The Dartmouth Decision: Where Trustees Come From and How We Must Lead  

By Andrew Lounder    //    Volume 27,  Number 6   //    November/December 2019

The American system of college and university governance emerged from colonial roots, reflecting both early experience and the clear imprint of a burgeoning democracy. Colonies, the Crown and later states, chartered boards to engage in a remarkable degree of self-regulation in guiding early institutions of higher learning. Such empowerment made for inevitable conflicts that would eventually reach the courts. So it was that in the Dartmouth College case of 1819, the U.S. Supreme Court affirmed not only the general sanctity of a contract but very specifically the autonomy of an independent college board to govern an institution as a chartered corporate entity. That judgment ensured the independence of both public and private institutions and shaped the course of American higher education governance.¹ The decision of the U.S. Supreme Court in Trustees of Dartmouth College v. William H. Woodward (1819) confirmed that boards of trustees bore the ultimate fiduciary responsibility for institutions of higher education. That legal precedent contributed to the development of what is today more than 4,600 public and private nonprofit colleges and universities in the United States, governed by some 50,000 trustees. Beyond the courtroom drama, political maneuvering, and campus hijinks, the case and the events that led to the historic Dartmouth decision are worth reflection by contemporary trustees.

Public Leadership

In his 1817 opinion New Hampshire Superior Court Chief Justice William Richardson noted:

The education of the rising generation is a matter of highest public concern and is worthy of the best attention of every legislature. But make the trustees independent and they will ultimately forget that their office is a public trust—will at length consider these institutions as their own—will overlook the great purposes 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 of a sect or a party.

Two centuries later, trustees in the public and private sectors approach the idea of college and university governance largely along different lines. On the public side, trustees’ authority and independence is too often contested—much as in the Dartmouth case—by the state’s elected officials. If Chief Justice Richardson had lived to observe the partisan rancor in which many of the nation’s public institutions have been caught up, he may have been shocked by history’s sense of irony. A four-term governor once advised AGB: “Governors should appoint ‘the big people’ [to university governing boards],” those capable of taking a call from an elected official, hearing that person’s ideas, and respectfully reserving judgment. Independent judgment is essential to a board member’s legal fiduciary duty, and that kind of public leadership is being tested.

Private colleges and universities are also established, regulated, and taxed (or tax-exempt) in accordance with public purposes, too. Today, as many private boards face weighty decisions about institutional vitality, they must likewise revitalize discussions about the beneficiaries the institution means to serve and the benefits they will convey. Private boards can choose whether and how to respond to needs of states, but effective direction of their institutions goes beyond balanced budgets alone and requires they not “forget that their office is a public trust.”

Courageous Leadership

The Dartmouth College trustees risked their reputations and their fortunes when they challenged the state’s takeover of the college. Historical accounts suggest their efforts were deeply unpopular, not only because of widely distributed propaganda, but because the government they confronted had swept in on a populist platform. Today, much is required for boards to be effective—curiosity, judgment, restraint, diligence, independence—and none of it matters absent the courage to act.

In closing arguments, Daniel Webster famously turned to U.S. Supreme Court Chief Justice John Marshall, pleading:

Sir, you may destroy this little institution; it is weak, it is in your hands! I know it is one of the lesser lights in the literary horizon of our country. You may put it out! But if you do so, you must carry through your work! You must extinguish, one after another, all those great lights of science which for more than a century have thrown their radiance over our land!²

When Webster spoke these words, no one could have known that their effect would be to facilitate the proliferation of more than 4,600 public and private non-profit colleges and universities today—a sector that, despite imperfections, remains an indispensable engine for American prosperity and influence around the world. This is a special legacy of trusteeship in the United States, one of conviction, commitment, and great courage.

1. The beginning of this article to this point is from Effective Governing Boards: A Guide for Members of Governing Boards of Independent Colleges and Universities, Association of Governing Boards of Universities and Colleges, 2010.
2. https://www.dartmouth.edu/~dwebster/speeches/dartmouth-peroration.html

Andrew Lounder, PhD, is AGB’s director of programs and a trustee of Wheaton College in Massachusetts.

How the Trustees of Dartmouth College v. William H. Woodward Decision Shaped the Heritage of American Governing Boards

Two hundred years ago, a Supreme Court decision established the legal precedent for governing boards of colleges and universities. Trusteeship magazine is honoring the 200-year anniversary with a timeline of events leading up to this monumental case that established that governing boards would bear the ultimate fiduciary responsibility for institutions of higher education.

