1.The Tandberg and Laderman (2018) reading provides six (6) policy recommendations (https://www.mhec.org/sites/default/files/resources/mhec_affordability_series6.pdf). Pick one of the six and discuss how it might be implemented and what the implications of its implementation are.2.What is the proper role for states in terms of higher education funding?3.Assignment for Module 9: Read chapters 4, 5, and 7 please write a 2-3 page “response paper” about any topic of your choice taken from the chapters of the book assigned for Module 9.MHEC
POLICY BRIEF
H
Evaluating State Funding Effort
for Higher Education
David A. Tandberg and
Sophia A. Laderman
JUNE 2018
igher education makes important contributions
to the betterment of society and to the lives of
KEY INSIGHTS
individuals. On a societal level, higher education
JJ The
supplies an educated citizenry and workforce. For
individuals, higher education provides an opportunity for personal
development, fulfillment, and economic mobility. States play a
large role in helping public colleges and universities fulfill these
promised benefits: in 2017, states spent more than $86 billion on
appropriations to higher education (Laderman & Carlson, 2018).
However, the extent of financial support for higher education in
each state varies greatly. Due to the importance of, and variation in,
state funding for higher education, funding levels have received a
significant amount of attention both in the scholarly literature and
in the popular press.
The relative effort of states in funding higher education can be
evaluated using a variety of metrics. In the annual State Higher
Education Finance (SHEF) report, several ways of assessing state
effort are presented, such as by analyzing higher education
spending relative to personal income, population, or total
tax revenue. Each measure highlights different aspects of the
general concept of state higher education funding effort. Within
the empirical literature, state effort has been examined using
several of these measures. This research has revealed a number
of factors that help determine an individual state’s effort, finding
that decisions about state funding for higher education are made
in the context of multiple external factors, including current
and projected economic conditions, competing priorities across
the state, cultural and ideological shifts in the state population,
political and higher education characteristics of the state, and
state tax structures. In this report, changes in state funding for
higher education, the concept of state effort and how to define
and measure it, national trends in state effort, and state trends
in state effort are explored. Then the empirical research on what
impacts state effort is examined, and the paper concludes with
policy considerations and recommendations.
Evaluating State Funding Effort for Higher Education
relative effort of states in funding higher education
can be evaluated using a variety of metrics, such as by
analyzing higher education spending relative to personal
income, population, or total tax revenue. These metrics
provide a sense of the extent to which a state supports
higher education, by allowing analysts to compare funding
for higher education relative to a state’s ability to fund
higher education.
JJ State
appropriations matter. An institution’s financial
resources have a relatively large impact on degree
completion rates well as tuition and fees. Past research
has shown that for every $1,000 per student cut in state
appropriations, the average student would pay $257 more
in tuition and fees.
JJ All
three measures show that state funding effort has
declined over time. States provided, on average, $299 per
capita in higher education funding in 2017, which remains
below levels of support prior to the Great Recession. State
higher education funding per $1,000 of personal income
has maintained a fairly steady downward trajectory,
indicating that higher education is capturing far fewer
taxable resources within our states than it did in the past.
The percent of tax and lottery revenue allocated to higher
education has also declined, with the state spending 8.2%
in 1990 and only 5.2% in 2017.
JJ Recent
research has revealed several significant influences
on state support for higher education, including various
political factors; state higher education governance
structures; individual actors like governors, legislators,
and state higher education executive officers (SHEEOs);
other state budgetary demands such as Medicaid; and the
business cycle.
JJ State
leaders should consider using measures of state
effort in evaluating their fiscal support for higher
education, tie their higher education finance strategies to
their long- and short-term goals, and ensure that their tax
strategies allow them to adequately fund higher education
in a manner that will help them achieve their goals.
State Appropriations Matter
adjusting for inflation, state and local funding in 1992 was $81
The ability of higher education to deliver on its promised
dollars, total funding increased by 17 percent over the last 25
benefits is, at least in part, determined by the fiscal resources of
the institutions (Deming & Walters, 2017; Koshal & Koshal, 2000;
Heller, 1999; Volkwein, 1989). For example, Deming and Walters
(2017) found that when holding tuition and fees constant, an
institution’s financial resources had a relatively large impact on
degree completion at two-year and four-year public institutions.
In addition, state appropriations are related to the price
institutions charge students. Using a very conservative approach,
Webber (2017) estimated a pass-through rate from cuts in
state appropriations to increases in tuition and fee revenue of
between 25 and 30 percent. Put differently, for every $1,000 per
student cut in state appropriations, the average student would
pay $257 more in tuition and fees.
TRENDS IN STATE FUNDING
billion compared to $94 billion in 2017, meaning that in constant
years. However, after accounting for the 36 percent increase
in full-time equivalent enrollment (FTE), appropriations per
student have decreased by 8 percent in the last 25 years. This
means that states are providing about $660 less per FTE than in
1992. Figure 1 shows that the decrease in per student support
has been concentrated in the last 15 years; states kept up with
enrollment growth during the 1990s, and appropriations reached
an all-time high in 2001. The combined effect of two recessions
(the tech bust in the early 2000s and the Great Recession in
2007-2009) led to steadily decreasing appropriations, and the
economic recoveries following these recessions did not lead to
reinvestment in higher education at prior levels. As a result, in
2017, states provided $1,900 less per FTE than when support was
at its highest in 2001.
While total funding for higher education has increased, it
has not kept pace with both inflation and enrollment. After
I
FIGURE 1. Public FTE Enrollment, Educational
Appropriations, and Net Tuition Revenue, U.S., 1992-2017.
NOTES:
$3,361
$3,575
$3,700
$3,797
$3,927
$3,984
$4,010
$4,013
$3,829
$3,966
$3,981
$4,071
$4,283
$4,444
$4,740
$4,817
$4,784
$4,860
$5,093
$5,268
$5,733
$6,019
$6,190
$6,381
$6,549
$6,572
$10,000
6
4
2
2.
$12,000
$8,000
$8,301
$8,016
$8,121
$8,386
$8,476
$8,794
$9,082
$9,318
$9,281
$9,540
$9,192
$8,511
$7,951
$7,887
$8,281
$8,489
$8,641
$8,078
$7,506
$7,180
$6,525
$6,658
$6,987
$7,336
$7,453
$7,642
Public FTE Enrollment (Millions)
8
$16,000
$14,000
12
10
1.
$6,000
3.
$4,000
$2,000
$-
4.
FULL-TIME equivalent enrollment
equates student credit hours to
full-time, academic year students.
EDUCATIONAL appropriations
are state and local support
available for public higher
education operating expenses
including ARRA funds, excluding
appropriations for independent
institutions, research, hospitals,
and medical education.
NET tuition revenue is calculated
by taking the gross amount of
tuition and fees, less state and
institutional financial aid, tuition
waivers or discounts, and medical
student tuition and fees.
INFLATION adjusted by SHEEO
Higher Education Cost Adjustment
(HECA).
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
0
Dollars per FTE
14
Net Tuition Revenue per FTE (Inflation Adjusted)
Educational Appropriations per FTE (Inflation Adjusted)
Net Full-Time Equivalent Enrollment (Millions)
Source: State Higher Education Executive Officers
2
Evaluating State Funding Effort for Higher Education
MIDWESTERN HIGHER EDUCATION COMPACT
MEASURING STATE FUNDING EFFORT
No single standard exists to evaluate public policy decisions
with respect to state effort in funding higher education.
However, relevant comparable information about states helps
inform higher education financing decisions. Several types of
comparative data and indicators can be used to assess and
compare state funding effort for higher education. These include
state spending on higher education relative to population, state
personal income, and state tax capacity and tax effort. State
funding effort is an important measure of funding for higher
education because it addresses a key component missing from
the two most common measures:
1.
should have a larger tax base (taxable citizens, products,
commerce, and industries) and therefore may be able to direct
greater resources toward higher education. This is also a good
metric because funding per capita is an easily understood
measure and people are used to seeing state financial data
displayed in per capita terms. It also accomplishes the important
goal of normalizing state funding for higher education for
population size. However, there are some limitations. First,
states with larger populations are not necessarily wealthier or
more able to dedicate funds to higher education. Second, the
per capita measure does not acknowledge differences in tax
structure or a state’s ability to tax residents.
Total state funding for higher education is simply the
total dollar amount appropriated or expended on higher
education. Total funding is useful in assessing state
spending on higher education within an individual state
over time but lacks comparability across states and does
not acknowledge the ability or need of any one state to fund
higher education.
2.
measure assesses effort because states with larger populations
State spending on higher education per enrolled student
divides the first measure by full-time equivalent (FTE)
enrollment. This provides a useful measure of higher
education funding relative to the need to fund higher
education (need expressed as student enrollments). This
measure is therefore useful for analyses across states,
providing a useful comparative measure, and analyzing
funding within a state over time. However, it too does not
provide for comparisons of funding relative to potential
ability to fund.
To address this gap, state support for higher education can be
analyzed relative to state population, state personal income,
and state tax revenue and effort. These metrics give analysts a
sense of the extent to which a state supports higher education,
by allowing analysts to compare funding for higher education
relative to a state’s ability to fund higher education. As with the
enrollment-based measure, state effort allows for comparisons
between states and over time.
State Support Per Capita
State Higher Education Support per $1,000
of Personal Income
One of the more popular dependent variables in studies
attempting to predict state support of higher education is state
funding per $1,000 of personal income. State personal income
may be classified as a measure of a state’s ability to pay for
higher education (Archibald & Feldman, 2006; Dar & Spence,
2011; McLendon, Hearn, & Mokher, 2009; Tandberg, 2010). In fact,
Trostel and Ronca (2009) argue that “state personal income is
presumably the best measure of ability to pay. This is consistent
with taxation systems throughout the developed world, which are
generally based on income and/or consumption, which depends
on income” (p. 221). Extending the idea of “ability to pay” further,
when linked to state higher education appropriations, this
measures a state’s effort in supporting higher education relative
to its available wealth.
Percent of Tax and Lottery Revenue
Allocated to Higher Education
A lesser known measure of state effort is state higher education
funding relative to state revenue. This measure looks directly
at available state funds relative to the amount of those funds
appropriated or spent on higher education. However, this
measure does not assess actual capacity to fund. States must
make decisions regarding the extent to which they will maximize
their ability to generate revenue from their available resources.
More aggressive tax structures generate more revenue.
