Adopting Ohio Senate Bill 5: the role of the public university presidents.

AuthorGelman, Sheldon
PositionProtecting Workers' Rights in a Post-Wisconsin World: Strategies for Organizing and Action in an Era of Diminished Resources and Embattled Unions

The legislature is expected to address pension reform early. Language is being developed and not yet available; major changes ... are being discussed [by Ohio's political leadership--changes that will require employees pay a portion of the employers' contributions]. This will likely be a major issue for faculty and staff. There may be opportunities for universities as employers to save money, but it will come out of the wallets of employees ... The Ohio and regional chambers of commerce has issued a report that recognizes the advantages of defined benefit [pension] plans and a retire/rehire policy [that allows senior university administrators to simultaneously receive a full pension and their full salary] ... (1)

  1. INTRODUCTION

    In March 2011 the Ohio General Assembly passed Senate Bill Five ("S.B. 5"), a measure that would have banned collective bargaining by public university faculty members and severely limited bargaining rights for other public employees. (2) Ohio voters decisively rejected S.B. 5 in a referendum election eight months later, preventing it from taking effect. (3) In response to public records requests I have received thousands of pages of documents that describe the role of public university presidents in connection with S.B. 5. Based on this newly available information, this article examines the actions, and analyzes the arguments, of senior university officials.

    Together with similar collective bargaining legislation in Wisconsin, S.B. 5 triggered a national debate about labor policy and the role of the middle class in American life. (4) Besides those general concerns, however, the events hold special significance for our understanding of universities. S.B. 5 singled out university faculty for the most stringent treatment of any group and it did so via a provision--known as the "Yeshiva amendment"--that Ohio's public university presidents drafted and promoted in secret. (5)

    The original version of S.B. 5 would have eliminated collective bargaining for public employees in Ohio, including employees of the state's public universities. (6) In late February 2011 legislative leaders substituted an amended bill, one that reinstated bargaining but limited its permissible subjects and effectively allowed public employing bodies to impose their own last offers at the end of process with no further recourse by employees. (7) The Yeshiva amendment further amended the bill by reclassifying university faculty as managers who were ineligible for bargaining, provided only that the faculty participated in curricular, faculty hiring, or similar decisions. (8) Since every university faculty member does those things, the amendment effectively banned bargaining by faculty. (9) The amendment took its name from NLRB v. Yeshiva University, a United States Supreme Court decision holding that private university professors qualified as "[s]upervisors and managerial employees" under the National Labor Relations Act and were therefore excluded by the Act from collective bargaining. (10)

    Ohio's university presidents effectively replaced traditional conceptions of the university, the faculty, and the administration with a standard labor law model, one restricted to the categories management and employees--both of which operate under presidential direction. (11) The presidents did so, I argue, in an effort to transform higher education institutions into what Benjamin Ginsberg calls "the all-administrative university." (12) Consistent with that view, the presidents identified their institutions with themselves, equating presidential authority with institutional freedom and creativity. (13)

    This article has four parts. First, it chronicles the presidents' actions, which they took pains to conceal from public view. The presidents acted through the agency of the Inter-University Council ("IUC") of Ohio, a statewide association of public university administrations that represented the presidents in extended discussions with the Governor's office and legislators. Second, the article analyzes the presidents' claims that S.B. 5 would relax regulatory restraints and that faculty should not collectively bargain because they perform managerial functions, such as deciding on the curriculum and participating in the hiring and promotion of faculty members. These claims, I argue, are mistaken or, at least they are mistaken given the traditional conception of the university. Third, the article examines the presidents' own accounts of their actions, once their roles became known. Finally, I argue that the presidents' actions and words were inconsistent with the traditional idea of shared university governance, and comported instead with the model of an "all-administrative university."

