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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The lawsuit alleges, among other things, that Princeton violated the gift's terms by surreptitiously using hundreds of millions of dollars of Robertson Foundation funds for a variety of matters, including building construction and faculty and graduate student support in diverse academic disciplines that have little or nothing to do with the gift's original purpose. The plaintiffs, Robertson family members who select family trustees and serve as family trustees, are asking the court to sever the foundation's relationship to Princeton and allow them to redirect foundation funds to programs at other universities, to be used, as originally intended, to train students for careers in government with a focus on foreign affairs. In its filings, Princeton acknowledges that it has a legal obligation to honor the 1961 agreement but contends that its expenditures have been consistent with the Robertson Foundation's purposes broadly construed.

Complicating matters is that, in contrast to the Duke case, resolving these issues involves a significant element of academic judgment: Whether or not particular expenditures by Princeton--on student fellowships, courses, research projects, faculty salaries, physical infrastructure, and so on--reflect the donor's intent depends on what sorts of academic priorities advance the donor's goals. But as the New Jersey court has recognized in rejecting Princeton's seven year effort to have the lawsuit thrown out, while courts are rightly reluctant to substitute their judgment on purely academic matters for the judgment of university administrators and professors, courts, in the course of upholding the law, can no more entirely avoid judgments that touch on academic issues than can courts enforcing employment contracts in the telecommunications business entirely avoid judgments about science and technology.

At the heart of the Robertson Foundation case is the integrity of restricted gifts. These enable private individuals to promote diversity and innovation in higher education by encouraging worthy but neglected paths of study and sponsoring fruitful avenues of inquiry that reigning orthodoxies undervalue or suppress. Provided that universities properly review the terms and goals, restricted gifts--which universities are always at liberty to decline--not only pose no intrinsic threat to academic freedom but can enhance it by supporting important but unpopular or dis-favored courses of study.

The predictable criticism that lawsuits like these menace university autonomy is wrongheaded. Universities should not be law-free zones. By demanding that universities conform to the regulations they set for themselves and abide by generally applicable laws, the 2007 executive committee of Dartmouth's alumni association, the Duke lacrosse players, and William Robertson and his family members are defending the conditions that are indispensable to conserving intellectual freedom and fostering liberal education on our campuses.

Peter Berkowitz is the Tad and Dianne Taube senior fellow at the Hoover Institution, Stanford University.