The American University, Public & Private

The American University, Public & Private

August 27, 2019 0 By Stanley Isaacs


– This panel is on the American University Public and Private, and we have a very
distinguished line up for you. Kate Carbone has been introduced at this function so many times, that I think it would be superfluous to talk about her distinguished position and degrees and things. I will say she was the moving spirit on our committee organizing
these academic panels, and figuring out what would be interesting and helpful to talk about. So I was very grateful
for her role in that. She’s also the only veteran
or recidivist if you will of these celebrations of
the Dartmouth College case. She participated obviously in the 175th Anniversary presentation, and I will say that
her account of the case that she did for that, I think was the introduction
for a number of us to what the Dartmouth
College case was all about and how to think about it. If you become convinced
that any of the rest of us are getting things wrong,
chances are it’s Kate’s fault. Annette Gordon-Reed is the Charles Warren Professor of American Legal History at Harvard Law School, or the Harvard Law School, as we are always trained to say, and Professor of History and the faculty of Arts and Sciences. She won the Pulitzer Prize in History for her work on Thomas
Jefferson and Sally Hemings, but most important obviously, she is a member of the
Dartmouth class of 1981. Then David Rabban is the Dahr Jamail, Hage Jamail and Robert
Lee Jamail Regents Chair at the University of Texas, which I think sounds a little better than offspring of Joe Jamail chair at the University of Texas. He is probably the most
careful legal historian that I know personally, but he’s also an authority in the law of higher education and a former general counsel, of the American Association of the University Professor, but most important obviously, he is the person that hired me for my first real teaching job
at the University of Texas. You can take that into account, in assessing whether he’s a person of judgment or not, but it is a real pleasure
to have him at Dartmouth, so without further ado, we’ll start with Kate Carbone. (audience applause) – 25 years ago when we celebrated the case or commemorated it in Washington, I spoke about its moderate implications for private and public universities, and this time I thought
I’d go back in time, and look at its implications
in the 19th century. As noted yesterday, just
a short walk from here, sheltered by Webster Hall’s portico, a bronze plaque reads
founded by Eleazar Wheelock. Refounded by Daniel Webster. The inscription
commemorates the decision’s pivotal role in our college’s survival. The case’s transformational impact, extends far beyond Hanover. Before 1819, American
common law jurisprudence not uniformly answer the question, whether privately founded and funded charitable institutions were public and thus could be subject to basically plenary legislative oversight, or private, and even if they were private, it was unclear what this implied as to the power of the state to alter the institution
or to regulate it. For instance, in 1790, the Virginia Supreme Court of Appeals rejected the Commonwealth’s efforts to alter aspects of the
College of William and Mary. The Virginia Court held
that William and Mary is a private and not a public institution, because it was founded with
mere charitable institutions that Virginia had subsequently
added bounty, quote, did not change the nature of the college, nor did it matter that
William and Mary’s purpose was something the public
cared about, education. The Virginia Supreme Court’s 1790 decision noted in passing that
colleges and hospitals are often classed together as private, and are subject to the
will of the founder, but some subsequent cases in other states would classify similar colleges as public. This was the view unanimously
adopted of course, by the New Hampshire’s highest court, in the first stage of the
Dartmouth College case. The court explained that a corporation serving public purposes, could
be either private or public, depending on whether the charter
conferred property rights, and beneficial interests
to the incorporators, and Dartmouth College, everybody agreed, it had a public purpose. It was founded for the
education instruction of the youth and Indian tribes and also English youth, but New Hampshire highest court said the trustees had no private
beneficial interest, in either the franchise or
the property of the college. Indeed, New Hampshire’s court had the Dartmouth trustees as fiduciaries of a public corporation for ipso facto officers of the state. Of course, when the case
reached the Supreme Court the justices rejected the conclusion that Dartmouth was a public institution. Marshall’s opinion was arguably narrow, limited to publicly chartered
eliomosonary institutions. He came down essentially where Virginia’s Supreme Court had come down in 1790 although that was not a
constitutional decision. Because of its private
founding and funding, the institution was private, even though publicly chartered
and serving public ends, but Justice Story in
his concurring opinion made clear that the court was liberating all private corporations. Eliomosonary and commercial. In Story’s view only where a
corporation’s whole interest enfranchises with the exclusive property and domain of the government, could the government regulate, control, and direct the corporation. We’ve talked about in the last panel about the significance of that, in subsequent American history. Economic historian Adam Winkler last year published a book
called We the Corporations, where he said the Dartmouth College case fundamentally reconceived the nature of the American corporation, but this usual assessment of the case focusing on private corporations, overlooked what may be another significant consequences of the decision. Marshall’s opinion explicitly acknowledged for the first time in the Supreme Court, a particular type of corporation. What he called private
eliomosonary corporations and we now call private
charitable corporations. Ernie in the last panel referred to these. These private institutions were in Marshall’s word
artificial entities. The idea of an artificial
person was not new, but I posit that in
constitutionalizing this concept the Supreme Court provided a legal pathway for private educational entities and other charitable corporations newly insulated from
government interference by the Dartmouth College
case, to claim civil rights. Many of the same rights bestowed by the constitution on natural persons. The potential civil rights significance of the Dartmouth College case, now largely overlooked was recognized by Justice Story himself, in a later private letter to legal scholar and Juris Chancellor
James Kent of New York. Story expressed his hope
that the Dartmouth decision would shield all non state institutions and would check any encroachments upon their civil rights, which the passions and
popular doctrines of the day may stimulate our state
legislatures to enact. Now you’re thinking, state legislatures enacting debtor relief laws, but Story was making a broader point, and I will try to do so today. The idea that private colleges
could pursue education as their private leaders chose, was important but it was
a double edge proposition. Was double edged because on the one hand, the decision meant private colleges were empowered to discriminate against virtually any idea
or group, with impunity. Including discriminate on
religious and racial grounds, but on the other hand, the decision meant these
very marginalized groups, and minority groups might be able to and in fact, were able to, establish educational institutions, free from state interference, institutions that would serve them, and I’m talking here about women, Catholics, and African Americans. The legacy of the Dartmouth College case in fostering the interest
of discreet groups deserves the attentions of scholars and students of American history. This morning we don’t have time to cover all of these specifics, so I’m gonna focus in on just one. The history of colleges
established in the 19th century for the education of African Americans. The institutions that today we refer to as historically black
colleges and universities. Understand, before the Civil War, slavery and segregation, categorically foreclosed
educational opportunities for nearly all black Americans, though a couple of
institutions of higher learning for black students were
founded before the Civil War in Pennsylvania and Ohio. When the Civil War ended, 94% of the American black population lived in the former confederacy. Emancipation had not materially improved their educational opportunities. Even the newly ratified
Fourteenth Amendment did little to help. The Dartmouth College case, by endowing private colleges, with certain rights of private persons had the effect of placing private colleges beyond the reach of the
Fourteenth Amendment’s promise of due process and equal
protection of the law. Fourteenth Amendment rights,
like individual rights guaranteed in the Bill of Rights, afforded protection