    Part II examines the presidents' efforts, commencing in fall 2010, to obtain far-reaching statutory changes that would deregulate and reform their institutions. These efforts were carefully concealed from faculty and the public. Part III turns to the IUC's support for S.B. 5 and the Yeshiva amendment. The IUC decided to largely avoid quantifying or even documenting any claims of financial savings; it emphasized instead the need to deregulate in order to make universities more effective. (14) Part IV examines the presidents' public statements in March 2011 after IUC's position on S.B. 5 and sponsorship of the Yeshiva amendment became known. The presidents went to great lengths trying to conceal their individual positions on S.B. 5; this part concludes that, as of mid-February 2011, virtually every president favored a ban on faculty bargaining, though only one admitted doing so. The conclusion argues that the actions and words of the presidents reflected their implicit adherence to the "all-administrative" model.

  2. VERY AGGRESSIVE RECOMMENDATIONS: THE PRELUDE TO S.B. 5

    In fall 2010, the presidents of Ohio's public universities decided to undertake a major political initiative. The state's gubernatorial election took place in November and John Kasich, the Republican candidate, was favored. (15) Bruce Johnson, the president of IUC, described the political plans at an October 12, 2010 meeting of university presidents:

    Either leadership scenario [the election of either candidate] will result in discussions about regulatory relief. IUC committees are working to develop a comprehensive package of options for the General Assembly to consider; these options will provide additional flexibility that institutions will need if the state cannot maintain or increase support. (16) At the same meeting the presidents learned that "all committees [were] working to develop the IUC regulatory reform list...." (17) At that point the entries included items such as "multi-campus shared services and outsourcing" and intercampus group purchases of employee and student insurance. (18)

    The next president's meeting, in November, followed John Kasich's election. (19) Mike Suver, a vice president of IUC, reported that IUC hoped "to get all reforms in one bill, and avoid piecemeal efforts." (20) He warned, however, that "[w]e can expect controversy from affected stakeholders." (21) Bruce Johnson also noted that a "Republican-controlled administration and legislature ... tend to have a more cynical view of the public sector." (22)

    Collective bargaining was a major concern in December 2010. Discussing a December 9, 2010 news item reporting that the Governor-elect supported changes in public collective bargaining, an e-mail identifying Mike Suver as the sender by name remarked that the news was "encouraging" and demonstrated that universities were "making progress on our regulatory mandate relief list already." (23) IUC did not know precisely how the Governor-elect planned to proceed, however. (24)

    The initiative crystallized in mid-December, after Bruce Johnson and two members of the IUC Executive Committee met with Wayne Struble, an aide to Governor Kasich. (25) The agenda included six items; Two items--"The IUC and collaboration" and "Moving forward and working together"--highlighted the presidents' willingness to cooperate with the new administration. (26) "Restructuring and Regulatory Reform" was another item. (27) IUC had been discussing charter universities--an arrangement to free institutions from state regulations generally. (28) The Wayne Struble meeting agenda did not, however, mention collective bargaining. (29)

    IUC's description of its political program visibly changed after that meeting. A few days later the presidents held their regular monthly meeting, (30) and David Hodge, President of Miami University, led a discussion of charters. (31) According to the minutes:

    Hodge stressed the importance of a unified message from IUC, and the need to develop a strategy on how to approach the issue.... Struble said that the proposal will be more powerful if IUC has a unified position. President Gordon Gee [of Ohio State University] provided a historical perspective on this issue, which arises from the dilemma that higher education's share of the state budget continues to shrink.... In the past, IUC institutions pursued this option individually, with no results. The proposal now is to try again in this environment, with the potential for more success within a deregulation approach, and in a common approach for which all institutions benefit.... Working together is the right thing to do for individual institutions and for the state. President Johnson said IUC has a choice on deregulation strategy, and we can pursue both strategies: (1) do as before, listing all the state's constraints; (2) work to develop the charter status, which will wholesale put aside these constraints. Wayne Struble indicated interested [sic] in the second approach. The new administration thinks this is the proper structure for us to operate, regardless of financial implications. We should not link this to funding. (32) Thus, the regulatory reform agenda became more ambitious, and presidents were urged...

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