Reforming academic governance: What universities can learn from the U.S. Constitution
Niall Ferguson on political disestablishment, separation of powers, and the UATX example
Niall Ferguson was a guest on Russ Roberts’ EconTalk podcast last week discussing free speech on campus. He sounded Madisonian and Hamiltonians themes, arguing not for free-speech principles as such—arguments that quickly veer into arcane and tenuous juridical distinctions anyway—but for institutional solutions: in a word, governance reform.
First, Ferguson articulated what I would describe as political disestablishmentarianism. There needs to be, he says, a clear distinction between politics as a vocation and “science”—by which means, academic truth-seeking—as a vocation. It’s not appropriate, in his view, for a university qua university to take positions on political issues. It’s fine for faculty and students to do so in their individual capacities. But there must be a clear separation between the university as a corporate entity and what faculty and students choose to say and do as individuals and through their independent associations.

Ferguson’s logic mirrors the structural aspects of the First Amendment’s Religion Clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses serve distinct but complementary purposes. The first aims at the preservation of civil liberty by protecting “the temporal institutions from religious interference”; the second aims at religious liberty by protecting individuals and institutions “from the invasions of the civil authority.”1
This coupling of disestablishment and free exercise is grounded in a notion of sphere sovereignty, a distinction between civil and religious power. Ferguson is articulating a similar principle for the university. He calls for division between its primary, truth-seeking function—its academic “vocation,” as he aptly calls it—and its role in fostering a pluralistic community where faculty and students can engage freely in politics and political speech in their individual and associational capacities.
Second, Ferguson says we need to rethink academic governance. Drawing on the U.S. Constitution as a model, he argues that all universities suffer from the same institutional defect. Each has, in effect, an executive branch (the president, provost, deans) and a legislative branch (university trustees and tenured faculty). But none has a judicial branch—an independent adjudicative body that can consider and rule upon violations of fundamental principles and check the excesses of the first two branches. Even if a university has adopted principles on, say, academic freedom or campus free speech, there’s no way to enforce these principles and ensure they’re upheld.
One university, however, stands as an exception: the University of Austin (UATX), which Ferguson helped to found. UATX has adopted a university constitution expressly modeled on the federal one—not only in its specific locution (with phrases like “ordain and establish” and vesting clauses), but also in its very structure. Power is divided among the Board of Trustee (Article I), the President and Provost (Article II), the Deans and Councils (Article III), and—here’s the institutional innovation—an Adjudicative Panel (Article IV).
Members of the Adjudicative Panel are appointed by the Trustees to four-year terms; “shall not be employees of UATX”; are removeable only for narrow, specified reasons; and are empowered to hear cases, at their discretion, in which “an employee or student of UATX is alleged by another employee or student to violate this Constitution.”
Of course, the Panelists cannot execute their own judgments. They can only “recommend disciplinary action” be taken by the President, Provost, and Deans. In Hamilton’s words, they have “no influence over either the sword or the purse.” They “have neither force nor will, but merely judgment.” Yet this is of “vast importance,” Hamilton reminds us, for judges bound by “rules and precedent” are crucial to “mitigating the severity, and confining the operation of [oppressive] laws” and “operat[ing] as a check” upon the other branches in order to secure equal liberty for all.2
Ferguson hopes that the UATX Adjudicative Panel “won’t be too busy,” that its presence will have a deterrent effect, for it should be clear rather quickly that breaking the Constitution has consequences. He hopes, too, that UATX’s institutional reforms—political disestablishment, protection of individual and associational free speech, separation of powers, and an independent judiciary—will be an example that other universities follow.
Everson v. Board of Education, 330 U.S. 1, 15 (1947) (cleaned up).