When a Virginia state university board of visitors makes decisions about its school, does it owe its primary loyalty to the institution it governs or to the Commonwealth as a whole?

Plain-English summary

Governor Glenn Youngkin asked the AG to settle a recurring tension in public-university governance: do board members of Virginia public universities (think UVA, William & Mary, VCU, Virginia Tech, VMI) owe their primary loyalty to the school they sit on or to the Commonwealth?

Attorney General Jason Miyares answered that the primary duty runs to the Commonwealth. Virginia's public colleges and universities are not free-standing corporations. They are statutory creations, classed by the Virginia Supreme Court as "public corporations" (Phillips v. Rector & Visitors of UVA, 1899; Batcheller, 1940), funded by state appropriations as a matter of statutory policy (§ 23.1-101), under the "control" of the General Assembly (§§ 23.1-1400 et seq.), with members removable by the Governor.

The opinion's main legal anchor is § 23.1-1304, which requires every board member to participate in regular board education programs that "include presentations relating to[] [b]oard members' primary duty to the citizens of the Commonwealth." That phrase, the AG concludes, is the General Assembly's explicit answer to Governor Youngkin's question.

The opinion then catalogs the structural features that confirm Commonwealth-primacy: state agencies are "arms of the Commonwealth" with sovereign immunity (Cuccinelli, Jacobs, Haley); legal services are provided by the AG's Office (§ 2.2-507(A)); boards are subject to FOIA's open-records and open-meetings rules; institutions must submit mission statements and academic programs to the State Council of Higher Education for Virginia (SCHEV) for approval (§ 23.1-203); transparency requirements flow under §§ 23.1-409 and 23.1-1303; and individual board members can be held personally liable for unauthorized spending deficits (2022 and 2023 Appropriations Act provisions).

The traditional doctrine the opinion leans on, drawn from Dartmouth College v. Woodward (1819) and Vincennes University (1852), distinguishes private corporations (founded by individuals for private benefit) from public corporations (founded by government for public purposes, with no private beneficial interests). Virginia's universities are firmly in the second category. As the Tennessee Supreme Court put it in Carrick Academy (cited approvingly), "[t]he corporators have no private beneficial interest either in the franchises granted or the property controlled. . . . The interest which the corporators have as individuals is that common interest which all citizens have in property belonging to the State."

The opinion is careful: it does not say a board must act against its institution's interests. The Commonwealth's interest is generally vindicated by good stewardship of the specific institution. The opinion says only that when the two diverge, the broader Commonwealth interest controls.

What this means for you

If you serve on a board of visitors

Your fiduciary duty runs to the Commonwealth, with service to the specific institution as the primary mode of fulfilling that duty. Practically, this matters in the rare cases where institutional and statewide interests diverge: tuition policy that benefits the institution but pressures statewide affordability, real-estate transactions that maximize institutional revenue but conflict with state economic policy, athletic programs that drain general funds, donor-driven academic priorities that conflict with statewide workforce needs. When you face one of these, document your reasoning under the Commonwealth-primacy framework. Your board orientation under § 23.1-1304 is not a formality; it embeds the duty.

If you are a university general counsel

Your client is the Commonwealth via the institution. Conflicts between institutional posture and statewide policy posture run to the AG's Office under § 2.2-507(A); you do not represent the institution against the Commonwealth. When the institution wants to take a position contrary to AG advice, the institution does not have a separate counsel-of-choice option in the same way a private corporation would.

If you are a university president or chancellor

Your board's first allegiance is statewide. Build your management style around that: communicate state-level policy implications of major institutional moves to board members early, expect SCHEV review of any new academic program (§ 23.1-203), and treat statewide goals (workforce alignment, transfer-credit interoperability, operational efficiency) as operational directives, not external pressures.

If you are a state legislator

You retain "control" over the boards of visitors as a matter of statute. The opinion confirms the General Assembly's authority to define boards, alter their composition, impose duties, and (subject to ordinary lawmaking constraints) reshape institutional governance. The "control" language in the institution-specific governance statutes is not merely formal.

If you are a private donor or foundation board member

Donations to Virginia public universities flow into a public corporation. The institution must steward donated funds within the public-corporation framework, including FOIA, AG legal-services, and Commonwealth-primacy. Donor-naming and use restrictions remain enforceable contracts, but they cannot displace the board's statewide duty.

If you sit on a private foundation board affiliated with a state university (e.g., a UVA Foundation, VCU Health System Authority, or similar)

The opinion is about boards of visitors, not affiliated private foundations. Private foundations have separate corporate identities and traditional private-corporation fiduciary duties. Watch the line between the two when board members sit on both.

Common questions

Q: Does this mean a board member must vote for whatever the Governor wants?
A: No. The Governor is not the Commonwealth; the Commonwealth's interest is defined by statute, not gubernatorial preference. The General Assembly enacts statutes, and SCHEV develops the strategic plan. Board members must vote in line with statutory and statewide-strategic-plan obligations.