Timeline of events (adapted largely from the “Will to Resist: The Dartmouth College Case” by Richard W. Morin, 1969, Dartmouth Alumni Magazine):

1769

  • Dartmouth College is chartered under the authority of King George III, with oversight by a board of 12 trustees, including the college president.

1779

  • Upon his death, founding president Eleazar Wheelock bequeaths the presidency of Dartmouth College to son John Wheelock.

1804–1811

  • Tension mounts between President Wheelock and local church members. A new generation of Dartmouth trustees becomes increasingly frustrated by the situation.

1811

  • The Board of Trustees takes several split votes (7-3) formally opposing key actions, policies, and positions taken by President Wheelock, noting they had “long labored to restore the harmony which formerly prevailed” at the college, and expressing “apprehension that if the present state of things is suffered to remain…the College will be essentially injured.”

1814

  • The Board of Trustees votes and resolves that President Wheelock will not participate in the final oral examinations of the senior class. Incensed, President Wheelock proposes a board resolution that would invite an investigation “into the situation and circumstances” of the college by the state legislature. The resolution predictably fails.

1815

  • May: President Wheelock anonymously publishes an 88-page treatise alleging sweeping malfeasance by the Dartmouth College board: “Sketches of the History of Dartmouth College and Moor’s Charity School with a Particular Account of Some Late Remarkable Proceedings from the Year 1779 to the Year 1815.” He coordinates with a prospective faculty member, whose hire was rejected by the board in 1811, to anonymously publish a confirmatory account. Key among the published allegations: the board holds itself “unamenable to a higher power,” making itself “an independent government in an independent state.”
  • May: President Wheelock quickly writes to the state legislature to confirm the allegations published anonymously and invite an investigation of Dartmouth College governance. Key among his assertions is that the board is pursuing a partisan educational program (note: most board members—including Wheelock himself—are Federalists, whereas the state’s legislature and governor’s office are controlled by the Republican party).
  • June: The state legislature forms a committee “to investigate the concerns of Dartmouth College… and the acts and proceedings of the Trustees […].”
  • August: President Wheelock requests the representation of prominent New Hampshire lawyer and college alumnus Daniel Webster on his behalf during the proceedings of the investigative committee. Webster fails to respond, and when an ally of President Wheelock writes to chastise him, he responds: “I am not quite so fully convinced as you are that the president is altogether right and the trustees altogether wrong.”
  • August: Following the conclusion of the legislature’s investigative committee hearing on campus, the board of trustees accepts the report of its own investigative subcommittee that President Wheelock is behind the anonymous publications, and it calls him to account. Wheelock asserts the board has no jurisdiction during the legislative investigation and refuses to meet with the board. The board votes 8- 2 to remove President Wheelock from office.
  • September: The Dartmouth College Board of Trustees meets to inaugurate Francis Brown as the third president of Dartmouth College. The only trustees in attendance are those who voted to remove President Wheelock.

1816

  • June: Legislation is signed into law to amend the original royal charter of Dartmouth College to: increase the number of college trustees from 12 to 21; create a 25-member board of overseers, made up of state officials, with veto authority over the board of trustees; and change the name of the institution to Dartmouth University.
  • August: The board of Dartmouth College (all except one member—President Wheelock’s nephew and board treasurer, William Woodward) meets on campus, simultaneous to the inaugural meeting of the Dartmouth University Trustees nearby. Without the Dartmouth College board members the Dartmouth University board, chaired by Governor William Plumer himself, fails to assemble a quorum. The Dartmouth College board further resolves and conveys to those assembled on behalf of Dartmouth University: “We the Trustees of Dartmouth College do not accept the provisions of an act of Legislature of New Hampshire… but do hereby expressly refuse to act under the same.”
    November: New legislation passes effectively reducing the size of a quorum to nine members of the Dartmouth University board.
    December: New legislation passes effectively making each Dartmouth College trustee and faculty member liable for a$500 fine for each and every action taken on behalf of the institution (such as a vote of the board, or the teaching of a class).