State higher education support per capita has been employed
Nevertheless, this measure allows analysts to assess the extent
by various researchers (e.g., Goldin & Katz, 1989; Kane, Orszag,
to which an individual state is willing to allocate available
& Gunter, 2003). It is a measure of state effort because the
resources to higher education. It also allows for comparisons
denominator (population) can be viewed, at least indirectly, as
across states and over time.
a measure of a state’s ability to pay for higher education. This
Evaluating State Funding Effort for Higher Education
3
NATIONAL TRENDS IN STATE
FUNDING EFFORT FOR HIGHER
EDUCATION
Higher Education Support Per Capita
The U.S. population increased by 27 percent in 25 years, from 256
million in 1992 to 325 million in 2017. States provided, on average,
$299 per capita in higher education funding in 2017. Predictably,
Using these three measures, national trends from 1992 to 2017
this measure most closely follows state higher education
are presented and discussed. Across the measures, there is
funding per FTE enrollment (Figure 2). However, support per
a steady trend downwards. While Figures 1, 2, and 3 reveal
FTE enrollment dropped further than support per capita during
a modest recovery in the last several years, they also reveal
the Great Recession as college enrollment increased from 10.2
that state effort for higher education is at a new low relative
million in 2008 to 11.5 million in 2012 (Laderman & Carlson, 2018).
to past years within this time series. The Great Recession and
Funding per capita shows a smaller decline during the recession,
the subsequent recovery impacted personal income and state
but both measures show steady recovery over the last several
revenue as well as state spending on higher education. However,
years, bringing state support per capita almost back to the pre-
most states have experienced fairly stable trends in population
Great Recession low point of 1993. Nevertheless, state funding
growth, with some remaining relatively flat, some increasing,
per capita is still below support prior to the Great Recession.
and some experiencing steady declines. In each figure, the
common measure of “state support for higher education per FTE
enrollment” is also included for comparison purposes.
I
FIGURE 2. Higher Education Support Per Capita, U.S.
Average, 1992-2017.
NOTES:
1.
Higher Education Support per FTE Enrollment (Inflation Adjusted)
Higher Education Support per Capita (Inflation Adjusted)
$12,000
$10,000
$307
$333
$348
$400
$324
$333
$314
$295 $299
$8,000
$350
$300
2.
$250
$6,000
$200
$150
$4,000
$100
$2,000
3.
Higher education support
is state and local tax and
nontax support for public and
independent higher education,
including special purpose
appropriations for researchagricultural-medical.
Full-time equivalent
enrollment equates student
credit hours to full-time,
academic year students.
Inflation adjusted by SHEEO
Higher Education Cost
Adjustment (HECA).
$50
$1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
$0
Sources: State Higher Education Executive Officers; Population data from the U.S. Department of
Commerce, Bureau of Economic Analysis, Regional Income Division.
4
Evaluating State Funding Effort for Higher Education
MIDWESTERN HIGHER EDUCATION COMPACT
Higher Education Support per $1,000 of
Personal Income
state higher education funding per $1,000 of personal income
After adjusting for inflation, personal income increased by
education is capturing far fewer taxable resources within our
reveals a steady downward trajectory, indicating that higher
states than it did in the past (Figure 3).
64 percent, from $10.3 trillion in 1992 to $16.4 trillion in 2017.
However, state funding for higher education did not keep up with
this increase in personal income. Unlike the previous metric,
I
FIGURE 3. Higher Education Support per $1000 of
Personal Income, U.S. Average, 1992-2017.
NOTES:
1.
Higher Education Support per FTE Enrollment (Inflation Adjusted)
Higher Education Support per $1000 of Personal Income
$12,000
$10,000
$9
$7.3
$7.4
$7.0
$7.0
$8
$7.1
$5.9
$8,000
$7
$6
2.
$5
$6,000
$4
$4,000
$3
$2
$2,000
3.
Higher education support
is state and local tax and
nontax support for public and
independent higher education,
including special purpose
appropriations for researchagricultural-medical.
Full-time equivalent
enrollment equates student
credit hours to full-time,
academic year students.
Inflation adjusted by SHEEO
Higher Education Cost
Adjustment (HECA).
$1
$1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
$0
Sources: State Higher Education Executive Officers; Personal income data from the U.S. Department
of Commerce, Bureau of Economic Analysis, Regional Income Division.
Percent of Tax and Lottery Revenue
Allocated to Higher Education
$1.1 trillion in 1995 to $1.5 trillion in 2015, Figure 4 shows a 2.5
It is easy to conclude from Figures 2 and 3 that the decline in
during these years. The decline is most dramatic during the
state support during the Great Recession was due to a decrease
in total state resources. However, Figure 4 reveals that this is
not the case. If the decrease in higher education appropriations
percentage point reduction in the allocation to higher education
Great Recession and also in 2003, which may have been a
delayed effect of the early 2000s recession, or may indicate that
state budgets recovered from this recession without making
was due to an overall decrease in state resources, Figure 4
subsequent increases to state support for higher education.
would show a flat trend in tax and lottery funds allocated to
The recession-related fluctuations in the percent of revenue
higher education from 2008 through 2012. Instead, there is a
decline in the percent of tax and lottery revenue allocated to
higher education beginning in 2010. This decline would have
begun earlier were it not for the federal American Recovery and
Reinvestment funds, which tempered cuts to higher education
during the Great Recession. The decline in tax and lottery
allocation from 2010 through 2013 shows that higher education
was disproportionately affected during the Great Recession.
While tax and lottery revenues increased by 37 percent from
Evaluating State Funding Effort for Higher Education
allocated to higher education are consistent with Hovey’s
“balance wheel” hypothesis regarding higher education and
state budgets (Hovey, 1999). Hovey argued that states use higher
education as a way of balancing their budgets because higher
education can raise its own revenue via tuition and fees and
other sources. Therefore, when state budgets become tight,
higher education is more likely to receive larger reductions than
other areas of the budget (Delaney & Doyle, 2011).
5
I
FIGURE 4. Percent of Tax and Lottery Revenue Allocated
to Higher Education, U.S. Average, 1990-2015.
NOTES:
1.
Higher Education Support per FTE Enrollment (Inflation Adjusted)
Tax and Lottery Allocation to Higher Education
$12,000 8.2%
$10,000
7.0%
6.9%
$8,000
9%
7.6%
6.8%
6.4%
6.8%
8%
7%
5.6% 5.7% 6%
2.
5%
$6,000
4%
$4,000
3%
2%
$2,000
1%
$-
4.
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
0%
3.
Higher education support
is state and local tax and
nontax support for public and
independent higher education,
including special purpose
appropriations for researchagricultural-medical.
Full-time equivalent
enrollment equates student
credit hours to full-time,
academic year students.
Data was not available for 2016
and 2017.
Inflation adjusted by SHEEO
Higher Education Cost
Adjustment (HECA).
Sources: State Higher Education Executive Officers; State and local tax revenues data from the U.S.
Census Bureau; lottery profits data from the North American Association of State and Provincial
Lotteries.
6
Evaluating State Funding Effort for Higher Education
MIDWESTERN HIGHER EDUCATION COMPACT
STATE TRENDS IN STATE EFFORT FOR
HIGHER EDUCATION
Higher Education Support per Capita
While national trends are important, they mask the high degree
per capita data. There is a 668 percent difference between the
of variance between states. In this section, current levels of effort
for higher education for individual states are examined. States in
the Midwest are highlighted in each case.1
support is evident in the most recent higher education support
highest state, Wyoming, and the lowest state, New Hampshire.
Four Midwestern states fall above the national average (Kansas,
Illinois, Nebraska, and North Dakota).
FIGURE 5. Higher Education Support per Capita, by State,
Fiscal 2017.
$800
$800
$700
$700
$600
$600
$500
$500
$400
$400
$300
$300
$200
$200
$100
$100
$$
New
Hampshire
New
Hampshire $93
$142
Pennsylvania
Pennsylvania
$148
Vermont
Vermont
$168
Colorado
Colorado
$177
Rhode
RhodeIsland
Island
$190
Missouri
Missouri
$190
Nevada
Nevada
$213
Ohio
Ohio
$216
Florida
Florida
$225
Massachusetts
Massachusetts
$226
Maine
Maine
$231
Louisiana
Louisiana
$231
Oklahoma
Oklahoma
$232
South
SouthCarolina
Carolina
$241
Arizona
Arizona
$242
Michigan
Michigan
$244
Delaware
Delaware
$245
Virginia
Virginia
$248
Montana
Montana
$251
Oregon
Oregon
Washington
$254
Washington
NewJersey
Jersey
$254
New
$254
Wisconsin
Wisconsin
$258
Tennessee
Tennessee
$262
Indiana
Indiana
$267
WestVirginia
Virginia
West
$268
Kentucky
Kentucky
$274
SouthDakota
Dakota
South
$277
Minnesota
Minnesota
$284
Idaho
Idaho
$292
Iowa
Iowa
$299
U.S.
U.S.
$308
Georgia
Georgia
$316
Utah
Utah
$320
Alabama
Alabama
$322
Connecticut
Connecticut
$327
Texas
Texas
$334
NewYork
York
New
$337
Arkansas
Arkansas
$343
Kansas
Kansas
$359
Mississippi
Mississippi
$393
Maryland
Maryland
$411
North
NorthCarolina
Carolina
$428
California
California
$434
Illinois
Illinois
$455
Alaska
Alaska
$468
Hawaii
Hawaii
$472
New
NewMexico
Mexico
$478
Nebraska
Nebraska
$556
NorthDakota
Dakota
North
$714
Wyoming
Wyoming
I
As seen in Figure 5, significant variation between levels of state
NOTES:
1.
2.
Higher education support is state and local tax and nontax support for public and independent higher education, including special
purpose appropriations for research-agricultural-medical.
Full-time equivalent enrollment equates student credit hours to full-time, academic year students.
Sources: State Higher Education Executive Officers; Population data from the U.S. Department of Commerce, Bureau of Economic Analysis,
Regional Income Division.
Throughout this report, it is important to note that the data for Illinois include massive payments to their historically underfunded pension program. These payments account for 30 percent
of Illinois’ total higher education appropriations in 2017.
1
Evaluating State Funding Effort for Higher Education
7
According to Figure 6, only eight states experienced increases
support per capita from 2007 to 2017 (43 percent). North Dakota
in higher education support per capita. Despite flat population
experienced the largest growth at 35 percent followed by 28
growth, Louisiana experienced the largest decrease in state
percent in another Midwestern state, Illinois.
I
FIGURE 6. Change in Higher Education Support per
Capita, by State, 2007-2017.
Louisiana
Louisiana
Oklahoma
Oklahoma
Pennsylvania
Pennsylvania
Nevada
Nevada
Arizona
Arizona
South
SouthCarolina
Carolina
Alabama
Alabama
Florida
Florida
Kentucky
Kentucky
New
NewMexico
Mexico
Delaware
Delaware
Wisconsin
Wisconsin
Michigan
Michigan
Rhode
RhodeIsland
Island
Kansas
Kansas
New
NewHampshire
Hampshire
Washington
Washington
New
NewJersey
Jersey
Virginia
Virginia
Missouri
Missouri
Iowa
Iowa
North
NorthCarolina
Carolina
Minnesota
Minnesota
Ohio
Ohio
Georgia
Georgia
Tennessee
Tennessee
WestVirginia
Virginia
West
Vermont
Vermont
Alaska
Alaska
U.S.
U.S.
