FEDERATED PUBLICATIONS, INC v MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES
Docket No. 109663
Supreme Court of Michigan
Decided June 15, 1999
460 Mich. 75
Argued January 22, 1999 (Calendar No. 11).
In an opinion by Justice CORRIGAN, joined by Chief Justice WEAVER, and Justices BRICKLEY, TAYLOR, and YOUNG, the Supreme Court held:
The Legislature does not have power to regulate open meetings for the defendant in the context of presidential searches, i.e., it is institutionally unable to craft an open meetings act that would not, in the context of a presidential selection committee, unconstitutionally infringe the governing board‘s power to supervise the institution.
1.
Reversed.
Justice CAVANAGH, concurring in part and dissenting in part, stated that while the OMA was violated by the search proceeding undertaken by the defendant, when applied to the facts of this case, the OMA unconstitutionally invades the province of the defendant board to hold less than formal meetings in a closed setting. Given the language and history of
Justice KELLY, dissenting, stated that the search committee was a public body under the Open Meetings Act and, therefore, the OMA applied to its activities.
Once a committee is determined to be a public body, a meeting of a quorum of that body is subject to the act. Both the reasoning of Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211 (1993), and a straightforward reading of the OMA indicate that the presidential search committee was a public body. As such, the committee violated the OMA when it reduced the number of candidates in private session, when it reviewed applications, and when it interviewed applicants in private.
Although state universities are unquestionably distinct governmental bodies, coequal with the Legislature, they have not been held constitutionally immune from all regulation by the Legislature. Statutes designed for the benefit of society as a whole can be imposed on a constitutionally created university when they pose no direct threat to the university‘s financial autonomy. While the Legislature may not interfere with the management and control of universities, the OMA does not infringe the defendant‘s constitutional power to supervise the institution. It is not aimed at any activities peculiar to the university and does not attempt to change or disturb its educational activities. Although it requires that the process of selecting a university president be done in public, it does not tell the board what the criteria should be for selection. Nor does it dictate the process or the person to be selected. What it does require is that the university function in public meetings when interviewing
Foster, Swift, Collins & Smith, P.C. (by Charles E. Barbieri and Webb A. Smith), for plaintiff-appellee.
Roderick K. Daane and Robert A. Noto for defendant-appellant.
Amici Curiae:
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Kelly Keenan, Assistant in Charge, FOI Division, for Attorney General.
Law Offices of Dawn Phillips Hertz (by Dawn Phillips Hertz and Lisa Rycus Mikalonis) for Michigan Press Association and The State News.
Miller, Canfield, Paddock & Stone, P.L.C. (by Charles A. Duerr, Jr.), by authority and on behalf of attorneys Elizabeth M. Barry, Louis A. Lessem, Susan Gerrits, Kenneth A. McKanders, Eileen K. Jennings, and Scott Hill-Kennedy and Fredric N. Goldberg, for state universities University of Michigan Regents, Wayne State University Board of Governors, Oakland University Board of Trustees, Eastern Michigan University Board of Regents, Central Michigan University, and Ferris State University Board of Trustees, respectively.
Honigman, Miller, Schwartz & Cohn (by Herschel P. Fink and Jennifer S. Zbytowski) for Detroit Free Press, Inc.
I
John DiBiaggio resigned as president of Michigan State University during the summer of 1992. Defendant appointed Gordon Guyer interim president and thereafter formed a presidential search committee (PSC), consisting of the eight university trustees and
The PSC gathered and reviewed information regarding the candidates, eventually selecting fifteen to interview. After completing the interviews, the PSC recommended four candidates to defendant. Defendant released the names of these candidates to the public. One candidate eventually withdrew, and defendant publicly interviewed the others. Two candidates withdrew after their interviews. Defendant considered the remaining candidate at a July 27, 1993, meeting, but the trustees were evenly divided regarding her candidacy.
Unable to reach a decision to elect the sole remaining candidate, defendant requested that the PSC reconvene and recommend additional candidates. The PSC declined to recommend other candidates. Defendant‘s chairman then contacted M. Peter McPherson, a candidate who had withdrawn his name from consideration after his interview with the PSC, and urged him to reinstate his candidacy. McPherson agreed. Defendant publicly interviewed him on August 17, 1993, and subsequently elected him president.