Q: What happens if a board votes against state-level policy?
A: Several mechanisms exist: removal by the Governor (per institution-specific statutes), legal action by the AG's Office under § 2.2-507(A), legislative action by the General Assembly (revising the institution's governing statute or appropriations), and personal liability under appropriations-act provisions for unauthorized spending.

Q: Does this opinion change anything practical for board operations?
A: It restates existing law rather than changing it. The reaffirmation matters when institutional self-interest tempts a board to drift, and when state-level policy makers need clear authority to assert statewide priorities. The opinion gives them that authority on a single page.

Q: Are private universities (like Hampden-Sydney, Washington and Lee, or Liberty) covered?
A: No. The opinion is about Virginia's 15 public baccalaureate institutions listed in § 23.1-100. Private universities operate under their own corporate charters with traditional private-corporation fiduciary duties.

Q: How does this interact with the Cuccinelli litigation?
A: Cuccinelli v. Rector & Visitors of UVA (2012) confirmed that public universities are state agencies for sovereign-immunity purposes. The opinion uses Cuccinelli to bolster the broader proposition that boards serve the state, not an independent institutional persona. The cases are consistent.

Q: Does this affect tenure decisions or academic freedom?
A: The opinion does not address academic freedom directly. Standard First Amendment and Garcetti-line analysis still applies to faculty speech and tenure decisions. The Commonwealth-primacy duty is a governance principle, not a content-of-academic-decision principle.

Background and statutory framework

Virginia's 15 public baccalaureate institutions are created and authorized by statute (§ 23.1-100; institution-specific statutes at §§ 23.1-1400 et seq. for CNU, GMU, JMU, etc.). Each institution is a state agency that operates as a "public corporation" with its board of visitors serving as the corporate governing body. The corporate form provides administrative flexibility (§ 23.1-1303 boards manage academic and financial affairs); it does not create an independent legal persona separate from the Commonwealth.

The structural features confirming Commonwealth-primacy:

1. State funding. Section 23.1-101 declares it the "public policy of the Commonwealth" that institutions be funded by state appropriations.
2. State control. Each institution-specific governance statute provides that the board "shall at all times be under the control of the General Assembly."
3. Removal. Members serve at the Governor's pleasure for cause (institution-specific statutes vary).
4. AG legal services. § 2.2-507(A): the Office of the Attorney General is the institution's lawyer.
5. FOIA. §§ 2.2-3701, 2.2-3704, 2.2-3707 apply to boards of visitors.
6. SCHEV oversight. § 23.1-203: mission statements and new academic programs must be approved by the State Council of Higher Education for Virginia.
7. Transparency. §§ 23.1-409, 23.1-1303 require multiple public disclosures.
8. Personal liability. The 2022 and 2023 Appropriations Acts (Item 4-3.01(b)) impose personal liability on board members for unauthorized spending deficits.
9. Mandatory orientation. § 23.1-1304: the General Assembly directs that board education programs include presentations on board members' "primary duty to the citizens of the Commonwealth."

The opinion's anchor case in the modern era is Biden v. Nebraska (2023), cited for the proposition that a state's choice to operate through a public corporation does not affect the state's rights to protect its interests. The opinion treats Virginia's universities the same way: the corporate form is administrative; the underlying interests are the state's.

Citations

• Va. Code Ann. § 23.1-100, 23.1-101, 23.1-102, 23.1-102.1
• Va. Code Ann. §§ 23.1-200, 23.1-203 (SCHEV)
• Va. Code Ann. § 23.1-409
• Va. Code Ann. § 23.1-1300, 23.1-1303, 23.1-1304
• Va. Code Ann. §§ 23.1-1400, 23.1-1500, 23.1-1600, 23.1-1700, 23.1-1800, 23.1-1900, 23.1-2000, 23.1-2100, 23.1-2200, 23.1-2300, 23.1-2500, 23.1-2600, 23.1-2700, 23.1-2800
• Va. Code Ann. § 2.2-507(A)
• Va. Code Ann. §§ 2.2-3701, 2.2-3704, 2.2-3707
• Phillips v. Rector & Visitors of Univ. of Va., 97 Va. 472 (1899)
• Batcheller v. Commonwealth ex rel. Rector & Visitors of Univ. of Va., 176 Va. 109 (1940)
• Cuccinelli v. Rector & Visitors of Univ. of Va., 283 Va. 420 (2012)
• Bd. of Tr. of Vincennes Univ. v. Indiana, 55 U.S. 268 (1852)
• Dartmouth Coll. v. Woodward, 17 U.S. 518 (1819)
• Biden v. Nebraska, 143 S. Ct. 2355 (2023)
• 1981-82 Op. Va. Att'y Gen. 66
• 2006 Op. Va. Att'y Gen. 5
• 2007 Op. Va. Att'y Gen. 95
• 2008 Op. Va. Att'y Gen. 90

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-052-Youngkin-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Jason S. Miyares
Attorney General
October 2, 2023

The Honorable Glenn Youngkin
Governor of Virginia
Patrick Henry Building, Third Floor
1111 East Broad Street
Richmond, Virginia 23219

Dear Governor Youngkin:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire regarding the role of the board of visitors of a Virginia public institution of higher learning. You more specifically ask whether Virginia law imposes upon such boards a duty to serve the interests of the university or college only, or the Commonwealth more broadly.

