In an April 21 article entitled “We Haven’t Seen a Combat Like Harvard vs. Trump in Centuries,” Steven Brint wrote that the continuing dispute between Harvard College and the federal authorities is “a very powerful showdown between state energy and faculty autonomy since 1816, when the New Hampshire Legislature tried to transform Dartmouth School right into a public entity.”
Whereas the Dartmouth School case, which the U.S. Supreme Courtroom determined in 1819 in Dartmouth’s favor, looms giant in American historical past, universities have, previous to and since that call, often fought for his or her rights—their company rights.
At present, we name this institutional educational freedom. However, as Richard Hofstadter wrote in his portion of The Improvement of Educational Freedom in america (1955), co-authored with Walter Metzger, “educational freedom is a contemporary time period for an historical thought.” That historical thought holds that college freedom relies on company rights, which is why Hofstadter begins with a piece subtitled “Company Energy within the Center Ages.” Recovering that outdated thought couldn’t be extra essential right now.
It’s no exaggeration to say that, in spring 2025, we could have entered the nadir of American educational freedom. Austin Sarat rightfully urged us, even earlier than then, to seek out new methods to protect educational freedom “towards exterior threats.” Now, within the face of ongoing hostility from each state and federal governments, it’s crucial that universities deploy the complete vary of arguments at their disposal, together with these based mostly on their forgotten company rights. In different phrases, it’s time for universities to invoke their company rights. Permit me to clarify.
Corporateness is the college’s hidden superpower. Whereas each college is constituted in a different way, they’re all firms, no matter whether or not they current themselves as public or personal. That’s as a result of “company” is a common authorized time period denoting a unity at regulation.
“Incorporation,” David Ciepley has written, “is a robust software.” Firms can sue and be sued in their very own names, maintain property, enter contracts, use their very own seals and legislate. Importantly, the college’s corporateness bears no essential relationship to its present autocratic structure, whereby, based on Timothy V. Kaufman-Osborn, universities are “dominated by exterior lay governing boards vested with the panoply of powers usually granted to firms, together with the ability to undertake, amend, and revoke its primary guidelines of institutional governance.” Thus, we are able to use the college’s corporateness to rebuff exterior assaults, whereas additionally working, as Arjun Appadurai wrote just lately, “to interrupt the unilateral energy of boards of trustees.”
The college’s cherished autonomy springs from its company rights. Within the U.S., these rights had been first articulated in a now-forgotten line of instances beginning with the 1805 North Carolina Supreme Courtroom case Trustees of College of North Carolina v. Foy, a call issued greater than a century earlier than the American Affiliation of College Professors’ well-known 1915 Declaration of Ideas on Educational Freedom and Educational Tenure—and the U.S. Supreme Courtroom’s 1957 discovery of a theretofore unknown educational freedom proper within the First Modification to the U.S. Structure.
Like Dartmouth School, these instances had been about company rights. However, not like Dartmouth School, they involved universities we now contemplate public; they had been determined by state supreme courts, relatively than by the U.S. Supreme Courtroom; and, once they implicated constitutional rights, they implicated rights protected by state constitutions, relatively than by the federal one.
What I name the company idea of educational freedom explains why the rights that initially protected the American scholarly enterprise, together with within the Dartmouth School case, had been company rights by emphasizing that universities are, by regulation, firms. (It’s really within the identify itself: “college,” derived from the Latin universitas, merely means “company.”)
Moderately than a person proper, educational freedom is, correctly understood, what Stanley Fish known as “a guild idea.” Extra particularly, it’s a idea belonging to the included guild of professors and college students (and others). This idea bases educational freedom not on freedom of speech—a troublesome foundation for educational freedom—however on the college’s company rights. These company rights, not sometimes discovering expression in constitutions, are additionally typically constitutional rights. By substituting company rights for freedom of speech, we flip a basis of sand into stone.
It would show tough for some within the college to embrace a time period they affiliate solely with enterprise firms, however company rights have been, and nonetheless could be, used to guard universities. On this connection, it’d assist to recall the numerous firms that aren’t enterprise firms, together with municipal firms, nonprofit firms (typically euphemized as “organizations”), church firms and college firms.
At a second when the U.S. Supreme Courtroom appears eager on granting company rights to enterprise firms, one may marvel why enterprise firms ought to get all of the rights. With state and federal governments more and more focusing on universities, we merely can not afford to depart these arguments on the desk. Understanding and using these uncared for company rights instances requires shifting our focus, on the one hand, from personal to public universities, and, alternatively, from federal to state courts (the place Dartmouth School started).
Whereas the federal authorities’s current assaults on Columbia and Harvard have captured headlines throughout the nation, state legislatures proceed to menace public universities. Though these universities have, by centuries of expertise, turn out to be extremely aware of governmental intrusion, they’ve turn out to be much less adept at repulsing it than they as soon as had been. In consequence, one current article in The Chronicle of Larger Training may observe that “it’s nicely understood that public faculties are within the thrall of their state lawmakers.” The company idea of educational freedom challenges this understanding.