The Court of Appeals reasoned that, although courts have held that Michigan public universities are distinct governmental bodies, coequal with the Legislature, they are not constitutionally immune from all regulation by the Legislature. The Court then concluded that the policy of promoting openness in government that underlies the OMA supported application of the act to state universities:
The longstanding public policy of this state to open the acts of governmental officials to public scrutiny supports the conclusion that the OMA can be constitutionally applied to universities. The OMA is not aimed at any activities peculiar to the university and does not attempt to change or disturb its educational activities. In fact, the effect of the OMA with respect to public universities is minimal. Although it requires that much of the process of selecting a university president be done in public, it does not tell the board what
the criteria should be for that selection, how to select a candidate, or whom to select as president. It merely requires that, when interviewing candidates and when making a detailed review of applications of candidates who do not request confidentiality, the university function in public meetings. It does not divest the board of its authority to select a president. [221 Mich App 103, 112; 561 NW2d 433 (1997).]
The Court of Appeals also determined that the PSC violated the OMA during its search process. The Court reasoned that the PSC was a “public body” for purposes of the OMA because defendant empowered it by resolution to exercise portions of defendant‘s governmental authority in selecting a president. The Court determined that the PSC violated the OMA “when it took steps to reduce the number of candidates in private session, when it reviewed applications of persons not requesting confidentiality, and when it interviewed applicants in private.” Id. at 119. Finally, the Court rejected plaintiffs’ argument that defendant unlawfully delegated its constitutional authority to select a president because defendant, while giving the PSC more than ministerial duties, retained its ultimate authority.5
This Court granted defendant‘s application for leave to appeal.6
II
We address today the constitutional question left open by Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 235-236; 507 NW2d 422
A
The Michigan Constitution is a limitation on the Legislature‘s power, not a grant of power to it. Advisory Opinion on Constitutionality of 1976 PA 240, 400 Mich 311, 317-318; 254 NW2d 544 (1977). As this Court explained in In re Brewster Street Housing Site, 291 Mich 313, 332-333; 289 NW 493 (1939):
By the Declaration of Independence, all political connection between the colonies and the State of Great Britain was declared to be dissolved and the colonies asserted to be free and independent States. The several States, when organized, succeeded to all of the legislative powers within their respective territorial jurisdictions possessed by the Parliament of England, and as such free and independent States they still possess those powers, except insofar as they have been delegated by the States to the Federal government by the Constitution of the United States or voluntarily restrained by the people through the Constitution of the State.
Thus, absent a constitutional limitation, the Legislature has the power to legislate within a particular field. See Advisory Opinion 1976 PA 240, supra at 318; Oakland Co Taxpayers’ League v Oakland Co Supervisors, 355 Mich 305, 323; 94 NW2d 875 (1959); Brewster Street, supra at 333. In this case, we revisit
B
The Michigan Constitution confers a unique constitutional status on our public universities and their governing boards.8
[T]he trustees of Michigan State University and their successors in office shall constitute a body corporate known as the Board of Trustees of Michigan State University . . . . Each board shall have general supervision of its institution and the control and direction of all expenditures from the institution‘s funds. Each board shall, as often as necessary, elect a president of the institution under its supervision. He shall be the principal executive officer of the institution, be ex-officio a member of the board without the right to vote and preside at meetings of the board.
In construing provisions of our constitution, the primary rule is that of “common understanding.” Council of Organizations & Others for Education About Parochiaid, Inc v Governor, 455 Mich 557, 569;
A constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. “For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.” (Emphasis added.)
To clarify meaning, we often consider the circumstances surrounding the adoption of the provision and the purpose it is designed to accomplish. Bolt v City of Lansing, 459 Mich 152, 160; 587 NW2d 264 (1998). Thus, we turn to the historical origins of
C
Long ago, the Legislature controlled and managed our first public university, the University of Michigan.
