Governing Boards Change Composition of Overseers
As three newly elected members nominated by petition and elected after campaigning vigorously as part of the Harvard Forward slate joined the Board of Overseers, it and the Harvard Corporation have voted to enact changes in the election process and the composition of the Board itself; to examine campaigning for election to the Board; and to encourage more representation of younger graduates in University governance in various ways. The changes, following the findings of a special committee created by the two governing boards earlier this year, and adopted this past weekend, include:
- Limiting petition-nominated Overseers. The boards voted to modify “the current nomination and election system so that the Board of Overseers would always include a strong preponderance of members who have emerged through a nominating committee process.” Although the petition mechanism for candidates to put themselves forward for election (in existence for more than a century) will continue, “at an given time, [emphasis added] the Board as a whole should include a maximum of six individuals who have qualified for the Overseers ballot by petition and been duly elected.” Thus, at any given time, no more than one-fifth of the 30 elected Overseers (Harvard’s president and treasurer also serve ex officio) would have gained election following nomination by petition. If six petition candidates have already been elected and are serving as Overseers, the petition mechanism will become inactive; then, [emphasis added] “the opportunity for individuals to qualify for the ballot by petition would resume upon the departure of one or more petition-nominated Overseers from the Board.”
- Monitoring and perhaps regulating formal campaigning. The governing boards plan to “monitor” formal campaigning for election to the Board of Overseers, including during the 2020-2021 nomination and election season, “to determine [emphasis added] whether a more structured and prescriptive approach to addressing campaign activities should be adopted in the future.” The special committee’s report emphasizes “our concern that money—the raising and spending of funds by Harvard alumni or others in order to secure positions on the Board of Overseers for themselves or others—not become a significant factor in the Overseers elections.” The committee suggested that the governing boards “pay particular attention to the following trends and practices” in the context of the elections: raising or accepting funds to advance a candidacy; accepting or seeking campaign services from other parties who spend or raise money to advance a candidacy; or candidates’ personal expenditures for such purposes.
- Enhancing participation of recent graduates in governance. The boards also adopted the committee’s recommendation that the nominating committee be encouraged to seek “outstanding recent graduates” (perhaps those within a decade of earning their degrees) as Overseer candidates; that the Overseers’ visiting committees to departments, schools, and other units and programs (the Harvard Library, Harvard Art Museums, athletics, and information technology) each include a recent graduate; and that the Joint Committee on Alumni Affairs and Development (an Overseers-Corporation committee) also consider recent graduates as members (not all of whom are members of the Board of Overseers or the Corporation).
The Special Committee
Since 2015-2016, the Board of Overseers has maintained an elections working group to examine its processes; outcomes of that work include the 2016 decisions, following the “Free Harvard Fair Harvard” petition slate (which opposed affirmative action in admissions), to:
- move from paper ballots to online voting effective in 2018-2019;
- require that Overseer candidates hold a Harvard degree;
- enable online petitioning; and
- raise the threshold for qualifying by petition from about 200 signatures to 1 percent of eligible voters in the prior election (then, 2,650).
Earlier this year, the Corporation and the Board of Overseers formed a special committee to, in its words, “consider additional matters related to the annual elections for Overseers.” Its members include among them a variety of experiences in higher-education governance; the Harvard Alumni Association (HAA) and its nominating committee, which identifies Overseer candidates; and service on the Board of Overseers:
- Susan Carney ’73, J.D. ’77, judge on the U.S. Court of Appeals for the Second Circuit since 2011, former deputy general counsel at Yale, and past president of the Board of Overseers;
- Paul Choi ’86, J.D. ’89, past HAA president and a current Overseer;
- Margaret H. Marshall, Ed.M. ’69, Ed ’77, L ’78, chair, former Harvard general counsel, former senior fellow of the Yale Corporation, and former chief justice of the Massachusetts Supreme Judicial Court (and past president of the Harvard Magazine Inc. board of directors);
- Walter H. Morris Jr. ’73, M.B.A. ’75, past HAA president;
- Tracy P. Palandjian, ’93, M.B.A. ’97, chair of the HAA nominating committee (which nominates Overseer candidates), and past vice chair of the executive committee of the Board of Overseers; and
- Margaret M. Wang ’09, past HAA president.
