University Boards as Public Decision-Makers : Clarifying Representative Governance, Obligations, and Enforcement

This article challenges the view that university governance at the board level may be understood through the legal principles that apply to business corporations, the governance of which is dominated by shareholders alone. Conversely, most Canadian universities are legally required to follow a stakeholder governance model, in which various constituencies are entitled to representation on the board. The author argues that the boards of most Canadian universities are public decision-makers because they oversee institutions that governments consider to be public and task with policy objectives. Canadian universities also have privileges and links to government that business corporations rarely have, and their boards routinely make policy decisions and exercise quasi-judicial power based on statutory authority. When universities are viewed as public institutions, it becomes clear that board members are permitted to advance that which their constituents believe to be in the best interests of the institution. At the same time, this public law analysis recognizes that representative governance cannot be used to harm the university. The author identifies five obligations of board members and demonstrates that these obligations are legally enforceable by a potentially wide array of parties