For more than 155 years, Nevada’s elected Board of Regents have been enshrined as part of the state Constitution, core to the exercise of authority over the state’s higher education system.
But for the next year, those constitutional privileges will hang in the balance, hinging on just what Nevada voters decide to do with a measure called the Nevada Higher Education Reform, Accountability and Oversight Amendment, more often referred to by its shorthand: AJR5.
AJR5, simply put, is a proposed constitutional amendment that would remove the Board of Regents — which governs the state’s higher education system alongside the system’s chancellor — from Article 11 of the state Constitution, also called the “Education Article”.
Instead, the regents would be placed under the purview of the Legislature through state statute, theoretically allowing legislators to reform and reshape the board in any way they deem fit.
Lawmakers have argued that the measure would create additional means of supervision for the regents — sometimes characterized as the “fourth branch of government” — with the bill text explicitly calling out past attempts by regents to operate with “unchecked autonomy from legislative oversight.”
But critics, including the Board of Regents and Nevada System of Higher Education Chancellor Thom Reilly, have charged that the proposal is a thinly veiled attempt at introducing non-elected regents to the board that will do little in the way of implementing more substantial reforms.
As a constitutional amendment, AJR5 must pass through a five-year-long political gauntlet, requiring passage by two consecutive legislative sessions followed by approval by a vote of the people before taking effect.
It cleared that first hurdle easily, passing through the Legislature with just six votes against across both the Assembly and the Senate. Things went similarly smoothly in 2019, when the lawmakers OK’d the bill with just five votes against in the Assembly and none in the Senate.
The argument in favor
Testifying before the Assembly Legislative Operations and Elections Committee in February, Democratic Sen. Joyce Woodhouse — one of two sponsors of AJR5, alongside former Democratic Assemblyman Elliot Anderson — told lawmakers the amendment was a direct response to “events of the past several years,” complaining that NSHE had sought to “control, alter or misrepresent” information presented to lawmakers before and during past legislative sessions.
“[AJR 5] allows the Legislature to exercise unimpeded oversight of the Nevada System of Higher Education and allows more flexibility in considering reform proposals,” Woodhouse said in her testimony. “Constitutional governance serves as an antiquated way to oversee higher education, and Nevada is the only state with its entire system governed by a single elected board with constitutional status.”
And though Woodhouse also commended the regents and chancellor on steps made in the interim to address some legislator complaints, she added that policy makers ought to be concerned with “building systems of governance” over the “individual personalities” running the system.
Another argument, this time made to the committee by Anderson, was that the framers of the Constitution only folded the regents into the document as a means to access federal resources from the Morrill Acts, which created more than 70 land-grant universities across the country, among them the University of Nevada, Reno.
In the wake of the regents’ inclusion into constitutional language, Anderson told legislators the board has “regularly” sought to interpret that provision to mean it is “a fourth branch of government.”
“We believe that constitutional status has created an insular culture, one that sometimes acts as though it cannot be touched,” Anderson said. “In its own legal briefs, the Board of Regents has argued that is has ‘virtual immunity’ from legislative acts.”
Those legal briefs appear in the heart of the bill text, buried in references to two court cases which, per the quotes presented in the amendment, show a board of regents that has leaned on its constitutional authority as a means to eschew attempts at oversight by other branches of government.
The first is the 1981 case Board of Regents v. Oakley, in which an ousted university professor, Chauncey W. Oakley, sued the regents for firing him under a newly-adopted policy that mandated tenured faculty retire at age 65.
Even as Oakley contended that state law prohibited such a firing, the Board of Regents claimed that enforcement of the state law in question would violate its protections as a constitutionally distinct body and that its enshrinement in Article 11 provided “virtual autonomy and thus immunity.”
Though the Nevada Supreme Court rejected that argument, it did move to limit legislative control of the regents in the 1948 case King v. Board of Regents, also quoted in AJR5. There, arguments centered around the constitutionality of a legislatively created “Advisory Board of Regents,” or an all-appointed board meant to serve with “all the rights and privileges” of the regularly elected board but that would not have a “determining” vote for itself.
