Have the money follow the students in higher education

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A friend of mine, that passed away years ago, believed there were 4 or 5 “P’s” when it came to politics. Four definite “P’s” were power, prestige, profit, and program; I believe these are self-explanatory. My friend’s fifth optional “P” involved a female body part. (I have purposefully left out this fifth “P” word.) I wish I could replace the word he chose with promiscuity, but a legitimately married couple could claim his chosen word was more apt with this type of influence. I have 3 “L” words that the Governor, the Lieutenant Governor, Joint Finance and Appropriation Committee (JFAC), and the House and Senate Chairmen of Education should consider themselves; these are Leadership, the Legislature, and Legal.

Leadership

Governor Little has demonstrated some leadership on declaring what he has made a priority; the chain of command is 1) the Governor, 2) the State Board of Education, and then 3) university presidents when it comes to higher education. If an Idaho public university president wishes to undercut the Governor, I would advise them not do such. Many years ago, Idaho State University used the Garcetti v. Ceballos court case precedent when a few professors wished to undercut President Arthur Valias. The Governor has it within his rights to do such to university presidents.

Normally, our universities and colleges administrators want themselves viewed as principal sources of information, but this manifestation of power usually means comparisons outside of their control are viewed as potential threats. For example, most colleges are ranked based upon statistics involving traditional students that just graduated high school. I am proposing requesting information through the Veterans Administration for educational statistics on how our colleges really are doing. These are non-traditional students. The Veterans Administration has to develop this type of information for their appropriations process as well as an internal measure as to which programs are effective. My first question is “Do our public colleges and universities consider their students as customers, regardless of where the money originated?” I would also strongly suggest using those numbers when considering who will be the next Boise State University President.

I have saved one major leadership suggestion for the Governor at the end of the legal section. I believe Governor Little may even enjoy it as well.

Legislature

There are three major ways to cause change in our public Idaho universities and colleges when those institutions do not wish to change. Lawsuits are usually considered the last resort. The other two routes are going to the State Board of Education and to the Legislature. From 2004 to 2014, Attorney General Wasden contributed to corruption by providing the State Board of Education a Deputy Attorney General with a conflict of interest. When it came to religious discrimination at Boise State University with Dr. Bob Kustra as President, it was the Idaho Legislature that took the right corrective action. The Attorney General’s Office tried to cover for Boise State University in a situation involving funding of religious student clubs. Even though this occurred a decade ago, I do not believe that the mindset for the State Board of Education and parts of the Boise State University Administration has changed. Since funding our colleges and universities is a function of our Legislature, I have some questions.

About a half year ago, I discovered that Boise State University had rehired Dr. Bob Kustra as a Professor in the Public Policy and Administration Department (and not as President of the University). It is customary for Idaho public university presidents to move onto other endeavors than to stay at their institutions. Changing of university presidents is like changing state Governors; there will be personnel and organizational changes even if there is not an outward perception that something has gone wrong. A few Idaho university presidents had caused some major embarrassments have been allowed retirement as a polite way out as well. Another common practice in Idaho higher education is telling a highly placed administrator their contract is not being renewed so they can find employment elsewhere. I checked to see what classes Dr. Kustra was teaching in his department for the Summer of 2018, the Fall of 2018, and recently for the Spring of 2019 semesters; Dr. Bob Kustra wasn’t teaching any classes. I used tools anyone from the general public could use like Transparent Idaho, Boise State University’s online directory, and Boise State University’s guest registration. This allows for some interesting questions.

  • Boise State University does list researchers and administrators separately from professors. “Professor” is a title reserved for someone who teaches. What are Dr. Kustra’s official responsibilities?
  • Kustra’s salary was slightly higher than Governor Otter’s salary. Historical, this required special approval from the State Board of Education when the contract was signed. What was the State Board of Education’s “due diligence” responsibilities in regards to approving Dr. Kustra’s 2018-2019 employment contract?
  • Did Dr. Kustra get a golden parachute?

Personally, I have less concerns if Dr. Martin Schimpf, the current Interim President of Boise State University, went back to teaching. I have had a class from him and Dr. Schimpf’s desire for going back to teaching was widely and openly known; this was his original plan before taking the Interim University President spot. I also consider him a good Professor.

If you believe I wish to just pick on Boise State University, I have plenty saved up for its sister institutions as well. I examined the Transparent Idaho and online directories for Boise State University, Idaho State University, University of Idaho, Lewis and Clark State College, and College of Eastern Idaho (Eastern Idaho Technical College) over many years. I asked the State Controller’s Office many years ago, who is responsible for the listings from these educational institutions; the colleges and universities are. For each institution, both of these lists should be similar to each other, but there are some major problems involving both College of Eastern Idaho and Boise State University. I also believe that Boise State University, Idaho State University, and University of Idaho are not completely forthcoming in their listings. By the process of elimination, I would like to acknowledge Lewis and Clark State College’s good work.

