Bench Memos

We Have a Winner

. . . for most stupidly tendentious allusion, in 2012, to an opinion by the Great Chief Justice, John Marshall.  (All other contenders can stand down until 2013.)  In the Chronicle of Higher Education today, Ada Meloy, general counsel at the American Council on Education, writes in support of the University of Texas’s racial-preference scheme, challenged in the Fisher case now pending in the Supreme Court.  You know she’s going to over-reach in a big way when she says:

Since the founding of the country, the Supreme Court, Congress, and the executive branch have vested individual colleges with the power to make decisions about higher-education practices and principles, including the ability to decide whom to admit.

Okay, she’s already lurching in the direction of making her readers think this is the return of George Wallace.  But that’s neither here nor there, to my purpose.  Here comes John Marshall:

The Supreme Court in particular has long been a champion of granting colleges authority to make academic and educational judgments.

In 1819, the Supreme Court ruled that the state could not force Dartmouth College to become a public institution. In looking at the question of whether government had the power to alter a college charter, the court decided that an institution’s board of trustees was better suited than the state to govern the college.

Chief Justice John Marshall explained in that ruling that educators, not legislators, should make key decisions in educational matters. Over the following two centuries, the Supreme Court has only reinforced the educational authority of colleges.

There is just one accurate sentence in this farrago of nonsense about Marshall’s opinion in Trustees of Dartmouth College v. Woodward: “In 1819, the Supreme Court ruled that the state could not force Dartmouth College to become a public institution.”  Everything else above is crazy talk.  Marshall’s Court did not “decide[] that an institution’s board of trustees was better suited than the state to govern the college.”  And the chief justice himself certainly did not “explain[] in that ruling that educators, not legislators, should make key decisions in educational matters.”

Marshall’s opinion held that Dartmouth College’s pre-revolutionary charter was a contract, one party to which was the self-perpetuating board of trustees, the other party to which was the state of New Hampshire (succeeding to the Crown upon American independence).  New Hampshire, Marshall held, had breached the contract, contrary to the contract clause of Article I, section 10 of the Constitution, when it passed legislation that vitiated the governing powers of the board and put the state in charge of the college.  The trustees’ victory in the Supreme Court enabled Dartmouth to remain an autonomous private college, and established the status of corporate charters as contracts protected by the Constitution from state legislative interference.

There is not a word in Marshall’s opinion about the trustees being “better suited than the state” to do anything at all.  The case was about the trustees’ right to act as the owners of the college.  Whether they acted wisely or unwisely was not the question.  Nor did Marshall have an opinion, at least in his judicial capacity, about whether legislators, judges, or “educators” are most competent to “make key decisions in educational matters.”  None of these questions entered for one moment into the decision of the case.

And–this might just mark an important difference between the Dartmouth College case of 193 years ago, and the Fisher case today–the University of Texas is, and no one denies it is, a public institution.  Whether its policies can be squared with relevant requirements of the U.S. Constitution and federal laws is the question in this case.  Who should “make key decisions in educational matters” is therefore a pretty misleading way to describe the legal issues in Fisher.  But it is a completely fictitious way to say anything at all about the issues in Dartmouth College.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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