only from state action. Action by a state legislature, state agency, state employee. Akeel Morris. I told you Fourteenth
Amendment was all about reigning in the states. The Fourteenth Amendment did not directly reach private action. As late as 1962, courts cited and quoted the Dartmouth College case in upholding private universities denial of admission to students of color solely
on the basis of their race. In that year for
instance, a federal court, federal court, in Louisiana, held that Tulane University was private within the meaning of the
Dartmouth College case because of its private sources of funding, and because it was a private institution, the racial discrimination
practiced by Tulane was not quote, the action
of the state of Louisiana. Now to be sure, Congress pursuant to its legislative powers
over interstate commerce and over federal funding, might and two years later would prohibit racial discrimination by certain private entities, including private colleges, but the Fourteenth Amendment did not do so directly by its terms, because these were private corporations and understood as already mentioned, to be insulated from state regulation by the basic holding of Dartmouth College. With the end of the Civil War, public education in the former confederacy grew significantly. While the North had developed, public, primary, and secondary education beginning in the 17th century. The South had not
established public schools. White business men and farmers had clamored for public schools, but faced class based resistance. That began to change after the Civil War, but however divided White
Southerners might have been over public education for whites, they were united in their opposition to educational opportunities
for their black neighbors. The Historian Henry Drury details how white opposition
expressed itself in ways ranging from legislative inaction, to violent attacks on white
teachers of black students, to the destruction of nascent
black school buildings. Even as they began to fund public schools, Southern and some border
state legislatures, denied public support for the education of any black citizens. Now at the same time these developments are happening in the South, Congress is also taking action. In fact, during the Civil War in 1862, Congress passed the first
Morrill Land-Grant Act, which provided federal lands for states to create liberal and practical
educational institutions. Our land grant colleges. 69 of them were quickly founded, throughout the United States. The Morrill Act implemented
mostly after the Civil War was a boon for white
Americans in the South. For most black Americans, the first moral act did not exist in any practical sense. The white Southerners who controlled their state’s legislatures and distributed resources made available by the Morrill Act, refused to spend them on black education. Just as they refused to
appropriate state revenues to support education for black citizens. Eventually Congress responded to the discriminatory use of federal funds by Southern legislatures. In 1890, it passed the second Morrill Act, which required as a
condition of federal support the admission of black students to existing land grant universities, or the creation of separate and just educational facilities for them. The benefits of the second Morrill Act were quite limited in
the former Confederacy. There was insufficient federal oversight and enforcement, and the
act essentially codified the illusory and denigrating concept of separate but equal. Even after the second Morrill Act then, the hostility of state
legislatures in the South to public education for
blacks, made private education, private education their
most important option. For decades after the Civil War, the Dartmouth College case I submit, played a beneficent role, in expanding the Civil
and Educational rights of black Americans. No historian seems to have connected the Dartmouth College decision, to the rise of historically black colleges and universities
after the Civil War. That said, several
scholars have recognized that these colleges existed, could exist precisely because they were private institutions. The historian Drury confirms that the widespread opposition to higher education for black
citizens during this period suggests why that private, and not the public sector took the lead in providing black education. Another scholar of historically black colleges and universities, Kristen Brody, agrees that quote African
Americans in Southern States relied on private colleges, as they were prohibited from attending white institutions, public or private. This is my argument. Almost immediately after it was decided the Dartmouth College case came to stand for the proposition that
private corporations, specific private eliomosonary institutions were significantly shielded from state government interference. I have various cases
quoting Maryland in 1860 saying precisely that. Maryland Supreme Court. Decades later, this understanding provided space for black Americans to pursue higher education
in the hostile South. Especially between 1862, the Emancipation proclamation, and 1890, the second Morrill Act, Southern blacks and their supporters embraced the private corporate form given constitutional protection by the Dartmouth College decision. The very constitutional doctrine used by others to deny them admission to some private colleges and universities, they used as a tool for
advancement of human dignity. This was no mean feat. The harsh legacy of slavery
imposed enormous obstacles, to progress by Black
Americans after the Civil War. As I noted, 94% of the
nation’s black population lived in the South. Not surprisingly, 90% of black Southerners only recently emancipated were illiterate, due to a variety of prohibitions against educating enslaved persons. Undeterred, Northern Freedmen Societies, religious missionary groups, black Southern communities, assisted by the Freedmen’s Bureau created by Congress in 1865, worked to charter private schools for the education of black Americans. Many of which started out as primary and secondary education, and later evolved into
private higher education. In this way, the
development of these schools parallel Dartmouth’s. Viewed in the broad sweep of history, Dartmouth College grew out of Eleazar Wheelock’s non chartered
Moore’s Charity School. A secondary school that continued to exist for some years after Dartmouth College began admitting students. Only a few years after, private charitable corporations, an idea fostered and embraced in the Dartmouth College decision had transformed the educational
horizon of black Americans. Between 1866 and 1870, Freedmen’s Bureau didn’t exist very long, and there were subsequent developments, but in those years, the
number of black private educational institutions including pre college institutions, increased in the United States as a whole from 740 to 2,677. An 1870 report by the Freedmen’s Bureau listed 95 advanced schools and
colleges for black students. Quote, meaning high schools and colleges. Almost all of them in the Southern states. Some of the most famous and prestigious privately historically black
colleges and universities were established during this period, including Shaw University
in North Carolina in 1865. Fisk University in Tennessee in 1866, and Howard University in the
District of Columbia in 1867. The historian Reginald Wilson underscores that black private colleges beyond the reach of prejudice state governments continued to quote, carry the
substantial responsibility of educating blacks at the
college level until the 1930s. There is some uncertainty, as to the exact role of
the Dartmouth College case here with respect to these colleges. I’m also setting women’s colleges, and great growth in Catholic colleges. It’s true that state governments picking up on Story’s caveat in his concurring opinion, generally adopted a reserve clause, which Caleb Nelson has spoken about, which said all future charters or incorporations pursuant
to statute or charter are subject to future
legislative modification, but I’ve been able to find
in the historical record no evidence that the Southern states used this reserve legislative power that they exercised it with respect to the black colleges and universities established in the wake of the Civil War. Southern legislatures seem to have basically ignored these schools, as if to take no responsibility for them. To deny their existence, whereas trying to get involved with them presented its own problem
for white legislatures. Now we know that Americans, higher education institutions have grown and evolved
dramatically since the 1930s. Not to mention since the
Dartmouth College case in 1819, but clearly insisted on a
constitutional distinction between public and private colleges, so I disagree with some historians who say it didn’t rise until the Morrill Act and after the Civil War. That was an idea whose full significance was probably uncertain
when the case was decided, and its distinction I would submit between public and private education is even more blurred today. When public and private funds support virtually all U.S.