In a lengthy, complex ruling, the high court ruled that the law ultimately circumvented the intent of the Framers to place power over higher education in the hands of elected regents, saying in particular that the Legislature was prevented from implementing any law that “interferes with the Board’s essential management and control of the University.”
The argument against
Since its inception in 2017, the measure has been staunchly opposed by NSHE, the Board of Regents and Chancellor Thom Reilly, who all have complained that proponents have not adequately explained how a removal of the regents from the Constitution would address problems within the state’s higher education system in a way normal legislation would not.
“At the end of the day, when people come to us they're getting their degree, which I think is a central purpose of higher education,” Reilly said. “So, you look at AJR 5, I'm not sure how it advances that. For good, bad or indifferent, the founders of the state of Nevada expressly intended that higher education in Nevada be governed by a board of regents that is separate in the state Constitution.”
In particular, Reilly took issue with the Legislature’s use of the decades-old Oakley and King cases — more than 38 and 71 years old, respectively — as justifications for additional oversight, especially in light of the legislature’s existing power over higher education budgets.
“They have the ultimate control, because they approve our budgets, they control our purse strings,” Reilly said. “We have to go to the Legislature in order to deal with our entire budget cycle. So I'm not sure, at the end of the day, does it help us increase the number of students who access our education? Does it help us ensuring when individuals come to us they actually graduate? I'm not sure.”
Instead of oversight, critics — including Reilly — charge that AJR5 clearly points to the start of a process by which at least some members of the board are appointed rather than elected.
For Board Chairman Jason Geddes, the “only thing” AJR5 looks set to do is pull the regents from the Constitution “so [the Legislature] can change the composition of the board.”
“The board is responsible to the electorate, we oversee education and we go out and we have to stand up for election and reelection in our respective districts and I think it's worked,” Geddes said of the elected board. “We have two R-1 universities, we have the Desert Research Institute, and I think we've been serving the needs of higher education in Nevada. So I'm not sure what's broken about it.”
During her legislative testimony, Woodhouse stressed that the measure does nothing to adjust or alter the actual functions of the board, but rather puts the body “on par with every other governing board and state agency created pursuant to statute.”
In the same breath, Woodhouse also pointed to the function of Chapter 396 of the Nevada Revised Statutes, or the collection of laws which govern the state’s higher education system, as a preservation board’s existing structure — including mandated elections.
Woodhouse also sponsored another bill, SB354, which would reduce the board from 13 members down to nine should AJR5 receive the voters’ stamp of approval. And among those nine regents, just five would be elected, with the remaining four being appointed by the governor.
Though that bill was passed out of the Senate by a 15-6 vote, it found little support in the Assembly and died quickly in committee — casting doubt on the possible success of such efforts in the future.
The lay of the land
In the meantime, about one year remains before AJR5 hits the ballot.
NSHE will move through at least the early part of the 2020 calendar year with a persistent vacuum among the system’s top jobs. UNLV has been without a permanent university president since 2018, following the sudden resignation of then-President Len Jessup amid tensions with Reilly and the Board of Regents; UNR’s President Marc Johnson announced earlier this year he would be stepping down at the end of the 2019-2020 academic year; and Reilly will bow out of the chancellor’s office when his contract expires next August.
Reilly said all those jobs will be filled by next summer, with the search for a new UNR president looking to start soon and the hunt for a UNLV president and new chancellor already underway.
Even so, the intervening discussion on AJR5 has created an air of uncertainty around the state’s higher education system, in some ways casting a shadow on the ongoing searches to fill the system’s top jobs.
According to Geddes, however, such problems are hardly unique to Nevada.
“Every state has issues,” Geddes said. “Our issues aren't nearly as bad as Alaska or New Mexico. So I think it's a matter of what the candidates think is manageable or not manageable.”
For now, the limbo will continue until Nov. 3, 2020.