I suggest two potential immediate remedies!
The University of Louisville Board of Trustees had a major annual meeting yesterday, Sept 3, 2015. It was a busy day with an overview orientation in the morning for the three new Board members, two committee meetings, and a long Trustee meeting. I will have more to say about some of the proceedings that included a misfire or two such as the Trustees being asked to vote on the recommendations of the report of the Ad Hoc Committee on Governance that had not been distributed, and a surprise vote on an internal review of the governance of the UofL Foundation that was passed when all the press had been excluded from the meeting room. An update on the litigation with Norton Healthcare was given in executive session, but the resulting resolution informs us of another round of court-ordered mediation in October with a rigorous imposed format.
A “non-disruptive” protest.
To follow up on a series of earlier articles, I want to report here on a protest held during the trustee meeting by several clergy and community activists standing with of the Justice Resource Center of Louisville. These advocates for the African-American community continued to draw attention to the fact that the Board as it was seated was the first not to contain a single African-American trustee appointed by a Governor since 1970. The 7 or 8 individuals sat quietly in the meeting room until the first executive session when most folks were sent from the room. At the press conference in the rotunda of Grawemeyer Hall that followed, the protest was anything but reserved.
Strong language.
Four individuals spoke. They had nothing bad to say against the Board itself, or of President Ramsey who they praised as working effectively with the minority community of West Louisville. Although it is my understanding that the Attorney General is not obligated to provide a legal opinion for every request by a citizen, the protestors were critical of Attorney General Conway by name for not issuing an opinion about the legality of the current Board before it was seated. There were harsher words for Governor Beshear whose name was mentioned along with former Alabama Governor George Wallace as presiding over segregated systems. The group believes that the Board as seated is illegal and must be repaired. They pointed out that African-American athletes seem good enough for the school’s profitable teams but not its governing Board of Trustees. In their words, “this university has an urban mission and has been serving this community for years so that not appointing someone that represents the make-up of the city is a disgrace, an insult, and it is illegal. We think it needs to be addressed and corrected.” In their view (and mine), “this president … and this board have been handicapped by this governor by not appointing a racial minority to this board as the law requires.” Advice was given that a court injunction might be requested, or that the proceedings of the current board might be challenged as coming from one that is illegally constituted. Opinions were stated that the state’s Democrats were taking the African-American vote for granted with an implied threat that the party could lose its traditional support. [You can view the comments in their entirety in this YouTube video.]
Illegal or worse.
There is no doubt that even if not “illegal,” both the Nominating Committee that presents names to the Governor for appointment, and the current UofL Board of Trustees are badly out of compliance with Kentucky statutes. One does not need an Attorney General’s opinion to know that! In fact, the nomination and appointment process is even more of a mess than I initially discovered. Until I attended the trustee orientation this week, I missed the fact that the Governor is further constrained for two the seventeen trustees by a statutory requirement (KRS 164.821) that he must select these from a list of three nominees submitted by the UofL Alumni Association– staggered one every three years! Except for a requirement that the nominees be graduates of UofL, there is no requirement that the nominated alumni trustee representatives be balanced by sex, race, political party, or any other criteria! Thus, only 15 of the 17 “citizen” or at-large of the 20 UofL board positions fall under regulatory control promoting diversity. Seems to me that the two major controlling statutes conflict with each other.
Not bad people, only a bad system.
Governor Beshear is decidedly not a segregationist, and neither he nor Attorney General Conway nor the University of Louisville is racist. Comparing Governor Beshear to George Wallace was over-heated rhetoric. Furthermore, strictly speaking, the current Board of Trustees is not segregated. Its student-constituent member is African-American and she is no potted plant. There is even a board-resolution in play that would give her and her faculty and staff representative counterparts full-equity voting rights on the Board. Imagine that! Nonetheless, I believe the white complexion of both the Postsecondary Nominating Committee and the UofL Board of Trustees is a good example of the structural racism that still shackles our community. We live in a world of custom and law left over from a time– within my own lifespan– when our country was overtly racist and in which segregation was engraved in law. As hard as we try to escape these handicaps, we continually stumble upon unrecognized or ignored consequences of that ugly heritage. The pathway to trustee status continues to be dependent more on who you know and not on who you are.
How can we make things right now?
I asked the protestors what they thought the Governor could do. First of all, they wanted him to admit that he had made a mistake– a grave mistake. They asserted that this is the Governor’s problem to fix. They made no specific suggestions, so I will do so.
Solution #1: One or more trustees can resign.
There are trustees on the Board who were there 30 years ago when I first came to Louisville and who seem to have been on one or more of the UofL-associated corporate boards ever since. If a trustee positon opens up before the usual yearly appointment date, a governor has a free hand to pick whoever he or she wishes to fill that spot for the duration of the departing trustee’s term. The Postsecondary Education Nominating Committee or the Alumni Association plays no role in such replacement appointments. How about it? Perhaps one or more of the current trustees who have had a good run will let someone else participate in University Governance for the good of our community. (Former trustees get to keep their good seats at athletic events!) This option has the advantage of being completely legal and gives the replacement trustee full equity with other trustees.
Solution #2: Add members to the Board by gubernatorial order.
I will be very surprised if any existing trustee volunteers to resign their current position or swap it for a position on one of the other influential UofL corporate boards. Therefore, I propose that Governor Beshear appoint as his representatives four African-Americans to sit alongside the existing Board of Trustees. This would give representation on the Board roughly proportional to the percent of the black population of Jefferson County. These can be two men and two women, and two Democrats and two Republicans or any combination. If the Governor wishes to continue to appoint fresh outsiders, he is free (and I encourage him) to do so. There is no statutory authorization to increase the size of the “official” Board and not enough time to write a new law. The new additions can participate in all discussions, serve on all committees, and be subject to all conflict-of-interest rules. Since other non-trustees sit-in when the Trustees enter executive session, these new people should too. Their perspectives will enrich all of the Board’s work. The added members can be designated Ex-Officio members of the Board or any other respectful title. When the next round of nominations and appointments comes up, the pipeline will already be primed. Even if there are are resignations as above, the Governor can add to the Board’s legitimacy in this second way.
This remedy has the uncomfortable disadvantage of separate and unequal status on the Board, although such has been tolerated for years. It has the considerable advantage of becoming operational in a relatively short time. Most importantly, this albeit temporary approach provides a way to respond to the most important of the protestor’s legitimate requests– that the experience and perspective of this important part of our urban community be at the table when decisions are made. I am aware of no statutory prohibition to this approach. I would like to see who has the nerve to stand up and object!
How can we make things right in the long run?
I reiterate my earlier suggestion. This broken system needs to be scrapped and started over from scratch. The fix cannot come from behind closed doors, and must include participation from those who can help identify the pitfalls inherent in our legacy of structural racism, sexism, classism, or other forms of discrimination.
Peter Hasselbacher
Emeritus Professor of Medicine,
University of Louisville
September 4, 2015
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