colleges and universities, and various laws, non
discrimination and other laws, state and federal apply equally to all such institutions. Indeed Judge Henry friendly
whom I mentioned yesterday in his 1986 lecture at Dartmouth commemorating the Sesquicentennial
of Daniel Webster’s argument famously subtitled his lecture, The Public Private Penumbra. What’s a Penumbra? I don’t know. It’s a conundrum. It’s some. Is it really exist? My claim today is small, but I don’t think it’s been made before. It appears that the idea of the private charitable educational institution played an important role in
the aftermath of the Civil War when newly emancipated black Americans needed and ardently sought education and were denied access
to white institutions and to public support. Let me just summarize. Our traditional appreciation
of the Dartmouth case is somewhat siloed. Yes, the case played, we founded Dartmouth College, as the plaque at Webster Hall says, of greater national
significance of course, it contributed to the transformation of the American corporate driven economy, but also this. By creating and protecting the category of private eliomosonary institutions, the Dartmouth College decision had important implications, for the later struggle to secure the Civil Rights of black Americans, in ways that even Justice Story probably didn’t fully imagine. The Dartmouth College case helped us to overcome undue
encroachment on civil rights that our state legislatures
might time to time try to impose. (audience applause) – I’m very happy to be here today. Other part of my Dartmouth life was being a member on
the board of trustees who happened to be meeting
across the way right there and I came off in June, so I have this impulse to be there and see them and get
into all of that again. I have apologies for not being able to be here last night to hear the recreation of the iconic case, but I’m happy to be here
with you this morning to talk about the American University public and private. This is a broad topic, and my comments are broad. Some of the things, themes
have been sounded earlier today in the first panel and
some by Kate just now. When I first read the Dartmouth
College case in law school and I’ve thought about it since, it was mainly in connection with its important role in the creation of the modern corporation. The idea that when a
private contract is made, not just private contracts,
but any contract is made, it cannot be impaired by the state. What this did, for the creation of private business corporations. It established a general
principal of non regulation. Now we in the modern
state have regulation, but it’s always spoken of as something that is unusual or something
that is inherently problematic and should be limited, so the case had an enormous influence, on the development of
the country necessarily with the rise of business corporations, and there was some concern
mentioned this morning about how people feel about that because people have ambivalent feelings about corporations, and yes, the NAACP is a corporation but it’s not Exxon. It’s not a commercial entity. It’s an entity that started. These entities started as being for the benefit of the public, and a different understanding about that and there was suspicion
about the corporate form because it limited
liability of individuals, and we move from that to a period where it’s not about the
benefit of the public. It’s for shareholder interest. There’s sort of a different standing that the corporation has now, and we look back to the beginning of the protection of it from
the Dartmouth College case and then as was mentioned
in the history earlier, that there was a period
of ambivalence about that once we get to the Jacksonian era. It’s not seen as something
that was so wonderful as you’re thinking about
the rise of the common man against what people would have thought were special interests so but the case had another influence, that we’re addressing
in this particular panel and that is in the rise
of private colleges, the private entities that educate people, and the thinking was that
once people understood that a new college or an
entity that was put in place could not be interfered with by outsiders, mainly the state, that encouraged people to set them up as Kate suggested, and it encouraged donors to
become involved with them and to think look to the
interests of these entities because their values could be, they could be assured that they would not be trampled upon by the state. This freed people to
create these institutions, and you see a rise of them, during the 19th century. This common understanding has been, had been trumpeted in the
literature for many years, but there was one person,
or a number of people. Didn’t focus on one individual, who challenged this idea, in the very interesting forum for the Journal of Education. John C. Whitehead mounted a vigorous challenge to this notion that the Dartmouth College case was this iconic case, and represents a break with the past in terms of education
in the United States. Before and after the case he says, states were involved in what were considered to
be private institutions. Dartmouth even after the case came down, continued to seek a relationship with the state of New Hampshire, as a matter of fact. They provided for representation on the board of a member of
the state of New Hampshire when that continues to this day, in exchange for resources. There was no, I guess the point is, that there was no such thing, as a completely private institution and even today there are just, only a handful of institutions, that could be educational institutions of higher education, the higher levels that can be considered totally private. There’s always been a hybrid, and so it raises the question, of what is a private institution, versus a public institution? Now the fight at Dartmouth
was really about religion, two religious factions over who was going to be the head of a church, of the white church. There was a component of it, that was local, and specific, and an intimate problem, that necessarily once the case came down, had a larger significance, and took it outside of the context of this private dispute. It was also a political question, because there was a
dispute between federalists and sort of Republicans
during this time period. These local political
issues have this controversy and there’s a resolution
of it that never the less has a widespread application. Even with that, Dartmouth
continued to want to be connected to the state of New Hampshire, other denominational
churches, I mean schools, continued to want some connection with the state for resources, so there was no real private entity here, and that was Whitehead’s point is that Dartmouth does not represent a break between something that was
totally different before and something totally
different happens afterwards. There’s a continuation of this idea, that even private colleges will have some connection to the state. He didn’t see the case
as making any big claim. Yurk and Herbst, in the
same forum strikes back, and says, no it really did change things, because it crystallized. It made people think about the differences between public and private, and even if there were these instances where there was cooperation
between the state and these colleges, the primary understanding was that there would be non interference. The presumption of non interference would hold in these situations, even though there was some cooperation and states kind of took
a hand off attitude about all of this. The two go back and forth on this, and come to the conclusion that perhaps both of them are right. Move a little bit to the side maybe, that Whitehead says, maybe I had stated my claim that the case
was not very important. Was over strong. Herbst suggests maybe my understanding that it was pivotal, that this is a timing question, that it’s whether all of this happened before the Civil War
or after the Civil War but they come to some agreement, that the case was in fact important and this chief importance
is to get us to think about chief importance in terms of education. Not the corporation. The issue of the modern corporation, but in the rise of education, is to get us to think about what is private and what is public in these particular contexts. On that point, almost a
third of students today, are in what could be considered to be private institutions like Dartmouth and others in my institution
of Harvard where I teach. We recognize these as private schools, although and they’re also, we consider, there are for profit schools as well, but these are private schools, that we consider out of the