Its 20-page “Report to the Harvard Governing Boards on Aspects of the Board of Overseers,” dated July 31, provides a useful primer on the historic evolution of Harvard’s unusual form of governance, with the fiduciary Corporation and the “complementary” Board of Overseers, which has as its chief responsibility the academically oriented “visitation” process, “Harvard’s primary means for periodic external review and assessment of the academic departments of the Faculty of Arts and Sciences, Harvard College, the University’s various graduate and professional schools, and other major units.”
Which nominees can serve. The intellectual heart of the report is a section on “Good Governance Principles for Private Universities.” Observing that “The regulatory, financial, and political environment in which colleges and universities now operate has become increasingly complex,” the report cites the essential role of governance in ensuring that the institution balances “a sense of [its] enduring purpose and values with its capacity to adapt and plan for the future.” The governing board “must be responsive to unexpected challenges affecting [emphasis added] the academic enterprise, and should from time to time review aspects of its composition, structure, and practices to ensure that it continues to carry out its responsibilities effectively.”
Consistent with these aims [emphasis added], “The composition of a university board should reflect the fundamental principle that the board and its members are responsible for serving the best interests of the university as a whole. It should be composed of individuals who have the experience and attributes conducive to effective board membership, and who are prepared to apply their time, skills, and experience in service of the institution and its mission, not to advance their own interests or those of other organizations, groups, or individuals.”
The latter is the bedrock principle for what follows. In searching for board members who have financial, legal, and higher-education expertise, understand complex organizations, ask important questions, and embody the highest ethical standards, the report notes that nonprofit organizations, including colleges and universities, have elaborated standards for effective governance. In Harvard’s case, the report observes, the 13-member nominating committee assembled by HAA’s executive committee plays a central role in identifying candidates with diverse expertise and experience pertinent to the University’s needs—and the Board of Overseers’ own need to have broad representation and experience among its members. Harvard also enables candidates to qualify for the ballot by petition. All candidates, however they reach the ballot, certify that they will abide by the “Expectations of Service,” which address meeting attendance, preparation, active participation, respecting confidentiality, and other matters.
The Board, the committee report observes, is “not a public body whose members are intended to be chosen through vigorous competition between partisan advocacy groups, but rather a governing board of a private university.”
In this respect, the report continues, a review of practices for selecting such boards at peer institutions reveals that
all share features that present a sharp contrast to the existing system for composing Harvard’s Board of Overseers. Specifically, all of the systems we have examined are designed to ensure that the governing board will include a strong preponderance of members who have emerged from a deliberative process in which a duly appointed nominating committee (of the alumni association or the board itself) has considered the board’s distinctive needs as well as individual candidates’ expertise, experience, and other attributes. To our knowledge, based on our consideration of peer practices, only in the case of Harvard’s Board of Overseers is it possible that all of the board seats—except the two ex officio positions—could be secured by individuals who have not been nominated through such a deliberative process.
That is to say, under Harvard’s system, successive petition slates could quality for the ballot and present themselves as candidates for the Board of Overseers—and could, in time, become a majority, or all, of the elected members. In the current, highly polarized society at large, it is conceivable, therefore, that groups of alumni, acting on their own or spurred by outsiders, could pursue election as Overseers on an organized basis, “with the stated intention of advancing specific policy outcomes on contested issues facing the University or higher education more broadly.” One such effort was the 2015-2016 “Free Harvard Fair Harvard” campaign. Another, of course, is the recent Harvard Forward campaign, which pursued an agenda of divestment of fossil-fuel investment in the endowment, other changes in investment policy, academic investment in research and teaching on climate change, and changes in governance (including setting aside Overseer seats for younger alumni).
The authors of the report describe their concern about this development this way: “Whatever the merits of a particular petition slate’s specific policy objectives—and whether a given campaign’s focal points involve admissions policy, investment policy, alleged speech codes, student disciplinary procedures, or other issues on which Harvard alumni may have strong and varied views—we are concerned by the prospect that Overseers elections will increasingly resemble professionally organized and externally funded political campaigns for a group of candidates acting in concert, focused more on advocacy for particular policy outcomes than on the expertise, experience, and qualities of individual candidates.”
Although that language seems focused on the logistics of campaigning, at its heart it addresses the difference between governance and policymaking, with the former the responsibility of governing boards, and the latter the responsibility of the University’s leaders and administrators (who report, through the president, to the Corporation). A Board of Overseers focused on opposing or favoring the consideration of race in holistic admissions, for instance, or favoring or opposing fossil-fuel divestment, in this perspective, is not performing its governing role—on which the academic mission of the institution ultimately depends.