Idaho
Idaho
Colorado
Colorado
Mississippi
Mississippi
Indiana
Indiana
Maine
Maine
Massachusetts
Massachusetts
Utah
Utah
Arkansas
Arkansas
Hawaii
Hawaii
Wyoming
Wyoming
Texas
Texas
California
California
Connecticut
Connecticut
SouthDakota
Dakota
South
Nebraska
Nebraska
Oregon
Oregon
NewYork
York
New
Maryland
Maryland
Montana
Montana
Illinois
Illinois
NorthDakota
Dakota
North
-60%
-43%
-35%
-35%
-32%
-30%
-28%
-28%
-26%
-26%
-25%
-25%
-24%
-22%
-22%
-19%
-18%
-17%
-17%
-17%
-17%
-16%
-16%
-15%
-14%
-13%
-13%
-13%
-12%
-11%
-10%
-9%
-9%
-7%
-6%
-4%
-4%
-4%
-3%
-2%
-2%
-1%
-1%
-40%
-40%
-20%
0%
1%
2%
2%
4%
5%
0%
0%
12%
20%
20%
28%
35%
40%
40%
NOTES:
1.
2.
3.
Higher education support is state and local tax and nontax support for public and independent higher
education, including special purpose appropriations for research-agricultural-medical.
Full-time equivalent enrollment equates student credit hours to full-time, academic year students.
Inflation adjusted by SHEEO Higher Education Cost Adjustment (HECA).
Sources: State Higher Education Executive Officers; Population data from the U.S. Department of Commerce, Bureau of
Economic Analysis, Regional Income Division.
8
Evaluating State Funding Effort for Higher Education
MIDWESTERN HIGHER EDUCATION COMPACT
I
$12
$12
$10
$10
$8
$8
$6
$6
$4
$4
$2
$2
$0
$0
1.
2.
NewHampshire
Hampshire $1.6
New
$2.7
Pennsylvania
Pennsylvania
$2.9
Vermont
Vermont
$3.1
Colorado
Colorado
$3.4
Massachusetts
Massachusetts
$3.4
RhodeIsland
Island
Rhode
$4.1
NewJersey
Jersey
New
$4.3
Nevada
Nevada
$4.3
Missouri
Missouri
$4.5
Washington
Washington
$4.5
Virginia
Virginia
$4.6
Connecticut
Connecticut
$4.6
Florida
Florida
$4.7
Ohio
Ohio
$5.0
Delaware
Delaware
$5.0
Maine
Maine
$5.2
Minnesota
Minnesota
$5.3
Wisconsin
Wisconsin
$5.3
Louisiana
Louisiana
$5.3
Oklahoma
Oklahoma
$5.3
Michigan
Michigan
$5.4
Oregon
Oregon
$5.5
NewYork
York
New
$5.6
Montana
Montana
$5.7
SouthDakota
Dakota
South
$5.7
SouthCarolina
Carolina
South
$5.8
Arizona
Arizona
$5.8
Tennessee
Tennessee
$5.9
Indiana
Indiana
$5.9
U.S.
U.S.
$6.3
Iowa
Iowa
$6.6
Maryland
Maryland
$6.8
Kentucky
Kentucky
$7.0
Texas
Texas
$7.0
Idaho
Idaho
$7.0
WestVirginia
Virginia
West
$7.1
Georgia
Georgia
Kansas
$7.2
Kansas
California
$7.4
California
Utah
$7.5
Utah
$8.0
Alabama
Alabama
$8.1
Alaska
Alaska
$8.2
Illinois
Illinois
$8.3
Arkansas
Arkansas
$9.0
Hawaii
Hawaii
$9.5
Nebraska
Nebraska
$9.5
North
NorthCarolina
Carolina
Mississippi
$9.9
Mississippi
$10.2
North
NorthDakota
Dakota
$12.1
New
NewMexico
Mexico
$12.6
Wyoming
Wyoming
national average: Iowa, Kansas, Illinois, Nebraska, and North
Higher Education Support Per $1,000 of
Personal Income
Dakota. Wyoming and New Hampshire have the highest and
Figure 7 shows that five Midwestern states fall above the
respectively.
Evaluating State Funding Effort for Higher Education
lowest higher education support per $1000 of personal income,
FIGURE 7. Higher Education Support per $1,000 of
Personal Income, by State, Fiscal 2017.
$14
$14
NOTES:
Higher education support is state and local tax and nontax support for public and independent higher education, including
special purpose appropriations for research-agricultural-medical.
Full-time equivalent enrollment equates student credit hours to full-time, academic year students.
Sources: State Higher Education Executive Officers; Personal income data from the U.S. Department of Commerce, Bureau of Economic
Analysis, Regional Income Division.
9
According to Figure 8, in the past 10 years, most states, including
personal income. Only four states increased in support per
the majority of those in the Midwest, have experienced
$1,000 of personal income: Maryland, Montana, North Dakota,
significant declines in higher education support per $1,000 of
and Illinois.
I
FIGURE 8. Change in Higher Education Support per
$1000 of personal Income, by State, 2007-2017.
Louisiana
Louisiana
Pennsylvania
Pennsylvania
Oklahoma
Oklahoma
SouthCarolina
Carolina
South
Arizona
Arizona
Wisconsin
Wisconsin
Kentucky
Kentucky
Michigan
Michigan
Alabama
Alabama
New
NewHampshire
Hampshire
Delaware
Delaware
New
NewMexico
Mexico
Nevada
Nevada
Rhode
Rhode Island
Island
Washington
Washington
Florida
Florida
Kansas
Kansas
Vermont
Vermont
Alaska
Alaska
Iowa
Iowa
Ohio
Ohio
Minnesota
Minnesota
Virginia
Virginia
New
NewJersey
Jersey
Tennessee
Tennessee
Missouri
Missouri
North
NorthCarolina
Carolina
West
WestVirginia
Virginia
Georgia
Georgia
U.S.
U.S.
Indiana
Indiana
Massachusetts
Massachusetts
Colorado
Colorado
Utah
Utah
Idaho
Idaho
California
California
Arkansas
Arkansas
Maine
Maine
Mississippi
Mississippi
South
SouthDakota
Dakota
Nebraska
Nebraska
Hawaii
Hawaii
Texas
Texas
Oregon
Oregon
New
NewYork
York
Wyoming
Wyoming
Connecticut
Connecticut
Maryland
Maryland
Montana
Montana
North
NorthDakota
Dakota
Illinois
Illinois
-43%
-41%
-38%
-50%
-50%
-40%
-40%
-31%
-30%
-29%
-29%
-28%
-28%
-26%
-26%
-26%
-25%
-25%
-25%
-24%
-22%
-20%
-20%
-20%
-19%
-19%
-19%
-19%
-18%
-18%
-17%
-16%
-15%
-15%
-13%
-12%
-12%
-11%
-11%
-11%
-9%
-9%
-8%
-7%
-7%
-6%
-5%
-4%
-3%
-3%
-2%
-30%
-30%
-20%
-20%
-10%
-10%
1%
0%
0%
5%
10%
10%
11%
23%
20%
20%
30%
30%
NOTES:
1.
2.
3.
Higher education support is state and local tax and nontax support for public and independent higher
education, including special purpose appropriations for research-agricultural-medical.
Full-time equivalent enrollment equates student credit hours to full-time, academic year students.
Inflation adjusted by SHEEO Higher Education Cost Adjustment (HECA).
Sources: State and local tax revenues data from the U.S. Census Bureau; Personal income data from the U.S. Department of
Commerce, Bureau of Economic Analysis, Regional Income Division.
10
Evaluating State Funding Effort for Higher Education
MIDWESTERN HIGHER EDUCATION COMPACT
Percent of Tax and Lottery Revenues
Allocated to Higher Education
Wisconsin, North Dakota, Iowa, Indiana, Illinois, Kansas, and
As Figure 9 reveals, there is tremendous variance in the share of
higher education. On the other hand, three Midwest states fall
tax and lottery revenue that states devote to higher education.
Seven states in the Midwest exceed the national average:
I
Nebraska. Of those states, Nebraska devotes the largest share to
below the national average: Michigan, Minnesota, and Ohio.
FIGURE 9. Percent of Tax and Lottery Revenue Allocated
to Higher Education, by State, 2015
16%
16%
14.9%
14%
14%
10%
10%
8%
8%
6%
6%
4%
4%
2%
2%
New
Hampshire
New
Hampshire
Vermont
Vermont
Pennsylvania
Pennsylvania
RhodeIsland
Island
Rhode
Massachusetts
Massachusetts
Colorado
Colorado
NewYork
York
New
NewJersey
Jersey
New
Maine
Maine
Nevada
Nevada
Connecticut
Connecticut
Ohio
Ohio
Minnesota
Minnesota
Washington
Washington
Delaware
Delaware
Virginia
Virginia
Oregon
Oregon
Missouri
Missouri
Michigan
Michigan
U.S.
U.S.
NorthDakota
Dakota
North
Florida
Florida
Wisconsin
Wisconsin
Montana
Montana
Maryland
Maryland
Louisiana
Louisiana
SouthCarolina
Carolina
South
Iowa
Iowa
WestVirginia
Virginia
West
SouthDakota
Dakota
South
Indiana
Indiana
California
California
Hawaii
Hawaii
Illinois
Illinois
Kentucky
Kentucky
Tennessee
Tennessee
Texas
Texas
Arizona
Arizona
Idaho
Idaho
Oklahoma
Oklahoma
Georgia
Georgia
Kansas
Kansas
Utah
Utah
Arkansas
Arkansas
Nebraska
Nebraska
Alabama
Alabama
Mississippi
Mississippi
NorthCarolina
Carolina
North
Wyoming
Wyoming
NewMexico
Mexico
New
Alaska
Alaska
0%
0%
2.0%
2.5%
2.8%
2.8%
3.3%
3.4%
3.6%
3.6%
4.0%
4.1%
4.2%
4.4%
4.4%
4.6%
4.8%
4.8%
4.9%
5.2%
5.7%
5.7%
5.9%
5.9%
5.9%
5.9%
6.0%
6.0%
6.1%
6.2%
6.3%
6.4%
6.4%
6.6%
6.6%
6.9%
7.1%
7.2%
7.2%
7.3%
7.5%
7.6%
7.9%
7.9%
8.2%
8.8%
9.0%
9.6%
9.7%
10.1%
11.0%
11.8%
12%
12%
NOTES:
1.
2.
3.
Higher education support is state and local tax and nontax support for public and independent higher education, including
special purpose appropriations for research-agricultural-medical.
Full-time equivalent enrollment equates student credit hours to full-time, academic year students.
Data was not available for 2016 and 2017.
Sources: State Higher Education Executive Officers; State and local tax revenues data from the U.S. Census Bureau; lottery profits data from the
North American Association of State and Provincial Lotteries.
Evaluating State Funding Effort for Higher Education
11
As seen in Figure 10, all but seven states have seen notable declines
Midwestern states had declines larger than the national average, and
in the percentage of revenue allocated to higher education.
North Dakota experienced the second largest decline at 38 percent.
Most states experienced declines exceeding 10 percent. Several
I
Louisiana Illinois was the only Midwestern state to record an increase.
FIGURE 10. Change in Percent of Tax and Lottery Revenue
Allocated to Higher Education, by State, 2005-2015.
