Adopting Ohio Senate Bill 5: The Role of the Public University Presidents
Gelman, Sheldon, Albany Law Review
The legislature is expected to address pension reform early. Language is being developed and not yet available; major changes ... are being discussed [by Ohio's political leadership--changes that will require employees pay a portion of the employers' contributions]. This will likely be a major issue for faculty and staff. There may be opportunities for universities as employers to save money, but it will come out of the wallets of employees ... The Ohio and regional chambers of commerce has issued a report that recognizes the advantages of defined benefit [pension] plans and a retire/rehire policy [that allows senior university administrators to simultaneously receive a full pension and their full salary] ... (1)
In March 2011 the Ohio General Assembly passed Senate Bill Five ("S.B. 5"), a measure that would have banned collective bargaining by public university faculty members and severely limited bargaining rights for other public employees. (2) Ohio voters decisively rejected S.B. 5 in a referendum election eight months later, preventing it from taking effect. (3) In response to public records requests I have received thousands of pages of documents that describe the role of public university presidents in connection with S.B. 5. Based on this newly available information, this article examines the actions, and analyzes the arguments, of senior university officials.
Together with similar collective bargaining legislation in Wisconsin, S.B. 5 triggered a national debate about labor policy and the role of the middle class in American life. (4) Besides those general concerns, however, the events hold special significance for our understanding of universities. S.B. 5 singled out university faculty for the most stringent treatment of any group and it did so via a provision--known as the "Yeshiva amendment"--that Ohio's public university presidents drafted and promoted in secret. (5)
The original version of S.B. 5 would have eliminated collective bargaining for public employees in Ohio, including employees of the state's public universities. (6) In late February 2011 legislative leaders substituted an amended bill, one that reinstated bargaining but limited its permissible subjects and effectively allowed public employing bodies to impose their own last offers at the end of process with no further recourse by employees. (7) The Yeshiva amendment further amended the bill by reclassifying university faculty as managers who were ineligible for bargaining, provided only that the faculty participated in curricular, faculty hiring, or similar decisions. (8) Since every university faculty member does those things, the amendment effectively banned bargaining by faculty. (9) The amendment took its name from NLRB v. Yeshiva University, a United States Supreme Court decision holding that private university professors qualified as "[s]upervisors and managerial employees" under the National Labor Relations Act and were therefore excluded by the Act from collective bargaining. (10)
Ohio's university presidents effectively replaced traditional conceptions of the university, the faculty, and the administration with a standard labor law model, one restricted to the categories management and employees--both of which operate under presidential direction. (11) The presidents did so, I argue, in an effort to transform higher education institutions into what Benjamin Ginsberg calls "the all-administrative university." (12) Consistent with that view, the presidents identified their institutions with themselves, equating presidential authority with institutional freedom and creativity. (13)
This article has four parts. First, it chronicles the presidents' actions, which they took pains to conceal from public view. The presidents acted through the agency of the Inter-University Council ("IUC") of Ohio, a statewide association of public university administrations that represented the presidents in extended discussions with the Governor's office and legislators. …