And a Board of Overseers elected through issues mobilization and campaigning is likely to be deprived of the service of valuable, expert, experienced members who will be deterred from standing for election when invited by the nominating committee, the report says, “if they perceive that faring well in the election entails mounting extensive, time-consuming, and potentially expensive campaigns akin to running for public office.”
In the longer perspective:
[W]e are concerned by the prospect that, without a change in the current system, the Board might before long come to be populated more by members of issue-driven caucuses, sponsored by advocacy groups, and less by individuals who have emerged from a deliberative process in which a nominating committee focuses on their capacity to fulfill the broad-ranging responsibilities of board service. We regard these concerns as sufficiently significant to warrant a change in current methods.
Hence the recommendation, now accepted by the governing boards, to limit service at any one time to no more than six Overseers nominated by petition, and to suspend petitioning for a place on the ballot at any time when six such Overseers are in place.
Concerns about campaigning. Given the 2015-2016 and 2019-2020 petition slates (and other petition efforts earlier in the millennium), the committee again “highlighted the episodic yet apparently growing tendency for the Overseers elections to take on features of political campaigns for public office, resembling those one might expect for a public body as distinct from a governing board of a private university.” The report noted that organized campaigns
might appear to be predictable, insofar as contested elections and vigorous campaigns commonly go hand in hand. But the object of our attention here is not the arena of avowedly partisan, party-backed, PAC- supported campaigns for public office. It is the composition of a governing board of a private university. We believe that the sound operation of such a board is likely to be impaired, not improved, if election outcomes come to depend on the raising and spending of funds, the engagement of campaign staff, the mounting of extensive media, email, and social media campaigns, the use of online advertising, and the framing of Overseers elections largely as referenda on specific policy questions.
The report cites two grave concerns. First, “Prospective candidates who have professional backgrounds and personal attributes conducive to outstanding board service might well be inhibited from standing for election” if they had to organize and fund a campaign. Second, “Alumni voters might well be induced to cast their votes with less focus on the professional experience and personal attributes that individual candidates would bring to bear on the University’s overall governance—including the Overseers’ distinctive responsibility in regard to Harvard’s academic enterprise—and more on whether candidates or their campaign staff have marshaled the organization and resources to appeal directly and repeatedly for voters’ support, or on whether candidates have declared a favored position on one policy issue or another.”
That said, the committee was not ready to wade into the messy business of regulating speech—or seeming to proscribe it. The report is at pains to “recognize and fully support Harvard’s deep commitment to free and open expression and lively debate among people with different points of view. That commitment extends, of course, to Harvard’s alumni, whose engagement with issues and varied points of view are a source of institutional vitality and strength.”
But given the chance that “the sound governance of the University risks erosion if Overseers elections come to be seen less a means to consider which individuals would be best suited to perform the Board’s governance role, and more a means for alumni to register their views on contested questions of policy,” the members recommended that the governing boards monitor future elections to determine whether they should adopt “a more structured and prescriptive approach to addressing campaign activities.”
Recent graduates. Finally, while rejecting any formulaic set-aside of Overseer seats for recent graduates (or confining the election of certain Overseer slots to a cohort of younger graduates), the committee embraced measures to engage recent graduates and their expertise—as nominating committee candidates for election as Overseers, and as members of the visiting committees and in the affairs of the Corporation-Overseers joint committee.
In a letter dated yesterday, R. Martin Chávez, president of the Board of Overseers, and William F. Lee, the Corporation’s Senior Fellow, thanked the committee members for their report and “thoughtful recommendations—which the governing boards, at our September meetings, have now voted to approve.” They emphasized the central focus on governance:
We understand the committee’s report and recommendations to be rooted in a fundamental concern for good governance—particularly, the concern that Harvard’s Board of Overseers be constituted in a way that both sustains the tradition of alumni participation in annual Overseers elections and ensures that the Board’s members have the breadth and depth of expertise and experience essential to fulfilling the Overseers’ distinctive role in Harvard’s unusual two-board system of governance. That role, as you know, includes primary responsibility for directing the visiting committee process, the University’s principal means for periodically reviewing and assessing the work of the schools and Faculty of Arts and Sciences’ academic departments.