1817

  • January: Hamilton College attempts to hire away President Brown at twice his Dartmouth College salary. He declines.
  • February: The Dartmouth College board files suit against former board treasurer William Woodward (former president Wheelock’s nephew) for the return of the college’s charter, seal, account books, and other materials. The case proceeds immediately to the New Hampshire Superior Court, bypassing the lower Court of Common Pleas, where Woodward is a sitting judge.
  • February: The Dartmouth University board holds its first meeting, away from campus, in the state capital. The board votes to remove from their positions: President Brown, all trustees siding with Dartmouth College, and two noncompliant faculty members. The presidency of Dartmouth University is conferred upon former president Wheelock’s son-in-law, William Allen. The board further empowers three of its members as university “superintendents” and charges them to “take possession” of university buildings.
  • April: Former president Wheelock dies, bequeathing to Dartmouth University a gift of land of suitable value to support the salaries of a president and multiple new faculty.
  • August: Dartmouth College and Dartmouth University hold commencement exercises on the same day, in accordance with the college’s original bylaws. A group of roughly 60 individuals armed with clubs and rocks (college students and others) occupy the building in which commencement ceremonies are typically held. The Dartmouth University exercises are relocated to another building.
  • September: The first substantive Superior Court hearing in Dartmouth v. Woodward takes place, featuring eminent national figures as legal counsel on both sides. All three justices hearing the case had been appointed in 1816 by Governor William Plumer, a leading advocate of Dartmouth University. Dartmouth College asserts three central points:
    • The college is chartered as a private corporation legally independent from control by the state legislature;
    • The state legislature failed to follow due process in the seizure of private property; and
    • Since the college charter is a contract, the legislature’s actions violate the U.S. Constitution, which expressly precludes states from passing laws that interfere with contractual obligations.

The defense contends:

    • Dartmouth College was chartered as a public corporation and is therefore subject to legislative control (citing the charter itself that the college was established: “…that the best means of education be established in our province of New Hampshire for the benefit of said province.”);
    • Even if the college was a private corporation the legislature’s authority of eminent domain would apply; and
    • The college’s original charter, from the British monarch, is not protected by the U.S. Constitution.
  • November: The New Hampshire Superior Court finds for the defense, affirming Dartmouth College was a public corporation subject to direct legislative control. Chief Justice Richardson expounds: “The education of the rising generation is a matter of highest public concern and is worthy of the best attention of every legislature. […] But make the trustees independent and they will ultimately forget that their office is a public trust—will at length consider these institutions as their own—will overlook the great purposes 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 of a sect or a party.”
  • November: Fearful that Dartmouth College agents were absconding with books, three Dartmouth University faculty members lead a group of about 20 university supporters to force their way into the library with an axe. Perhaps hoping to remove important books to a more secure location, the group is met upon its exit by about 150 students and friends of Dartmouth College, according to one student’s report. University agents are allowed to leave unharmed but without any books.
  • November: Alumnus Daniel Webster agrees to petition the U.S. Supreme Court on behalf of the Dartmouth College Board of Trustees.

1818

  • March: The U.S. Supreme Court hears arguments in Trustees of Dartmouth College v. William H. Woodward. At dispute, now, is the singular issue as to whether the college charter comprises a contract under the U.S. Constitution, and whose obligations were abrogated by the New Hampshire legislature. Daniel Webster’s impassioned arguments include a concern that would, in years to come, similarly shape an American tradition of autonomous board responsibility for public universities:

“[This case] affects not this college only, but every college, and all the literary institutions of the country. They have flourished, hitherto, and have become in a high degree respectable and useful to the community. They have all a common principle of existence, the inviolability of their charters. It will be a dangerous, a most dangerous experiment, to hold these institutions subject to the rise and fall of popular parties and the fluctuations of political opinions.”

  • August: Having received reports not only that the college’s counsel was masterful but that their own arguments were poorly delivered, the Dartmouth University board changes counsel, hiring former U.S. Attorney General William Pinkney. A strategy is hatched to reopen arguments before the U.S. Supreme Court at the start of the next term.
  • August: Dartmouth College, graduating 26 seniors, holds commencement exercises one week early. Dartmouth University graduates six. Confrontation is avoided.

1819

  • February: Early on the second day of the new term, precluding the question of fresh arguments, U.S. Supreme Court Chief Justice John Marshall delivers a 5-1 majority opinion in favor of the plaintiff, affirming: 1) Dartmouth College is a private corporation, 2) the Dartmouth College charter is effectively a contract protected by the U.S. Constitution, and 3) the Dartmouth University legislation “is subversive of the contract on the faith of which the donors’ property was given.” The Chief Justice adds:

“It is probable that no man ever will be the founder of a college, believing at the time that an act of incorporation constitutes no security for the institution; believing that it is immediately to be deemed 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.”

  • February: It takes six days for news of the victory to reach Dartmouth College. Students celebrate by ringing bells, firing cannons, and lighting bonfires.
  • March: Dartmouth University suspends operation. Most students transfer their enrollment to Dartmouth College.

 

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