The Attorney General weighs in: The Board of Visitors works for the people, not the administration.

Editor's note: A full copy of the Attorney General's Advisory Opinion and links to relevant related documents are available for download or by link with the online version of this article at www.cadetnewspaper.com. Recent reporting in The Cadet and issues raised by other individuals or organizations familiar with the Virginia Military Institute (VMI) brought to light questions regarding the purpose, duties, and operation of the Board of Visitors (BOV). The dispute of "who does the BOV work for?" is almost as old as the BOVs themselves at VMI and other Virginia Colleges and Universities. At the Institute the debate was as robust under General Peay's administration as it is under the current one. By statute, the BOV is a supervisory board over the administration per Virginia Code § 2.2-2100, Title 23.1, and its by-laws. What makes VMI's BOV unique is that it is the only such body, required by law, to maintain a strict honor code for the school. On October 2, 2023, in an official advisory opinion, Virginia Attorney General Jason S. Miyares definitively settled the issue for all Commonwealth Institutions of Higher Education (IHE), that "…in fulfilling its responsibilities to the specific institution it serves, the primary duty of the board of visitors of each Virginia institution of higher education is to the Commonwealth." The opinion has significant implications not only for the Institute, but, especially, the Corps. Governor Youngkin requested Attorney General Miyares address the issue of, "…whether Virginia law imposes upon such boards a duty to serve the interests of the university or college only, or the Commonwealth more broadly." Although the opinion does not include what prompted the Governor to request it, many of the subjects covered in the advisory opinion are the same, or similar to, those raised by various groups with BOVs for the University of Virginia, Washington and Lee, and other Virginia Colleges and universities in addition to VMI. Recent tense exchanges during VMI BOV meetings, especially about transparency and the frustration expressed by some BOV members over the lack of responsiveness by the administration to their request for information on a number of issues make this opinion particularly important to the VMI Family. In one recent BOV meeting on the subject of admissions, some BOV members asserted the BOV had the authority to set the criteria and standards remarking the repeatedly requested the criteria the administration was using to accept or reject applications. The debate continued over whether the administration or the BOV set the standards. Similar issues arose regarding finance, changes to the Corps experience, and other areas. Another instance previously reported in The Cadet, involved the BOV President, working directly with the superintendent, to take BOV Member Teddy Gottwald's call for an investigation of the administration's actions against The Cadet, members of its staff and and alumni away from the BOV and defer it to the superintendent and his administration that are the subject of Mr. Gottwald's concerns. In legal terms, Attorney General Miyares' opinion affects the BOV paradigm under recent past, and current, leadership in several significant ways As this Office previously has recognized, these institutions "are state agencies; they are statutory corporations created and empowered by acts of the General Assembly." Although they extend services to non-residents, Virginia's institutions of higher education exist to "fulfill the Commonwealth's commitment to provide education to the students of Virginia ." [emphasis added] The General Assembly has vested the management of Virginia's colleges and universities in their respective boards of visitors. These boards constitute corporations, and in addition to possessing those powers generally affiliated with corporate status, the boards of visitors further enjoy broad statutory powers to regulate the academic and financial affairs of the institutions they serve. [emphasis added] The law recognizes that although a public corporation generally may benefit and thus "involve some private interests[,] strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong to the government." Accordingly, "private individuals have no interest in or control over" any of Virginia 's public colleges and universities. Because "the interest of the public constitutes [the] ends and aims" of each public institution of higher education, it is clear that the boards of visitors serving them, as public officers of the state, have a duty to the Commonwealth as a whole. [emphasis added] That a board of visitors, through its service to a particular institution, ultimately serves the Commonwealth is reflected in how they otherwise are treated under law. Corporate status does not alter each institution's essential nature as a state agency that constitutes "an arm of the Commonwealth ." [emphasis added] The advisory opinion, although it does not carry the weight of a Court ruling, is important to the Corps in a number of ways. First, the opinion clearly establishes the Corps as the ultimate "customers" for the VMI experience, that the Institute exists "to provide education to the students…". In these terms, the BOV works with the administration and for the people of Virginia. The Corps at large, has a voice directly to the BOV. The BOV, in turn, is responsible to the Corps as well as to the people of the Commonwealth. It is a supervisory board over the administration which in VMI's military structure this establishes it above the superintendent in the chain of command just below the governor as VMI's Commander-in-Chief. Cadets, individually, or as a group have the right to take their issues directly to the BOV if they exhaust all other avenues in using the chain of command. The BOV Cadet/Military Affairs Committee, for example, has the responsibility under the BOV by-laws "for oversight of all cadet activities, military affairs, barracks operations, the Rat Line, the regimental system, the class system, the ROTC program, the commissioning of cadets, Intramural Sports, and Club Sports." If members of the Corps, or the Corps leadership, have issues that cannot be resolved at a lower-level the BOV has the responsibility and authority to resolve them. As covered in previous issues of The Cadet, the Corps often exercised this right in the past that included, as in some VMI classes, completely shutting down the Ratline when they determined changes forced upon them by administrators ultimately harmed it. The same is true for the Honor Court, Class system and other areas. It remains unknown if the opinion will have any impact on operations of the current BOV; if change will only come when the remaining Youngkin appointees are seated next summer; or if cadets and the Corps leadership will take full advantage of the avenues it guarantees them. Cadets and other members of the VMI Family can contact BOV members directly through their online profiles on the VMI BOV Website.