Your report emphasizes the indispensable role that nominating (or governance) committees generally play in composing the boards of nonprofit institutions, including those of private colleges and universities. We share your view that, as a matter of good governance, such boards should consist predominantly of members who have emerged through a nominating committee process—one in which a designated group has responsibility for carefully reviewing and assessing a wide range of possible candidates, with a principal focus on the distinctive role and particular needs of the board and the overall best interests of the institution.
As for the monitoring of future elections, which the governing boards have now charged themselves with doing, they wrote:
As you point out, the purpose of the annual Overseers election is not to present alumni with referenda on contested policy issues facing harvard or the wider society—whether the issue at any given moment concerns admissions policy, or investment policy, or student disciplinary practices, or any of many other issues on which our alumni may have strong and varied views. Rather, the purpose of the election is to populate the Board with people whose diverse experiences, skills, and perspectives are especially conducive to helping the Board fulfill its responsibilities—for the regular review of academic departments and schools, and for sound advice to the University’s leaders on how Harvard can best advance its broad educational and scholarly mission through times of challenge and change.
We share your concern that the annual Overseers elections not come to assume the character of partisan, platform-driven campaigns for political office, including fundraising and spending, extensive use of social media, and dedicated campaign organizations. And, since governance depends ultimately on people, it is critical that the climate for the Overseers elections not inhibit especially promising candidates from accepting the nominating committee’s invitations to appear on the ballot. In addition, we concur with your observation that “candidates elected with the benefit of financial and other support from organized issue-driven groups may well come to the role of Overseer feeling a responsibility to promote and achieve the stated objectives of such groups, whereas the role of Overseer entails serving the interests of the University as a whole, not of particular constituencies.”
The Context for Change
This has been a decade for reform of Harvard governance. The Corporation remade itself in late 2010, expanding its ranks (which include the president and treasurer) from seven to 13, to ensure that it had broader expertise to understand and respond to an increasingly large, complex institution functioning in an increasingly complex, challenging environment. It also created standing committees to better fulfill its fiduciary needs (including by providing access to experts who are not Corporation members); began the expectation of term limits for members; and set up formal processes for reviewing its own performance and governance procedures.
In part, these changes were prompted by the evolution of nonprofit governance generally, and by the changing scale of the institution and nature of its operating environment. But in important ways, they also reflected the necessary internal responses to the disagreements within the Corporation during the presidency of Lawrence H. Summers; his early departure from Massachusetts Hall; and the traumatic financial crises at the end of that decade—offering a sharp judgment about the board’s prior fiduciary oversight.
The Corporation changes led to closer collaboration with the Overseers—notably including their joint committee structure.
The Overseers’ own electoral reforms—the 2016 move to online voting and changed petition procedures, and the revisions in the composition of the Board of Overseers’ membership and the concerns expressed about campaigning revealed today—probably ought to be seen in multiple perspectives as well. As noted, the Overseers, with varying changes through the decades, have operated with a petition procedure for more than a century (and have functioned as a body elected at large by degree holders since the mid 1800s). That venerable practice has carried over into an era of modern campaign and communication techniques and technologies, increasing political polarization, and sharply focused issues advocacy. Although the Overseers might well have been prompted to examine and change their practices and procedures, the Free Harvard Fair Harvard campaign clearly led to the new petition requirements (which the founder of that campaign characterized as unsurprising and sensible).
The current round of changes takes place against the background of the 2016 reforms, the first round of online balloting (which helped to increase alumni voting somewhat, compared to traditionally anemic participation), and, of course, an increasingly heated external environment—with plenty of political hostility, from many quarters, directed at higher education and elite universities in particular. The Harvard Forward campaign, announced last November 1, initially laid out a populist platform of engaging younger alumni in governance, and then fleshed out a climate-change agenda plus advocacy of more socially responsive investment policies generally. (It included advocacy for divestment, for which there exists considerable, organized student, faculty, and alumni support—but which the administration opposes.)
Among nonprofits, universities and colleges are unusual in engaging their constituents in voting, to some degree, on their own governance, in the form of alumni balloting for trustees and/or overseers (almost always by selecting among candidates nominated from within, or with some formal alumni association voice in the nominating process). As noted, Harvard’s nineteenth-century mechanism for electing the Board of Overseers appears unique in making it conceivable that the entire roster could, over time, be elected from among candidates nominated apart from the institution’s formal nomination processes. The very different Free Harvard Fair Harvard and Harvard Forward campaigns—one can scarcely imagine overlap among their organizers, or much overlap among their strongest supporters—illuminated that possibility. The governing boards have decided that such a result strays far from purposes intended when the existing mechanisms were established; that successful pursuit of issues advocacy, valuable and essential as it is to any community, is not the work of governance; and that they would accordingly change their policies and procedures in pursuit of the long-term best interest of the University as an academic enterprise.
