Many people have questions about the Rutgers/Rowan merger plan, and that is understandable given the complexity of the issue.
The process by which such a plan would have to take place is not a simple one; the concept alone is even murkier. Just wrapping ones head around the idea that two separate institutions could simply be combined with the announcement of a vague plan is difficult enough, and it should be.
Why? Because that is not exactly the way it works.
As many Save Jerseyans are aware, I am currently a 3L at Rutgers Law in Camden, and one of our school’s many gems is Professor Bob Williams. Williams is one of the foremost experts on State Constitutions and is incredibly respected everywhere. He took time out of his schedule last week to hold a meeting with a small number of students and faculty to explain the legal implications of the plan. I am going to do my best to relay what I learned in that short session to you in the simplest way that I can.
The best way to understand and fight this merger is to know as much as we can, so this is my contribution. Just a fair warning though, this article is a bit lengthy, you may want to grab a snack before clicking the “Continue Reading” button . . .
Brief Story of How Rutgers Became Rutgers
First, it is important to understand how Rutgers began. Rutgers started as Queens College by order of King George III in 1766. It was one of the nine “colonial colleges” that existed before the American Revolution, and one of only two that have since become public universities. Since the establishment of Queens College in 1766, various legislative acts in New Jersey have modified the structure, name, and nature of the college. The school finally became Rutgers University in 1825.
Fast forwarding just a bit, we then come to 1956 when the legislature passed an act known as “Rutgers, the state university law,” N.J.S.A. 18A:65-1. This is the statute that officially combined the colleges existing in Newark, Camden, and New Brunswick into the Rutgers corporate structure. N.J.S.A 18A:65-3. That corporate structure from this point on would consist of a Board of Governors and a Board of Trustees that would share powers in controlling and maintaining Rutgers University, all while the school would remain an “instrumentality of the state” so that it could be immune from local zoning laws and other boring things like that. N.J.S.A. 18A:65-2. The Boards that we have been hearing so much about in the press (since they may need to approve any plan proposed) have a fiduciary duty to Rutgers. Basically what that means is that they cannot make any decision that would be against the interests of the institution. N.J.S.A. 18A:65-13.
From 1956 to today, there have been numerous court cases that have declared Rutgers University to be a part of the State of New Jersey for certain legal purposes, and other cases that have held the opposite depending on the specific facts. This legal question will be important as the merger plan moves forward.
The Executive Reorganization Act of 1969
So now we are in 1969. That was a huge year. The United States put men on the moon. Ted Kennedy had his Chappaquiddick incident. The Beatles played their last show as the Beatles. Butch Cassidy and the Sundance Kid was released. Oh, and New Jersey passed the Executive Reorganization Act of 1969. N.J.S.A. 52:14C-1.
The simple purpose of this law was to allow the Governor of New Jersey to pursue cost savings and efficiencies by unilaterally breaking down and reassembling departments and agencies of state government without having to go through the legislature. But for this Act, the legislature would have to submit and pass a bill in both houses of the legislature for any change to the agency structure to take place.
I know what you must be thinking. How could the legislature do that? Doesn’t that violate constitutional non-delegation doctrine? Well, as it turns out, no, it does not. Non-delegation doctrine says that congress cannot delegate its duties to another branch of government. Well, non-delegation has not exactly developed through the courts in New Jersey as it has at the federal level, but even if we ignore that, this is actually an example of the legislature giving away its authority, not delegating it. Distinction without a difference? Probably, but this is the law we are talking about.
Anyway, to be subject to the Act an entity being reorganized must be a clear part of the executive branch. Brown v. Heymann, 61 NJ 1 (1972). According to the New Jersey State Constitution, the executive branch may only consist of no more than twenty principal departments. N.J. Const. art. V, § 4, para. 1. According to Professor Williams there has never been a court decision that has declared Rutgers to be a part of any of those departments or part of the executive branch. This question may need to be decided by the court in the coming months.
It is likely that the Governor seeks to use the authority vested in this Act to force this merger to go through.
So How Does Executive Reorganization Work?
Put simply, it works in the exact opposite way that legislation normally does. According to the Act, the legislature gave itself veto power over the Governor’s reorganization attempts. This is where the Rowan Meeting Minutes from November were wrong on the process. So let’s lay it out hypothetically for the Rutgers/Rowan merger.
- Governor Christie formally submits reorganization plans for merging Rutgers Camden and Rowan to the state legislature and the Secretary of State (who now is the Lieutenant Governor, Kim Guadagno). Note, this is not the same as an executive order.
- The legislature receives the plan and begins a 60 day countdown.
- If the legislature approves the plan within 60 days, it becomes law. If the legislature does nothing with the plan and allows the 60 day countdown to expire, the plan also becomes law.
