Higher Ed Search Firms & the Legislative Process: An Update

A few weeks back I wrote about a story involving proposed legislation in Illinois that would ban the use of search firms in public universities. At the time I argued that this was a bad idea, and a good example of legislators trying to legislate something they don't understand. (I should have pointed out that these were the same Illinois legislators who may have been handing out university scholarships as political favors for years, but that's a different story).

Today we have an update on the search firm story from the Chronicle. Apparently, cooler heads have prevailed, and a total ban has been softened to a need to justify the use of a particular search firm at levels below president. In itself, this seems like a reasonable compromise, one that I would guess will find support in the Illinois legislature while the universities breathe a sigh of relief.

However, the resulting legislation may not change current behavior much - if at all. The devil, they say, is always in the details. In this case, the key paragraph from the Chronicle story is here (emphasis added):

The amended bill, which passed the Illinois House of Representatives and the State Senate this week, would allow universities to contract with search firms to help fill presidential vacancies, but it would limit their use in other cases. Before employing outside consultants to aid in nonpresidential searches, a university and its board of trustees would have to "demonstrate a justifiable need for guidance from an individual or firm with specific expertise in the field of the hiring." The bill would require the state's public institutions to enact policies that define the criteria for when hiring a search firm is necessary.

The first piece seems reasonable - universities will have to demonstrate the need for a particular search firm in a given instance. But the key questions are: to whom do they need to make that argument, and on what basis? The second question is answered in the last sentence - the universities themselves get to "enact policies" (read: write the rules) that determine when a search firm is "necessary".

If I have to justify that something is necessary, but I get to define what "necessary" means, I am very likely to draw my definition to closely match what I already want to do (it all depends on what the definition of "is" is...). And this is exactly what Illinois universities are likely to do. Universities in general are very change-resistant, and have become masters of writing policies and procedures and white papers and such that essentially justify what they are already doing, put into whatever language has political favor at the moment.

My guess is that the answer to the "to whom" question will be some Illinois education bureaucracy, where people with better things to do with their time will be sent long, complex documents explaining why a given search must have a search firm and how the envisioned search carefully adheres to that university's policy on such searches. And since bureaucrats generally have neither the authority nor the inclination to pick a fight with universities by overruling their decisions, these documents are likely to get a cursory look, a quick stamp of approval, and be filed in a filing cabinet somewhere, never again to be looked at - except perhaps by an auditor 15 years from now.

Do I know for certain that this will be the outcome of this particular law? Of course not - there's always the outside chance of real and lasting change. But in this case Illinois legislators are up against the combined weight of resistance of all of the state's public universities, from which most of said legislators got their degrees in the first place. Odds are that this bill will move behavior only at the margin - if at all.

Whether that's a good or a bad thing I'll leave to others to debate. But if there's one lesson here, it's that legislatures need to understand the very real limits of their power to effect change from outside the academy. In the end, this may end up being a lot of sound and fury signifying nothing.