The just-past election of Overseers has highlighted what can only be called clashing worldviews. The HAA nominating committee has made it clear that it is focused on governance, and that the Board of Overseers performs an essentially academic and advisory role, rather than a fiduciary and supervisory one (which resides with the Corporation). Harvard Forward candidates, advocating an issues-focused platform, made the argument that this was appropriate work for Overseers—and that they indirectly function as fiduciaries in assenting to the Corporation’s election of its own members and of the president.
The changes presented in the committee report of July 31 (while this year’s delayed Overseer voting was under way, concluding August 18), which endorse the fundamental role of governance in defining the Overseers’ work, how they are nominated, and the manner of election, were part of the agenda that the governing boards addressed during their first working weekend of the academic year. For the five newly elected Overseers, including the Harvard Forward petition nominees, this must have been a bracing bit of first business. The latter three, having won election to a six-year term of service, no doubt have confronted sharp dilemmas as the Overseers addressed changes that would inherently limit future petition campaigns.
The governing boards’ deliberations are confidential, so it is unknown how they proceeded or whether the discussion led to a vote, or was concluded with some sort of consensus.
Looking ahead, several observations seem warranted.
First, advocates of fossil-fuel divestment or other changes in University investment policy are likely to be embittered. On the other hand, the governing boards—surveying the political climate and the history of the institution—are likely to be worried less about any specific platform than about the larger possibilities for campaigns to reshape the academic mission from any and all points on the political compass: advocacy on admissions policies, the scope of acceptable research queries, constraints on the free flow of scholarly expertise and students from the around the world, and other agendas as yet unidentified.
Second, the issue of alumni engagement persists. The University ought to want alumni to care about the institution—including, at a minimum, caring enough to vote for Overseers when given the opportunity. When voting involved paper ballots, hardly anyone mailed them in. The advent of electronic balloting has helped. This year, even with the COVID-19 delay in polling from April and May to July and August, amid the intensity of the Harvard Forward campaign, the number of votes increased about 18.5 percent, to 43,531: better, but still a small fraction of those eligible.
Third, as the committee’s report notes, few people know much about the nominating committee, the Overseers, or Harvard governance generally. There are plenty of opportunities to do more. That extends to explaining at least something about the candidates approached by the nominating committee who agree to stand for election. Prospective voters read about the candidates’ degrees and professional background, but not much about why they have agreed to stand, what they think about higher education today, or how they perceive their potential service as Overseers. Without reducing such statements to an attempt to get commitments about any specific issue or issues—not the point of this week’s changes, at all—there is certainly some virtue to linking the candidates and the role more vividly.
Fourth, these issues seem likely to be aired, soon. Harvard Forward’s website addresses alumni/ae, noting “you will be eligible to sign nominations for 2021 petition candidates starting on November 1st.” And the allied Yale Forward effort has apparently secured enough signatures to qualify a candidate for the Yale Corporation ballot next spring. (Yale has a class of alumni trustees who are elected to its fiduciary board.)
Finally, as to that tricky issue of regulating campaigns and potentially restricting political speech: perhaps it will become moot. Even as the governing boards set out to monitor this year’s election, the new rules on Overseer membership might come into play. If Harvard Forward or any other group or individual petitioners were to succeed in nominating and electing three Overseers next spring, the petition route would then close for five years (assuming those just elected and the next cohort of three petitioners all serve their full six-year terms). During that time, the only candidates would be those identified by the HAA nominating committee who agree to stand for election. Among them, it would seem simple, and even a relief, to have an understanding not to campaign actively. And so the review committee’s first recommendation—the six-person cap on petitioners who can serve at any one time—would have the effect of taking care of its second, less resolved concern.
The governing boards, informed by their review committee, have settled upon ways to insulate governance of the academic mission from issues-focused constituencies and advocacy, no matter their origins. In so doing, they may have found a mechanism that will buffer the Board of Overseers from the excesses of campaigning that have increasingly made American political and civic discourse both toxic and unilluminating—contributing to wider, and consequential, failures of policymaking and government. Whether they have also found a way to sustain and encourage alumni engagement with the institution remains, thus far, undetermined.