, which could have led to legal protection. However, the university’s insistence that it was not subject to these laws, even though it did not yet own the property and even though it was a few blocks from campus, weighed on the process. Eventually the city backed down and the complex was demolished, leaving behind only a memorial sign.
When the city wanted to enforce its rules for parking lot buffers and stormwater management, the U of M complied, but after saying it was doing so voluntarily. “It was very clear, ‘We are doing this because we want to have a good relationship with you and we choose to do this, not because you have the power to tell us what to do,'” Gordon said.
This could illustrate why the university imposed its own vaccine or testing mandate days after Frey’s announcement, albeit with different rules and for a shorter period.
“We carefully considered how similar steps could improve the University’s COVID-19 response and responsibly contribute to our communities,” wrote U of M President Joan Gabel. “In line with our commitment to public health, today we are announcing a new temporary proof-of-vaccination policy.”
Joan Gabel, President of the University of Minnesota
For Gordon, who stood on the figurative boundary between city and dress, “it makes things tricky and difficult. One of the things I used to hear was that if we went to court and sued them, we would almost certainly lose. Our lawyers didn’t want to shout that from the top of the hills but that’s the impression I got. We cannot beat them. »
Not that lawmakers haven’t tried. In 2010, a budget provision withheld 1% of university appropriations unless regents met specific academic requirements set out in the bill. According to an account by former MinnPost writer James Nord, then wrote for the Daily Planet, the regents stopped their noses and accepted.
“Pick your fights,” warned Regent Steve Sviggum, former speaker of the Minnesota House. “The risk, members, is not 1% of our funding. It’s not the risk. The risk is our relationship with the Legislature and citizens of Minnesota in the future.
The legislature may try to impose its will through the process of selecting regents rather than directly with legislation. In 2018, a medical school scholarship on reproductive health that would include abortion procedures was withdrawn after becoming entangled in filling a vacant seat on the board. In the end, Republicans in the Legislative Assembly united to select Randy Simonson, whose views against the brotherhood were strongest.
How the Courts Strengthened U’s Position
So, could the regents develop their own penal code or their own environmental laws? Could they legalize recreational marijuana on their campuses? No, writes McKnight. The state Supreme Court distinguished “the special managerial function of the regents from the general legislative branch of the Legislative Assembly and ruled that the university is subject to general laws which do not interfere with the managerial function of the regents “.
Yet over the years, the court has mostly reinforced the U of M’s autonomy, while setting guidelines for when it might be infringed.
A 1928 case established that regents alone are empowered to run the university, so as to place it “beyond the dangers of wavering policy, ill-informed or negligent interference, and partisan ambition which would be possible in the case of management by the legislature or the executive. “, concluded the court.
The state’s highest court also ruled in 1931 that only regents control revenue from sources other than the legislature, although a 1977 ruling said the legislature can impose conditions on state appropriations so long as they do not undermine the autonomy of the U and promote general welfare, prevent conflict and fraudulent acts – and apply equally to all functions of the state, not just the ‘U of M.
The most significant limitation came in 2004, when the court ruled that the U of M was subject to the state’s Open Meetings Act and Data Practices Act when selecting a new president.
In this case, Star Tribune v. Board of Regents, the court found that the University’s argument, if adopted, “would essentially elevate the University to the status of a co-ordinated state entity, not accountable to the state government except s he wishes or if the limits are linked to credits.
Despite all that independence, however, Morrison said the university needs to be careful about how and when it asserts it. Constitutional language is general and remains subject to interpretation by the Supreme Court.
“The university must be careful when exercising its rights because the rights are not fully defined,” Morrison said. “If they make a foolish and overbroad representation, then it is likely to be overruled and it becomes precedent against them. allows you to regulate certain things.
