In this post, I will follow up on my previous essay of January 13, 2025, “Can Christian Colleges Survive.” In that essay, I reviewed and responded to a new book by David Rabban: Academic Freedom: From Professional Norm to First Amendment Right (Harvard, 2024). I want now to explore a connection I noticed when reading Rabban’s book, that is, the connection among the State of New Hampshire’s rationale for rewriting the Dartmouth College charter, the American Association of University Professors’ rationale for asserting its theory of academic freedom, and David Rabban’s argument for making academic freedom a First Amendment right.

As with the earlier post, I hope you will read it and pass it on to other interested parties, especially to trustees, administrators, and faculty in Christian colleges.

Trustees of Dartmouth College v. Woodward (1819)*

Legally, there were two issues in this case: (1) Is Dartmouth’s charter (1769) a “contract” under the “impairment of contracts” clause of the US Constitution (Art. I. 10. 1); and if so, (2) did the NH legislature “impair” said contract in its 1816 legislation changing the charter of the college?

In its legal defense of the legislation, New Hampshire denied that Dartmouth’s charter is a contract subject to constitutional protection or that the legislature impaired the “contract” through its action. The Trustees argued in the affirmative in both cases. In this essay, however, I want to focus not on the legal but on the moral/social utilitarian arguments made by the NH legislature to justify the legislation.

The NH legislature argued that the Dartmouth charter was granted for the public good, therefore Dartmouth is a public institution and falls under the authority of the state of NH to regulate matters involving public welfare. The first paragraph of the New Hampshire law in question reads as follows:

WHEREAS knowledge and learning generally diffused through a community, are essential to the preservation of a free government, and extending the opportunities and advantages of education is highly conducive to promote this end, and by the constitution it is made the duty of the legislators and magistrates, to cherish the interests of literature, and the sciences, and all seminaries established for their advancement—and as the college of the State may, in the opinion of the legislature be rendered more extensively useful ; Therefore…(p. 539).

Then follows a series of changes that amount to confiscation of the college by the State of New Hampshire.

Daniel Webster presented the case for the Trustees against the State of New Hampshire. Webster refutes the idea that a contract among private parties to carry out education and other works advantageous to the general public makes an institution a public institution in the legal sense. Webster emphasizes this point over and over in different contexts:

The granting of the corporation is but making the trust perpetual, and does not alter the nature of the charity. The very object sought in obtaining such charter, and in giving property to such a corporation, is to make and keep it private property, and to clothe it with all the security and inviolability of private property. The intent is; that there shall be a legal private ownership, and that the legal owners shall maintain and protect the property, for the benefit of those for whose use it was designed. Whoever endowed the public? Whoever appointed a legislature to administer his charity? Or who ever heard, before, that a gift to a College, or Hospital, or an Asylum, was, in reality, nothing but a gift to the State? (p. 574).

…

The case before the Court is not of ordinary importance, nor of everyday occurrence. It 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. If the franchise may be at any time taken away, or impaired, the property also may be taken away, or its use perverted. Benefactors will have no certainty of effecting the object of their bounty; and learned men will be deterred from devoting themselves to the service of such institutions, from the precarious title of their offices. Colleges and halls will be deserted by all better spirits, and become a theatre for the contention of politics. Party and faction will be cherished in the places consecrated to piety and learning. These consequences are neither remote nor possible only. They are certain and immediate (pp. 598-99).

In sum, Webster’s point is this: charitable institutions (a college in this case) aim to benefit the public. The state has an interest in promoting the public good. But this overlapping interest does not give the state a legal right to assert control and manage the institution.

Mr. Joseph Hopkinson, Webster’s co-counsel, drives the same point home quite vigorously:

It is true, that a college, in a popular sense, is a public institution, because its uses are public, and its benefits may be enjoyed by all who choose to enjoy them. But in a legal and technical sense, they are not public institutions, but private charities. Corporations may, therefore, be very well said to be for public use, of which the property and privileges are yet private. Indeed, there may be supposed to be an ultimate reference to the public good, in granting all charters of incorporation; but this does not change the property from private to public. If the property of this corporation be public property, that is, property belonging to the State, when did it become so? It was once private property; when was it surrendered to the public? The object in obtaining the charter, was not surely to transfer the property to the public, but to secure it forever in the hands of those with whom the original owners saw fit to entrust it (pp. 616-617).

Chief Justice Marshall writes for the Supreme Court in its decision favoring the Trustees of Dartmouth College against Woodward. In his carefully reasoned opinion, Justice Marshall argues that the New Hampshire legislature violated the US constitution’s stricture against the impairment of contracts. Dartmouth is a private charitable institution and not a public institution subject to state control:

That education is an object of national concern, and a proper subject of legislation, all admit. That there may be an institution founded by government, and placed entirely under its immediate control, the officers of which would be public officers, amenable exclusively to government, none will deny. But is Dartmouth College such an institution? Is education altogether in the hands of government? Does every teacher of youth become a public officer, and do donations for the purpose of education necessarily become public property, so far that the will of the legislature, not the will of the donor, becomes the law of the donation? These questions are of serious ‘moment to society, and deserve to be well considered. (p. 634).

Marshall concludes:

But the Court has deemed it unnecessary to investigate this particular point, being of opinion, on general principles, that in these private eleemosynary institutions, the body corporate, as possessing the whole legal and equitable interest, and completely representing the donors, for the purpose of executing the trust, has rights which are protected by the constitution.

