The Small d Democratic Deficit of the University of California Regents

Perhaps it is time to end an oddity of constitutional governance and elect the Board of Regents of the University of California

The University of California (the “UC”) is often considered one of the jewels of California. A public university system consisting of 10 campuses, over 250,000 students, and a 40 billion dollar annual budget, the UC is a center of academic scholarship, medical and scientific research, and the arts. Many of the UC campuses are considered the equivalent of a public Ivy League school. Undoubtedly, the UC is one of the reasons behind California’s status as the 4th largest economy in the world.

While Californians take great pride in the UC, it is not without its conflicts and criticisms. There are often disputes regarding the UC’s governance, which is governed by the Board of University of California Regents (the “UC Regents”), where the UC Regents are often at odds with the public.¹

For example, a recent labor dispute, UC employees negotiated for labor standards and wages applicable to all other public employees and private sector employees. With the notable exception of UCLA, most UC campuses have been unable to provide on-campus housing for all students. This has furthered student inequities where UCs, often located in expensive regions of the state, become financially impossible for students without resources to attend. Or adds significantly to individual student loan debt upon graduation.

In some cases, efforts to expand student housing have been conducted in ways that seem to go out of their way to alienate local community residents, leading to years of protracted trench-warfare litigation. Usually, the UC prevails over the NIMBYs in court but not after spending millions in legal fees while no student housing is actually built.

In the meantime, while the UC administration takes victory laps, many UC students struggle without housing. Recently, UC Santa Barbara agreed to build new housing for students on the condition that a cube like building without natural windows be constructed where students would have to live in pods. Despite the inhumane nature of the housing, UC Santa Barbara agreed on the basis of a donor’s personal request.

More recently, in the aftermath of the college cheating scandal which implicated some UCs, it was discovered that some UC Regents had personally intervened with admissions officers to get students admitted as personal favors to friends and business associates.

This is particularly galling as it is very difficult to gain admission to the UC and most have assumed that the UC, as a public system, has a fair admissions process, where decisions are made without regard to legacies, personal connections, or other favoritism. Because private universities do not have automatic government funding but need funds to carry on their educational mission, private universities often depend upon the generosity of donors and have legacy admissions.

Personal connections are often used for business purposes but ultimately are done to favor the university. Applicants to private universities are aware of this unfairness or at least should be. But applicants to a public university system have no reason to believe that there are other applicants who are getting unfavorable benefits.

Public systems have the advantage of government funding mechanisms. Additionally, a UC Regent who is able to advance their own personal business interest by helping an applicant gain admission is effectively using public resources to enrich themselves.

Throughout all these conflicts though, the California State Legislature seems largely uninvolved. There have not been proposals to change the UC system or improve its governance. Candidates for statewide office do not speak of the changes they will personally bring to the UC if elected.

Why is that?

It is because of the California Constitution, which makes the University of California its own independent branch of government.

Under the California Constitution, the UC is its own independent branch of government – as though it was the executive, judicial or legislative branch.² The UC is “subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university and such competitive bidding procedures as may be made applicable to the university by statute for the letting of construction contracts, sales of real property, and purchasing of materials, goods, and services.”³

This means that the rules that govern the UC – its administration, admissions policies, employment practices, campus design, campus housing policies, grading policies, and all other operations are decisions made by the UC Regents and cannot be changed through the normal legislative process.⁴  

The Legislature has no power to repeal policies implemented by the UC or implement policies it favors for the UC. Voters have no ability to repeal decisions made by the UC Regents either as they do with laws enacted by the Legislature.⁵ If voters desire to implement creative new policies for the UC, they have no way to do so other than implementing a constitutional amendment.⁶

And what kind of practical effect does that have?

Generally, the UC doesn’t have to follow most of the state’s labor laws.⁷ Local zoning laws and land use laws do not apply to land owned by the UC either.⁸ The UC can set its own discipline rules for students without legislative intervention.⁹ Laws that would be applicable to everyone and don’t impact student life or university affairs are going to be applicable.¹⁰

But it is not just the independence of the UC that creates a democratic deficit but the governance itself of the UC that creates the true democratic deficit.

The UC is governed by the UC Regents, who at minimum consist of twenty five (25) members, of whom seven (7) ex-officio members, and eighteen members who are appointed by the Governor and confirmed by the Senate to serve twelve year terms.¹¹ Of the seven ex-officio members, four are elected officials: the Governor, the Lieutenant Governor, the State Superintendent of Public Instruction, and the Speaker of the Assembly.

The President and Vice President of the Alumni Associations serve as well as the President of the UC.¹² An additional student Regent or faculty Regent can be appointed by the rest of the UC Regents to serve for a one year term.¹³ By its design, the governance is designed to ensure that the appointed UC Regents control the decision making power for the UC.

Thus, not only does the UC govern independently, but the UC Regents generally are not subject to scrutiny by the voters. Or by the other elected branches of government representing the people. The Legislature has no power to impeach an appointed UC Regent. A Governor cannot fire an appointed UC Regent. If Californians dislike decisions made by the UC Regents, Californians have no ability to change the UC Regents to achieve a different outcome as would normally occur under the democratic process.