The University of Michigan thrived under the leadership of its board of regents. Sterling, supra at 377. Recognizing the importance of an independent governing board in managing state colleges and universities,
This Court has long recognized that
This Court has not, however, held that universities are exempt from all regulation. In Regents of the Univ of Michigan v Employment Relations Comm, 389 Mich 96, 108; 204 NW2d 218 (1973), we quoted Branum v Bd of Regents of the Univ of Michigan, 5 Mich App 134, 138-139; 145 NW2d 860 (1966):
It is the opinion of this Court that the legislature can validly exercise its police power for the welfare of the people of this State, and a constitutional corporation such as the board of regents of the University of Michigan can lawfully be affected thereby. The University of Michigan is an independent branch of the government of the State of Michigan, but it is not an island. Within the confines of the operation and the allocation of funds of the University, it is supreme. Without those confines, however, there is no reason to allow the regents to use their independence to thwart the clearly established public policy of the people of Michigan.
Legislative regulation that clearly infringes on the university‘s educational or financial autonomy must, therefore, yield to the university‘s constitutional power. Thus, although a university is subject to the
Because of the unique nature of the University of Michigan . . . the scope of bargaining by [an association of interns, residents, and post-doctoral fellows] may be limited if the subject matter falls clearly within the educational sphere. Some conditions of employment may not be subject to collective bargaining because those particular facets of employment would interfere with the autonomy of the Regents. [Regents, supra at 389 Mich 109.]
See also Central Michigan Univ Faculty Ass‘n v Central Michigan Univ, 404 Mich 268, 281-283; 273 NW2d 21 (1978). Similarly, although the Legislature may attach conditions to an appropriation, the conditions cannot invade university autonomy. Bd of Agriculture, supra at 226 Mich 425.
D
In this case, we do not consider a generally applicable law that implicates university financial autonomy. Rather, we consider a law that dictates the manner in which the university operates on a day-to-day basis. The authority of the governing board is derived from
Each board shall have general supervision of its institution . . . . Each board shall, as often as necessary, elect a president of the institution under its supervision.
We hold that the application of the OMA to the internal operations of the university in selecting a president infringes on defendant‘s constitutional power to supervise the institution.
The judicial powers derived from the Constitution include rulemaking, supervisory and other administrative powers as well as traditional adjudicative ones. They have been exclusively entrusted to the judiciary by the Constitution and may not be diminished, exercised by, nor interfered with by the other branches of government without constitutional authorization. See Attorney General ex rel Cook v O‘Neill, 280 Mich 649; 247 NW 445 (1937). It is our opinion that 1976 PA 267 is an impermissible intrusion into the most basic day-to-day exercise of the constitutionally derived judicial powers. [Id. at 663.]
Given the constitutional authority to supervise the institution generally, application of the OMA to the governing boards of our public universities is likewise beyond the realm of legislative authority.
That the OMA cannot constitutionally be applied to the defendant‘s presidential search committee is supported by the language of
Meetings of governing boards of the 3 major universities have been open to the public and news media for the past 1/2 dozen years and that has been accomplished only after a long period of negotiations. As it stands, the public and news media are present only as a matter of sufferance. They are invited guests of the governing board, an invitation which could be, conceivably, withdrawn at any time. . . . [N]ow that we are creating by constitutional enactment 7 more such governing boards, it would be appropriate that their formal meetings should be conducted in public sessions. [1 Official Record, Constitutional Convention 1961, p 1187.]
That the provision is limited to “formal sessions,” rather than all sessions, signifies that the governing boards retain their power to decide whether to hold “informal” sessions in public.
WEAVER, C.J., and BRICKLEY, TAYLOR, and YOUNG, JJ., concurred with CORRIGAN, J.
CAVANAGH, J. (concurring in part and dissenting in part). While I concur in the result reached by the majority, I am nonetheless in disagreement with both the route taken by the majority to reach that conclusion and the width of the path the majority elects to traverse. Accordingly, I write separately to indicate
I
“[I]t is well settled in Michigan that, ‘[c]onstitutional questions will not be passed upon when other decisive questions are raised by the record which dispose of the case.‘” Lisee v Secretary of State, 388 Mich 32, 40-41; 199 NW2d 188 (1972), quoting People v Quider, 172 Mich 280, 288-289; 137 NW 546 (1912). This longstanding rule requires us to consider constitutional questions only as a last resort, and to avoid such questions where a nonconstitutional basis exists for resolving the matter. The case before us presents the question whether defendant‘s presidential search procedure violated the Open Meetings Act (OMA). Long before we need consider the constitutionality of the OMA, we must first logically address the question actually before us, i.e., whether the search in fact violated the OMA.