Pennsylvania
Pennsylvania
North
NorthDakota
Dakota
Louisiana
Louisiana
South
SouthCarolina
Carolina
Rhode
Rhode Island
Island
Minnesota
Minnesota
Nevada
Nevada
New
Hampshire
New
Hamshire
New
NewJersey
Jersey
Washington
Washington
Iowa
Iowa
Kentucky
Kentucky
Oregon
Oregon
Colorado
Colorado
Delaware
Delaware
Vermont
Vermont
Ohio
Ohio
Kansas
Kansas
Michigan
Michigan
Wisconsin
Wisconsin
Texas
Texas
Maine
Maine
NewMexico
Mexico
New
Idaho
Idaho
SouthDakota
Dakota
South
Tennessee
Tennessee
U.S.
U.S.
Missouri
Missouri
Hawaii
Hawaii
California
California
Mississippi
Mississippi
Georgia
Georgia
WestVirginia
Virginia
West
Virginia
Virginia
Arizona
Arizona
Alabama
Alabama
Utah
Utah
Oklahoma
Oklahoma
NewYork
York
New
NorthCarolina
Carolina
North
Massachusetts
Massachusetts
Indiana
Indiana
Nebraska
Nebraska
Florida
Florida
Connecticut
Connecticut
Maryland
Maryland
Montana
Montana
Illinois
Illinois
Arkansas
Arkansas
Wyoming
Wyoming
Alaska
Alaska
-60%
-60%
-39%
-38%
-33%
-29%
-28%
-27%
-26%
-25%
-25%
-25%
-23%
-19%
-18%
-17%
-17%
-17%
-16%
-16%
-16%
-14%
-14%
-13%
-13%
-13%
-13%
-12%
-11%
-11%
-11%
-10%
-10%
-10%
-9%
-9%
-8%
-8%
-8%
-7%
-7%
-6%
-5%
-2%
0%
0%
-40%
-40%
-20%
-20%
0%
0%
1%
2%
4%
4%
7%
21%
20%
20%
89%
40%
40%
60%
60%
80%
80%
100%
100%
NOTES:
1.
2.
3.
Higher education support is state and local tax and nontax support for public and independent higher
education, including special purpose appropriations for research-agricultural-medical.
Full-time equivalent enrollment equates student credit hours to full-time, academic year students.
Data was not available for 2016 and 2017.
Sources: State Higher Education Executive Officers; State and local tax revenues data from the U.S. Census Bureau; lottery
profits data from the North American Association of State and Provincial Lotteries.
12
Evaluating State Funding Effort for Higher Education
MIDWESTERN HIGHER EDUCATION COMPACT
WHAT IMPACTS STATE EFFORT
Given the variation in effort for higher education across the
states, it is reasonable to inquire about what drives these
differences. In this section, three types of factors are discussed:
(a) those with a rational basis but without evidence in the
empirical literature (those potentially impacting state effort);
(b) those that have been repeatedly shown to impact state
effort for higher education; and (c) those for which there is
some evidence, albeit inconsistent, of a significant effect on
state effort for higher education. Recent research has revealed
several significant influences, including various political factors;
individual actors like governors, legislators, and state higher
education executive officers (SHEEOs); other state budgetary
demands like Medicaid; the business cycle; and state higher
education governance structures (See Tandberg & Griffith, 2013).
Factors with a Potential Impact
There are a number of likely factors that have not been
rigorously examined— for which descriptive, anecdotal, and
qualitative evidence indicates a likely impact on state effort—
that ought to be considered. States that rely on natural resources
for a large share of their state budget (some of which directly
fund higher education from these resources) often appear to be
better able to support higher education. Among these states are
Alaska, Wyoming, North Dakota, and Texas. However, downturns
in the oil and gas markets can have dramatic impacts on these
states. Other factors which impact state effort include the
trend toward a service economy, dramatic increases in online
shopping (or the general reduction in the taxing capacity/
revenue of states), outdated tax structures, a lack of political
will to raise taxes, and other social, cultural, and structural state
characteristics.
Factors with a Demonstrated Impact
Several state factors or characteristics have been shown across
more than one empirical study to be related to state effort for
higher education. First, the number of state higher education
interest groups and the ratio of state higher education interest
groups relative to non-higher education interest groups appear
to be positively related to state effort (McLendon, Hearn, &
Mokher, 2009; Tandberg, 2010). The argument is that the more
registered higher education interest groups a state has, the more
effectively they can make the case for greater state effort for
higher education.
Evaluating State Funding Effort for Higher Education
Second, legislative professionalism, which represents the degree
of institutional resources in the legislature (full-time staff,
session length, and member pay), has consistently been linked
to state effort for higher education (Squire, 2000). Increased
legislative professionalism has been shown to be positively
associated with state effort for higher education (McLendon,
Hearn, & Mokher, 2009; Tandberg, 2010, 2013; Tandberg, Fowles, &
McLendon, 2017).
Third, the research has also shown that state higher education
governance structures may impact state effort for higher
education. In particular, the presence of a consolidated state
governing board for higher education has been found to be
associated with lower state effort for higher education (Tandberg,
2010, 2013; Tandberg, Fowles, & McLendon, 2017). The premise
is that the consolidated boards buffer the potential lobbying
influence of the institutions. In fact, the influence of state higher
education interest groups on state funding effort was reduced to
statistically insignificant levels when controlling for the presence
of a consolidated governing board (Tandberg, 2013).
Factors with Some Evidence of an Impact
Additional factors found to be negatively related to state effort
for higher education include the number of private institutions
in a state, Medicare/health-care spending, and unemployment.
Likewise, several additional factors have been shown to be
positively associated with state effort, such as enrollments in
public higher education, household income, gross state product,
and state educational attainment rates. Finally, factors with less
evidence for their relationship to state effort, or where empirical
evidence is mixed, include whether the governor can appoint
and/or dismiss the SHEEO (+/-); the presence of state tax and
expenditure limits (-); corrections spending (-); total state
revenue (+); percentage of the state population that is elderly
(-); the presence of term limits (+); income inequality (+); tuition
rates (–); and political party of the governor and the legislature
(+/-) (see Tandberg & Griffith, 2013)..
CONCLUSION AND P OLICY
IMPLICATIONS
Measures of state effort provide state leaders and analysts
with several ways to evaluate how well states are funding and
supporting higher education. At a national level, state support
has been on a downward trajectory for some time, but some
13
states do a much better job of supporting higher education
consider the mission of institutions, the types of students
than others. A number of political, structural, economic, and
they serve, and other institutional characteristics when
demographic factors impact a state’s ability and willingness to
making funding decisions to ensure that institutions have
support higher education.
the resources they need to accomplish their missions.
Considering state effort for higher education and the
JJ Considering
the implications for costs to students, student
importance of state appropriations and institutional resources
success, and institutional capacity/budgets, states ought
in determining how well public higher education is able to
to consider a strategic approach to higher education
accomplish its missions lead to the following recommendations:
finance which aligns state appropriations with tuition and
JJ State
leaders should consider using a measure or
measures of state effort in evaluating their fiscal support
for higher education. These measures should be evaluated
over time within their states and compared to similar
states.
JJ States
fee policy and with state financial aid policy. Ensuring that
states are providing stable and predictable state support
for higher education, plus predicable and reasonable
tuition and fee rates, combined with state financial
aid which ensures that all students can afford to go to
college, would all go a long way in helping states provide
ought to tie their financial support for higher
accessible and excellent public higher education.
education to their long-term state goals. Cuts and
inadequate support for higher education may limit higher
education’s ability to support states in accomplishing
their goals. For example, as indicated earlier, the financial
resources of an institution directly impact the quality
of education and student completions, both of which
contribute to a state’s economy and workforce.
JJ States
should consider their governing structures,
political institutions, political contexts, economies, and
demographics and the relationships among such factors
and state funding for higher education and long-term
state goals. Are such factors likely to depress state funding
effort for higher education? If so, does that potential
relationship run counter to the state’s goals?
JJ States
ought to evaluate their tax and revenue structures
to ensure they are adequately capturing the appropriate
level of state resources. The changing economy has
made capturing sales tax and other resources difficult.
States should evaluate their tax and revenue structures
to ensure that they are receiving adequate resources to
appropriately fund their state obligations, including higher
education. .
JJ When
making appropriations decisions, states should
consider what adequate state funding and institutional
resources mean to them and their institutions relative
to the outcomes they want from their institutions. The
question of adequate institutional funding or resources
is a difficult one to answer. However, state leaders should
14
Evaluating State Funding Effort for Higher Education
MIDWESTERN HIGHER EDUCATION COMPACT
REFERENCES
Archibald, R. B., & Feldman, D. H. (2006). State higher education
spending and the tax revolt. Journal of Higher Education, 77
(4), 618–643.
Dar, L., & Spence, M. J. (2011). Partisanship, political
polarization, and state budget outcomes: The case of higher
education. SSRN eLibrary. Retrieved from http://ssrn.com/
abstract=1577365.
Delaney, J. A., & Doyle, W. R. (2011). State spending on higher
education: Testing the balance wheel over time. Journal of
Education Finance, 36 (4), 343–368.
Deming, D. J., & Walters, C. R. (2017). The Impact of Price
Caps and Spending Cuts on US Postsecondary Attainment.
National Bureau of Economic Research. Available at https://
eml.berkeley.edu//~crwalters/papers/deming_walters.pdf.
Goldin, C., & Katz, L.F. (1998). The Origins of State-Level
Differences in the Public Provision of Higher Education:
1890-1940. American Economic Review, 88(2), 303-308.
professionals, and power: The role of political factors
in state higher education funding. The Journal of Higher
Education, 80(6), 686-713.
Squire, P. (2000). Uncontested seats in state legislative
elections. Legislative Studies Quarterly, 25(1), 131-146.
Tandberg, D. A. (2013). The conditioning role of state higher
education governance structures. The Journal of Higher
Education, 84(4), 506-543.
Tandberg, D. A. (2010). Interest groups and governmental
institutions: The politics of state funding of public higher
education. Educational Policy, 24(5), 735-778.
Tandberg, D. A., Fowles, J. T., & McLendon, M. K. (2017). The
Governor and the State Higher Education Executive Officer:
How the Relationship Shapes State Financial Support for
Higher Education. The Journal of Higher Education, 88(1),
110-134.
Heller, D. E. (1999). The effects of tuition and state financial
aid on public college enrollment. The Review of Higher
Education, 23(1), 65-89.
Tandberg, D. A., & Griffith, C. (2013). State support of higher
education: Data, measures, findings, and directions for
future research. In Higher education: Handbook of theory
and research (pp. 613-685). Springer: Netherlands.
Hovey, H. A. (1999) State spending for higher education in the
next decade: The battle to sustain current support. San Jose,
CA: National Center for Public Policy and Higher Education.
Trostel, P. A., & Ronca, J. M. (2009). A simple unifying measure
of state support for postsecondary education. Research in
Higher Education, 50 (3), 215–247.
Kane, T. J., Orszag, P. R., & Gunter, D. L. (2003). State fiscal
constraints and higher education spending: The role of
Medicaid and the business cycle. Discussion Paper No. 11.
