The Magazine

Are Universities Above the Law?

For the sake of liberal education they shouldn't be.

Oct 27, 2008, Vol. 14, No. 07 • By PETER BERKOWITZ
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Three lawsuits--against Dartmouth College and Duke and Princeton universities--may be the best things to happen to higher education in decades. The Dartmouth suit, though recently withdrawn, focused attention on the role of alumni in college affairs. The Duke case raises the question of the extent to which courts will require universities to observe their own rules and regulations. The Princeton case puts at issue the enforceability of restricted gifts. All three expose the often opaque governing structures under which colleges and universities operate and bring into focus the need for transparency and accountability in higher education.

More than the scope of universities' legal responsibilities is at stake here. That's because upholding the rule of law on campus can contribute to the reform of university governance--and the reform of university governance is an indispensable precondition for the restoration of a liberal education -worthy of the name.

Association of Alumni of Dartmouth College v. Trustees of Dartmouth College, filed in the autumn of 2007 by the association's executive committee, sought to prevent college president James Wright, his administration, and the eight "charter trustees"--a self-perpetuating, life-tenure, insider group--from packing the college's board of trustees with friendly members. The board-packing scheme, plaintiffs contended, violated an 1891 written agreement on the basis of which, for over a century, the board had selected half the trustees (the "charter" trustees) and Dartmouth alumni had elected half. By diluting elected-alumni representation on the board, the administration aimed to discourage others from following in the footsteps of Silicon Valley entrepreneur T. J. Rogers, Hoover Institution fellow Peter Robinson, George Mason law professor Todd Zywicki, and University of Virginia law professor Steven Smith. Over the last few years, all ran successful write-in candidacies for election to the board of trustees on platforms--apparently regarded by the Dartmouth administration as subversive--calling on the college to protect campus freedom of speech, preserve high intellectual standards, and keep the emphasis at Dartmouth on undergraduate education.

Unfortunately, soon after the association survived Dartmouth's motion to dismiss the lawsuit (in which the court found that plaintiffs stated a legitimate contractual cause of action) in February 2008, the college administration mounted an unscrupulous campaign on behalf of new candidates to the association's executive committee. For example, the administration refused to allow the alumni-elected trustees to use the same email and mailing lists that the administration used to attack them, thereby inhibiting the free flow of information and contaminating the election. In June, the administration-backed slate won. Within weeks of gaining control of the Association of Alumni's executive committee, the newcomers withdrew the lawsuit. Since the administration had blocked the elected-alumni trustees from disseminating their views, it would be unfair to conclude that a majority of Dartmouth alumni prefer a board of trustees that is neither accountable to them nor inclined to demand that the college administration safeguard the principles of liberal education. But such a board of trustees is what Dartmouth has now got.

The Duke case--Edward Carring-ton, et al. v. Duke University, et al.--grows out of the notorious lacrosse scandal of 2006. It implicates matters that go directly to crucial questions of university governance.

In February, 38 Duke lacrosse players not indicted in 2006 and several family members sued the university, along with Duke's president, provost, dean of students, and deputy general counsel, in federal court. The plaintiffs, represented by, among others, Washington lawyer Charles Cooper, seek damages for the infliction of emotional distress, fraud, invasion of privacy, breach of contract, tortious breach of contract, and other injuries connected, they contend, to Duke's mishandling of the false accusations of rape against three team members and the city of Durham's corrupt indictment of those three. (Having been proclaimed innocent by North Carolina's attorney general in April 2007 and having seen Durham district attorney Mike Nifong disgraced and disbarred, the indicted players have settled separately with Duke but are pursuing a civil lawsuit against Durham.)