I am in agreement with the reasoning and rationale of Justice KELLY‘s dissent with respect to this issue, and concur, for the reasons stated in her opinion, with her finding that the OMA was indeed violated by the search proceeding undertaken by defendant. Accordingly, from this point, and not before, I am required to proceed with an analysis of the constitutional question.1
In regard to the resolution of this constitutional question, I find persuasive the language and history of
Accordingly, I am able to agree with the majority that, when applied to the facts of this case, the OMA unconstitutionally invades the province of the defendant board to hold less than formal meetings in a closed setting. Because I am not persuaded of the need to rule on issues not directly before us, I would proceed no further.
Thus, I dissent from the majority‘s failure to ascertain whether the OMA was violated by defendant‘s actions, and from the majority‘s departure from our longstanding rule of judicial restraint regarding constitutional questions. For the reasons stated in Justice KELLY‘s opinion on this issue, however, I find defendant‘s actions to have violated the OMA, and thus would address the constitutional question. Given the language and history of
KELLY, J. (dissenting). This Court granted leave to determine whether the presidential selection procedure utilized by defendant violated the Open Meetings Act (OMA),
I respectfully disagree with the majority‘s decision to bypass the question whether the OMA was violated. That question must necessarily be answered before addressing whether application of the OMA to defendant is constitutional.1
I would affirm the judgment of the Court of Appeals on both questions and hold (1) that the OMA applied to activities of the presidential search committee because it was a public body exercising a government function, and (2) the state constitution is not violated by applying the OMA to defendant‘s search committee.
DEFENDANT‘S VIOLATION OF THE OPEN MEETINGS ACT
The Court of Appeals held that the search committee was a “public body” under the OMA and that, therefore, the OMA applied to its activities. I agree.
Under the act, all decisions of a public body must be made at a meeting open to the public.
a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy. [
MCL 15.262(d) ;MSA 4.1800(12)(d) .]
It defines a public body as
any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, which is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function, or a lessee thereof performing an essential public purpose and function pursuant to the lease agreement. [
MCL 15.262(a) ;MSA 4.1800(12)(a) .]
The defendant Board of Trustees empowered the presidential search committee by resolution to exercise portions of the governmental authority of the board to select the university‘s president. The committee reviewed and studied candidates and reduced the number to be considered by the board as a whole. The parties are in agreement that the search committee narrowed the original field of candidates from over 150 to 4. I believe that its activity in this winnowing process was more than ministerial in nature, being that it involved review, discussion, and evaluation of the relative merits of the candidates. It was a form of decision making.
Once a committee is determined to be a public body, a meeting of a quorum of that body is subject to the act. In this case, the search committee was composed of four trustees and nine lay members. Thus, seven members constituted a quorum. Alternatively, if only trustees are considered, a quorum would be three. However, even a subquorum committee has been held to be subject to the OMA.
For example, in Booth Newspapers, Inc v Univ of Mich Bd of Regents,2 this Court specified that the intent of the Legislature in enacting the OMA was to
We held that the Board of Regents of the University of Michigan is a public body under the OMA. Id. at 225. We continued:
The selection of a university president is one of the board‘s most important exercises of governmental authority. If it establishes any form of subcommittee and empowers that subcommittee by “resolution or rule” to exercise this particular governmental authority, then that subcommittee is also a “public body” within the meaning of the act. [Id. (citations omitted).]
Booth Newspapers further held that selection of a president, whether by a one-person committee, some other committee, or the whole board, constitutes the exercise of governmental authority. Whatever the composition of the selection body, it is a public body under the OMA. Id. at 226.