- If the legislature does not like the plan and wishes to stop it, they must pass a concurrent resolution in both houses of the legislature by a simple majority. Once the concurrent resolution passes, the plan dies.
There are unresolved questions about this. If the Governor submits a plan that looks like the UMDNJ report, will that be considered too vague? What if the legislature takes a look at the extensive plan affecting many different institutions and decides that it wants to allow certain parts to go through and not others? Is Rutgers even subject to the Act?
The last question is most important.
The Higher Education Restructuring Act of 1994
We are traveling through time again Save Jerseyans. Now we are in 1994. Back then, we had a state department of Higher Education. Back then it would be hard to say that Rutgers would not fall under the auspices of that department. However, the Higher Education Restructuring Act abolished that department completely, and that is not all it did. N.J.S.A. 18A:3B-1.
Tucked into the middle of this 68-section law is a clause that amends the Executive Reorganization Act of 1969 by name. N.J.S.A. 18A:3B-36. This section is short, and states,
For the purposes of any reorganization or transfer after the effective date of this act, any commission, council, board or other body created pursuant to this act, and any public entity transferred or otherwise reorganized herein shall not be subject to the provisions of the “Executive Reorganization Act of 1969”, P.L.1969, c. 203 (C. 52:14C-1 et seq.), but shall require specific enabling legislation.
This suggests that the 1994 legislature made a conscious decision to revoke the Governor’s power to reorganize public entities subject to the Higher Education Restructuring Act, and that plans like the Rutgers/Rowan merger would need to go through the normal legislative channels to take effect.
This means that for the merger to take place, the legislature would have to start the process on its own by drafting and passing identical bills in both the Assembly and Senate to then be signed by the Governor. They would have to act affirmatively to make it happen rather than just allow a 60 day countdown to expire, which is a far more politically risky venture than doing nothing.
So What Does This Mean?
It means that under the Higher Education Restructuring Act, Governor Christie may not be able to force this plan through, at least not on his own. It now becomes a political liability not just on his plate, but on that of legislators as well. If the courts determine that this act affects the situation at hand, it effectively shifts the burden of action from those who do not want the merger to happen to those who do.
However, that does not necessarily mean that it will not happen. Democrat legislators in the 4th, 5th, and 6th districts are incredibly safe in their seats, especially after the last legislative map was adopted last spring. Not only are they safe, but they are also controlled by George Norcross, the party boss and ruler of Cooper Hospital, who wants to see this merger happen.
This also means that there are likely grounds to challenge an executive, unilateral action on this merger in court. In full disclosure, I have not begun to heavily research issues of standing for this case in New Jersey courts, but I would be shocked if there were not some class of individuals who would have the right to sue to stop, or at least slow the momentum, of this plan.
If the legislature acts and pushes it through as a bill, there is next to nothing that can be done unless the Board of Governors and Board of Trustees attempt to stand in the way, and even then the effectiveness of that action is questionable. However, the fact that a court challenge, at least under certain circumstances, could be waged should give some hope to the students who are looking for any answers on this merger.
What Can We Do Right Now?
If my analysis is correct, there are two major hurdles to the Rutgers/Rowan Merger.
- The Board of Governors and Board of Trustees
- The New Jersey State Legislature
That is where the energy of this movement should be focused. Contact your legislators and let them know that you are against this merger. Then tell them that if they vote for it, or allow any 60 day countdown to expire, you will actively campaign against them in 2013. If enough people start saying things like that, elected officials tend to listen, or at least take notice.
Rutgers has organized a bus trip to Trenton today for the Senate Higher Education Committee hearing on this merger plan. If you are not sitting on the bus reading this right now, then you can follow our coverage of the hearing later today. I will be there live, talking to students and reporting on the testimony.
As for the Board of Governors, they are having a public meeting at Rutgers Camden on February 15th at 1:30PM in the Campus Center. There is an assembly being planned that day at 12:00PM to show student unity against the plan.
If you wish to speak at the Board of Governors meeting on behalf of Rutgers Camden, you can actually get on the schedule now. All you have to do is email Brennan@oldqueens.rutgers.edu and let them know who you are and why you want to speak. Also give them your contact information so they can get in touch with you. Speaking time for the public portion is limited to about 3 minutes per person. You can also email the Board directly at BoardofGovernors@oldqueens.rutgers.edu.
If you are really feeling brave, go ahead and call Governor Christie’s office. You can reach them at (609) 292-6000, (sorry to any friends I have in the Governors office). I would tell you to call George Norcross too, but that is not a contact I have at my disposal.
Finally, go and sign the petition at R2RMerge.com. The list is nearing 10,000 signatures.