Dartmouth College v. Woodward

More Lore than Law: The Dartmouth College Case and the Myth of the Purely Private College

Editors’ Note: John Thelin continues HistPhil‘s forum marking the bicentennial of the Dartmouth College case. This post is an excerpt from his book, A History of American Higher Education, published as a new third edition in 2019 by the Johns Hopkins University Press.

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] 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.”[ii]

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.

Does this mean that the Dartmouth College case was inconsequential? Hardly – but the delineation of clear, strong powers for the academic corporation of Dartmouth College was a “victory” for all colleges, whether they are what we would today call “private” or “public.” In other words, all colleges gained safeguards and protections that their charters and approved governing structures and by-laws warranted respect from external groups, including the host state legislature and other institutions. Most “state universities” have charters and boards, and although a governor or legislature can influence or reward and punish, it must be done in accordance with the ground rules of the charter.

Conversely, the idea that a “private” college board is exempt from scrutiny and oversight by its state government is inaccurate. The charter a state grants to a “private” college can be revoked or revised, although this happens rarely and only with good reason. The state of New York stands as Exhibit A. Even today its regents have some ultimate authority over all the academic institutions chartered in the state. A fairly recent example that comes to mind is Adelphi University, where in 1997 the New York State Board of Regents intervened by voting to remove eighteen of nineteen Adelphia trustees after the regents had investigated misconduct charges by both the president and “his” board. Through its regents the state had the power – and the responsibility – to oversee charges that institutional board members had violated public trust. All colleges and universities are – and have always been – “public” institutions in that they are obliged to adhere to the terms of their charter and abide by laws, rules, and codes ranging from safety requirements in the workplace to larger, essential issues of mission and malfeasance.

Most conventional accounts of governance in American higher education make the implicit assumption that academic corporations are both distinctive and good because the arrangement protects them against the threat of state government intrusion. There is also a reverse twist: does the “academic” corporation give too much authority to external boards who have little accountability?

Perhaps the most peculiar dimension of the traditional interpretation of the Dartmouth College case is the argument that the court decision had the effect of promoting private college-building. For example, historians Richard Hofstadter and Wilson Smith had written of the case that “it underwrote the development of small colleges and weakened the position of state universities.”[iii] Their conclusion is unconvincing and incomplete because there is little evidence that state governments were thwarting college-building initiatives of any sort prior to the Dartmouth College case. In the late eighteenth century some journalists wrote about “College Enthusiasm,” an allusion to the widespread interest in college-building. By 1860, about seventy-five years later, that interest not only had continued, it had increased. In an era when private giving emphasized charitable deeds and public works, ranging from the endowing of asylums to the building of orphanages, it was the college that attracted substantial and enduring support from a wide range of American constituencies, including state governments. This was the era of the “college-building boom.” And, in surveying more than four centuries of American history, it’s reasonable to say that we are, and have long been, a nation of college builders.

Despite Dartmouth College’s concerns about state intrusion in 1819, Dartmouth College was a beneficiary of government programs throughout the 19th century. With passage of the 1862 Morrill Act that established land grant colleges and universities, the New Hampshire state legislature selected Dartmouth as the state’s land grant college. As such it was home for New Hampshire’s first federally funded programs in agriculture, mechanics and the practical arts. Dartmouth College, the small beleaguered private college of 1819 could stake the claim to being “Dartmouth A&M.” This is an important landmark in college-state relations that may be overlooked in the excitement of celebrating the Dartmouth College case. Bringing this into Dartmouth’s institutional memory adds significant and complicating texture to the fusion of public and private identities in the history of America’s colleges and universities.

-John R. Thelin

John R. Thelin is a professor at the University of Kentucky. He is the author, among other works, of Going to College in the Sixties (Johns Hopkins University Press, 2018), and, with Richard Trollinger, of Philanthropy and American Higher Education (Palgrave Macmillan, 2014).


[I] Edwin D. Duryea with Don Williams, The Academic Corporation: A History of College and University Governing Boards (New York: Falmer Press, 2000), 105.

[ii] President Joseph McKeen at Bowdoin College in Maine (1802) as quoted by Frederick Rudolph, The American College and University: A History (New York: Knopf, 1962), 58-59.

[iii] Wilson Smith and Richard Hofstadter, “Daniel Webster Argues the Dartmouth College Case, 1819,” in American Higher Education: A Documentary History (Chicago: University of Chicago Press, 1961) vol. 1, p. 202.

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