Contemplate two publish–Dartmouth School instances about universities we name public right now. The primary is an 1887 Indiana Supreme Courtroom case about Indiana College. The second is an 1896 Michigan Supreme Courtroom case in regards to the College of Michigan. Every case furnishes concepts about tips on how to tackle educational freedom’s most vexing and protracted problem: defending public universities from state legislatures.
In an 1887 case known as Robinson v. Carr, the Indiana Supreme Courtroom thought of what rate of interest utilized to a fund established by the Indiana Legislature for Indiana College. The statute that established the college fund indicated that any mortgage constituted of the college fund would carry a 7 p.c rate of interest. The trustees of Indiana College, who had been established as a “physique politic” by the Indiana Legislature, may then use the curiosity to cowl annual college bills. However a later statute repealed legal guidelines regarding sure funds, together with “public funds,” and utilized an 8 p.c rate of interest as an alternative. The query as to which rate of interest utilized subsequently turned on whether or not the college fund was a “public fund.” If it was a public fund, an 8 p.c price would apply; if it was not, the 7 p.c price would stay.
The Indiana Supreme Courtroom concluded that the college fund was not a public fund as a result of “the college, though established by public regulation, and endowed and supported by the state, just isn’t a public company, in a technical sense.” The courtroom meant by this that the Board of Trustees “has not one of the important traits of a public company.” The college was “not a municipal company,” and “its members should not officers of the federal government, or topic to the management of the legislature within the administration of its affairs.”
The courtroom reasoned, “That the college was established below the direct authority of the state, by a particular act of the legislature, or that the constitution accommodates provisions of a purely public character, nor but that the establishment was correctly established, and is and must be perpetually maintained on the public expense, for the general public good, doesn’t make it a public company, or represent its endowment fund a public fund.” Within the last evaluation, “the authorized standing of the state college being that of a technically personal, or at most a quasi public, company, the college fund, of which it’s the sole beneficiary, is subsequently not a public fund, throughout the that means of the regulation.” In brief, the courtroom’s cautious evaluation below the company framework led it to conclude that the college’s legislative institution and public funding didn’t make it public.
Lower than a decade after Robinson, the Michigan Supreme Courtroom determined a case known as Regents of the College of Michigan v. Sterling. There, the courtroom needed to determine whether or not the Michigan Legislature may require the College of Michigan Board of Regents to relocate its homeopathic medical faculty from Ann Arbor to Detroit. The Michigan regents had refused to adjust to the Legislature’s relocation regulation, and Charles Sterling, a non-public citizen, then requested the Michigan Supreme Courtroom to order the Regents to conform.
The courtroom denied Sterling’s request, noting that, “below the [Michigan] structure of 1835, the legislature had the complete management and administration of the college and the college fund. They may appoint regents and professors, and set up departments.” However, after the college languished below this governance mannequin, the folks of Michigan withdrew the ability of the Legislature to manage the college. To that finish, the 1850 Michigan Structure ordained that “the board of regents shall have the final supervision of the college, and the course and management of all expenditures from the college curiosity fund.”
The courtroom provided three “causes to point out that the legislature has no management over the college or the board of regents.” First, each entities “derive their energy from the identical supreme authority, particularly, the structure,” and, “in as far as the powers of every are outlined by that instrument, limitations are imposed, and a direct energy conferred upon one essentially excludes its existence within the different, within the absence of language exhibiting the opposite intent.”
Second, the Board of Regents “is the one company offered for within the structure whose powers are outlined therein”—whereas “in each different company offered for within the structure it’s expressly offered that its powers shall be such because the legislature shall give.” Third, “in each case besides that of the regents the structure rigorously and expressly reposes within the legislature the ability to legislate and to manage and outline the duties of these firms and officers.”
As a result of the structure entrusted “the final supervision” of the college to the regents, “no different conclusion … is feasible than that the intention was to position this establishment within the direct and unique management of the folks themselves, by a constitutional physique elected by them.” The folks of Michigan had entrusted the college’s governance to the regents instantly, thereby eradicating the college from the Legislature’s purview. In consequence, the Legislature may now not govern the college.
These Nineteenth-century instances, along with many different state instances like them, comprise sources that universities can use to satisfy right now’s extraordinary challenges. (Edwin D. Duryea lists many, however not all, of those instances within the first appendix to his 2000 monograph, The Educational Company: A Historical past of School and College Governing Boards.) Certainly, the instances stay related right now. The Montana Supreme Courtroom’s 2022 choice affirming the Montana regents’ “unique authority to control firearms on faculty campuses” borrowed, with slight alterations and no attribution, one of many aforementioned passages from Sterling.
Harvard’s battle with the federal authorities is really momentous, however it’s considered one of many who American universities—private and non-private—have persistently waged for hundreds of years. When these universities rose as much as defend their company rights, state supreme courts throughout the nation typically affirmed these rights. The time has come to claim these rights as soon as once more. As state governments, together with the federal authorities, apply new and in some methods unprecedented strain, universities can now not ignore their highly effective claims to company rights. Persevering with to take action could incur prices none of us are prepared to pay.
