Trusteeship - March/April 2021 - ABG14

The Dartmouth Decision
Where Trustees Come From and How We Must Lead
BY ANDREW LOUNDER

nial 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
4,500 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

Dartmouth Hall,
Dartmouth College Campus,
Hanover, New Hampshire

14 AGB: A CENTENNIAL HISTORY | March 2021

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 taxexempt) 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

SHUTTERSTOCK/ VAN HART

T

HE AMERICAN SYSTEM of college and university governance emerged from colo-
Trusteeship - March/April 2021

Table of Contents for the Digital Edition of Trusteeship - March/April 2021
