Suit Challenges Legislature's Downsizing of UH Board, Cites 'Attack' On University Autonomy

Dec 4, 2019

A former University of Hawaiʻi regent is suing the state over what he says is a backroom deal struck by legislators to downsize the university’s governing board.

Attorney Jeff Portnoy filed his lawsuit in U.S. District Court yesterday.

He called the downsizing of the UH Board of Regents an attack on the university’s autonomy and says he hopes the suit will uncover exactly how it all happened.

Earlier this year, state lawmakers passed a bill that cut the number of seats on the board from 15 members to 11.

But the measure was passed using a legislative procedure known as “gut and replace.” Basically, that’s when lawmakers take a bill and replace it with one that’s unrelated.

Portnoy argues that action is unconstitutional and denies the public the opportunity to fully learn about pending legislation.

The downsizing bill eventually passed the Legislature and Gov. David Ige signed Bill 398 into law.

For Portnoy, the bill represents the Legislature’s encroachment on the university’s independence, and he says it’s nothing new.

"For five years, I continued to complain at regents’ meetings that actions of the legislature were a direct assault on the constitutional autonomy provided to the University of Hawaiʻi, which except for 'matters of statewide concern' give the university the sole right to decide how to run a university, which is the way it should be," Portnoy said. 

"But unfortunately for five years, legislators continued to attack that autonomy. Things like telling the university where they needed to put the School of Education. And every time I raised an objection, I was counseled both publically and privately that any attempt to challenge the legislature was a bad idea because of their control of the purse strings."

State Sen. Kai Kahele, who is running for the 2nd Congressional District seat, has introduced other bills calling for a reorganization of the university board. He told HPR he has no reservations about using "gut and replace."

“I don’t have a problem with it. I think it is a legislative procedural tool that if we need to use it, we need to use it,” he said.

Kahele argues declining enrollment, unaffordable tuition, and student debt are just some of the reasons he thinks changes are needed at the highest levels of the university administration.

A hearing on the lawsuit will be scheduled in coming days.

Disclosure: Jeff Portnoy, who specializes in media law, has represented HPR from time to time.