Washington, D.C.: The Urban Institute.
Volkwein, J. F. (1989). Changes in quality among public
universities. Journal of Higher Education, 60(2), 136-151.
Koshal, R. K., & Koshal, M. (2000). State appropriation
and higher education tuition: What is the relationship?
Education Economics, 8(1), 81-89.
Webber, Douglas. (2017). State divestment and tuition at
public institutions. Economics of Education Review, 60, 1-4.
Available at https://www.sciencedirect.com/science/article/
pii/S0272775717303618.
Laderman, S., and Carlson, A. (2018). State Higher Education
Finance, Fiscal 2017. Boulder, CO: State Higher Education
Executive Officers.
McLendon, M. K., Hearn, J. C., & Mokher, C. G. (2009). Partisans,
Evaluating State Funding Effort for Higher Education
15
Midwestern Higher Education Compact (MHEC)
Legislatively created, the Midwestern Higher Education Compact’s purpose is to
105 Fifth Avenue South, Suite 450
Minneapolis, MN 55401
612-677-2777 or 855-767-MHEC
www.MHEC.org | mhec@mhec.org
provide greater higher education opportunities and services in the Midwestern region.
Collectively the 12 member states work together to create solutions that build higher
education’s capacity to better serve individuals, institutions, and states by leveraging
the region’s resources, expertise, ideas, and experiences through multi-state:
convening, programs, research, and contracts.
Compact Leadership, 2017-18
President
Vice-Chair
Treasurer
Mr. Larry Isaak
Dr. Ken Sauer, Senior
Ms. Olivia Madison,
Associate Commissioner
Professor Emerita and Dean
and Chief Academic
Emerita of Library Services,
Officer, Indiana
Iowa State University
Chair
Mr. Tim Flakoll, Provost,
Tri-College University and
North Dakota Governor’s
Designee
Commission for
Higher Education
Past Chair
Mr. Richard Short, Kansas
Governor’s Designee
The National Forum exists to support higher education’s role as a public good. In this
pursuit, the Forum utilizes research and other tools to create and disseminate knowledge
that addresses higher education issues of public importance. This mission is expressed
in a wide range of programs and activities that focus on increasing opportunities for
students to access and be successful in college, college’s responsibility to engage with
and serve their communities, institutional leadership roles and practices in promoting
responsive policies and practices to address the student success and community
engagement.
AUTHOR
EDITOR
David A. Tandberg and
Sophia A. Laderman
State Higher Education
Executive Officers
Aaron S. Horn
Director for Policy
Research, Midwestern
Higher Education
Compact
aaronh@mhec.org
About this
Policy Brief Series
This brief examines a critical
state policy issue identified
through the College
Affordability Research
Initiative, a collaboration
between the Midwestern
Higher Education Compact
and the National Forum on
Higher Education for the
Public Good at the University
of Michigan.
© COPYRIGHT 2018 MIDWESTERN HIGHER EDUCATION COMPACT.
Evaluating State Funding Effort for Higher Education
POLICY BRIEF
The Branding of the American Mind
C r it ica l U niver sit y S tudie s
Jeffrey J. Williams and Christopher Newfield, Series Editors
The Branding
of the American Mind
How Universities Capture,
Manage, and Monetize Intellectual Property
and Why It M
­ atters
Jacob H. Rooksby
JOHNS HOPKINS UNIVERSITY PRESS
B A LT I M O R E
© 2016 Johns Hopkins University Press
All rights reserved. Published 2016
Printed in the United States of Amer­i­ca on acid-­free paper
987654321
Johns Hopkins University Press
2715 North Charles Street
Baltimore, Maryland 21218-4363
www​.­press​.­jhu​.­edu
Library of Congress Cataloging-­in-­Publication Data
Names: Rooksby, Jacob H., 1982– author.
Title: The branding of the American mind : how universities
capture, manage, and monetize intellectual property and why
it ­matters / Jacob H. Rooksby.
Description: Baltimore, Mary­land : Johns Hopkins University
Press, 2016. | Series: Critical university studies | Includes
bibliographical references and index.
Identifiers: LCCN 2016002106| ISBN 9781421420806 (hardcover :
alk. paper) | ISBN 9781421420813 (electronic) | ISBN 1421420805
(hardcover : alk. paper) | ISBN 1421420813 (electronic)
Subjects: LCSH: Universities and colleges—­Law and legislation—­
United States. | Intellectual property—­United States.
Classification: LCC KF2985.U55 R66 2016 | DDC 346.7304/8—­dc23
LC rec­ord available at https://­lccn​.­loc​.­gov​/­2016002106
A cata­log rec­ord for this book is available from the British Library.
Special discounts are available for bulk purchases of this book. For more
information, please contact Special Sales at 410-516-6936 or special​
sales@press​.­jhu​.­edu.
Johns Hopkins University Press uses environmentally friendly book
materials, including recycled text paper that is composed of at least
30 ­percent post-­consumer waste, whenever pos­si­ble.
To Foster—­Dream big, and never ­settle
This page intentionally left blank
Contents
Preface ​ix
Acknowl­edgments ​xvii
1 Intellectual Property, Higher Education, and the
Public Good ​1
2 Intellectual Property Explained ​19
3 University ™ ​64
4 University Patents ­under the Sun ​122
5 Copyright on Campus ​178
6 In Pursuit of Brand: Names, Domain Names, Images,
Slogans, and Secrets ​206
7 Private Rights in the Public Interest: A Path Forward ​254
Appendix ​291
Notes ​293
Index ​361
This page intentionally left blank
Preface
Over the past two de­cades, intellectual property has precipitated a
kind of gold rush for American colleges and universities. But t­ here
is a contradiction in higher education’s effort to take advantage of
intellectual property: one of this sector’s historical aims is to serve
the public good, but accumulating private rights seems to lead in the
opposite direction. As colleges and universities turn to intellectual-­
property rights as vehicles for revenue generation, commercialization,
and brand protection, their public orientation is at risk of being fundamentally recalibrated, in troubling ways.
How can the accumulation and enforcement of private rights further the public-­interest sphere of higher education? What is to be
gained and lost as institutions become more guarded and contentious
in their orientation ­toward intellectual property? This book uses a
mixture of methods to grapple with t­ hese central questions, employing the perspective of research in law, higher education, and the social
sciences to expose and critique higher education’s unquestioned and
growing embrace of intellectual property.
This volume identifies higher education’s root prob­lem with intellectual property, which is the mounting love affair of its institutions
with intellectual property itself, in all its dimensions: patent and
copyright, as well as even-­newer forms of intellectual property and
related rights that are less tied to scholarly output and often less familiar to members of colleges and universities, such as trademarks,
trade secrets, Internet domain names, and publicity rights. The result
is an unwelcomed challenge to the public-­interest aspect of higher
education. While the creation and dissemination of knowledge
x
Preface
always have been at the center of the identity and the mission of its
institutions, using intellectual property as a vehicle for asserting
claims to private rights and rigorously enforcing them—in a manner
that mimics the norms used by for-­profit actors—is a relatively new
and, as I argue, precarious phenomenon for higher education.
The Branding of the American Mind deals with the law, but I have
written it to be read more broadly, by ­those interested in the state of
higher education. It requires no background knowledge about intellectual property, which is why I explain laws, ­legal princi­ples and
rules, and developments in plain En­glish. Publications about the law
and ­legal issues, often dense and filled with much legalese, tend to
inspire fear and dread in would-be readers without law degrees. To
the uninitiated, they often read more like treatises or tomes than accessible, thought-­provoking, or relevant works. This volume is dif­f er­
ent. While I am a ­lawyer by training, whose scholarly and ­legal-­practice
interests revolve around intellectual-­property law, this is a study written primarily for nonlawyers.
Most p­ eople charged with h­ andling institutional policy and practice in higher education are not ­lawyers and are unlikely to have had
much exposure to how intellectual property works. Yet every­one
involved—­from trustees, administrators, faculty, student-­affairs professionals, and students who study higher education—­needs to know
why intellectual-­property law and policy ­matter in their spheres of
interest. For them and for readers outside ­these areas, I use clear terms
to explain why intellectual property is impor­tant in higher education—­
too impor­tant, in fact, to blindly trust its leaders to adequately resist
temptations in this regard and make choices on their own that benefit us all.
This book is situated within a growing field, or movement, that
has been called Critical University Studies, essentially a genre of
analy­sis and critiques that takes the modern university as its subject,
and whose adherents include scholars across vari­ous disciplines.1
Critical University Studies recognizes that leadership within the
modern university increasingly is marked by administrative managerialism, as opposed to faculty-­centered shared governance, which
Preface
xi
is higher education’s traditional mode of power and authority. To
­those who study and write in this field, the modern university is not
a neutral institution, indisputably devoted to furthering the public
good in all that it touches.2 Rather, Critical University Studies sees
the modern university as a site of strug­gles and contests between
­those with dif­fer­ent views of its f­ uture. L
­ egal issues often serve as
fault lines in competing visions of a university, and in that re­spect,
this book’s subject is no dif­fer­ent.
My approach is observational, and often oppositional, but it is not
intended to be alarmist. Intellectual property and intellectual-­
property laws are not the core prob­lem; the issue ­here comes in what
forms of intellectual production higher education institutions choose
to protect, and how they go about providing and enforcing this protection. A central tenet of this book is that intellectual property is too
impor­tant, and too rife with public policy concerns for all of us who
care about higher education, to be left purely to the province of
­lawyers, ­whether they are in-­house attorneys for colleges and universities, or ­lawyers in firms that advise clients in this sector. The uses
and potential abuses of intellectual property in higher education
should concern us all, and this volume explains why, delving across
the range of intellectual-­property disciplines in both traditional and
allied areas. In short, every­one needs to understand the role intellectual property plays in higher education, particularly if the latter is
to stay true to its intended purposes.
I recognize that for some, the mere term “intellectual property”
can be off-­putting, even intimidating. T
­ hese words often conjure
positive reactions of “I hear that’s hot t­ hese days” or “I know it’s an
impor­tant topic,” as well as being counterbalanced by doubtful
thoughts or comments, along the lines of “But I’m not a scientist”
or “I’m not a ­lawyer, so I c­ an’t fully speak to it.” Some even confuse
IP (intellectual property) with IT (information technology), thinking the two are synonymous; in real­ity, the terms are unrelated. Many
believe that a lack of specialized knowledge precludes them from
understanding intellectual property’s basic tenets; it emphatically
does not.
xii
Preface
While chapter 2 provides some background information about
intellectual-­property law, my book does not aim to make its readers
fully conversant with ­every ­legal dimension and nuance of the vari­ous
princi­ples and rules in the field of intellectual-­property law. Instead,
it uses qualitative, quantitative, and ­legal data as a lens through which
to look at and understand the impor­tant policy ramifications of
intellectual-­property activity in higher education, particularly from
the standpoint of institutional choices and decision making.