control of the government. Most people think of it, that that’s the first thing you would say, is the difference between
a public institution and a private institution, but as was mentioned before, these institutions cannot exist, without government support, financial aid, that’s given to students allows colleges to charge tuitions that they probably could not charge if but for the existence of this kind of support, and that’s a very important thing. Endowments, only recently now, of course we know as laws passed to tax the endowments of
very very wealthy schools but for the most part, schools that private schools don’t, endowments are not taxed in the way that they could be taxed, and that’s a form of a subsidy, that the government is
given to these colleges. As Kate mentioned before,
anti discrimination laws, that suggested if you take public funds that are things that you can’t do. I remember there, you probably remember there was a huge controversy
about ROTC on campuses when they discriminated
against gay students and how colleges had to figure out, law schools had to figure out particularly how they were gonna handle this. The possible loss of federal funds, if they did not allow
recruiters on to campus. All of these things show you and show us that these are not
totally private entities. These are entities that have a public face and certainly as in the past with the Dartmouth College case you think of religion as being
the impetus for a conflict. We see now politics, as an
impetus for conflict here. Not only just in private institutions but in public institutions. I think the existence of
these public institutions, things that are chartered by the state, sort of has obscured to some degree the extent to which private institutions are a hybrid, and when we think about interference now with the governance of an institution, we think of schools like
Wisconsin for example, with Governor Walker, and his continuing battles with the University of Wisconsin at Madison. Largely for political reasons. At Dartmouth it was a fight over religion. Evangelicals, different
understandings about religion. Today, in the public context, is public institutions, it’s a battle about politics, largely partisan politics. Republican versus Democrat. It was alluded to today, I think Akeel said, that institutions, universities are seen as implacably liberal, and people who are outside of that see that as a problem, and have tried to use and use politics, as a way of reigning it in. Ensuring, I was reading the
other day about a proposal. Was it at Texas, maybe? To have syllabi posted,
or make them transparent, so that people could see what was actually being assigned
in classes and so forth, so members of the public. It’s bad enough to get your students to read the syllabus. (audience laughing) Difficult enough to do that. To think of people making
people read syllabi, but the whole point is
to try to figure out, to fair it out intellectual bias or political bias in
these particular cases, and people say, look, I’m paying
taxes for this institution, so therefore I should have, I should have some say
in the running of them. I should make sure that
there is transparency, if there is equal access or equal access to different ideas and so forth. We’re used to seeing
that in the context of totally public institutions. Private institutions for the most part have escaped that, although
their criticisms definitely, but it’s not, we’re not
seeing the kinds of actions, the sort of interference that is capable of having in the context of totally public institutions. So I’m not suggesting as, a graduate of a private institution, and also as a teacher in
the private institution, as a faculty of course, I’m not saying that I want to see private schools go the same route. Go the same way or being
treated in the same way as public institutions, but I have a feeling that that might be coming more and more, as
people try to find ways, to interfere with the
running of institutions. We could have a talk about this, and I know as a faculty member I have a particular
perspective on all of that, just as I would have wished perhaps, in 1818, 1817, 1819, up until the founding of the ruling in Dartmouth College, that people that left the college alone to do what it wanted to do in a way, I wish that that today that there would be much more supposed
respect and maybe trust. Maybe we can talk about whether or not we’ve earned that trust or not. For faculty, to run institutions, in the service of educational reasons. Educational means, as opposed to politics, but I don’t think that that
is actually going to happen. We talked about partisanship. The great amount of partisanship that has affected all kinds
of private institutions. We’ve seen that come to colleges as well and I don’t really see
much of a way out of that. As we move to a place where
education becomes central, become even more central to people’s lives in the sense that you
must have college degree or higher education to get jobs and employment and so forth, and that’s what people
think everyone has to do. It becomes much more expensive, a much more expensive proposition. The government has to be involved in it. I have a feeling that we’re in for some even more interesting times, with professors, with students, with people who are in these institutions. Feeling that, well maybe not the students, but the faculty feeling perhaps besieged by the attempts to reign in, or to interfere with the operations of these institutions. Dartmouth College case remains iconic, both for its effect on corporations, and for the way we think
about public and private, but it’s pretty clear, and I think Whitehead
was right to this extent, that this is a question, that has bedeviled us
from the very beginning. What do you do with hybrid institutions? People are necessarily going to feel that they have a stake in something that they’re paying money for, and we’ll see this continue. I don’t know. I’m optimistic, but I do think that
this era of interference as it was in the 18th
century, in the 19th century will continue because
of the amounts of money that are involved and the importance of the American institution, to the future of this country, and to the futures of individual students, who come to these places, with the hope of fulfilling the dreams they have for themselves. I’m not suggesting that faculty should be left totally alone, but I do feel that the people
who go into this field, most of us go with the idea of making a positive
difference in people’s lives, go with the idea that purpose
is to expand people’s minds. I know that Yale perhaps may be more liberal than Harvard is in some ways, but I see on my campus, a wide range of discussions among people. Maybe it’s the law school. Maybe we have more
conservatives at the law school than we have at the college level, but I see hope in the American university. I think the people who come to us have the capacity to make judgments about whether or not
they’re being indoctrinated. It’s very difficult to
indoctrinate people. It’s not as easy as you think. These are free thinking individuals, who have their own really smart people in the kind of places
who come to Dartmouth and the kind of people
who come to Dartmouth, and the kind of people who come to Harvard are really smart, and are
not capable I think of, they’re not being made into robots, that we’re indoctrinating. Interference that people
are, by us, as teachers, I think is not so great, or not so nearly as powerful as the possibility that politics, that sole politics by
legislators and others will interfere with the
American institution of the university, which is a jewel in the
crown of this country. The two things that we
do really really well, movies and universities. (audience laughing) Everybody come from all over the world, wants to come here and learn, and I think whatever people feel about the university and how
we need to be reigned in, we’ve created something that
is the envy of other people and when we think about interference and we think about the
purposes of institutions whether they’re private or public, what we have been doing has helped make the country the great country it was in the 20th century, and I just don’t want to see that lost, because of narrow
concerns like the concerns of fighting about whether who is going to be the head
of the white church in the 19th century. You want to see that displayed at this particular moment, when it is so crucial for the country to lead and the country to make the most of the talents and the