The search committee in this case was composed of fully one-half of the members of the Board of Trustees. It was given the same authority as that given the one-person committee in Booth Newspapers. Applying the analysis in Booth Newspapers, I conclude that the search committee in this case was a public body. Moreover, it engaged in decision making
Therefore, both the reasoning in Booth Newspapers and a straightforward reading of the OMA indicate that the presidential search committee was a public body. As such, the committee violated the OMA when it reduced the number of candidates in private session, when it reviewed applications, and when it interviewed applicants in private. Accordingly, I would affirm the judgment of the Court of Appeals on this issue.
THE CONSTITUTIONALITY OF APPLYING THE OMA IN THIS CASE
The majority holds that application of the OMA to the internal operations of the university in selecting a president infringes on the university‘s constitutional power to supervise itself. I disagree.
The Michigan Constitution states in part:
[T]he trustees of Michigan State University and their successors in office shall constitute a body corporate known as the Board of Trustees of Michigan State University. . . . [It] shall have general supervision of its institution . . . [and] shall, as often as necessary, elect a president of the institution under its supervision. [
Const 1963, art 8, § 5 .]
It also requires that formal sessions of governing bodies of institutions, including Michigan State University, be open to the public.
When reviewing constitutional provisions, our objective is to give effect to the intent of the people
However, our primary focus is on the plain meaning of the constitution‘s language, as understood by the people who voted for it. Livingston Co, supra. The language must be read according to its natural, common, and most obvious meaning. Macomb Co, supra. Courts may place themselves in the position of the framers of the constitution to ascertain its meaning at the time it was written. Committee for Constitutional Reform v Secretary of State, 425 Mich 336, 342; 389 NW2d 430 (1986).
Reliance on the records of the constitutional convention is warranted only if the language of the constitution is unclear or if there is a “recurring thread of explanation binding together the whole of a constitutional concept.” Univ of Mich Regents v Michigan, 395 Mich 52, 60; 235 NW2d 1 (1975). Due deference is to be given to contemporaneous or longstanding interpretations of the constitution by the Michigan Supreme Court. McPherson v Secretary of State, 92 Mich 377, 383; 52 NW 469 (1892).
Although state universities are unquestionably distinct governmental bodies, coequal with the Legislature, they have not been held constitutionally immune from all regulation by the Legislature. In W T Andrew
We also held that the University of Michigan was subject to a state law in Univ of Mich Regents v Employment Relations Comm, 389 Mich 96; 204 NW2d 218 (1973). We found that the public employees relations act could be applied to state universities without violating their constitutional autonomy. Id. at 108. We referred to Branum v Univ of Mich Regents,5 holding that, whereas universities have independence in educational matters, they are still a part of the state government. Therefore, the Legislature can waive the universities’ rights to governmental immunity, as it did for other bodies in the state government. Id. at 137-138. In particular, we stated:
It is the opinion of this Court that the legislature can validly exercise its police power for the welfare of the people of this State, and a constitutional corporation such as the board of regents of the University of Michigan can lawfully be affected thereby. The University of Michigan is an independent branch of the government of the State of Michigan, but it is not an island. Within the confines of the operation and the allocation of funds of the University, it is supreme. Without those confines, however, there is no reason to allow the regents to use their independence to thwart the
clearly established public policy of the people of Michigan. [Id. at 138-139.]
While I agree with the majority that “the Legislature may not interfere with the management and control of” universities,7 I disagree with its conclusion that the OMA infringes defendant‘s constitutional power to supervise the institution. The OMA is not aimed at any activities peculiar to the university and does not attempt to change or disturb its educational activities. Although it requires that the process of selecting a university president be done in public, it does not tell the board what the criteria should be for selection. It does not dictate the process or the person to be selected. What it does require is, when interviewing candidates and when making a detailed review of applications, that the university function in public meetings.
I cannot conclude that this requirement divests the board of its authority to select a president. The majority holds that application of the OMA to the presidential selection process infringes defendant‘s constitutional power to supervise the university. However, it makes no attempt to explain what constitutes the infringement. I submit there is none.6
Also, the majority states that “application of the OMA to the governing boards of our public universities is . . . beyond the realm of legislative authority.” Ante at 89. The issue here is whether the OMA applies to only one function of the boards, the selection of the universities’ presidents. The majority provides no basis for concluding that the OMA has no application to the remaining functions of the boards. Its statement in this regard could well be misleading to the public.