Boise State University, Idaho State University, and University of Idaho convert all their salary listings into the equivalent dollars per hour rates and lists everyone as hourly employees; to my knowledge, no other listings on Transparent Idaho does this. Administrators and professors are salaried employees with annual contracts. I have informally inquired about Idaho State University and University of Idaho listings. Multiplying the rates with 40 hours per week and 52 weeks per year gets you extremely close to the actual salaries. Boise State University has perennially had over 200 professors listed simultaneously as being both full-time (i.e., Professor, Associate Professor, Assistant Professor) and part-time (i.e., Faculty and Adjunct Faculty); for those 200 plus professors, it is mathematically impossible to determine their annual salaries. Only if a person in that group makes more than the Governor, is it possible on Transparent Idaho to find that annual salary. Traditionally, these educational people also need special permission from the State Board of Education to have salaries higher than the Governor. Since salary contributions into PERSI is different for hourly versus salaried personnel, this could point to some major problems. The employee listings should allow a person to crudely estimate the entire PERSI contribution for that institution. Only Health and Welfare, the Department of Corrections, and the Department of Transportation have a comparable amounts of employees in state government.

Both College of Eastern Idaho and Boise State University have some problems when their online directories are compared with Transparent Idaho’s listings. There are two major reasons why the online directory and the Transparent Idaho listings do not match perfectly. First, our colleges and universities appear to only turn in their Transparent Idaho listings into the State Controller’s Office once a year; it is twice a year when a new university president is named. Therefore, employee turnover is one cause. Second, you may have some contact people with legitimate interests in the college or university that are not employees. For example, dining services might be contracted out to non-university employees. Religious entities may have a contact person; Idaho State University does this. I do question the judgment of Boise State University of listing standardized patients openly though.

Last year I presented a problem to a JFAC member involving College of Eastern Idaho. He wasn’t too happy and wanted to crawl out the room. I still want an answer. The online directory is literally the effective telephone and e-mail listings for those institutions and will reflect changes more readily than Transparent Idaho. The titles are more detailed than Transparent Idaho as well.

College of Eastern Idaho had 130 employees according to its directory. Transparent Idaho had around 510 listings for them; consolidating names of people with more than one job meant they had 380 employees. How did the College of Eastern Idaho account for this difference of 250 employees?

I don’t blame the JFAC member for wanting to leave the room. I even told him I would not want him to approach that problem by himself. Around fifteen years ago, a lone Boise/Garden City JFAC member that asked some hard bullet-point questions involving higher education problems caused some embarrassment. In the next election, he was afraid of being targeted and labeled as “anti-education.” He did not run for office again. This is the potential cost of due diligence when it comes to higher education monies. So who is profiting from this bad bookkeeping and how?

Boise State University had a different problem. In September and October 2018 I analyzed the Boise State University online directory and Transparent Idaho listings. Instead of their Transparent Idaho listing being larger than their online directory, it was significantly smaller. There were about 1350 listings on their online directory that were not on Transparent Idaho; that is about 1300 employees. About 120 employees on Transparent Idaho had move onto other endeavors (e.g., quit, fired, retired, found employment somewhere else). About 120 employees that work in the Morrison Center and 250 employees that work in the Taco Bell Arena are not listed on Transparent Idaho. The rest of the employees are scattered throughout the system that are not on Transparent Idaho. If it was something like 200 or 250 employees not listed on Transparent Idaho, I would consider this acceptable. This would take into account of turnover of employees and some expansion. Having over a thousand people not listed on Transparent Idaho is outright dishonesty.

I would also like to know which lawyers or law firms are on paid retainer for each of our public colleges and universities. Once you understand what Section 1 of Article I of the Idaho Constitution says, it will become clear. The name of a client is not confidential information for a lawyer; what the client speaks with the lawyer is confidential. Furthermore, these are public expenses in a taxing district. A friend of mine described what can happen in a small town when someone is getting a divorce. Essentially, one of the people getting the divorce visits all the law firms in town such that the other person has to go out of town for a lawyer. It normally takes a 100 miles or more to find a lawyer that might sue a college or university. Since a degree or certificate is considered property under the law, how can a student protect their property interests? When a college or university has contacted enough lawyers in the area to make it impossible to bring lawsuits, those students can’t defend themselves. “As we seek ways to reduce health care costs and protect the public, we also must make sure state government is reducing all unnecessary barriers to prosperity” is a quote from Governor Little’s State of State address. Will he apply this to higher education?

Legal

I prefer going back to first principles to see how far we have strayed. I have seen too many corrections to corrections of corrections that returning to first principles seemed the most prudent. This means examining the Idaho Constitution. Article I of the Idaho Constitution is entitled “Declaration of Rights.” These are your enumerated rights as an Idahoan. Section 1 of Article I of the Idaho Constitution reads as follows:

§1. Inalienable rights of man. All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.

Recently, I talked to a lawyer in an informal setting over multiple topics. One of my questions was “Who is a good constitutional lawyer in Idaho?” Most of us know when you get the answer “that is a good question,” it is usually a prelude to politely say, “I don’t know.” This “that is a good question” response is not relevant to it being a legal matter; I even had a friend use that response in a college thesis dissertation defense. To be a good constitutional lawyer, you should know the history and theory behind particular laws in a field of interest. I wanted to confirm an answer involving a more interesting question. “What happens if the Idaho Legislature passes a law that contradicts the Idaho Constitution?”