capacities that we have in our students and in the resources we have as this country. Thank you. (audience applause) – Well as a non alum, I very much appreciate the invitation to participate in the symposium, and I also appreciate the warm welcome that I’ve received. Most scholarship on the
Dartmouth College case falls into two broad categories. One category written by
law professors mostly, emphasizes that it provided
the legal foundation for corporate freedom from
government regulation. Another category written especially by historians of American higher education, emphasizes that its legal differentiation of private from public universities, promoted the transformation of American institutions
of higher education, which as Annette had just mentioned, had previously combined what
later became identified as private and public features, into structurally dissimilar private and public universities. This structural pluralism,
may historians stress, continues to be a
prominent and distinctive characteristic of
American higher education. Ironically, relatively little scholarship has explored the implications of the Dartmouth College decision, for the legal regulation
of higher education. The context in which the case arose, and the subject of my comments today. Drawing largely on decisions, that cited Dartmouth College, while addressing a fascinating variety of legal disputes at Universities I will focus on two related issues that remain vitally important
in the 21st century. First the extent of
University independence from regulation by the state, and second, the extent to which this independence depends on the private or public status of the University. From the Dartmouth College
decision to the present, courts have recognized that
institutional independence from the state promotes
public interests in education. They have provided more independence to private universities, but they have also recognized
that in some circumstances, even public universities
should be sheltered from the state that created them. At the same time, courts have
identified state interests that justify regulation of private as well as public universities. The legal concepts used
to analyze these issues have changed over time. The constitutional provision precluding the impairment of contracts, was the primary conceptual tool in the Dartmouth College case itself, as you’ve already heard. With the ratification of
the Fourteenth Amendment after the Civil War, its prohibition against
various forms of state action eventually became the doctrinal vehicle for differentiating public
from private universities and determining their respective rights against the state. Judicial decisions in recent decades, declaring that universities have institutional rights of academic freedom protected by the First Amendment have provided an important
new constitutional barrier to state regulation. 50 years ago Henry Friendly, who you’ve already heard of, the eminent federal judge, used the 150th anniversary of
the Dartmouth College case, to propose a new interpretation of the state action provision
of the Fourteenth Amendment, asserting that Justice Marshall’s opinion in Dartmouth College,
drew too bright a line, between private and public, while construing the
impairment of contracts laws, Friendly suggested a
more flexible approach to this distinction, in determining the
existence of state action. Following Judge Friendly’s example, in the context of state action, I will use another anniversary, of the Dartmouth College decision, to suggest flexibility in applying the First Amendment’s protection of institutional academic freedom to public and private universities. It is a very significant
though often overlooked feature of the Dartmouth College case, that both the New Hampshire court and the United States Supreme court, despite their many differences, stressed that universities
require independence to serve their institutional function of providing education that
benefits the general public, but the two courts disagreed about the sources of threats to
university independence, and that disagreement undoubtedly affected their legal analysis. The New Hampshire court
viewed university trustees as the primary threat, with apologies to Annette and Kate here. After highlighting the great
social value of universities and the need to maintain their just rights and privileges, the court in new Hampshire stressed, the problem about the unchecked power of university trustees. Higher education the court reasoned is a matter of too great moment, to intimately connected with the public welfare and prosperity, to be entrusted to the absolute control of a few individuals, and out of the control
of the sovereign power. It warned that independent trustees will ultimately forget that their office is a public trust, will at length consider these
institutions as their own. Will overlook the great purpose for which their powers
were originally given, and will exercise them only to gratify their own private views and wishes, or to promote the narrow
purposes or a sect or a party. Now I have to say in my long years of working for the American Association of University Professors, I’ve occasionally come across
some trustees like that. Though most are excellent okay. In contrast to the New
Hampshire court’s concern, about independent trustees, Chief Justice Marshall’s opinion for the United States Supreme Court, viewed the legislature
as the greatest threat to the necessary
independence of universities. He referred to the pernicious influence of legislative bodies,
whose fluctuating policy, and repeated interferences, produce the most perplexing and injurious embarrassments. He doubted that private citizens would establish universities, if their incorporation made
them a public institution, whose funds are to be governed and applied not by the will of the donor, but by the will of the legislature. Although they identified Dartmouth College as a private institution, whose charter from the state, did not subject its trustees to legislative power. Justices Marshall and Story agreed with the New Hampshire court, that higher education is a
matter of public concern. Story’s opinion is particularly helpful, because he emphasized the difference between what he called the popular and the legal meanings of the term public. He acknowledged that in a certain sense every charity which is extensive in reach may be called a public charity. It’s in contradistinction to a charity embracing but a few definite objects. In this sense he observed, a university is a public charity whenever it offers its charitable purpose of promoting learning and piety, to a broad community, but he stressed that a public charity, is often a private corporation. The assumption that because
a charity is public, the corporation is public he declared, manifestly confounds the popular with the strictly legal
sense of the terms. In the legal sense, a
public corporation means more than that the whole community may be the proper objects of its bounty, but that the government have the sole right as trustees
of the public interests to regulate, control, and
direct the corporation and its fund and its franchises, at its own good will and pleasure. That education is an
object of national concern and a proper subject of legislation, Justice Marshall observed, all admit. Nory added, would anyone deny that the state could found an institution entirely under its immediate control, whose officers would be public? But he denied that Dartmouth College was such an institution, and more generally that all education is an exclusive function of government. Making all teachers, public officers, all donations public property, and the will of the legislature, paramount to the will of the donor. Citing the Dartmouth College case, legal decisions throughout
the 19th century addressed state regulation, of both private and public universities, by reiterating, elaborating, and extending the analysis, in the Marshall and Story opinions. Decisions clarify that state support does not in itself make
a university public, enabled many universities to benefit from the independence from state control conferred by private status, by the Dartmouth College decision. Further limiting legislative
interference in universities decisions citing Dartmouth College maintain that subsequent ratification by university’s trustees can not validate legislative amendments to
