The University of Kentucky recently selected a new dean of the College of Law over the objection of a substantial majority of the law faculty. The faculty rejected the candidacy of the new dean in part because the new dean lacks a record of scholarship sufficient to achieve tenure at the University.
Governor Beshear weighed in yesterday, expressing concern that the appointment is “related to certain donors pushing a partisan and undue outside influence onto the university[.]”
He also wrote that “I’ve been told that despite previously saying the dean must be approved by UK’s Board of Trustees, the university has shifted and now states that approval is not needed.”
Must the President obtain approval from the Board of Trustees to appoint a new dean?
The answer is yes. Implicit approval is always required because the President’s appointments power is delegated to him by the Board. See Governing Regulation III — The President § B. When the President appoints a dean, the President exercises the Board’s power over appointments. If the Board disagrees with that exercise, the Board can intervene to achieve a different result.
Here’s the nitty gritty.
While it is the policy of the President of the University of Kentucky not to seek formal approval from the University’s Board of Trustees on his appointment of deans, the Board has the power to reject an appointment of a dean selected by the President. The Board retains “control of appointments” (Ky. Rev. Stat. Ann. § 164.225) and has “final authority” over them (Governing Regulation II—The Board of Trustees § A) notwithstanding any contrary policy or interpretation thereof of the President. That applies to the appointment of a dean of the Rosenberg College of Law.
The President has articulated policies regarding his appointment of tenured faculty and deans.
If the President wishes to appoint a new dean to a tenured position on the law faculty, as required by law school accreditation standards of the American Bar Association (ABA), then under extant policy of the President, the President must seek formal Board approval. See Administrative Regulation — University Appointments § B.1.b.
However, if the President seeks only to appoint a new dean, and, in violation of ABA accreditation standards, not to make the new dean a tenured member of the law faculty, then the President is not required under his current policy to seek formal Board approval. See id. at § B.2.
These Presidential policies, which the University calls “administrative regulations”, do not, however, bind the Board of Trustees. They are instead merely policies of the President (which he can change if he wishes). Governing Regulation III — The President § B (“[T]he President . . . has the authority to . . . promulgate and implement Administrative
Regulations[.]”).
By contrast, Kentucky state statutes are binding on both the Board and the President. Ky. Rev. Stat. Ann. § 164.225 states that “the power over and control of appointments . . . shall be under the exclusive jurisdiction of the board of trustees of the University of Kentucky[.]”
Clearly, under state law, ultimate power over appointments rests in the Board and the President cannot divest the Board of that power.
The Board itself has acknowledged this. The University calls the policies of the Board “governing regulations.” They bind the President. Governing Regulation II — The Board of Trustees § A states that “the Board of Trustees has final authority over all matters of the University including financial, educational and other policies of the University.”
Moreover, while the Board has stated that “[t]he President has the authority to interpret the Governing Regulations and Administrative Regulations”, the Board has also clarified that “[t]he President’s interpretation is binding on all members of the University community, unless otherwise prescribed by [sic] Board” (my italics). See Governing Regulation III — The President § B.
It follows that the Board has the power to reject an appointment of a dean of the College of Law selected by the President.