At the outset, I want to mention that I am an intellectual-­
property populist, not a purist, in the sense that I believe intellectual
property impacts every­one and, for that reason, should be open to
discussion and debate by all. As I like to tell law students taking my
introductory course on intellectual property ­every fall, you do not
have to think of yourself as an intellectual to understand and appreciate intellectual-­property law. Once viewed as a highly technical and specialized field, whose prac­ti­tion­ers often did every­thing
they could to keep it that way, intellectual property now has fully
emerged into public consciousness, with its importance in the
global knowledge economy frequently making the daily news. The
world’s largest and often most prominent employers trade in knowledge and ideas, and the value of t­ hese commodities lies in their
being protected. We need look no further for justification of this
concept than to the prolonged ­battles involving the smartphone
industry, and the substantial monetary judgments that resulted in
some of ­those cases.3
Chapter 1 situates the central theme of The Branding of the American Mind within the larger narrative of private rights and public goods
in higher education. The chapter opens with a story involving patent
rights, and the concerns identified in it are far reaching, involving all
areas of intellectual-­property law, as well as allied topics.
Chapter 2 provides an in-­depth look at the bedrock l­ egal doctrines
that underlay the investigations and discussions in subsequent chapters. This chapter is geared ­toward ­those who are new to the concept
of intellectual property or who may desire a quick refresher regarding
the key princi­ples in this dynamic and often complex area of the
Preface
xiii
law. The general ways in which the ­legal doctrines of intellectual
property impact higher education are highlighted throughout this
chapter.
Chapter 3 starts by providing a narrative history of trademark use
in higher education. Relying on historical data concerning federal
trademark-­registration activity, this chapter considers the phenomenon
I call “trademark-­rights accretion” in higher education, which has
sometimes led to instances of questionable enforcement activity. It
also discusses many of ­these misguided enforcement pursuits.
Chapter 4 considers patenting and licensing activities in higher
education. While this topic is so im­mense that it prob­ably deserves
a book of its own, I focus h­ ere on three main issues of significant
policy relevance: (1) the impact of licensing decisions made by universities; (2) university enforcement of patent rights through infringement litigation; and (3) university involvement in lobbying efforts
regarding patent law.
Chapter 5 examines issues surrounding copyright owner­ship on
campus, paying special attention to situations that pit owner­ship
claims by institutions and corporate sponsors against ­those of students and faculty. Student entrepreneurship, corporate sponsorship
of classes, and digitization trends involving humanities scholarship
and special-­collections materials in libraries form the major part of
this chapter.
Chapter 6 looks squarely at the ascendance of brands in higher
education. It considers a variety of brand-­related trends within this
sector, involving an array of intellectual-­property and allied doctrines.
I discuss ways in which trademark interests are fueling name changes
in university technology-­transfer offices, the promotion of institutional slogans, and contentious arbitration actions that are designed
to obtain new and dif­f er­ent Internet domain names. I also review how
universities have usurped, for their own use and benefit, student-­
athletes’ publicity rights, as well as how and why institutions are turning to the concept of trade secrecy as a means of building their brands.
Chapters 3 through 6 each begin with illustrative stories (much
like the one that opens the first chapter) that help frame the main
xiv
Preface
issues and concerns explored in ­these chapters. Their goal is to help
portray the ­human dimensions and impacts that are ­behind nearly
­every effort by institutions of higher education to claim intellectual
property, protect it, and enforce private rights to it. Each of ­these
chapters concludes with reflections on the predominant tensions
presented in the chapter, highlighting how higher education has
­either failed or strug­gles to use private rights, in the form of intellectual property, to further the public good.
In sum, t­ hese chapters identify in detail the problematic practices
occurring in higher education involving intellectual property, which
should result in a question in readers’ minds—­what can be done to
curb t­ hese practices and change t­ hese trends? Chapter 7 reviews t­ hose
prob­lems, provides suggested answers, and ends with a call to action.
My proposed solutions entail every­thing from developing the specific
best practices I recommend; to changing intellectual-­property laws
in ways that would benefit students, faculty, and institutions; to creating a new position within higher education institutions that would
recognize the importance of the academic and policy dimensions of
intellectual property, as opposed to simply the l­egal dimensions of
the topic. In short, chapter 7 defines a path forward if colleges and
universities are to fulfill their potential to utilize intellectual property
in the public interest.
What may not be clear from this brief outline are t­ hose topics that
I have left untouched. This is not a book about the politics or general
history of intellectual property in higher education, nor does it address
in detail the dynamics of the decision-­making pro­cesses that occur in
higher education regarding intellectual property. Each of ­these issues
is impor­tant, and the pres­ent study hopefully w
­ ill provide subsequent
authors with additional fodder for contributing to t­ hose dialogues.
Even from a ­legal perspective, comprehensive coverage has been sacrificed in certain areas in this volume, ­either ­because other writers
have already addressed the salient issues or b­ ecause ­those areas have
less to do with the fundamental conflict identified in my book: the
commitment institutions of higher education have to the public ver-
Preface
xv
sus the competing enticements they face to create and enforce
intellectual-­property rights for predominantly private purposes.
This volume provides data and stories about higher education’s
interactions with intellectual-­property law and the sometimes ill-­
conceived policies and practices that have emerged from t­ hose activities. My goal ­here is to pres­ent a lawyerly assessment of how
colleges and universities choose to engage with intellectual property,
using the l­ egal protections available to them. I encourage o­ thers from
disciplines outside of law—­informed by valuable outlooks and frameworks in fields such as politics, history, and orga­nizational theory—to
add to our understanding of ­these decisions and activities. I make no
claim to offer any comprehensive, nonlegal perspective in ­these pages.
My intent is to convey the details and the nuances of the intellectual-­
property choices that institutions of higher education are making, so
readers across and even outside of this sector ­will come to understand
the temptations, the constraints, and the opportunities that ­these
institutions face in this impor­tant and growing arena.
Intellectual property is a means, but it is not the end in higher
education. Intellectual-­property laws enable certain forms of rights
to be created, but they do not dictate what is done with the rights that
are claimed. My goal is that by understanding intellectual property’s
form and function in higher education, we might better assess the
priorities of modern universities, to ensure that they align with society’s expectations of what it means for higher education to serve the
public interest.
This page intentionally left blank
Acknowl­edgments
This book started in 2007, as a dream in my head. At that point,
universities ­were adrift, and even out of control, in their uses of intellectual property. They needed fresh advice and clarity of purpose.
As happens with most dreams, this one did not seem real. I was a
ju­nior attorney in private practice with a large law firm in Richmond,
­Virginia. Writing a book on intellectual-­property issues in higher
education was more of a vague aspiration at that time. As it turns out,
I did not even fully appreciate the entire extent of the issue. But the
pursuit of it kept me captivated, leading me back to the University of
­Virginia in 2010, where I had received my law and master’s degrees not
too long before. T
­ here, on the grounds of Thomas Jefferson’s second
university, I had the good fortune of working with several top-­flight
scholars. Two ­people in par­tic­u­lar, Brian Pusser and Madelyn Wessel,
provided mentorship and friendship that fed and nourished this
dream at e­ very turn. Their contributions to my academic c­ areer cannot be understated.
Since t­ hose days, my life’s proj­ect has been to keep the dream alive
through a series of ongoing discussions, interactions, and collaborations with a host of p­ eople whom I consider kindred spirits on this
personal and intellectual journey. At the top of that list are two fellow
­legal scholars, Peter Lake and Michael Olivas, whose frequent support
and willingness to welcome my contributions to the fields of law and
higher education sustained me at vari­ous stages of this proj­ect. Both
have been exceedingly generous with their time and insights, and
for that I am thankful. Bill Kaplin and Bob O’Neil are of the same
stripe, and each provided additional warm support along the way.
xviii
Acknowledgments
I also am thankful for my colleagues in schools of education,
whose own excellent scholarship inspired me to keep pursuing this
line of research. Sheila Slaughter, Gary Rhoades, Dave Breneman,
Jeff Sun, and Neal Hutchens all deserve credit in this regard.
My additional appreciation goes to Chris Collins, Chris Hayter,
and Jen Hoffman for their interest in my work and eagerness to collaborate; to Brian Pusser, Mike Madison, Jake Sherkow, Jeff Williams,
and Chris Hayter for thoughtful conversations, encouragement, and
reviews of early draft chapters of the book; and to Matthew Beddingfield and Meg Collins for their excellent research assistance. Jane
and Bob Rooksby provided unwavering support for my interest in
research and writing, even when it was not clear where t­ hose interests
might lead. Joe Walton and Andy Pogozelski each supplied comic
relief and always allowed me to beat them at golf when I needed to
take my mind off work.
My colleagues at Duquesne Law School could not have been more
supportive, both personally and professionally, since my wife and I
arrived in Pittsburgh in 2012, not knowing a soul. Ken Gormley, Jane
Moriarty, Martha Jordan, and Wes Oliver deserve special mention.
Outside of Duquesne University, I have two other affiliations that
have contributed to my work in positive ways: the University of Pittsburgh School of Education, where I am an adjunct professor, and the
law firm of Cohen & Grigsby, P.C., where I am of counsel. My thanks
to Linda DeAngelo and Noland Cheung for welcoming me into each
of ­those two organ­izations, respectively.
I would be remiss if I did not recognize Kathleen Capels, the
book’s copyeditor, whose careful work improved the final product
im­mensely. Greg Britton, my acquisitions editor at Johns Hopkins
University Press, also deserves recognition for the unflagging enthusiasm he showed for this proj­ect. He took a chance on a new author,
and for that I am grateful. An added bonus was the professionalism
and per­sis­tent good humor he demonstrated throughout the publication pro­cess. As he told me (­doing his best to sound like an attorney)
when I missed my first submission deadline, “Jacob, if I could sue
you, I would.” Missing a deadline never felt so good!
Acknowledgments
xix
The work that appears in t­ hese pages represents years of devotion
to the broader topic. Portions of this book first appeared in other
venues, including Academe, the Chronicle of Higher Education, the
Yale Journal of Law & Technology, the Harvard Journal of Law & Technology, the Akron Law Review, the Brooklyn Law Review, the Duquesne
Law Review, the Missouri Law Review, and the Review of Higher Education, as well as in a few edited volumes. I thank the editors of t­ hose
publications for including my work within their pages. I also thank
the following organ­izations and institutions for providing me with
the opportunity to test out my ideas on their members and audiences:
the Association for the Study of Higher Education (ASHE); the
Association of University Technology Man­ag­ers (AUTM); the Pittsburgh Intellectual Property Law Association (PIPLA); the Federal
Reserve Bank of Cleveland; Cleveland-­Marshall College of Law at
Cleveland State University; Indiana University’s Robert H. McKinney School of Law; the University of Houston Law Center’s Institute
for Higher Education Law and Governance; the Pennsylvania State
University’s Center for the Study of Higher Education; Duke
­University’s Sanford School of Public Policy; the University of
­Virginia’s Curry School of Education; the University of Akron School
of Law’s Center for Intellectual Property Law and Technology; and
the Stetson University College of Law’s Center for Excellence in
Higher Education Law and Policy.
Fi­nally, I thank my wife and d­ aughter for all that they do to bring
joy and happiness to my life. I trea­sure you both ­every day.
