The pending laws follow fights between legislators and Youngkin administration over board appointments and simmering questions around legal counsel from the state.
| Virginia Mercury
The Rotunda of the University of Virginia, designed by Thomas Jefferson along with a statue of him. (Photo by Getty Images)
Democratic state lawmakers are trying to adjust the process for how people are appointed to public university governing boards and debating whether higher education institutions should be able to hire their own legal counsel.
A measure to that effect, House Bill 1385 by Del. Lily Franklin, D-Blacksburg, reported from a House Education subcommittee Monday. As it moves forward, a similar proposal is advancing in the state Senate. Both will continue to face deliberation and could be brought into alignment before the legislative session ends.
What the bills would do
Public universities’ boards of visitors function similarly to legislative bodies, though members are not elected. They are composed of people appointed by the governor, and it’s not unusual for appointees from multiple administrations to serve together. However, the state legislature must confirm all appointees, according to state law.
Members of the Senate rejected a total of 28 appointees named by former Gov. Glenn Youngkin last year, calling his picks inappropriate and subject to partisan influence. The governor and then-Attorney General Jason Miyares pushed back, asserting that the legislators didn’t have the authority to deny Youngkin’s appointees a place on the board, and the issue eventually wound up in court.
Franklin’s bill is an effort to set clearer guidance on how boards are built, and itself builds on a recent executive order from Spanberger that requests a study for appointment processes. In an interview, Franklin said her bill can “clarify the process” for when appointees join or leave boards.
It would prohibit appointees from serving if they are rejected by state lawmakers, including the House or Senate Committee on Privileges and Elections or related subcommittees. Youngkin and Miyares argued that the Senate subcommittee didn’t have the authority to reject his appointees last year, a sticking point Franklin’s bill would prevent in the future.
The bill would also prohibit appointees from making decisions “primarily motivated by loyalty to a political party, political candidate, or individual holding elective partisan public office.”
University boards’ actions in Virginia and elsewhere have fueled debates about the politicization of higher education, particularly over the past year as President Donald Trump’s administration worked to eliminate diversity, equity and inclusion policies on campus.
Members of the Senate said Monday they were keen to reduce partisan squabbling when it came to Virginia’s university boards.
“We’ve got a tit-for-tat going back and forth,” said Sen. Chris Head, R-Botetourt.
He acknowledged that what has been seen “in the last four years was definitely putting politics into the governance (of higher education), but for people on my side of the aisle, it was responding to (Democrats) putting politics in the other direction.”
Appointment guidance, term lengths and legal counsel
An incorporated bill from Sens. Creigh Deeds, D-Charlottesville, and Scott Surovell, D-Fairfax, would shift board appointees to staggered six-year terms instead of the four-year terms appointees currently serve, to further ensure overlap in gubernatorial administrations.
Head said that staggered terms were “a good idea” that “would really tone things down.”
The staggered terms proposal is not present in Franklin’s bill over in the House, but she suspects it could be worked into hers before session wraps.
A proposal to allow faculty and student members of the boards to vote was taken out of the bills when they were amended Monday. It’s something Franklin hopes the legislature can revisit in the future.
“Students pay into the institution, we deserve our fair share via a vote,” University of Virginia student council president Clay Dickerson said during public comment on Monday.
Surovell defended the notion of universities’ being able to hire their own counsel in his bill, but the measure received pushback in the Senate from Attorney General Jay Jones’ office.
Deputy Attorney General Allyson Tysinger expressed concern that the federal Department of Justice could “pit universities against each other” in instances where it may target a university but the attorney-client relationship between a university and the state’s attorney general office would no longer exist.
Lawmakers agreed to a substitute for Surovell and Deeds’ bill that would create a process for university boards to seek different counsel if it’s determined that a university is “not receiving adequate legal representation.”
Franklin’s bill would also create a workgroup within the Attorney General’s office that could study the feasibility of allowing other counsel and, if the bill is signed into law, would set a Nov. 1 deadline for that report to lawmakers.
As the bills work their way through each chamber, Franklin said she hopes that they can help “rebuild trust” between students, faculty and the communities that anchor Virginia’s colleges and universities.
She described meeting constituents in Blacksburg, home of Virginia Tech, who said they’d never felt the need to pay attention to a Board of Visitors meeting — until recently.
“That’s because there’s been this erosion of trust in higher education,” Franklin said.
Editor’s note: This article has been updated to reflect that the proposal for students and faculty members to be given voting power on college governing boards was taken out of the bills.