From academics to COVID mandates, why the University of Minnesota can do pretty much whatever it wants

When he rolled out his order to require vaccination or testing at restaurants, bars and sports venues, Minneapolis Mayor Jacob Frey knew he had the power to enforce the mandate almost anywhere in the city. Almost.

In Minneapolis, there is a large piece of land where no mayor has authority: the University of Minnesota. Thanks to a privilege dating back to the territorial days of the state, the school has broad autonomy from the Legislative Assembly and the governor. In fact, it is the U of the M rulers – not legislators, governors or city councilors – who decide what goes on within campus boundaries (and sometimes even outside those boundaries).

This “constitutional autonomy,” as former House Research Attorney Deborah K. McKnight described it in an often cited analysisis “a legal principle that makes a state university a separate department of government, not just an agency in the executive or legislative branch.”

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How (and why) the U gained so much power

Fred Morrison, a retired law professor at the U of M Law School, said the U’s unique status means that while the school may not be quite a fourth branch of government, it sets it apart from the other three.

“It creates a buffer between the policies of the Legislative Assembly and the academic values ​​of the university,” Morrison said. “It’s the buffer that makes it work.”

An example of that buffer came during the Vietnam War, when Minneapolis police wanted to enter campus during demonstrations. “The regents said, ‘We have our own police,'” Morrison recalled. “‘We will call you if we need you'”

Fred Morrison

Fred Morrison

The Florida controversy over whether the school administration can block professors from testifying in election-related trials illustrates how a lack of a school’s autonomy from political institutions can play a role. “In Minnesota, that would be unthinkable,” Morrison said.

So politicians with a steak about a U-decision or action can complain about or try to persuade it. But they can not order changes. What’s more: The courts have limited the ability of state budget writers to impose conditions on the state appropriations that make up a large portion of the U of M funding. Once governors are appointed in joint sessions of the House and Senate, they jointly decide how U of M should be led.

McKnight described the tensions between the university and politicians as follows: “Promoting professionalism and academic freedom at state universities is still as important as it was when the autonomy provisions were first adopted. At the same time, the legislature has an interest in overseeing and having some influence on the part of the university… that comes from state funding. The case law and legislation reflect the efforts to balance these tensions. “

This power does not extend to schools in the Minnesota State system that did not exist when the original authority was given to the U of M by the territorial legislature in 1851 – or when this authority was included in the first state constitution in 1858.

Once they are enshrined in the Constitution (“all rights, immunities, franchises and endowments hitherto granted or granted to the University of Minnesota are immortalized to the University”), the University’s autonomy, or even its existence, cannot be changed without a constitutional amendment and a majority of the population.

In 1999, when a two-part group of legislators introduced a constitutional amendment to remove autonomy, it was not heard in Parliament or the Senate.

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U’s status is also extremely rare, giving it greater autonomy than all but three U.S. state university systems. Calling them “the big three,” an analysis of the problem by Neal H. Hutchens, an assistant professor of law at Barry University’s Dwayne O. Andreas Legal schoolconcluded: “Michigan, California and Minnesota continue as the states with the strongest legal recognition of constitutional autonomy, not only in the number of cases but also in the language used by state courts to describe the legal protections arising from constitutional autonomy. “

And while 19 other states have some form of constitutional autonomy for their flagship universities, McKnight writes, only a handful of them have seen this concept fully backed by state courts.

‘Choose your matches’: How U exercise its autonomy

U of M, though exempt from Minneapolis Mayor Jacob Frey’s executive order, introduced its own vaccine-or-test mandate for indoor assembly a few days later. It is not an uncommon response, with the administration and rulers often following a declaration of independence with an attempt to do something to lessen the conflict with the state or local government.

Cam Gordon

MinnPost Photo by Peter Callaghan

Cam Gordon

Cam Gordon, the former city council member who for 16 years represented Department 2, which borders the Minneapolis campus, encountered the autonomy provision many times. Gordon said his constituents would often bring him concerns or complaints about the university to which he had little power to respond.