This page intentionally left blank
The Branding of the American Mind
This page intentionally left blank
Chapter One
Intellectual Property, Higher Education,
and the Public Good
Of Mice and Money
The 1980s ­were an impor­tant de­cade for intellectual property and
a momentous de­cade for American higher education. Deregulation
and neoliberal economic policies led to increased commercial activity for both business firms and institutions of higher education. More
students than ever before ­were seeking some form of higher education, and this sector grew to meet the new demand. Spending increased as competition between institutions became more national
in scope. At the same time, opinions issued by the courts and lessened
regulations led actors in the marketplace to sharpen their focus on
intellectual property and its potential for income generation.
Enter the OncoMouse, a proprietary mouse designed to aid
­medical research.1 In the early 1980s, researchers at Harvard Medical
School and the University of California San Francisco produced a
genet­ically modified mouse that was highly susceptible to cancer,
through the introduction of an oncogene that can trigger the growth
of tumors. The National Institutes of Health and E. I. du Pont De
Nemours (DuPont), the multinational chemical firm, funded the
research.2 The mouse held enormous potential as a research tool.
Sensing a vast market for the discovery, the researchers provided
information about their invention to Harvard’s office of technology
transfer, which, in turn, sought patent protection for it in 1984. Four
years ­later, in 1988, the United States Patent and Trademark Office
issued a patent to Harvard for the OncoMouse, the first patent issued
for a transgenic animal. The patent provided Harvard with rights
2 The Branding of the American Mind
not just to the OncoMouse (a coined word that DuPont protected
as a trademark in 1992), but also to other transgenic mice and nonhuman mammals.3
Harvard’s decision to seek patent protection for the OncoMouse,
and its receipt of a patent on the discovery, was a watershed moment
in the history of academic science and intellectual property. The
United States Supreme Court had recently deci­ded, in 1980, that
“anything u­ nder the sun made by man” was eligible for a patent, even
if it was a living organism.4 Harvard’s OncoMouse patent confirmed
that edict, even if the university did not fully appreciate the ramifications of the patent at that time. On the one hand, the transgenic
mouse held g­ reat potential for scientific development improvements
in ­human health. Researchers could use it to better study cancers and
cancer-­fighting treatments. Protecting the OncoMouse by means of
a patent would help ensure that investors could bring this new, living
research tool to market. On the other hand, how would the public
best benefit from the private rights that Harvard and DuPont sought
and received for the OncoMouse, in the form of a patent and a trademark? The public’s access to the mouse, and its ultimate utility, could
be limited without careful protections and informed decision making
by the university.
Harvard chose to license the patent to DuPont on an exclusive
basis, meaning that only DuPont could sell the OncoMouse. Any
other party attempting to create its own version of the mouse would
infringe on the patent ­unless it paid DuPont a licensing fee. With its
exclusive authorization to control the use to this groundbreaking
discovery, DuPont was able to set license terms that benefited the
chemical com­pany’s shareholders, not necessarily researchers across
the world who wanted to use the OncoMouse. As one scholar noted,
in assessing Harvard’s use of its patents, “standing on the shoulders
of the OncoMouse would come at a considerable cost.”5
The terms DuPont imposed on academic licensees w
­ ere onerous.
First, it cost $50 to purchase one OncoMouse, roughly ten times the
price of other experimental mice. Second, the standard license
agreement prohibited licensees—­academic institutions and their
Intellectual Property and the Public Good
3
faculty—­from sharing the OncoMouse with anyone, as researchers
commonly did prior to this time. Third, DuPont required licensees
to report any and all research findings related to the OncoMouse to
DuPont. Fourth, and most controversially, DuPont insisted on “reach-­
through” rights, meaning that DuPont would receive a percentage
share of any sales or proceeds from a product or pro­cess developed
by a licensee using an OncoMouse. In short, if a researcher developed
a cure for a form of cancer through research conducted on an OncoMouse, DuPont would stand to financially benefit from that scientist’s discovery.
Academic researchers and ­others within the scientific community
found ­these license terms unpalatable. Yet more than 100 universities
signed license agreements with DuPont, fearing that their faculty
would be unable to keep pace with scientific innovation if they w
­ ere
denied access to the OncoMouse. Despite the fury over the patent
and DuPont’s strict enforcement of it, o­ thers within academia began
to see firsthand the power that private rights can bestow in discoveries that affect the public. Many of the scientists who disliked DuPont’s
approach to licensing soon sought patents for their own work, e­ ither
to accelerate or forestall similar profiteering results.6
Harvard’s OncoMouse patent is believed to be one of the most
valuable pieces of intellectual property ever created.7 Perhaps for that
reason, neither Harvard nor DuPont has ever disclosed the nature of
the royalties each has received from sales of the OncoMouse. Conservative estimates place the dollar amount in the tens of millions.
What we do know is the extent to which Harvard and its exclusive
licensee have used the court systems, domestically and abroad, to
seek and protect patents for the OncoMouse. For example, Harvard
spent over eigh­teen years attempting to obtain patent protection on
the OncoMouse in Canada, which it fi­nally achieved, albeit in limited
form, in 2003.
In the United States, Harvard’s rights to the OncoMouse only
ended recently, in 2014, thirty years ­after it first filed a patent application on the discovery in 1984. Harvard followed this initial application
with two more, filed in 1988 and 1991. Making additional filings related
4 The Branding of the American Mind
to the same invention is a common practice at the patent office,
even if it does not always bear fruit for the applicant. Patent protection
does not last forever, so extending the life of a patented invention
can be a goal of applicants making additional filings. When Harvard
filed its patent applications, patent protection lasted seventeen
years from the date of issuance. L
­ ater-­in-­time applications result in
­later-­in-­time issuance dates, which means that the seventeen-­year
protection clock would start afresh at a ­later date if Harvard sought
and obtained more patents.
Thus Harvard faced a choice: to allow its rights in the OncoMouse
to rest on only one issued patent, or to attempt to prolong and even
broaden t­ hose rights by seeking additional patents. Harvard chose
the latter course of action. If the institution could obtain additional
patents, based on new claims that covered other features of the Onco­
Mouse, then the protection of Harvard’s rights to it could extend past
the expiration of the first patent, which was set to occur in 2005. That
is exactly what Harvard sought to do with its second and third
­applications.
Unfortunately for Harvard, the patent office did not feel that its
second-­in-­time application actually described a new invention, above
and beyond what was included in its first patent, as the law requires.
Instead, the patent office felt that the second application only covered
obvious variations on claims contained in the first patent. Rejections
issued for this reason are known as “obviousness-­type double-­patenting
rejections,” which means that the patent office considers the claims
in a second patent application insufficiently distinct from the claims
in the applicant’s earlier patent, so it would be unfair to award the
applicant a new patent that has an expiration date further into the
­future than the first patent’s expiration date.
The only way in which an applicant can overcome this type of rejection is to file what is known as a “terminal disclaimer” with the patent
office. This disclaimer allows the second application to mature into a
patent, but the applicant must disclaim, or give up, the time period
for the l­ ater-­issued patent that would extend beyond the ending date
of the earlier patent. In short, if an applicant agrees to a terminal
Intellectual Property and the Public Good
5
disclaimer, that applicant ­will receive a patent, but the second patent
­will expire on the same day as the first patent.
Harvard was forced to file a terminal disclaimer on its second
application, which matured into a patent that was issued in 1992.
Ordinarily, the term of the second patent would have extended to
2009, but b­ ecause of the terminal disclaimer, this patent expired at
the same time as the first, in 2005. Harvard’s third patent application
related to the OncoMouse was issued in 1999, leading Harvard to
believe that this patent would remain in effect ­until 2016. Therefore,
DuPont could continue to sell the OncoMouse at inflated prices,
even ­after the first two patents expired in 2005. In 2010, however, an
anonymous third party requested that the patent office reexamine
the third patent, as a way of challenging its validity. The patent office,
in its review, held that Harvard’s third patent had expired, b­ ecause the
terminal disclaimer in its second patent was worded in such a way as
to cover the third patent, too.
Harvard appealed the patent office’s decision in a federal trial
court, which ruled in f­ avor of the patent office at an early stage in the
case.8 Harvard then appealed that decision in a federal appellate court
that specializes in patent law, which again rejected Harvard’s arguments.9 At all levels, Harvard took the improbable position that the
terminal disclaimer was not valid, b­ ecause Harvard never paid the
patent office the terminal disclaimer fee required by law. Essentially,
Harvard’s argument was that the law does not apply to its ­later
applications, b­ ecause the institution did not comply with the law.
Harvard advanced this argument even in light of documentary evidence from its patent attorney, who, in corresponding with the patent
office about the second application back in the early 1990s, had stated
in a letter, “Accompanying this disclaimer is the fee set forth [by
statute].”10
Harvard’s efforts to expand the time period for its third patent on
the OncoMouse are emblematic of the lengths to which many institutions go to claim, defend, and extend their intellectual-­property
rights. T
­ hese activities can be complex and nuanced to ­those un­
familiar with intellectual-­property laws; nonetheless, they are well
6 The Branding of the American Mind
worth examining. Some institutions would much prefer that we give
them a f­ ree pass, overlooking how they employ intellectual-­property
laws as they face impor­tant policy decisions that affect us all. In their
interactions with the public, t­ hese same institutions often try to couch
their uses of intellectual property in ways that make them sound more
noble or innocuous than they ­really are.
Make no m
­ istake about it—­Harvard’s position in its case was
about protecting a valuable property right. ­Every year that the Onco­
Mouse remained u­ nder patent meant additional revenues for Harvard
and DuPont. Harvard’s attempt to prolong the period during which
it and DuPont could generate revenue from sales of the OncoMouse
goes to the heart of the tension identified in this book: how do, or
should, public-­serving institutions of higher education use private
rights in the public interest? Even though intellectual property that
is developed within the bounds of higher education unquestionably
can serve as a means of income generation for institutions and individuals alike, its ties to the public’s welfare and our conceptions of
higher education as working in the public’s interest make the topic
too impor­tant to ignore.
Hanging in the balance in Harvard’s actions concerning mice and
money was their effect on the public interest—in other words, on
how our society would benefit (or lose) by the ways in which public-­
sector entities like universities use the intellectual-­property rights
they claim. Over thirty years ago, the public helped pay for the research that led to the discovery of what would come to be known as
the OncoMouse. While the law permits Harvard and other universities to benefit from research conducted by their faculty, this benefit
is intended to have a fixed and limited duration, not the extended
period of protection that Harvard sought and more or less obtained.
We reasonably might won­der what the public stands to gain when
institutions of higher education use intellectual-­property laws to
engage in such sharp practices.
While Harvard’s experience with the OncoMouse patents was a
singular event, the tensions and opportunities it faced are not unique
to this institution. Curbing invitations to indulge in intellectual-­
Intellectual Property and the Public Good
7
property excesses is a prob­lem at all levels of higher education, not
just its highest echelons, as this sector as a w
­ hole has strayed too far
in the direction of championing intellectual property. The private
rights that intellectual-­property protections afford can be tempting
vehicles for institutions in their fierce competition for resources and
rewards. As this book explains, the challenge for higher education lies
in using ­these private rights as instruments primarily directed at furthering the public good, not impeding it.
