Rutgers Trustees Retain High-Powered Counsel to Challenge Restructuring Plan

Tara Nurin | June 18, 2012 | Education
Former Acting U.S. Solicitor General could raise constitutional challenge if education restructuring is voted into law

Save R Camden
The Rutgers University Board of Trustees has retained former Acting U.S. Solicitor General Neal Katyal as counsel in its mounting legal challenge to New Jersey’s controversial higher education restructuring legislation. NJ Spotlight has learned that the trustees hired Katyal late last week to guide them as they fight provisions of the legislation and, if the dual Senate and Assembly bills pass into law, challenge them on constitutional grounds.

Katyal is a highly lauded constitutional attorney now in private practice who successfully defended former Attorney General John Ashcroft before the Supreme Court on charges of abuses in the war on terror. He also defended a Guantanamo Bay detainee in another Supreme Court case that determined that the secret military tribunals sought by President George W. Bush were in fact illegal.

He is expected to base his case on the premise that the law would violate contractual agreements made between the trustees and the state in 1956. According to a trustee who did not wish to be named, Katyal is charging the boards a discounted fee of $550 per hour, which the trustees will pay for with funds they’ve kept since before the 1956 act, when Rutgers was a private institution.

The trustee said, “Retaining Katyal is showing legislators that we take this thing seriously. Literally no one supports this legislation except for [South Jersey Democratic powerbroker George] Norcross and the people who work for him. We can’t let them steamroll us.”

Political Influence

Trustees and governors maintain that the 1956 act guaranteed them the sole right to protect the university from political influence and to be the exclusive entities entrusted with making decisions for the university of the magnitude proposed by the legislation.

According to the trustee, a legal precedent for their case was set in 1819, when Daniel Webster won the famous Trustees of Dartmouth College v. Woodward Supreme Court case that defended Dartmouth College from forced encroachment by the state of New Hampshire.

“There’s no way we’re going to lose,” the trustee said.

Adam Scales, a Rutgers-Camden law professor who organizes much of the opposition to the legislation on behalf of the Save Rutgers-Camden organization, said “Proponents of this legislation have had a cavalier attitude about Rutgers University suing. The selection of Katyal, if true, should help correct that attitude promptly. He is one of the foremost constitutional litigators in the U.S. He is going to help Rutgers assert and defend its constitutional rights to the full extent of the law.”

Trustees and governors wanted to be sure to retain Katyal before the Senate Budget and Appropriations Committee meets tomorrow to hear testimony on the bill and review amendments expected also to be introduced tomorrow.

An Overwhelming Endorsement

In related news, in the latest show of nearly complete solidarity between South and Central Jersey academics, Rowan University’s faculty senate has overwhelmingly endorsed a resolution to oppose the legislation’s call to create a joint governing board to oversee affairs at Rowan and Rutgers-Camden. By a vote of 38-2, members of the senate approved strongly worded language Friday that challenges the act in general and the joint board in particular, while endorsing a similar position adopted by both of Rutgers’ University’s governing boards several weeks ago.

The resolution reads, “While claiming to improve governance structure for Rowan and Rutgers-Camden, this legislation will instead diminish the autonomy and potential growth of both universities.”

A representative from Rutgers addressed the body before the vote, marking the first time members from the Rutgers and Rowan communities have officially comingled. Rutgers-Camden Faculty Senate President Andrew Lees told the crowd assembled at the closed meeting that he favors new cooperative efforts between both schools but not by “legislative fiat” because a joint governing board “would violate the maintenance of key principles of academic self-governance at both our campuses.” Lees applauded the Rowan faculty’s assertiveness and warned that an outside board would likely be dominated by politicians. Leeds also thanked Rowan president Ali Houshmand for reiterating this position in “forceful” testimony at a hearing of the Senate Higher Education Committee Thursday.

According to a Rowan faculty member who did not wish to be named, some faculty were concerned that the resolution’s wording could be mistaken for acquiescence and that any assent to a joint board could eventually lead to its influence growing beyond its health sciences mandate. This anonymous source said there had been no consensus among faculty members for the first five months of the year when Gov. Chris Christie and George Norcross were promoting the idea of a full merger between the two schools. But when Democratic legislators introduced a bill that failed to appease furious Rutgers students and faculty by instead creating a joint oversight board, that’s when Rowan’s faculty, administration, trustees, and teachers’ union solidified their opposition.

The resolution obliquely references this transition in its first sentence: “Rowan faculty and staff have consistently demonstrated restraint concerning the speculation and controversy regarding the possibilities of a reorganization of higher education in New Jersey. However, we, the Rowan University Senate, representing the institution’s faculty, professional staff, librarians, and coaches, now believe it is time for our voices to be heard.”

The final paragraph alerts the bill’s sponsors that the Rowan senate — an elected board that advises the administration in a non-binding capacity — awaits changes that assure the school of continued autonomy and restrict the role of the joint board to one with authority only over new collaborative projects between both institutions, with an emphasis on the health sciences. According to the faculty member, neither the senate nor the American Federation of Teachers local chapter that represents the same constituents relish the notion of any joint board but endorsed it as a silent concession to the bill’s authors.

Observers suspect that amendments being added to the Senate version of the bill in time for the budget committee hearing could consent to opponents’ demands by limiting the joint board’s powers, especially in light of the fact that co-sponsor Sen. Donald Norcross (D-Camden) is already saying — incorrectly — that’s what the current version of the bill calls for.

Although the bill grants the joint board “full authority over all matters concerning the supervision and operations of Rowan University and Rutgers University-Camden,” Norcross told NJ Spotlight after testifying before the higher education committee Thursday that the joint governing board is designed to be a board governing collaborations, whose fiduciary authority would be over joint projects exclusively. “Rutgers-Camden and Rowan are two separate institutions,” he said. However, he did allow for the possibility that “looking down the road,” if the joint board wanted to create a nursing school at the Cooper Medical School of Rowan University, for example, it could choose to do so.

An Open-Ended Possibility

This open-ended possibility scares many opponents, since a board comprising a majority of gubernatorial appointees, as is proposed, could leave it open to political influence. In fact, throughout the six-month debate on restructuring New Jersey’s public colleges and universities, many critics have accused George Norcross of appropriating the federally accredited and far more respected Rutgers-Camden as a ploy to attract grants and resources to Cooper University Hospital, of which he is chairman of the board.

Neither Norcross brother responded to a request for comment but bill co-sponsor Sen. Joseph Vitale (D-Middlesex) denied Friday that he and his colleagues had made any determination as to amendments regarding the joint board. Saying that they’re “discussing proposals regarding the issue of a joint board so that there’s a greater buy-in among individuals who will be running the institutions,” he conceded that if one of his two co-sponsors wishes to change the structure of the board, “we’ll make it so. It’s an idea worth considering.”

Senators do seem to be fairly certain that at least one amendment will address union concerns. Speaking after the higher education committee meeting, Sen. Norcross said he and his co-sponsors were planning to strengthen language concerning collective bargaining agreements.

Editor’s Note: An earlier version of this story reported that the boards of trustees and governors retained Katyal, but further reporting could not confirm the Board of Governor’s involvement.