More Lore Than Law: The Dartmouth College Case And The Myth Of The Purely Private College

For Dartmouth College and Daniel Webster, 1819 was a very good year.  It was no less than a home field victory in which the Big Green fended off a hostile takeover by New Hampshire’s state legislature. And today that certainly justifies a bicentennial celebration.

But what exactly are we celebrating? Beyond the particulars of the Supreme Court verdict that kept Dartmouth’s charter and governance free from legislative meddling, the broad historical significance of the case gets murky. What is its legacy for colleges and universities nationwide?

One popular, influential interpretation is, as scholars Edwin D. Duryea and Don Williams have phrased it, that “the Dartmouth College case stands in history as the Magna Carta for private colleges in the United States.” I think this is more lore than law. First, the case had far more importance for contracts associated with business and commercial corporations than it did for colleges and universities. Second, Chief Justice John Marshall and Dartmouth College attorney Daniel Webster relied on a peculiar definition of “eleemosynary institutions” to categorize a college. The term refers more to charitable trusts, foundations, scholarship societies and agencies whose purpose is to gather and then distribute donated funds, as distinct from a college or university whose primary function is to teach and confer degrees. Most important, to celebrate the Dartmouth decision for allegedly creating and strengthening “private colleges” in the United States is to overstate the case. Such a claim today attaches a contemporary name to an institution of an earlier era, and so runs the risk of committing the historical sin of anachronism.

The fusion of “public” and “private” concepts within the same institution was standard practice in the early nineteenth century. It is illustrated by the remarks of the president of Bowdoin College in 1802:

“It always ought be remembered that literary institutions are founded and endowed for the common good and not for the private advantage of those who resort to them for education . . . [Every] man who has been aided by a public institution to acquire an education and to qualify himself for usefulness, is under peculiar obligation to exert his talents for the public good."

As these words suggest, there is reasonable doubt that anyone in the early nineteenth century made a substantive distinction been “public” and “private” colleges in the United States. Indeed, the more customary practice of the era was for a church-related college to petition a state legislature for some funding on the basis that it was a “public college” – a convenient chameleon strategy that was shifted when the same college sought private donations.

Why belabor the point? Despite the inference that a state legislature (such as in New Hampshire) wanted to exert state government control over colleges, there is an abundance of evidence to suggest an opposite inclination. State legislatures often wanted to reduce their responsibility for oversight and funding of higher education. When colleges within a state petitioned for financial support, governors and legislatures complied reluctantly and marginally by donating what was thought at the time to be worthless land or perhaps proceeds from an occasional state lottery. Systematic annual state appropriations simply were not part of the political vocabulary.