Public Goods and Private Goods: Higher Education
and Intellectual Property
Higher education and intellectual property have a long and complicated interrelationship. For some time, the former’s dominant
historical narrative has been that higher education is an inescapable
public good, in large mea­sure b­ ecause of the intellectual fruits it produces for society as a ­whole.11 This sector accomplishes its noble
goals by serving as a site for unfettered research and discovery, a place
where intellectual bound­aries are pushed, new theories are produced
and debated, and new knowledge is disseminated to the public in
vari­ous forms: books, conferences, innovative products, and more-­
intelligent citizens. The conception of higher education as a special
sector, set apart from ­others, reflects the bargain that society strikes
with higher education regarding its intellectual capital: storing, creating, and disseminating new knowledge is a difficult but impor­tant
undertaking, one that must be reasonably ­free from state-­imposed
restrictions and directives, lest the pursuit of truth suffer. In short,
higher education deserves special treatment—in the form of tax
subsidies and unparalleled freedom for its faculty to establish, pursue,
and monitor their own research agendas—­precisely ­because of the
intellectual benefits to society that flow from higher education’s principal undertakings: research, teaching, and ser­vice.
An economic and po­liti­cal narrative emerging with increasing
force, one that is discussed at length in this book, is that intangible
assets—­such as the intellectual outputs in higher education—­require
the allowance of some form of owner­ship for their highest and best
8 The Branding of the American Mind
value to be realized. In the United States, the genesis of this concept
dates back to the formation of our country, when the Founding
­Fathers believed it impor­tant, in order “to promote the Pro­gress of
Science and useful Arts,” to provide authors and inventors with exclusive rights to their writings and discoveries.12 This clause of the
Constitution, now referred to as the intellectual-­property clause,
paved the way for the subsequent enactment of patent and copyright
laws aimed at encouraging the disclosure of valuable inventions and
works whose creators other­wise might not choose to share them with
the world. This exchange between society and individuals was intended to be mutually beneficial: society obtains knowledge it might
other­wise not have received, while the individual receives a limited
but private right to exploit that knowledge for a fixed period of years.
This aspect of our democracy has been lauded as creating the appropriate amount of incentives for inventors and authors to undertake
work that is laborious yet speculative, in the sense that without such
inducements, it could never pay off. The historic theory at the heart
of our intellectual-­property system is that public good flows from
establishing the possibility of granting private rights to ­those who
make impor­tant scientific and artistic contributions to society.13
In modern times, this theory has been complicated by additional
rationalizations for the existence of intellectual-­property protection,
particularly in areas outside of copyrights and patents. Reducing
consumer confusion, recognizing brands to encourage investment
in them, promoting start-up movements by marketplace actors, and
rewarding l­ abor have all been tendered as plausible justifications for
intellectual property. What­ever the rationale, an enduring premise
of the recognition and protection of intellectual property is that some
intangible creations can be owned, and the l­egal system should accommodate owner­ship, and the right to sell or transfer t­ hese goods,
in order to benefit us all.
­Every story in this book is undergirded with t­ hese two competing
narratives: the public’s interest in higher education (that is, what
accrues to the public from it), and the private interest individuals and
entities have in intellectual property. ­Because of its research and ser­
Intellectual Property and the Public Good
9
vice functions, higher education is designed to generate scientific
discoveries and artistic contributions. T
­ hese creations unquestionably further the public good, but so can the owner­ship and restriction
of them. The question becomes, to what extent must higher education’s fruits be owned or claimed in order for the public to benefit
the most? More to the point, among every­thing that higher education
produces or views as intellectual, what should be styled intellectual
property?
This book lays out how the private-­rights aspect of intellectual
property is on the rise in higher education, often to the detriment of
this sector’s long-­standing narrative of providing for the public good.
One of my main arguments is that much of what can be assigned
as intellectual property in higher education is being claimed by its
institutions, with the interests of the public being harmed in the
pro­cess.
It is impor­tant to emphasize that ­these two, seemingly divergent
constructs are not new, nor are they mutually exclusive. Private
rights and public goods have coexisted in higher education, as it has
served as a transformational forum and space for public debate and
argument.14 This sector finds itself historically rooted in the public
sphere, a space that Brian Pusser calls “at once physical, symbolic,
cultural, po­liti­cal, and semantic, not in relation to the state or the
broader po­liti­cal economy but as a site of complex, autonomous
contest in its own right.”15 Yet contestation currently is unfolding
­regarding the nature of higher education’s per­sis­tence in the public
sphere, reflecting deep tensions over the degree to which this sector’s
benefits should accrue primarily to private individuals and corporations, or to the public at large.16 Coining an all-­purpose definition of
public interest, as it pertains to higher education, is not an easy task.
Simon Marginson offers one useful way of conceptualizing the public dimension of higher education, imagining “the sector as an umbrella
public sphere sheltering proj­ects that pertain to the public good (singular) and more narrowly defined public goods (plural). Most such
public functions are associated with the university’s roles in knowledge, learning, and discourse.”17
10 The Branding of the American Mind
Public benefits and public goods, as Pusser, Marginson, and other
scholars conceive of them, stand in contrast with private-­good orientations in higher education. Universities grant private-­good benefits
to individuals by awarding them earned degrees, which lead to enhanced earnings over t­ hese persons’ lifetimes. When universities
facilitate forms of revenue ­going to corporations—­for example, by
performing sponsored research—­this transfer is also a private good.
When universities develop new knowledge, funded with public
dollars, however, and distribute it widely and nonexclusively, that
activity is a public good.18 Other benefits to society that result from
public support of higher education include greater rates of civic engagement and healthy be­hav­iors by t­ hose who pursue some type of
postsecondary education, as well as lower rates of crime and other
activities that encumber public ser­vices.19
One way of viewing the landscape of public goods and private
goods in higher education is through the lens of what Burton Weisbrod, Jeffrey Ballou, and Evelyn Asch call the “two-­good framework.”20 Most activities in higher education have a dimension that
advances a public-­serving mission, such as educating students or
improving society through research or ser­vice. ­These same or related
activities may also be driven by a concern for revenue generation, or,
more directly stated, money.21 Money is impor­tant, ­because higher
education’s pursuit of mission (specific objectives or purposes) is
expensive. Revenues must be generated so that missions can be furthered, even if the line between private (revenue) goods and public
(mission) goods is seldom clear.
University engagement in technology transfer is a classic example
of where mission-­related goals often create tension with money-­
related goals. Universities that own patents may be tempted to license
them on an exclusive basis to only one com­pany (like Harvard did
with its OncoMouse patents), as opposed to licensing them cheaply
and nonexclusively to anyone willing to pay for a license. Institutions
of higher education pursue ­these exclusive arrangements with industry ­because providing the benefits of research knowledge to only one
firm, as opposed to many, enhances the potential for ­these institutions
Intellectual Property and the Public Good
11
to profit from that knowledge. Yet many argue that the creation and
wide dissemination of research knowledge is indivisible from any
university’s mission, particularly given that taxpayers fund around
60 ­percent of all university research—at public and private universities alike—­through the federal government, which awards sizeable
competitive research grants to ­faculty.22
Private-­good orientations in higher education have been compounded by what Gary Rhoades and Sheila Slaughter call “academic
capitalism,” or “the increasing engagement of higher education institutions and participants in market-­like and market be­hav­iors in creating and taking to the marketplace (1) research and education
products and ser­vices that commodify higher education’s basic work
and (2) nonacademic products and ser­vices that feature higher education as a nonacademic consumption item.”23 ­Those who study the
effects of academic capitalism in higher education tend to focus on
the erosion of this sector’s public-­serving ideals, as well as perceived
disruptions to its traditions of openness and sharing that are brought
about by t­ hese trends.24 As Slaughter and Rhoades argue, “Universities, strengthening their units that litigate, have moved to defend their
intellectual property, firmly committing themselves to academic
capitalism, even when it puts them in awkward positions with regard
to their treatment of . . . ​the public trust.”25 An impor­tant, related
criticism is one identified by Irwin Feller: the risk that universities,
“tempted to pursue new financial opportunities to compensate for
stagnant revenues from other sources,” may exaggerate their own
capabilities involving intellectual property and technological innovations.26 This book provides data in support of both of ­these
arguments.
Scholars such as David Kirp and Christopher Newfield view
higher education’s pursuit of market be­hav­iors and ideals as antithetical to the traditional role of a university. As Kirp forcefully states,
“Embedded in the very idea of the university—­not the story­book
idea, but the university at its truest and best—­are values that the
market does not honor: the belief in a community of scholars and
not a confederacy of self-­seekers; in the idea of openness and not
12 The Branding of the American Mind
owner­ship; in the professor as a pursuer of truth and not an entrepreneur; in the student as an acolyte whose preferences are to be
formed, not a consumer whose preferences are to be satisfied.” 27
Newfield agrees, arguing that “the university and business are partners that should not fuse, neighbors that need good fences, friends
that must remember that opposites attract.”28 The growing rift between the market’s temptations, in the shape of intellectual property,
and the university’s highest purpose, which is public ser­v ice and
public trust, forms the heart of this book’s thesis.
Society has only a limited ability to mea­sure public goods, so the
value and any consensus around higher education as a public good
occurs in the arenas of public perception, policy, and debate. Vari­ous
conditions ­either enable or hinder the degree to which public goods
emerge in higher education.29 The existence of intellectual-­property
protection, and how institutions choose to engage with the
intellectual-­property system, form one of t­ hose conditions. At its
core, intellectual property is a system by which to or­ga­nize competing claims for private rights to intangibles. As described in this chapter, each of the discrete ­legal protections that pertain to intellectual
property tends ­toward exclusivity in ­favor of the claimant to a right,
often to the exclusion of another claimant in direct or indirect competition with the first, including, most importantly, the public. When
institutions of higher education seek and obtain t­ hese power­ful rights,
they impact the public’s trust in their activities. While intellectual
property unquestionably may be used to implement and further the
public good, …
Purchase answer to see full
attachment




Why Choose Us

  • 100% non-plagiarized Papers
  • 24/7 /365 Service Available
  • Affordable Prices
  • Any Paper, Urgency, and Subject
  • Will complete your papers in 6 hours
  • On-time Delivery
  • Money-back and Privacy guarantees
  • Unlimited Amendments upon request
  • Satisfaction guarantee

How it Works

  • Click on the “Place Order” tab at the top menu or “Order Now” icon at the bottom and a new page will appear with an order form to be filled.
  • Fill in your paper’s requirements in the "PAPER DETAILS" section.
  • Fill in your paper’s academic level, deadline, and the required number of pages from the drop-down menus.
  • Click “CREATE ACCOUNT & SIGN IN” to enter your registration details and get an account with us for record-keeping and then, click on “PROCEED TO CHECKOUT” at the bottom of the page.
  • From there, the payment sections will show, follow the guided payment process and your order will be available for our writing team to work on it.