the university’s charter that are inconsistent with the provisions of the original trust. Occasionally, courts indicated constraints on the power of state legislatures even over public universities. Especially when the charters of these public universities, reserved various educational functions to the governing board. Yet, decisions also
upheld general legislation that universities challenged
as illegal interference in their internal affairs, such as a licensing law. A law requiring gender equality in law school admissions. Challenged by the Hastings
College of Law in California, and the law prohibiting integrated classes challenged by Berea college in Kentucky. By the late 20th century, state action and
institutional academic freedom supplanted impairment of contracts in the law of trusts as
the focus of litigation over how much the state
could regulate universities, but lawyers and judges occasionally referred to the Dartmouth College decision to point out that many of
the issues it addressed remained salient. Several decisions, including one by Judge Friendly himself, observed that the distinction between private and public universities introduced in the Dartmouth College case was crucial in determining
the existence of state action. Some of the factors 20th
century courts rejected as indicators of state action, such as grants of public property, and the public function
of all universities, had been rejected as indicators of public university status, in the Dartmouth College case, and subsequent cases interpreting it. Cases analyzing the First Amendment right of institutional academic freedom, occasionally cited the
Dartmouth College case as evidence of the Supreme
Court’s long tradition of recognizing the
importance of university independence from state control. These First Amendment decisions however, have not addressed differences between private and public universities. Just as Judge Friendly,
used a previous anniversary, of the Dartmouth College case, to propose a more flexible interpretation of the distinction between public and private universities, in defining the state action provision of The Fourteenth Amendment, I will close by proposing
a flexible application of The First Amendment
right of institutional academic freedom, that takes this distinction into account. In many circumstances, institutional academic freedom, should protect public
and private universities to the same extent. Yet, I believe that on some matters that have educational implications, the state has more legitimate control over its own universities, than over private ones. Leaving public universities with less institutional academic freedom. In my view, institutional academic freedom should protect public as
well as private universities from legislation that regulates the content of teaching and scholarship. The classic early Supreme Court cases that identified academic freedom as a First Amendment right, arose at state universities. They convincingly asserted, that The First Amendment prohibits legislation requiring disclosure, of the contents of a classroom lecture, or interfering with the assignment in classroom discussion,
of controversial views. It is in this context,
that Justice Frankfurter, laid the foundation for
The First Amendment right to institutional academic freedom that Justice Powell recognized in Bakke, another case arising
at a public university to justify for Justice
Powell affirmative action. Frankfurter emphasized the dependence of a free society on free universities, which requires the exclusion of governmental interference, in the intellectual life of a university. Legislation prohibiting universities from teaching evolution, or requiring them to
teach creation science should similarly be deemed violations of institutional academic freedom at both public and private universities, because they preempt
the expertise of faculty in determining whether a theory meets academic standards. Legislation that
conditions research grants to professors and universities, on the right of government officials to approve publication, also violates the institutional academic freedom of both public
and private universities. The federal case that raised this issue arose at Stanford, a private university, but the result should
not have been different at the University of
California, a public one. Just this First Amendment academic freedom should protect some core functions of both private and public universities from state interference. Some state interests
are substantial enough to justify laws that constrain both public and private universities, even though educational
functions might be affected. State interests in national security may justify laws that
restrict dissemination of academic research, that would reveal the details
of military operations during war time, or how to
produce dangerous weapons. State interests in public health, may justify laws that restrict research involving toxic chemicals, or endangering human subjects. State interests in
preventing discrimination may justify laws that
limit university discretion over student admissions,
and faculty employment. State interests in preventing fraud may justify state scrutiny, of the educational claims of universities. Public and private. More controversial
assertions of state interests have arisen in connection
with federal legislation denying funds to universities, that restrict military recruitment and state legislation permitting concealed weapons in class, which I have to deal with in Texas, but the weight of the state interests in these cases, in my view, does not vary between public
and private universities. Other state interests by contrast, seem within the state’s authority to regulate public but
not private universities. State legislatures often fund various institutions of higher education with quite different goals and programs including research universities, community colleges, liberal arts colleges, agricultural universities,
and medical schools. These legislative decisions clearly limit the freedom of state
colleges and universities to determine who may
teach, what may be taught, and who will be admitted to study, which courts have
recognized as key elements of institutional academic freedom, yet no one has ever maintained that these decisions violate
a public university’s institutional academic freedom, and it is difficult for me to imagine convincing arguments that they do. A legislature’s determination of the kinds of institutions
of higher education and the extent of their funding seems clearly within its legitimate power. These arguments for legislative authority do not apply to private universities, whose decisions about their educational goals and programs should be protected by institutional academic
freedom from state interference. Some states require that
certain courses be taught in their public universities. The Texas Education Code for example, requires that all its public universities offer a course covering the United States and Texas constitutions, and a course in American or Texas history. Imposing these course requirements, clearly affects what may be taught, but just as the legislative designation of an agricultural university affects what may be taught, without violating
institutional academic freedom, I think the imposition
of particular courses to promote the public
interest in civic education is legitimate interest
of a state legislature that does not violate the institutional academic freedom of a state university. The state interests in
civic education by contrast, seems weaker with respect
to private universities which should have more discretion in determining for themselves, the values they wish to promote. Either in prohibiting or
requiring affirmative action, I think a legislature
should be able to regulate public more than private universities. Affirmative action raises
broad issues of public policy that are matters of legitimate
legislative concern. While I agree with Justice Powell, that the institutional academic
freedom of universities, including public ones
should include the right to make decisions about
the educational value of affirmative action, I do not think a public university should be able to invoke this right, if the state has
legislated on the subject. No such legislation existed
at the time of the Bakke case, and Justice Powell’s opinion
did not reach this issue. Subsequent cases have upheld state laws prohibiting affirmative
action in public universities and judges should
similarly uphold state laws that require it. By contrast, because I think
there is less public interest in the affirmative action policies of private universities, I would recognize their