Response

It is my opinion 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.

Applicable Law and Discussion

Virginia is home to some of the nation's finest public institutions of higher education. Those conferring bachelor's degrees are defined by statute. 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."

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.

Although the General Assembly has conferred corporate powers upon the governing boards of the Commonwealth's institutions of higher education, each of Virginia's colleges and universities remains "a department of government" and has long-standing recognition as a public corporation. Moreover, each institution, and its respective governing board, "is part and parcel of the Commonwealth's higher education system," as established by law in Title 23.1 of the Code of Virginia. In serving on the governing board of such a public corporation, each visitor "hold[s] under an act of the legislature a public office or employment[.]"

One of the defining features of a public corporation, including an educational institution, is that its benefits are enjoyed by the public generally. As traditionally understood, a public corporation is "created specially for public purposes as instruments or agencies to increase the efficiency of government, supply public wants, and promote the public welfare." Regardless of the specific mission of a particular public corporation, all such entities are "instituted by the Legislature, on the call of the people generally, for great public and State purposes[.]" Their "very essence is public use . . . ."

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.

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." The operations of public corporations, including state universities and colleges, generally are cloaked with sovereign immunity and exempt from statutes of general applicability. Legal services are provided by the Office of the Attorney General. The governing boards of public institutions of higher education are public bodies subject to the open records and open meetings requirements of the Virginia Freedom of Information Act. More specifically, although each institution is distinct, the General Assembly has charged each public institution of higher education with advancing particular overarching state goals, which are to be reflected in a statewide strategic plan developed by another state entity.

The duty of each board of visitors to the Commonwealth is further reflected in the oversight that the Commonwealth, especially through the General Assembly, maintains over the boards and the state institutions they serve. Virginia law expressly provides that each "board shall at all times be under the control of the General Assembly." Board composition is defined by statute, and members are subject to removal by the Governor. As this Office previously has explained, "the broad authority of Virginia colleges and universities does not supersede statutory or case law, public policy, or explicit statements of the General Assembly regarding specific topics." Nor does it negate the overall public nature of the institutions' aims.

In furtherance of the public purpose of these educational institutions and their boards, the General Assembly has enacted numerous transparency requirements that serve all Virginians. Each board must publish on its website its bylaws, its organizational makeup, meeting information, and contact information by which to "receive public communications." For each regular legislative session, the board of visitors must prepare and "make publicly available on the institution's website an annual executive summary of its interim activity." Retention rates, graduation rates, and post-graduation employment data must be posted on the institution's website.

As it is the "public policy of the Commonwealth" that public institutions of higher education be funded by state appropriations, other statutory provisions relate to financial accountability to the public at large. Every institution must publish public reports regarding the institution's budget, tuition increases, and student fees. The institutions must keep records pertaining to the state property it oversees, its transactions related to intellectual property, and its administration of funds associated with athletic programs. To allow for additional oversight, each board must publish annually its financial statements and report the value of and cash earnings on its investments. Boards also must report "the salary by position of any executive officer of such institution that exceeds for the previous fiscal year the salary limit for the chief executive officer for such institution set forth in the general appropriation act." In addition, individual board members can be held personally liable for the incurrence of unauthorized spending deficits.

In light of the foregoing context, it is evident that a board of visitors simply serves as the vehicle by which the General Assembly has chosen to exercise the Commonwealth's control over its colleges and universities. In choosing to create boards of visitors to execute its governmental function of providing higher education to Virginia students, the Commonwealth imposes a primary duty to the Commonwealth on such public corporations in fulfilling their responsibilities to the institutions they serve. The General Assembly has made this duty clear: in requiring board members to participate in regular educational programs "designed to address the role, duties, and responsibilities of the governing boards[,]" the General Assembly explicitly has directed that such programs "include presentations relating to[] [Board members' primary duty to the citizens of the Commonwealth.]" Consequently, "the[ir] separate corporate status notwithstanding," boards of visitors do not exist for their own sake or that of any particular institution but for "the benefit of the public at large."

Conclusion

Accordingly, it is my opinion that the primary duty of the board of visitors of each Virginia public institution of higher education is to the Commonwealth.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General