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Sunshine Laws in University Presidential Searches

While Mr. Grant was a law student he wrote a paper regarding the law and higher education.  The full version of his paper can be found here:

Sunshine Laws in University Presidential Searches.

The introductory section is reproduced here:

“It is often said that selecting a new president is the most important duty entrusted to a governing university board.[1] Thus, most presidential searches at universities are generally conducted using the same time-tested, similarly-formulated process.[2] This process in most cases begins almost immediately following the announcement that the current president is stepping down[3] and may continue for up to one year or more.[4] The search for a successor is almost always conducted on a nationwide scale.[5]

In nearly all cases, this process begins with the governing board’s appointment of a search committee, typically composed of stakeholders with constituent interest in the university, such as representatives from the governing board, faculty, staff, students, alumni and other concerned community members.[6] The search committee is charged with the responsibilities of determining search criteria, carrying out the search, narrowing the list of candidates to a number which will be manageable for the full governing board, and then passing recommendations on to the full board for final review and determination.[7] Today, many committees also employ a professional search firm, to perform the day-to-day logistics of a country-wide search.[8] Duties of the “headhunter” normally include initial communication with potential candidates, conducting of preliminary background checks, and general document management.[9]

In most searches, people are added to the pool of contenders through both self-asserted applications and being nominated by others.[10] This broad search, at major institutions, typically produces a pool of candidates with far more nominees than applicants.[11] Where so many candidates may exists, the process can of course take a lot of time; however as one search veteran noted, “It is not difficult to weed out the many who are unsuitable”.[12] He said continuing, “It is more of a problem where the search and selection process must be conducted in the open and candidates cannot be so summarily disposed of as can be done when committee meetings are held in private.”[13] (This idea will of course be better developed later in the paper.)

In “weeding out” or narrowing the field of candidates to those best qualified for the position, the committee will screen candidates’ written dossiers and in many cases conduct interviews and background checks.[14] This screening process reveals those candidates who will be forwarded on to the board; those candidates who are considered “promising” and “well qualified to serve as president at the particular institution.”[15]

Finally, the school’s governing board will scrutinize and interview the finalists as recommended to them by the search committee.[16] “The normal procedure at this point is to make a thorough investigation of the background and professional performance of the [remaining] individuals.”[17] Although most interviews are privately conducted,[18] many candidates are invited to visit the campus, where they have the opportunity to meet with and answer questions from the schools faculty, staff and students, along with other representatives from the community.[19] After completing the above processes and receiving feedback on the campus visits, the institution’s governing board makes its final decision by selecting one of the finalists as president.[20] While the process, as outlined above generally applies to most public university presidential searches, the scope and scale of public disclosure varies from state to state and from institution to institution.[21]

The full version of his paper can be found here: Sunshine Laws in University Presidential Searches.

[1] John W. Nason, “Presidential Search: A Guide to the Process of Selecting & Appointing College & University Presidents,” Association of Governing Boards of Universities and Colleges (1984) (citing Presidents Make a Difference: Strengthening Leadership in Colleges and Universities (1984), where “Clark Kerr, former president of the University of California and chairman of the former Carnegie Commission on Higher Education, contends that selection is the second most important responsibility, the first being the creation of a presidential office that is viable and attractive.”).

[2] These processes are described in a number of books, journal articles and court cases. See, e.g., Nason, supra note 5; Charles N. Davis, “Scaling the Ivory Tower: State Public Records Laws and University Presidential Searches,” 21 J.C. & U.L. 353 (Fall 1994); Sherman, supra note 2; Nick Estes, “State University Presidential Searches: Law and Practice,” 26 J.C. & U.L. 485 (Winter 2000). See also, the Ariz. Bd. of Regents case where Appendix A gives a detailed description of the process. Ariz. Bd. of Regents v. Phoenix Newspapers, Inc., 806 P.2d 355 (Ariz. 1991).

[3] Supra note 6.

[4] Nason, see supra note 5 at 13. One survey revealed the amount of time taken to conduct presidential searches ranged between two and twelve months for four-year public schools with a median time of seven and a half months. Searches at two-year public schools took between one and six months with a median of four and a half months). However, “[t]he longer the search and screening, the greater the danger of losing good candidates, who are likely to be sought after by other institutions or who become disaffected with the uncertainty caused by long delays.”. See id. at 34.

[5] Estes, see supra note 6 at 489.

[6] Supra note 6. See also, infra section IV.3.B.

[7] Supra note 6.

[8] An interesting question is whether the benefits of hiring a professional search firm actually outweigh the costs. See infra section IV.3.C. In the 2002 presidential search at UT, school officials paid $90,000 for “headhunter” services. J.J. Stambaugh, “Gaps in UT Search,” Knoxville News-Sentinel, Aug. 10, 2003. The general rule for major professional search firms is to charge between 30% and 33% of the first year’s salary of the appointee. Nason, see supra note 5 at 15. The benefits are much harder to estimate.

[9] Id.

[10] Id.

[11] Estes, supra note 6 at 489. This article used as an example, the 1990 presidential search at Arizona State University, where of 256 individuals being considered, only fifty had actually applied themselves. (See Ariz. Bd. of Regents, 806 P.2d 348). Id.

[12] Nason, supra note 5 at 34.

[13] Id.

[14] Id. at 43 to 57.

[15] Id.

[16] Id. at 59. Nason recommends forwarding five to eight candidates to the governing board for final consideration. See also, Estes, supra note 6 at 490. Estes says three to five candidates is normal. Id.

[17] Nason, supra 5 at 60.

[18] Kenner, supra note 4. See also, Estes, supra note 6. Footnote 16 of Estes’s article points out that Florida’s open meeting act requires interviews to be held in public. Id. See, Wood v. Marston, 442 So.2d 934 (Fla. 1983) (requiring all meetings of search committee for law school dean to be in the open). From 1993 to 1999, Michigan required the same. See Booth Newspapers, Inc., v. Univ. of Mich. Bd. of Regents, 507 N.W.2d 422 (Mich. 1993); and Federated Publ’ns., Inc. v. Bd. of Trs. of Mich. State Univ., 594 N.W.2d 491 (Mich. 1999).

[19] Estes, supra note 6 at 491. Mr. Estes’s survey of the current search processes at all of the fifty states’ flagship universities reported the finding that nearly seventy percent of those schools included a public campus visit, for between two and six finalists, as part of the search process. Id.

[20] Id.

[21] See supra note 6.