Table 8-D
Legal Means Used for Conferring Authority
For For
Legal For Managing Corporate
Provisions Creation Authority Status
Statutory 12 16 17
Constitutional 655
Constitutional-
Statutory 4 1 0
The nine states with some constitu-
tional provision are represented here by
ten boards, or 45 per cent of those ex-
amined. Of these, four have constitu-
tional provisions that relate only to the
creation of the board, with the heart of
the authorization found in the statute.
Thus the majority of these boards are
creatures of their s.tate legislature, which
makes it necessary for them, in the
opinion of one commentator, to "make
their case for the freedom of higher edu-
cation in the legislature or in the forum
of public debate, unprotected by any
shield of legal autonomy. The independ-
ence of these schools thus stands in con-
stant need of being nourished and
replenished by the support of the com-
munity."37
The desirability of a constitutional
grant of authority is apparent, assum-
ing the minimization of political inter-
ference in institutions of higher learn-
ing is one's goal. The authorities re-
viewed were unanimous on this point.38
CONCLUSION
If the combined recommendations of
the foregoing sections were followed,
37 Moos & rourke, supra note 8, at 19.
38 See committee on government and
higher education, the efficiency of
freedom (1959); democracy in the ad-
ministration of higher education : tenth
yearbook of the john dewey society. (H.
Benjamin ed. 1950).
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institutional governing boards would be
constitutional corporations, appointed
by the governor with the advice and
consent of the state senate, and consist-
ing of from nine to fifteen members
appointed for long, overlapping terms.
Such a board, however, even if it con-
sisted of the ablest people the state had
to offer, would not and could not func-
tion properly unless it had a measure of
autonomy that removed it from political
fetters.
This problem of freedom from polit-
ical restraint was a recurring theme
which ran throughout the examination
of the mechanical aspects of trustee
boards. A persistent, fundamental di-
lemma of the democratic society is how
to reconcile the independence of a state
institution with the need for responsi-
bility to and review by the people. This
problem is particularly difficult when
either the voters or their popularly-
elected state officials are not as qualified
by experience and knowledge to make
certain decisions as is another institution.
The other institution in this case is the
board of trustees, and in turn the uni-
versity, and the decisions of concern
here are those involving the direction
and development of higher education.
Characteristically, university governing
boards have been set apart and endowed
with a degree of autonomy not afforded
other state agencies39
Perhaps it appears out of place to
raise, in what is essentially an examina-
tion of mechanical and organizational
aspects of institutional governing
boards, the problem of institutional
board freedom. This is true only if it is
not relevant to the whole matter of size,
term, tenure, and selection of boards of
trustees. Quite the contrary has been
39 council of state governments, supra
note 25, at 132.
289
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