It results from this opinion, that the acts of the legislature of New-Hampshire, which are stated in the special verdict found in this cause, are repugnant to the constitution of the United States; and that the judgment on this special verdict ought to have been for the plaintiffs. The judgment of the State Court must, therefore, be reversed (p. 654).

It would be hard to overestimate the importance of Trustees of Dartmouth College v. Woodward for the freedom of private institutions to conduct their business free from state interference. And as we shall see, the principle established in this case is still of great importance today. The insidious logic of the NH legislature is still being employed—under different guises to be sure—to reduce the autonomy of private non-sectarian and Christian colleges. And Daniel Webster’s argument and Justice Marshall’s decision are still the most potent responses to a government’s assertion of a right to control higher education in private colleges.

AAUP 1915 Declaration

In the American Association of University Professors’ 1915 “Declaration on Academic Freedom and Academic Tenure” we meet again, I shall argue, the NH equivocation between the word “public” used to mean “people in general” and to mean “publicly owned and governmentally controlled.” The Declaration argues that institutions that call themselves colleges and claim to promote the public good are “public trusts” and must therefore accept a definition of academic freedom and tenure commensurate with their self-incurred obligation to serve the good of the public as a whole. That is to say, a college’s claim to promote the good of society obligates it to adopt a non-sectarian stance. Like the State of New Hampshire of 1816, the Declaration imposes its own definition of the “public good” on all institutions that lay claim to the title of college or university. All other ways of serving the public are “proprietary” (“private trusts”), not true universities. The Declaration does not argue that a college’s claim to promote the common good places it within the sphere of direct state control (as in the Dartmouth case). It asserts, rather, that “proprietary” colleges are not truly academic institutions and that their claims to benefit the public, and therefore to be worthy of public support, are misleading or false:

Trustees of such universities or colleges have no moral right to bind the reason or the conscience of any professor. All claim to such right is waived by the appeal to the general public for contributions and for moral support in the maintenance, not of a propaganda, but of a non-partisan institution of learning.

Colleges that do not acknowledge “unfettered” academic freedom are not truly academic, not truly a benefit to the public; they are second rate at best.

The Declaration argues that any college that claims to benefit society at large and appeals to members of the public for support is a “public trust” and therefore must become truly “non-partisan” and free from all religious, political, or commercial interests. Hence it must allow unfettered academic freedom to its professors. This is the same argument made by the New Hampshire legislature for its right to confiscate Dartmouth college and rejected by the Marshall Supreme Court. However, in this instance the argument is used not by a state to justify confiscating private colleges, but by an elite professorial class to discredit, intimidate, and shame colleges founded to serve the church or other private causes.

Rabban and the First Amendment right of academic freedom

David Rabban in Academic Freedom: From Professional Norm to First Amendment Right,** intensifies the AAUP’s argument outlined above and transforms academic freedom from a professional norm into a First Amendment right, thus justifying (like NH in the Dartmouth Case) the intrusion of the government into the heart of the university–private as well as state owned .

As I documented in the previous essay,** Rabban argues (1) that the public benefit generated by professors justifies protecting their academic speech as a special First Amendment right; and (2) that since 1957 the Supreme Court has steadily moved toward asserting a First Amendment right of academic freedom.

Without explicitly saying so, Rabban in effect argues that the claim by a college to be an institution of higher learning that provides a good to the public and employs “professors” to function in this role should come under the jurisdiction of the First Amendment. Clearly, Rabban resurrects the utilitarian/quasi-legal reasoning used in the New Hampshire legislature’s legislation in the 1816 takeover of Dartmouth college. Professors, precisely as members of the professorate, Rabban argues, should have the constitutionally protected right of academic freedom against state or institutional abridgment.

The academic speech of individual professors, no matter where they teach, has become legally protected speech as long as it is truly “academic,” which determination must be made solely by the professorial community. Whether or not a professor’s speech is academic cannot be decided by trustees, judges or administrators. Therefore, the authority to regulate professorial expression has been transferred from the trustees of the college to the government, specifically the US government. States may also decide independently to give academic freedom special state constitutional protection.

This theory aims to achieve what the New Hampshire legislature attempted to achieve in Trustees v. Woodward. However, instead of taking a top-down approach, using the sovereign power of the state, opponents of private institutional autonomy start from the bottom, pitting individual professorial constitutional rights against state legislatures and college trustees. By freeing professors from responsibility to the trustees in the use of their “academic” speech, the profession, backed up by the federal courts, takes control of the core activity of the college. It’s a kind of nationalization of a college’s faculty backed up by the First Amendment to the US Constitution. Academically, it levels or homogenizes all colleges and universities in the US.

In other words, treating academic freedom as a special First Amendment right accomplishes what the NH legislature attempted to do to Dartmouth in 1816 and failed to accomplish. But instead of handing control to state legislatures, it places it in the hands of the federal courts. It gives constitutional backing to the AAUP Declaration’s utilitarian and moral arguments.

*This hyperlink takes you to the complete, 199-page record of the case, including the original 1767 charter, the full texts of the 1816 New Hampshire law taking over Dartmouth college, the arguments of the plaintiff  (Trustees of Dartmouth College) and the defendant (Woodward, New Hampshire’s recently appointed treasure of Dartmouth University), and Chief Justice Marshall’s decision.

**See my previous post “Can Christian Colleges Survive” (January 13, 2025).