Amendment 33 Impacts on Higher Education, Generally
Ark. Const. Amend. 33, § 2 applies to charitable, penal or correctional institutions and institutions of higher learning of the State of Arkansas (Ark. Const. Amend. 33, § 1) and provides:
2. Abolition or transfer of powers of board or commission - Restrictions.
The board or commission of any institution, governed by this amendment, shall not be abolished nor shall the powers vested in any such board or commission be transferred, unless the institution is abolished or consolidated with some other State institution. In the event of abolition or consolidation, the new board or commission shall consist of a membership of five, seven, or ten. (emphasis added.)
Both the legislature and institutions of higher education in the state have loosely interpreted this to mean that institutions of higher education have a great deal of autonomy and independence. However, that notion is not fully supported in the law. The legislature has consistently maintained its control over appropriations, administrative, and budgetary matters. See Ark. Att'y. Gen. Op. No. 2000-07 (February 9, 2000). In fact, it has from time to time imposed restrictions on the use of tuition and fees by these institutions that have never been challenged. See Ark. Att'y. Gen. Op. No. 2002-119 (May 8, 2002). Further, in Hooker v. Parkin, 235 Ark 357, S.W.2d 534 1962), the Arkansas Supreme Court held that the legislature "has the right to cloak [its] appropriations with such safeguards and restrictions as it may determine to be necessary for the preservation of the welfare of the people of this State."
Although an Attorney General opinion is not primary law, the opinions have set out a standard test for whether a legislative act is constitutional under Amendment 33 - one which is applied on a case by case basis.
In making an Amendment 33 analysis, the Attorney General has identified two key words in amendment: "vested" and "transfer". The term "to transfer" is easily defined in Black's Law Dictionary as "to change over the possession or control of". Therefore, the Attorney General has opined that a "transfer" occurs when a vested power is shifted from the institution's board to the legislature. Ark. Att'y. Gen. Op. No. 2000-07 (February 9, 2000).
The analysis then rests on whether the power was "vested". The Attorney General has opined that if the power meets both of the following tests, the power is a "vested" one:
(1) Is the power one that the institution's board has traditionally exercised?
(2) Does the power indeed involve the making of substantive policy?
A final consideration noted by the Attorney General is that any legislation that chips away at the public's intent in adopting Amendment 33 would likely be viewed by a court as unconstitutional. The Attorney General views the public's intent to be to prevent the legislature's intrusion into university affairs. Ark. Att'y. Gen. Op. No. 2000-07 (February 9, 2000).
Thus, although the autonomy of boards of institutions of higher education is strengthened by Amendment 33, particularly when the power is vested and involves the institution's authority over fundamental educational policy, the legislature still exercises authority over appropriations and budgetary matters.
In 1995, the Board of Trustees of the University of Central Arkansas filed suit against the State Board of Higher Education in the Faulkner County Circuit Court, challenging the authority of the State Board of Higher Education to approve specific programs offered by the University under Amendment 33, Board of Trustees of the University of Central Arkansas v. State Board of Higher Education, CIV-95-201, (1995). The Circuit court found, in it's order dated May 15, 1996, that A.C.A. § 6-61-207, which gave the State Board of Higher Education the authority to establish the role and scope of programs at institutions of higher education, was unconstitutional in so far as it violated Amendment 33 by transferring powers of the Board of Trustees to the State Board of Higher Education. The State Board of Higher Education appealed to the Supreme Court of Arkansas, but the matter was settled before the Supreme Court ruled on the case and the Circuit court order was vacated on October 16, 1997.
Does Amendment 33 to the Arkansas Constitution impact the legislature's ability to direct how institutions of higher education can spend state funds?
Broadly speaking, if the restriction on use of funds is a budgetary matter, then the legislature has already exercised the power to impose the restrictions. However, just about any other question would involve the analysis described above, as applied to a particular board. Broad restrictions on how institutions of higher education can spend their funding would likely incite a constitutional challenge. Whether the legislature may constitutionally restrict the use of state funds by institutions of higher education is not settled in the law and would have to be determined on a case-by-case basis.
On the other hand, the Attorney General has opined that a "consensus among the legislature and the state's various public institutions of higher learning that the legislature has discretion … to condition a particular institution's use of its funds, regardless of whether these funds stem from legislative appropriations or tuition, so long as the condition does not compromise the institution's qualified autonomy in setting fundamental educational policy. Ark. Att'y. Gen. Op. No. 2002-119 (May 8, 2002).
Does Amendment 33 to the Arkansas Constitution prohibit the Arkansas Higher Education Coordinating Board from controlling or limiting education programs offered by two-year and four-year colleges and universities?
It is likely that the ability of a board of trustees of a four-year college or a community college to establish educational programs is a "vested power" within the meaning of Amendment 33 and cannot be altered or restricted. Educational programs of vocational-technical schools likely my be restricted or changed.
Whether the General Assembly or the Higher Education Coordinating Board could directly restrict new programs in four-year schools may depend upon existing authority of the particular board. For example, the boards of trustees of the University of Arkansas and University of Central Arkansas each have the authority to establish the courses of study at their respective schools. Ark. Code Ann. §§ 6-64-101 & 6-67-105. If as the Attorney General noted in previous opinions the power to grant degrees is the "lifeblood" of a college, then that power would be considered "vested" under Amendment 33 and not subject to transfer.