2 weeks Ago
President Alan Garber has rightly refused to comply with Donald Trump’s demands, asserting Harvard’s right to corporate autonomy and its First Amendment right to freedom of speech. Garber stands on high ground. Harvard’s unique history supports its ability to resist.
Other private and public colleges may be less immune. In a prominent private college case, Dartmouth College v. Woodward (1819), the Supreme Court ruled that the state of New Hampshire could not take over Dartmouth.
It had attempted to do so as a dodge to establish a public university without having to create and build one of its own. The Court ruled that Dartmouth’s royal charter from King George III in 1769 was a contract and that our Constitution’s Article I, Section 9, Clause 3, prohibited the state from interfering with the college’s independence. Harvard was chartered by King Charles I of England even earlier in 1636.
Its charter, like Dartmouth’s, is presumably a contract that by analogy may not be impaired, meaning the Harvard corporate board arguably must remain free to exercise its corporate authority. The oldest of America’s institutions — including Columbia, Yale and formerly private but now public Rutgers and William and Mary — also began with royal charters. Harvard’s status has not changed, and Trump has not established any grounds other than his own biases to interfere with its independence.
Most private colleges have been chartered by the states, not by the king or queen. The state laws governing those charters or other instruments of incorporation set the degree of their autonomy, and those vary from state to state. Private colleges in Illinois are subject to varying degrees of regulation by the Illinois Board of Higher Education depending on their date of founding.
Public colleges ultimately rely on their legislatures and governors for protection against federal overreach. Florida, under Gov. Ron DeSantis, has gone full MAGA, with partisan takeovers of public college boards.
Whether Trump will try to eviscerate public universities and how successfully will be entirely a test of political wills with different outcomes from state to state. Some public universities enjoy “constitutional autonomy.” The University of Michigan was established in the state’s constitution and is therefore a co-equal branch of government like the legislature.
Constitutional universities are autonomous to the extent that they independently manage their own affairs under the authority of their boards. The University of Illinois is “statutory,” created and maintained by the legislature and subject to its authority. The Supreme Court in two landmark decisions (Sweezy v.
New Hampshire, 1957, and Keyishian v. Board of Regents, 1967) outlined generous legal space in which public universities should be free from government overreach. Justice Frankfurter’s widely cited concurring opinion in Sweezy specified that a college or university had the right “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
” Trump wants to control Harvard’s governance, hiring, admission and civil rights policies in direct contravention of those rights, according to an April 11 White House letter. The only ways out of this jam are either political or judicial. Trump will have to rely on Congress and his constituencies to maintain his grip.
Some states will take his side. Harvard and the rest of the higher education community will have to secure the support of the Supreme Court and their own constituencies: alumni, students, parents, donors, corporate partners, faculty and their own national organizations like the land-grant colleges’ and research universities’ groups. Lower courts have begun signaling their skepticism about Trump’s contempt for the law.
Conservative Judge Wilkinson’s recent opinion in the El Salvador deportation case called Trump’s position “shocking” and said that it would “reduce the rule of law to lawlessness.” It foretells an epic confrontation. The University of Illinois is well-advised in joining others suing to preserve the independence of public universities from federal overreach.
In the short run, this will likely be costly for higher education. In the long run, durable preservation by the Supreme Court of corporate independence, First Amendment rights and due process rights for both individuals and institutions will be worth the cost..
