Kentucky Attorney General Andy Beshear’s lawsuit challenging the authority of Gov. Matt Bevin to restructure the University of Louisville Board of Trustees is nearing a final ruling in Franklin Circuit Court, where on Thursday Beshear’s expert witness testified that the governor’s actions have placed UofL’s accreditation at risk.
Bevin’s general counsel Steve Pitt attempted to prevent the testimony of Patricia Cormier, a former official of the Southern Association of Colleges and Schools, the accrediting agency that recently informed UofL there is evidence that Bevin’s action may have placed it out of compliance with their standards. Pitt and fellow attorney Chad Meredith argued this case is a purely legal matter on the authority of Bevin’s executive orders and has nothing to do with accreditation, as there is no state law requiring that public universities be accredited.
Following the testimony and cross-examination of Cormier, Judge Phillip Shepherd ruled her testimony is admissible, saying “I do think the effect of the governor’s executive orders on the accreditation process is a matter that is extremely important, in terms of determining what the public interest is, for purposes of determining what kind of relief the court is going to grant.”
The deadline for attorneys to file final briefs in the case is Wednesday, with Shepherd expected to make a ruling soon afterwards; the losing side likely will file appeals to the Kentucky Court of Appeals and eventually the Kentucky Supreme Court.
Until there is a ruling, Bevin’s legal team said he will not make appointments to the board of trustees that was reinstated by Judge Shepherd’s temporary injunction, which enjoined the new board Bevin had created. Beshear countered that Bevin should immediately fill the board’s five vacancies and expired terms so the university can move forward, as “he can’t refuse to fill vacancies and then cry foul about the composition of the board.”
Testimony on UofL accreditation
Under questioning from Deputy Assistant Attorney General Mitchel Denham, expert witness Patricia Cormier reiterated the points made in her report filed earlier this week, claiming Bevin’s involvement in procuring former UofL President James Ramsey’s letter of intent to resign and his executive orders abolishing and creating a new board put UofL at great risk of falling out of compliance with SACS standards.
During cross examination, Pitt questioned whether Bevin’s conversation with Ramsey that led to his letter of intent a day before the governor’s executive orders constituted “undue political influence” under SACS rules — noting that she didn’t have any details of the conversation or who initiated it.
“There’s an awful lot of subjective unknown area there between what’s stated in this letter and some supposition that there was undue influence, isn’t there?” asked Pitt.
Cormier replied that “SACS says there’s enough ambiguity about this that it has to be investigated further.”
One key issue in the case is a disagreement over whether Bevin had the right to abolish and recreate the UofL Board of Trustees under a statute giving him the power to temporarily reorganize boards when the General Assembly isn’t in session. While Pitt argues the governor has such power, Beshear counters that this statute does not apply to university boards, and that another statute specifically states trustees can only be dismissed for cause and outlines the process for trustees to challenge that action.
Asked by Judge Shepherd if SACS views the wholesale replacement of a board the same as the dismissal of individuals with due process, Cormier said their standards require any board member to be dismissed for cause with an opportunity to be heard in an appeals process. Asked if allowing a governor to “unilaterally abolish and recreate” a university board is permissible under SACS rules, Cormier said “I doubt that.”
As for Ramsey’s resignation being conditional on Bevin creating a new board, Cormier said “that would be a concern of SACS because that’s not really the role and responsibility of the chief executive officer. The chief executive officer works for the board of trustees.”
Bevin won’t appoint trustees until court offers ‘clarity’
At the end of Thursday’s hearing, Judge Shepherd urged both sides to address all issues of the case in briefs due next week, including whatever injunctive relief they seek.
The judge noted that Pitt already has addressed his concern that the board reinstated by temporary injunction does not have the legally required number of racial minorities or Republicans. Pitt said the last Republican trustee “bit the dust” with his resignation last week, adding that until the court provides clarity on the matter, the governor will not make appointments to the board, despite a specific request outlined in a resolution that UofL’s Student Senate will vote on next week.
“Once the court rules… the governor would be in a position to make a decision from there, but at this point in time we’re in litigation, and it’s our position that the duly appointed board under (Bevin’s executive orders) is the appropriate board, and at this point in time the governor is not inclined to make appointments to a board until there’s some clarity,” Pitt said.
Beshear countered that “our position is he can’t refuse to fill vacancies and then cry foul about the composition of the board,” as Bevin has declined to make two appointments that could end its racial imbalance. However, Pitt said that even with the five vacancies and expired terms that could be filled, such appointments still would not be enough to cure the political imbalance.
While the reinstated board has met several times since the judge’s injunction, the legal settlement of a lawsuit challenging the lack of racial minorities on that board prohibits the board from taking any major personnel actions until that imbalance is resolved with two appointments. While Bevin agreed in that settlement to appoint two racial minorities to the board as soon as possible, he still has not done so.
Two sides spar over accreditation risk
After the hearing, Pitt told reporters that UofL’s accreditation is not at risk, saying “there is a lot more smoke than there is fire.” While saying there is no statute in Kentucky requiring public universities to be accredited, he added: “Is accreditation a good thing? Certainly. Should a public university be accredited? Certainly. But there is no statute.”
Asked by IL if Bevin would begin appointing trustees to the reinstated board if the judge rules for the attorney general and the governor appeals, Pitt said, “I can’t speak for the governor right now. We need some clarity here from the courts before any further decision is made.”
Referring to the statute cited by Bevin in his executive orders, Pitt noted that “this is not a statute that has been used before on a university board. It’s been used 357 times since the Brereton Jones administration, and about 50 times on boards similar to university boards. This is the first time it’s been used for a university board, though, and I think that’s drawn the attention of the court here — and rightfully so. But I think we’re correct.”
“Nothing is ever sure in the practice of law, but we feel comfortable that we’ve got legal authority, and that if we’re not successful in Circuit Court, we stand a good chance in the Court of Appeals and Supreme Court,” said Pitt.
Beshear told reporters that Bevin continues to put UofL’s accreditation and its students at risk by not realizing the consequences of his actions.
“It’s time for the governor to realize that he caused maybe unforeseen consequences, and to roll back his executive orders, because there’s some real issues here at stake,” said Beshear. “There’s some real harm that may be done. And we need to move forward with the university and not put those students at risk.”
The attorney general also laid out dire consequences for UofL if it loses its SACS accreditation, which he blamed on Bevin’s “massive overstep of authority” and “overreach.”
“When a school loses its accreditation, it will lose all of the federal financial aid to students,” said Beshear. “Think about our students here in Kentucky that absolutely rely on that. That does violate the very purpose of our institutions, which is enshrined in Kentucky law, that includes that a university should be adequately funded. A loss of all the federal student aid going into the university would incredibly damage the university’s funding, would make it likely that it would be very difficult, if it could operate at all. Every other university, to my knowledge, that has fully lost its accreditation has shut down. Loss of accreditation is a death sentence to a university.”
Beshear also reiterated that Bevin’s actions being upheld in court could have a much larger impact, saying “this case is no longer just about the University of Louisville, but whether the governor’s actions and his absolute authority that he claims puts the accreditation of all universities at risk.”
While Bevin has criticized the political and racial imbalance of the board, Beshear said, “the only reason that the board is not in balance is that the governor has not fulfilled his obligation under a court order to fill the vacancies that are out there.”
“He can fix that,” Beshear added. “He’s got five appointments as we sit here right now. Today he can appoint five of those 10 people he wanted on, we can fix this entire situation and move on. It’s in his hands.”