Hints of autonomy for community colleges?

By Tom Gorman

Sunday, March 9, 2014 | 3 a.m.

Over decades, some Nevada politicians, education leaders and consultants have argued that Nevada’s four community colleges shouldn’t report to the state’s Board of Regents, which oversees UNLV and UNR, but rather be allowed to operate independently, perhaps with each individual college governed within its own community.

Now, as Nevada legislators again review how the community colleges are governed and funded, a state constitutional law expert says nothing prevents lawmakers from removing the two-year colleges from regents’ control.

That possibility, which has been raised before and rejected, would have far-reaching implications in how community colleges get and spend money and to what degree they offer programs better fit for their local needs, such as meeting regional labor demands.

The Board of Regents, in this scenario, would oversee only UNLV and UNR — which is what the crafters of the Nevada constitution intended in 1864, says Thomas McAffee, a constitutional law professor at UNLV’s Boyd School of Law.

It’s clear that the constitution calls for a University of Nevada to be governed by a board of regents. The state’s founding fathers made the requirement and identified areas of study including agriculture, engineering and mining, in order to qualify for federal funds — a quest that indeed goes back 150 years.

But there is ambiguity in how community colleges should be governed. That issue is not addressed in the constitution because such animals didn’t exist at the time. (Two other higher ed institutions, each with statewide constituents — Nevada State College and the Desert Research Institute — also report to the Board of Regents; there has been no campaign for them to break away.)

In a paper to be published in the Boyd Law Review, McAffee argues that the constitution identifies the Legislature as the creator of statewide public policy ­­— but that lawmakers had no choice but to create the University of Nevada and a board of regents, because that was a specific constitutional requirement to become a state.

But because there was no mention of community colleges, matters of their governance, funding and curriculum are left to the Legislature, McAffee says. Nevada’s first community college opened in 1967, in Elko.

The notion of allowing community colleges independence from university regents has been floated since then. Some proposals called for locally elected boards or a separate statewide system of community colleges with advisory boards representing the various communities.

The state Attorney General’s office in the late 1960s wrote, in a nonbinding opinion, that the community colleges should remain under regents’ control. The assistant attorney general who wrote that opinion, McAffee said, also served as general counsel for the regents, suggesting that perhaps there was some bias in the opinion.

The Legislative Counsel Bureau, which provides advice to lawmakers, disagreed with the Attorney General’s opinion, saying it found legal basis for the community colleges to be governed separately from the University of Nevada system.

Efforts were launched in both the state Senate and Assembly to create a board for community colleges, but they died in 1979 and 1983.

A 2001 report by the think tank Rand Corp. recommended separate governing boards for community colleges, and 10 years later a task force created by Chancellor Dan Klaich reported to him that “Nevada’s community colleges could be more responsive to community needs by bringing the governance of each to the communities it serves, as is the case in most other states.” Nothing changed.

Two more studies, by the Brookings Institution in 2011 and SRI International in 2012, echoed recommendations for local governance of community colleges.

At issue is not only control of curriculum and other education policies, but the ability of communities to find additional and alternative sources of funding, rather than relying on the political whims of the Legislature in doling out funds.

Among the arguments made over the years is that the Nevada System of Higher Education has been lethargic in seeking federal funds for community colleges, landing only a small fraction of the amount of money awarded to community colleges in other states.

Now the issue is returning to the Legislature. A committee assigned to study the governance and funding of community colleges, chaired by Debbie Smith, D-Sparks, will meet at 9 a.m. Tuesday at the Grant Sawyer State Office Building.

McAffee says he’s not taking a position on who should govern community colleges, but only that if lawmakers want to allow them to be governed differently, “they can do it. The Legislature can decide to keep the system the way it is, or to take a different approach.

“But what the Legislature can’t do is bail on the subject, saying that the constitution doesn’t allow them to do this. It can,” McAffee said. “And this is an important statewide public policy issue that is worth discussion.”