“In Search of University Democracy,” David Pozen ’07, Professor of Law, Columbia Law School

Virtually all institutions of higher education in the United States share the same basic governance structure. Ultimate authority resides not with faculty, students, staff, or their representatives but with an external board of trustees and the senior management it installs. At private universities, most new trustees are chosen by current trustees. At public universities, most are appointed by politicians. At both, boards are unrepresentative of and unaccountable to the campus community. This governance model does not reliably produce better educational or operational outcomes; it sits in stark tension with universities’ aspirations to be autonomous intellectual communities; and it has been rejected by prominent universities abroad. Why is it ubiquitous here?

This Article identifies and explores the puzzle of the missing alternative: a stakeholder structure that allows core internal constituencies, such as faculty and students, to select a majority of trustees and approve major decisions. Looking backward, the Article considers possible answers to this puzzle—including path dependence, institutional isomorphism, and donor preferences—and argues that they do not fully explain or justify the continued absence of stakeholder universities in the United States. Looking forward, the Article calls attention to the educational, epistemic, economic, and civic benefits that stakeholder governance could bring, along with a number of costs and complications. Finally, the Article outlines different forms that stakeholderism might take and different strategies that reformers might employ. There are no easy or uniform answers to the question of how universities should be run. But at a time when higher education faces mounting threats from political actors at the federal and state levels, there are good reasons to believe that more stakeholder-oriented governance models could help to safeguard the academic mission of universities as well as the democratic capacity of the broader society.

David Pozen teaches and writes about constitutional law, information law, and nonprofit law, among other topics. Pozen’s body of work includes dozens of articles, essays, and book chapters, as well as "The Constitution of the War on Drugs" (Oxford, 2024). Pozen has also edited two volumes for Columbia University Press, on transparency (2018) and free speech (2020), and been a semi-regular contributor to the Balkinization and Lawfare blogs. He has been the keynote speaker at numerous academic conferences, in the United States and abroad, and his scholarship has been discussed in outlets including the New York Times, New Yorker, Washington Post, Harper’s, Politico, American Scholar, and NPR.