institutional academic freedom to make educational policy on this issue, free from state interference. Examples could easily be multiplied, but I hope the ones I’ve
given are sufficient, to demonstrate that the distinction between public and private universities, in determining their
independence from the state which was at the core of the analysis in the Dartmouth College case, remains significant 200 years later. Thank you. (audience applause) – My understanding is we have 20 minutes, and do we have microphones? Okay, so in an example of an institution evolving to meet current needs, we’re gonna have microphones
for people asking questions and we’re also gonna quit
punishing David for being tall so we’re gonna stay here. Yes, and the back. – When was a state seat
for a state official reserved or given on our board of trustees and when did it become the Governor and why and how did that work? – I suppose I should know the
answer to that, but I don’t. He’s just always there. (audience laughing) He or she was just always there. I’m assuming it’s, they had college representation even immediately after
Dartmouth College case, but I don’t know if it was
automatically the government. Excuse me, the Governor. – [Woman] At the time of
the Dartmouth College. – Go ahead. – Thank you very much. Yesterday, mention was made of the episodes involving Harvard and Yale, in unsuccessfully repelling efforts at early influence from
Massachusetts and Connecticut. – Could you hold? Just a second. – Answer the Dartmouth College one. – Are we gonna answer the question? – Sometimes between the
Dartmouth College case and 1890, and I don’t know exactly when, but understand that that
change in Dartmouth’s charter, requiring that the Governor be a trustee was accepted by Dartmouth. It was not resisted. It was obvious. I mean this is politics, and not so bad to have
Governor on the board. Governor’s pretty important person. That may have been Yale’s thinking and Harvard’s thinking
the previous century. Dartmouth can change the composition of its board of trustees itself, and I think that’s what it did. That was not a state law. – In front. – That in part addresses my interest, which is if one hypothesizes
that Harvard and Yale have thrived and succeeded
in subsequent centuries, why is it the case that Dartmouth, in successfully repelling an effort at state interference, wouldn’t have. If the case has gone the other way, would Dartmouth University
today be similarly thriving? – The point is it would be very different. I mean what Governor Plummer
was a very smart guy. He had private correspondence
with Thomas Jefferson for decades about progressive education, what we would call it today. I guess they’re just non
sectarian education, and science, and if the nine new members of the board had come on in 1817 and had stayed on, and then we had this board of overseers appointed by the Governor, it would have been a different curriculum, a different university. Would it have been good? I think yeah, it would
have been good, yeah, but I also think that leaving it to the will of the donors,
past, present, and future, and to the original trustees, has resulted in a pretty darn good place. – Over here. – I’m just curious. I think this is for professor Rabban. In distinguishing between public and private institutions, do you distinguish between the leverage of the federal government, to create mandates and
state level government to create mandates, because of course the federal government is well known for using its
power of the purse so to speak to force all sorts of
behaviors on multiple institutions in society, states might have somewhat less leverage in their own jurisdictions. How do you think about those
two levels of oversight? – I guess my thinking is affected by having been a faculty member at the University of Texas for 35 years, and we have a lot of
work keeping, excuse me, keeping the state legislature at bay and I think that’s true of a lot of other public universities, and that was mentioned
in University Wisconsin. I would say I’m thinking back on my years of experience with the
American Association of University professors. Overall I would say
there’s more interference from the state legislature, which is closer to the University, than from the federal government, but there are plenty of threats from the federal government as well. The case I was referring to about submitting information before publication grew out of a federal regulation from the National Institutes of Health which we will give you, Stanford, a grant, to work on a new device for hearts, but you have to show us the
research before you publish it. Stanford refused. It won. I think, as I said, the University of California
should have won too. That’s an example of federal interference, but short answer, interference
comes from both sources. Federal and state. – Professor Omar. – On Kate’s observation about University of New Hampshire, Dartmouth University controlled by the government versus Dartmouth College controlled by donors
past, present, future, and the trustees, here are two interesting little factoids that might put this in some perspective. Here’s the first factoid. You take a look. This is about the creative
destruction of capitalism. The churn. You take how dynamic our economy is. You think about the great, the biggest, the most successful
corporations in say 1920 versus 2020, there’s no overlap. Google, Amazon, Facebook, Microsoft. They didn’t even, Apple, didn’t really exist in 1970, and now they’re behemoths whereas Consolidated Can, American Tin, and all these companies
from 1920 don’t exist today. The regular economy has lots of churn, but actually universities and colleges which as Annette said are among America’s really great
world leading sectors along with movies, she said, there’s very little actually different. If you ranked the greatest
colleges and universities in 1920 and you compared them
to the greatest colleges and universities in 2020, very little difference actually. The rise of a few places, Stanford, University of Texas, but now, and of the top 100 entities, industrial entities,
only 10 or so overlap. Standard Oil of New Jersey and California become Exxon Mobile or things like that. Only 10 of the corporations are the same, whereas only 10 of the
universities are different, but now here’s the point, when the constitution’s adopted, there are basically nine
institutions of higher learning. The seven oldest Ivy league schools. Everything except Cornell, and William and Mary Rutgers. Those are the seven at the
time of the constitution that are chartered. What’s very interesting though is, seven of them basically stayed private. The seven oldest Ivys. Two of them basically went public. William and Mary and Rutgers, and the seven that were
at the top in 1789, they remained according to
U.S. News and World Report, seven of the top 14 schools in America. Public schools have
drifted down a little bit. There’s still very impressive
age counts in education. The older the better like money. The older the better, but private has out, if we just step way back, private has outpaced
public in certain ways which connects to Kate’s point. We have great sectors in
both public and private but the private has done very well. – Gentleman in the back. – Thank you. We’ve talked a great deal about state and federal government interference. We’ve talked about debt, and
we’ve talked about grants. I find it interesting, and I guess the other
part of the question is, those in Great Britain that
made their first donations to build Dartmouth, did
they get a tax break? (audience laughing) They do now, and my question is, how has the federal government, state, and local government’s ability to tax public and private institutions affected and created their development? – Do we have a volunteer? (audience laughing) – Well a couple of points. First, with the rise of the income tax, in the United States and
elsewhere in the world, obviously when a
contribution is deductible and is paid with pre tax funds, that helps every charitable organization that qualifies for such donations. Churches and schools. There’s recently been a big change in the U.S. Tax Code, by doubling the standard deduction. Many people are not
gonna itemize deductions, and we’ll see what happens to donations, to charitable institutions. I agree with Annette, that that’s a subsidy of
charitable institutions that the government can give or not give. It’s not required by the First Amendment. I don’t think it’s required
