The Legal Settlement That Helped Put the U. of Louisville’s Board in Limbo

The University of Louisville’s Board of Trustees has plenty of unfinished business. Among other things, two of the university’s new deans cannot be officially confirmed, along with a new vice president for strategic enrollment. The board also cannot commence searches for several other leadership openings, including for a new president.

Instead the board is suspended in a kind of legal limbo, waiting for the outcome of a lawsuit over an executive order, issued in June by Gov. Matt Bevin of Kentucky, that essentially dismissed the entire board and replaced it with one of the governor’s own making. A county circuit-court judge blocked the governor’s actions, and the original board has resumed meeting until a final ruling in the case, which is expected to be decided by the state’s Supreme Court.

The governor’s overhaul sent the board into chaos and prompted a fierce backlash.

But it’s an earlier settlement with civil-rights groups that is actually preventing the board from acting.

Last year two civil-rights organizations in Louisville, the Justice Resource Center and the West Louisville Ministers Coalition, filed a lawsuit in an effort to increase the share of minorities on the university’s board. The agreement to resolve the lawsuit, which was signed in March, prohibited the board from acting on major personnel decisions or “structural” moves until its racial composition had been corrected.

As it turns out, the settlement’s ban on significant actions was put in place at the request of several board members. Some trustees saw that restriction as an attempt to protect the university’s president at the time, James R. Ramsey, from a no-confidence vote. Mr. Ramsey eventually resigned at Governor Bevin’s urging, and the controversy that ensued has now hamstrung the university’s leadership. The deal also ended up giving Governor Bevin an opening to get involved and begin his shake-up. The situation has raised questions from the university’s accreditor about whether the institution’s governance is free from political influence.

How It All Began

The board’s troubles started in the fall of 2015, when the term of a board member, the Rev. Kevin Cosby, expired. Mr. Cosby, who is African-American, was the lone minority member among the board’s 17 gubernatorial appointees. To replace Mr. Cosby, the governor at the time, Steven Beshear, a Democrat, appointed Paul Diaz, a Cuban-American.

The civil-rights organizations protested Mr. Diaz’s appointment, arguing that under Kentucky law the board’s racial composition had to reflect the state’s demographics (racial minorities make up 14 percent of the state’s population). They also asserted that a Cuban-American did not qualify as a member of a racial minority under the federal definition of such groups.

The state’s attorney general at the time, Jack Conway, agreed that state law required more minorities on the board. He said that the board needed at least two members who were not white. But Mr. Conway found that Mr. Diaz also qualified as a minority under the state’s definition.

Behind the scenes, the board’s chairman, Larry Benz, persuaded another of the trustees to resign, and Governor Beshear appointed an African-American to that seat. Mr. Benz declined to speak on the record about the situation.

But one new member didn’t satisfy the civil-rights groups, which filed a lawsuit against the board and the governor last December.

Then the gubernatorial election happened. Shortly after taking office, in January, Governor Bevin filed papers indicating that he was dropping the state’s motion to dismiss the lawsuit, in order to “begin righting this wrong,” according to legal filings.

“It was politically a surprise to have the governor come in and side with us,” said Kimberly Bunton, the lawyer representing the plaintiffs. “I would argue that he and his attorneys decided to follow the law,” she said.

Questions of Intent

As the sides tried to negotiate a resolution in early 2016, two more board members resigned, including Mr. Diaz, to allow the new governor to appoint two more African-American trustees.

That might have resolved the issue. But a faction of the board hired its own lawyer and proposed several new restrictions on the trustees until the racial composition was corrected.

Robert Hughes, one trustee involved in hiring the additional lawyer, said he and several of his colleagues on the board felt that there had not been enough communication with the plaintiffs. His intent, he said, was only to make sure that the civil-rights groups had an appropriate say in the outcome.

“What we did was give them a voice,” he said.

At the same time, however, the board was discussing concerns with Mr. Ramsey’s leadership of the university and the university’s foundation. Several board members were pressing for a vote of no confidence in the president, who had led the university for 14 years.

The settlement with the civil-rights groups prevented the board from moving forward with any action to remove the president.

Mr. Hughes said that he was “not necessarily” trying to protect Mr. Ramsey. “I just respected his work,” said Mr. Hughes, who is also chairman of the board of the university foundation, which Mr. Ramsey also led. (It’s not clear whether he will remain in that role.)

What’s Next?

The settlement over the board’s racial composition required Governor Bevin to appoint “two additional racial-minority representatives … as soon as possible.”

But the governor did not make recommendations to fill those spots. Instead, he took more drastic steps.

He issued two executive orders in June to disband the current board and replace it with a temporary 10-member board, which included three minority members. The governor’s office did not provide any information on why he did not appoint new members to the board earlier.

While the new board has been put on hold by the courts, the governor’s actions, including his negotiations urging Mr. Ramsey to resign, have gotten the attention of the university’s regional accreditor, the Southern Association of Colleges and Schools. The accrediting group sent a letter to the university in August, saying the governor’s involvement in removing the board and president may mean the university is out of compliance with standards for governance and external influence. The group will review the university’s situation at its December meeting.

Despite the uncertainty, Mr. Hughes, whose term on the board expires in June, said he thought the governor had done the right thing.

“This board is irreparably broken, fractured, and dysfunctional,” he said. “Out of respect for the university, I think all the board members should resign,” he said, including himself.

Ms. Bunton, the lawyer who is representing the civil-rights groups, said they did not object to Governor Bevin’s new board, because it had an appropriate racial composition. “We feel like he made a good-faith effort to satisfy the terms of the settlement,” Ms. Bunton said.

If the state Supreme Court agrees that the governor’s new board is unconstitutional, she said, “then we will have to go back to the drawing board.”

Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.