“Sunshine laws,” such as the OMA, were adopted in Michigan as early as 1895. Wexford Co Prosecutor v
The courts and the Legislature have sought to maintain the autonomy of the constitutional universities. However, we have held repeatedly that our state-financed universities are public institutions that must function, also, within the confines of state laws. While “these two functions can touch or overlap each other, . . . understanding and goodwill is necessary that the people whom both elements represent be best served.” Regents at 395 Mich 76.
Open government best serves the people of Michigan. I would affirm the judgment of the Court of Appeals and hold that the OMA may be constitutionally applied to constitutionally established universities in their selection of a president.
Notes
The Presidential Search Committee shall recommend to the Board of Trustees by July 1, 1993 a slate of final candidates for President of Michigan State University. The Board of Trustees will select and appoint the President.
Members of the University community (trustees, faculty, staff, alumni, and students) and other persons interested in the University must submit the name of any person they wish considered as a prospect, nominee, or applicant to the Search Committee for review. The Search Committee shall not eliminate a candidate from consideration until such time as a President has been selected. The Board may add to the list of final candidates individuals reviewed by the Search Committee and not included in the list of final candidates by the Search Committee.
In carrying out its responsibilities the Presidential Search Committee shall:
1. Solicit comments from interested parties on the needs of the University and the qualifications for the next President.
2. Hold public hearings on the needs of the University and the qualifications for the next President.
3. Develop a statement of the needs of the University and the qualifications of the next President to be used to recruit, screen, interview, and evaluate candidates. . . .
4. Actively solicit nominations and applications from a diverse group of well-qualified persons.
5. Develop rules and procedures for the Search Committee to receive nominations and applications, screen candidates, check references, evaluate candidates, interview candidates, and recommend candidates to the Board of Trustees.
6. Carry out the University‘s commitment to principles and policies of pluralism and diversity.
7. Carry out the search in a manner that will enhance the stature of Michigan State University.
8. Observe the requirements of Michigan‘s Open Meetings Act and Freedom of Information Act.
9. Respect the confidentiality of candidates to the extent permitted by law.
I specifically do not rely on In re 1976 PA 267, 400 Mich 660; 255 NW2d 635 (1977), because I find the opinion, which dealt with the interrelation of the judicial and legislative branches, to be distinguishable. Given my reliance on the language of10. Inform the Board of Trustees, the University community, and the media about the progress of the search.
11. Coordinate efforts with those of the consultants of Heidrick and Struggles Inc. who have been retained by MSU to assist in the search.
12. The Search Committee will be discharged by action of the Board upon completion of its responsibilities.
The board shall meet quarterly at stated times at Michigan state university and may meet at other times and places as the board determines. . . . The business which the board may perform shall be conducted in compliance with [the OMA]. Public notice of the time, date, and place of the meeting shall be given in the manner required by Act No. 267 of the Public Acts of 1976. [
MCL 390.104 ;MSA 15.1124 .]
Meaning and effect can be given to the last sentence of Article VIII, Sec. 4 by interpreting the phrase “formal sessions” as meetings or sittings of the respective governing bodies held in accordance with established rules of such bodies for the transaction of business.
Therefore, . . . whenever the governing board of an educational institution of higher learning is convened in accordance with established rules of such body for the transaction of business, it must convene in public session to which the members of the public are to be admitted. Private or executive meetings not held in accordance with established rules or where no business of the board is transacted are not formal sessions.
The Attorney General‘s attempt to define the term reveals that the determination of what constitutes a “formal” or “informal” session lies within the governing boards’ sphere of authority. This Court would apply the most deferential standard when reviewing the board‘s definition of “formal session,” limited to determining whether it bears any relation to the purpose of
[T]he Court is not called upon to give its opinion as to whether the legislation in question is good public policy and the best part of wisdom for the Legislature and the universities to follow. We are asked only whether the legislative conditions invade the constitutional jurisdiction of the universities. Therefore, our conclusions based on the Constitution and the foregoing precedents and our analysis of the lessons they teach can be seen only in that perspective. [Regents, supra at 395 Mich 76.]