by academic freedom or anything else. It’s a policy decision, and that is one important source, of funding of charitable institutions. – [Man] I was thinking more about access to the institutions are forced to pay, because the burden of tax tends to affect what an institution has
left to run the program. – Again, this is a policy decision. It’s not a constitutional decision, and our states and federal government have by and large said this. All of property that is used for the educational mission of the college or university is not taxed. – Public and private, right? – Public and private. Is not subject to for
instance, even property tax, but the facilities that are not and there’s a line drawing problem, if they’re not part of
the educational mission, may be taxed. So Yale’s golf course is taxed, and the income from the
golf course is taxed, but not the income from the dining halls owner by Dartmouth. That’s considered. People have to eat I guess, in order to read and learn, but I don’t think this is
a constitutional question. It’s still an interesting question. Very important question, and we are fortunate, that states have not exercised their full powers to tax our
institutions and churches. – Just a footnote to this, since all of you graduated, or most of you I assume, graduated from a private college. I don’t know if you’re aware of the enormous extent these days, that state universities are
dependent on private funds. At my law school, I think, a miniscule fraction of the budget comes from state funds now. – In fact, Texas University of Texas, has the second largest
endowment in the country, right? After Harvard? – I have to see current oil prices to know the answer to that. (audience laughing) – Depends on that. – Just to exercise the moderator’s
privilege for a minute, I think that raises a question. If Dartmouth College is a case about a state trying to take
a private university public. The issue of the day I think is public universities going private. A number of universities have seen their state
contributions go way down. Sometimes there’s a quid pro quo, where there’s less interference in exchange for less contribution. So less of an in state
requirement for instance. Less regulation of what
tuition can be charged. I’m curious what the panel thinks of that. Is that positive? Should it have legal implication? – It’s to my mind not a positive thing, because it’s disinvestment
in the public sector. Again, back to what I’m saying. The UC system, Michigan, UVA, both schools have gone to, at Michigan school maybe 2% of something, that is private now. It’s mainly public. It’s like we have chosen as a citizenry not to pay for public education and it’s good that people
have stepped into it but what it means is that
these public institutions are really really strapped for funding and this is again what I
made the country great. The educational system, the G.I. bill. People coming back. Being able to go to Berkeley. Being able to go to those places, for not very much money, because they were subsidized, and now that’s over, so it’s made everything
much more expensive. – Just to elaborate with the
specific example of Texas, when I started teaching there in 1983, I think the yearly tuition was $1,000. I had a student my first year of teaching who was from Michigan, and his in state tuition would
have been higher in Michigan than the Texas tuition at the time, so we got students from
all over the country. There was a limit to
how many we could take, but basically Texas provided
a free education for everyone and it is moving to hear
the alumni come back and say what a difference. Having an essentially free education at the University of
Texas, has meant for them. They couldn’t have
become lawyers otherwise at the law school. No longer true. Today, I think it costs
maybe $30,000 in state. For out of state, it’s
about the same as Harvard. It’s a tragedy and it’s the result of state disinvestment
in higher education, not just in Texas, but around the country. – And as the bad thing
I’ll just add to this. Think about these people
who are saddled with debt. What it means for the
millennial generation to start out with debt
that’s the equivalent of a mortgage for a house,
that you can’t buy, and how that affects everything. It’s a trickling effect. It’s a cascading effect
is what I really mean, so yeah, it’s a real thing to think. I mean I like private education and I came here and so forth, but there ought to be
room for high quality low cost state education
to educate our populace. We gotta compete with the world, and this is a really
serious important thing. – On the other hand, I have taught at University of Texas, and at Duke University, and I don’t have the sense that our law students were
going into public interest and public service in a significantly higher percentage at U.T.
than they are at Duke, and so we ended up subsidizing a ton of people when tuition was low. We subsidized a ton of people, became wealthy partners and law firms. It’s not the most efficient
way to run that subsidy. The question would be would some sort if income based repayment, or loan forgiveness
program across the board, be a more efficient way to do that. I loved the idea of making it easier for people to make those
other kinds of choices. It’s not clear how often
it had that effect. There’s a lot of other
inducements going on. Anyone else? Yeah. Professor Masters. – College administration. The effect of college administrations in limiting the freedom of speech, and I’ll give you an example that happened right here on the Dartmouth campus. As many of you know I have specialized for a long time in the
political implications of modern biology, which is by the way a crucial issue that you’re not discussing, in terms of research too, because in terms of research, our universities are very often the key global institution in scientific and technical education, and it changes a lot of things, but I had a conversation
on a street corner, that since I had worked on the connection of biology for politics, like you decode the genome, who owns your genes. Don’t expect a scientist answer to that, a political science talked to. I’d found myself called into the office of the Dean of college. I didn’t know why. He didn’t even inform me according to the rules of the college. Formal objection to me, that I’d had that discussion on campus. The Dean decided with the challenge and actually, I was punished, by not being allowed to make any further grant applications
through the college but I teach at the college. I retired, but I was doing independent study thing. At that point of course, I said to hell with it. I didn’t care, because I’ve got enough status, I don’t have to worry about that, but if you don’t realize, that the question of whether the college teaches genetic engineering, or trains people in issues, because they say they don’t like it, and it’s the college or its
administrators that do that, this is a serious issue
of freedom of speech, which is practically
a very important thing that we should consider. – Would you have represented him David? – Absolutely. – Absolutely. – He might have, David might have represented you, but if you were already retired, I don’t think any rights. It would be under question of state law, and the Supreme Court
has recognized rights of tenured professors
and pursuant to the terms under which they’re hired, but it’s also professors have
lost their share of cases as have students, and I think you’re raising
an extremely important point. I know you think it’s
all constitutionalized but not all the state courts agree. – I think. – [Man] In retirement, another thing, three years through Department of Defense. Another big grant. I brought in I don’t know how may hundred of thousands of dollars in direct cause to the college. They just didn’t give
a damn about anything. Law or anything else. They were scared. – I think it’s important to recognize that every actor in the picture can be a threat to freedom of thought, and freedom of expression. Not just the state government. Not just the federal government. Not just the board of trustees. The college administration. As a professor in the classroom, I have to be very careful, that I’m not discouraging people from voicing particular points of view, but the truth is my students are more intimidated by each other than they are by the faculty. They can be a limit on
free expression too. We have to watch everybody. One of the basic conditions of American constitutional law is paranoia. We are at the end of our
time alas, but thank you. Help me thank our panelists. (audience applause)