ments but who are well suited for
trusteeship.
Even more questionable are require-
ments that certain board members be
selected from a specific profession or
political party. Trustees chosen on such
bases often see themselves as a repre-
sentative of a particular element in
society and tend to place the interest of
their profession or party above that of
higher education.32 If state legislatures
(or constitutional conventions) think
conditions for membership must be set,
it probably is better to frame them in
the terms of "men and women of char-
acter and demonstrated capacity and
possessing a strong interest in public
service,"38 than in the specific charac-
teristics of profession, sex, residence, or
possession of a degree from a particular
university.
LEGAL STATUS OF BOARDS
The legal character of state institu-
tional boards is largely determined by
the instrument through which legal au-
thority is transferred to the board. If
the state constitution is used to create,
organize, or incorporate the board, it
possesses a degree of independence not
found in boards authorized by state
statute. When the state constitution
grants full authority to the board of
trustees to govern the university, the
board can be classified as a constitu-
tional corporation. This grant of au-
thority creates a formidable barrier
against interference in institutional af-
fairs by either the voters or popularly-
elected state officials not on the board.
One commentator has gone so far as to
32 M. rauh, college and university
trusteeship 59-60 (1959).
33 martorana & hoi.lis, supra note 4, at
32.
288
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characterize such universities as "... a
fourth branch of the government, co-
ordinate in some respects with the
executive, legislative, and judicial
branches."34
Nine of the nineteen states examined,
including North Carolina,35 have used
their constitutions to confer some meas-
ure of authority on their university gov-
erning boards. The number of consti-
tutional corporations on which complete
authority and corporate powers have
been so conferred, however, is very lim-
ited. Of the twenty-two boards exam-
ined, only five boards, located in four
states, can be classified as constitutional
corporations.30 They are the Universi-
ties of California, Georgia, Michigan,
Minnesota, and Michigan State Univer-
sity. In the remaining five states the
extent that the constitution has been
used to create, organize, or incorporate
state universities is varied. In some
cases the use of the medium of higher
law is substantial while in others it is
only perfunctory. Even in the latter
case, however, the mere mention of the
board in the constitution tends to create
some legal insulation from legislative
interference. ( See Table 8-D. )
34 M. chambers & E. elliot, the col-
leges and the courts 1936-40, at 35
(1952).
35 See J. Sanders, The Legal Development
of the University of North Carolina (unpub-
lished study, Institute of Government, Uni-
versity of North Carolina at Chapel Hill,
1965) for a historical treatment of the legal
provisions affecting the University of North
Carolina.
30 Of the remaining thirty-one states not
examined in this paper, only four have boards
of trustees which can be considered constitu-
tional corporations. They are the University
of Colorado, University of Idaho, Oklahoma
State University, and the University of Utah.
See Wooden, Legislative Control of a Con-
stitutional Corporation, 55 mich. L. rev. 728
(1957).
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