At most, only three UC Regents can be removed by the voters of California and one UC Regent can be removed by voters within his or her Assembly District. No matter what those four decide, the appointed UC Regents far outnumber them. Moreover, if Californians dislike individual UC Regents, the appointed UC Regents cannot be removed.

Thus, not only does the UC govern autonomously, generally free from legislative control, it governs unrestrained from the control of the people. If the public is dissatisfied with the actions of the UC Regents, they can at most vote three out of office at a regularly scheduled election or vote to recall them. Voters in the Assembly Speaker’s district may vote the Speaker out of office or vote to recall the Speaker. But the eighteen other appointed UC Regents cannot be removed and replaced. They are free to do as they please without fear of losing their position.

This system was created by design. The constitutional language was intended to keep the UC free of politics and sectarian control.¹⁴ The hope was that politics would not play a role in decisions made by the UC.

But is it the right policy? Should the UC Regents be free to make decisions free from voter review?

After all, “All political power is inherent in the people.”¹⁵ Government is instituted for our benefit but we reserve power to ourselves. We are not subjects to be governed but rather the sovereign itself where we control our own government.¹⁶

Now, one might compare the UC to another independent (non-political branch) of California government: our judiciary. The judicial branch is an independent branch of government.¹⁷ Don’t they have the power to govern us even though they’re not restrained by the electorate? Why is it a problem if the UC Regents govern in the same way?

The truth is, our judiciary is not unrestrained by the public. First, unlike the federal judiciary where appointments are for life after Presidential appointment and Senate confirmation, there are key limitation on the Justices of the California Supreme Court and California Court of Appeals:

- Justices must be retained by the voters after their initial appointment and confirmation.¹⁸
- Justices do not have automatic lifetime tenure. While they can serve for life to any age, their term must be renewed by the voters every 12 years.¹⁹

- Justices can be impeached by the State Legislature.²⁰

- Justices can be involuntarily retired by the Commission on Judicial Performance for gross incompetence.²¹
- Justices can be recalled from office by the voters as well.²²

- Justices are also required to be barred attorneys for at least ten years before they are appointed (or elected in the case of local Superior Court judges).²³

No similar restrictions apply to UC Regents. They cannot be removed.

But there is a further, more fundamental, limitation on the judiciary that the UC system does not have. The court system operates within a set of guidelines. The judicial branch interprets laws and the constitution.²⁴ But it does not make laws.²⁵

Furthermore, the judiciary does not actively make public policy. In the rare times that the judiciary makes public policy, it does so in the absence of statute. The State Legislature always remains free to enact legislation, either to enact public policy or change an interpretation of law by the courts. It has happened frequently. Moreover, voters retain the power to change court interpretations by the initiative process. If the voting public dislikes a decision of the court, the public has the ability to change it.

Courts can and do invalidate laws enacted by the people on constitutional grounds. However, courts do this sparingly and they have no power to set aside the constitution itself.²⁶ Most laws are presumptively constitutional.²⁷ It is only when laws restrict fundamental individual rights or run directly afoul of structural rules that courts will invalidate laws and policies made by the people.

It is not simply a free for all where courts pick and choose which public policies they like or dislike.²⁸ Even rulings interpreting the California State Constitution can be overturned by the state’s electorate through constitutional amendment.²⁹

The UC Regents are different. They manage one of the most vital public assets in California. In doing so, they are not merely interpreting the law, they actively make public policy that affects a wide range of Californians. This includes those who do not attend the UC. Educational policies affect the entire state.³⁰ Because the UC campuses are often centers of the community, their governance is an issue of concern to the community beyond those who work or attend the UC.

Policies pertaining to workers affect the whole labor market and local businesses even those who do not directly work for the University of California. Zoning and land use decisions impact a community and its quality of life. A lack of student housing can also affect the price of nearby housing rentals. Admissions policies dictate how many Californians will be able to attend the UC. Policies related to admission fees, scholarships, loan programs, and student housing all impact whether an admitted student may even be able to attend. Or whether current students can continue their education.

And while the UC Regents make these important public policies affecting the entire state, they do so completely insulated from the public.

Should that continue to be the case? Do we want a system that is untethered to public will yet makes important policy decisions that cannot be over-ridden? Given the well-connected nature of most political appointments, do the UC Regents truly reflect the great diversity of California’s 40 million residents? Should one have to be a friend of the Governor or wealthy in order to serve and have a say over one of California’s most prized and valued assets?

Perhaps it is time to consider the election of the UC Regents.

Is that a radical concept? Not really.

Our system of American governance depends upon governmental accountability to the public. Our elected officials serve at our pleasure, not the other way around. Our system has democratic controls built in so that voters can change public policies they dislike or create public policies they do like. The public can get it wrong. But that is the price of democracy.

While we have a judicial system that exists to protect the rights of the individual from an oppressive majority, it does not exist to allow an unelected minority to control the majority. A system that allows decisions to be made without input by the public is undemocratic by its nature. It is ultimately corrupting and results in harm to the public.

While there may be positives to the current system governing the UC, it is democratically unaccountable. An oddity of government seen nowhere else in California. And it is well past time to evaluate whether it should remain in place.

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.