In 1959, Governor Bob Smylie found out what happens when the Idaho Legislature passes a law that violates the Idaho Constitution. This falls under Section 21 of Article I of the Idaho Constitution.

§21. Reserved rights not impaired. This enumeration of rights shall not be construed to impair or deny other rights retained by the people.

In essence, the State of Idaho gets sued, the Legislature gets reminded by the Courts that they do not have that power, and the Governor’s name goes on the embarrassing lawsuit. Governor Brad Little has only been in office for a few weeks and does not deserve a lawsuit with that type of indignity at the moment. If a matter of this nature does occur and is not addressed by the next legislative session, I would have no option but to tell people to sue the State of Idaho and then publicly criticize how public resources were wasted.

The reason I mention this is Section 11 of Article I of the Idaho Constitution.

§11. Right to keep and bear arms. The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in the possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of a firearm by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration, or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

As I understand the Idaho Constitution, it would be unconstitutional to have a residential rental agreement in Idaho that has a clause that prevents a person from owning a usable firearm (or another type of weapon) for self-defense. The state preemption law does a good job in preventing the majority of these situations, but this law does not apply to private citizens or entities and the state-supported colleges and universities. This is where the problem lies and is independent of a college or university being public or private.

When an entity takes away the ability for self-defense, that entity becomes more liable for the safety of those individuals. It would not matter if it was a prisoner in jail or a grade school student. Even a death-row inmate who dies in the non-prescribed manner dictated by a court could trigger a lawsuit, unless it was by natural causes. The problem is our colleges and universities have effectively taken away the right of self-defense for their students that live on their campuses while they will not take the liability for the same students when they are not on the campus property. In 2008, the U.S. Supreme Court had the Heller case and this case stated the right to self-defense is an individual constitutional right under the 2nd Amendment, especially in a residence. The important caveat addressed in the Heller case is “any regulation that effectively destroys the right is unconstitutional.”

Our universities and colleges like to counter with long-standing prohibitions involving “schools and government buildings,” which is also in Heller. That phrasing comes from the seventies and is in reference to what are usually non-residential buildings. In these cases, there is a mandatory governmental function that must occur in these locations. I hope nobody is living in their local IRS office. What mandatory function must occur in a college or university apartment that is essential to education?

Let’s start with Public Housing authorities; these are government buildings that are residential. Public housing residents discovered the aforementioned off-property liability argument and it has been successful in many court cases. It is generally considered that public housing would have greater standing in the Courts than our colleges and universities. In this sense, our colleges and universities are acting as landlords and not like educating entities called schools. If colleges and universities wish to regulate non-residential areas, this is a different manner and is more consistent of what was implied in the “schools and government buildings” prohibitions.

Now let’s address the school aspect; under the Idaho Constitution, colleges and universities are not schools. In the late sixties and early seventies, the U.S. Supreme Court differentiated schools and colleges. Schools borrowed some of the parent’s power in a philosophy called “in loco parentis” to manage students, which are minors. Colleges use contract law since their students are adults. Over two-thirds of the states in the union had free school clauses in their state constitutions and used these court cases to change their funding structures. Colleges and universities cannot have it both ways. For funding purposes they are not schools; for residential purposes they are schools. Public college students could sue under Section 1 of the 14th Amendment because those students were forced to waive a constitutional right, self-defense, to receive governmental services, namely subsidized housing.

Idaho law has an effective prohibition on possessing firearms in their public on-campus residences. In the seventies, owning a firearm and storing it in your on-campus residence was not a problem. This change did not occur until the nineties in Idaho university policies. Furthermore, current Idaho law prohibits anyone from suing the universities and the State Board of Education over gun matters; this violates Section 1 of Article I of the Idaho Constitution automatically as well as the 14th Amendment of the United States Constitution. You cannot deny “due process” is the point.

I will have to say the University of Idaho did do some “due diligence” on returning to the state constitution when writing up their new policies, but they needed to do more. Unfortunately, it looks like they only examined Section 11 of Article I. All the colleges and universities missed prohibitions on items like mace and pepper spray, which are usually used for self-defense, actually violates Section 1 of Article I of the Idaho Constitution. The University of Idaho correctly put in a general prohibition on asking who has a concealed carry permit and firearms. The rest of Idaho’s public higher education institutions have not; this is a problem. Technically, a university (or college) employee could violate the constitutional rights of its students, and the university can claim they have no recourse because the employee did not violate university policy.

Now my fun suggestion for Governor Brad Little is to take part in the interviewing process of candidates for the University of Idaho and Boise State University presidents. That may not sound like fun until you understand what conditions I would impose. I had some inspiration when Senator Risch had to interview a United States Supreme Court candidate. Section 23 of the Declaration of Rights (Article I) in the Idaho Constitution involves hunting, fishing, and trapping. Take the candidates bird hunting and ask, “How will you as a university president protect Idahoan rights?” The second question I would have Governor Brad Little ask, “Have you read the Idaho Constitution to see what restrictions on policy will occur at your university?” I do not see Governor Little as a person that would do something for just show or glory. I hope he proves me right.

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