In 2016, when the university sought to buy land outside campus boundaries to place a sports bubble that needed to be moved from another location. But to clear the country, the historically significant electric steel elevator the grain complex was to be demolished.

The city tried to apply its historic conservation order, which required an investigation into the significance of the complex, which could have led to legal protection. Hanging over the process, however, was the university’s insistence that it was not subject to these laws, even though it did not yet own the property, and even though it was blocks from campus. Eventually, the city withdrew and the complex was demolished, leaving only a memorial sign.

When the city wanted to enforce its rules for parking lot buffers and rainwater management, the U of M complied, but after saying it did so voluntarily. “It was really clear, ‘We do this because we want a good relationship with you, and we choose to do that, not because you have the authority to tell us what to do,'” Gordon said.

This could illustrate why the university introduced its own vaccine or test mandate a few days after the Frey announcement, albeit with different rules and for a shorter period.

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“We have carefully considered how similar steps could improve the university’s COVID-19 response and contribute responsibly to our communities,” wrote U by M President Joan Gabel. “In line with our public health commitment, we are today announcing a new, temporary proof of vaccination policy.”

University of Minnesota President Joan Gabel

University of Minnesota President Joan Gabel

For Gordon, who stood on the figurative boundary between city and dress, “it makes things difficult and challenging. One of the things I used to hear was that if we go to court and put them on, we are almost certain “Our lawyers did not want to shout it from the top of the hill, but that’s the impression I got. We will not be able to beat them.”

Not that lawmakers have not tried. In 2010, a provision in the budget contained 1 percent of the university’s grant, unless regents met specific academic requirements as stipulated in the bill. According to a report by former MinnPost writer James Nord, then write to the Daily Planetthe rulers held their noses and agreed.

“Choose your matches,” warned Regent Steve Sviggum, a former Minnesota House president. “The risk, members, is not 1 percent of our funding. It is not the risk. The risk is our relationship with the Legislature and the citizens of Minnesota in the future.”

The legislature can try to impose its will through the regent selection process rather than directly through legislation. In 2018, a medical school scholarship on reproductive health, which would include abortion procedures, was withdrawn after it was merged into a vacant seat on the board. In the end, the Republicans in the Legislature came together to vote Randy Simonson, whose views against the community were the strongest.

How the courts have strengthened U’s position

So could the rulers develop their own criminal law or environmental laws? Could they legalize recreational marijuana on their campuses? No, McKnight writes. The State Supreme Court has distinguished “the special managerial function of the regents from the ordinary legislative power of the Legislative Assembly, and held that the University is subject to general laws which do not impede the managerial function of the regents.”

Yet, over the years, the court has mostly strengthened U of M’s autonomy, even as it has established guidelines for when it may be violated.

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A 1928 case found that the rulers alone are empowered to lead the university, to put it “beyond the dangers of shaky politics, ill-informed or careless interference, and party-political ambition, which would be possible in the case of either legislative or executive leadership. power, ”the court found.

The state Supreme Court also ruled in 1931 that only rulers control revenue from sources other than the Legislature, although a 1977 ruling said the legislature can impose conditions on state funding as long as they do not violate U.S. autonomy and promote general welfare, prevent conflicts and fraudulent acts – and applied equally to all government functions, not just the U of M.

The most significant limitation came in 2004, when the court ruled that U of M was subject to the state law on open meeting and computer practices when electing a new president.

In the case, Star Tribune v. Board of Regents, the court found that the university’s argument, if adopted, “would essentially elevate the university to the status of a coordinated state entity not accountable to the government of the state, except as it chooses or as restrictions are attached to appropriations. “

For all that independence, however, Morrison said the university needs to be careful about how and when it claims to be. The constitutional language is general and remains subject to interpretation by the Supreme Court.

“The university needs to be careful when exercising its rights because the rights are not fully defined,” Morrison said. “If they make a foolish and too broad-minded man, then it tends to be rejected and it becomes a precedent for them. On the other hand, if they are foolishly too careful, the city may be given a position that allows them to to regulate certain things. ”

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