Restructuring and the Law

DURING the past week serious proposals for reforming the University's governance have been cut off with the curt remark, "You'll have to ask the legislature." This warning assumes that a political problem--the legitimate distribution of power in this community's government--cannot be solved legally under existing Massachusetts statutes. It also suggests that if state legislators are given an opportunity they will impose their reactionary will on Harvard to prevent a fair reform. Most who think about these problems conclude that they will have to be satisfied with whatever half-measures the Corporation and Overseers might be willing to grant.

Although definite answers in such an intricate and confused situation can probably be found only in court, it seems clear that the legal constraints on re-constituting the Governing boards are not so severe as they are generally claimed to be. A review of the legal conditions affecting any effort to change the governance of Harvard might help suggest what directions future plans could pursue.

* The formal structures of the government probably cannot be changed. The Charter of 1650 which the province of Massachusetts-Bay granted to Harvard College indicates that the Corporation--specifically composed of the President, Treasurer, and five Fellows--and the Board of Overseers shall be the governing bodies of the university. The state constitution, adopted in 1780 and still in effect, bestows on the Corporation "forever" all the rights which they had enjoyed in colonial days.

The Corporation makes decisions on all matters affecting the University as a whole and makes all permanent appointments in the University; it meets every other Monday morning for about three hours in Massachusetts Hall. The Board of Overseers meets about once every month, except during the summer, to approve Corporation decisions and appointments. This general pattern of responsibility is specified in the Charter and its Appendix (1657).

* There are no restrictions on Corporation membership, except the new appointments must win consent from the Board of Overseers. The 1650 Charter states that the Corporation has "perpetual succession," so its members fill any vacancies themselves. It could choose anyone--students, faculty, Cambridge police--with consent of the Overseers, though traditionally it selects only Harvard College graduates (with the current exception of William L. Marbury, whose only Harvard degree is from the Law School).

* The legislature has, however, placed a series of restrictions on members and electors of the Board of Overseers. Current law provides that "no member of the Corporation, and no officer of government or instruction in Harvard College, shall be eligible as an overseer, or entitled to vote in the election of overseers." There are no other restrictions on membership, but the franchise is granted only to Harvard degree-holders.

There are 30 members of the Board, and they are divided by fives into six groups. Each group serves staggered, six-year terms so five new over seers are elected each spring to take office on Commencement Day. A 1921 law gave the governing boards control over the method, time, and place of voting. Using that authority, the Overseers have granted nominating powers to the Associated Harvard Alumni whose Nominating Committee annually chooses ten names for the vacancies. Insurgents can appear on the ballot by petitioning with support of 200 alumni. Write-in votes are also permitted.

The Board of Overseers could, if it wished, delegate all or part of this nominating function to other bodies, such as students or faculty. Under present laws, only the alumni could vote on the nominations.

OTHERS POINTS relevant to the legal side of reform are not so definite as the ones listed above seem to be.

* All legislative acts which have affected the government of Harvard have stated that they would take effect only after being approved by the Corporation and the Overseers. This clause might simply represent courtesy on the part of the Commonwealth of Massachusetts, but more likely it is an essential provision. In Dartmouth College v. Woodward (1819), John Marshall ruled that a state charter cannot be altered without approval of the corporation's governing body. Since the Harvard Charter of 1659 does not specify that the legislature granted it on condition of being able to change it at will, Harvard might be protected under the Dartmouth College decision. In that case, the University can protect itself against any vengeful acts by Ronald Reagans in the legislature, and petitioning the state for changes in specific laws would not be so dangerous as it has seemed.

The original prohibition against faculty or administration members voting for or serving on the Overseers was contained in an 1865 law which also said that alumni who had only a Bachelor of Arts from Harvard must wait five years after graduation before voting for Overseers. In 1967 when Harvard asked the legislature to drop the five-year delay, the resulting act re-affirmed the restriction on faculty and administration participation in the Overseers. It is not clear whether the University requested a restatement of this provision, but the Corporation and Overseers both approved the act in the fall of 1967. The University could ask for this limitation to be repealed.

* It might be argued that both acts, in 1865 and 1967, refer only to officers of Harvard College, and that faculty or administration from other divisions of the University would not be subject to any restrictions. This line of attack will probably not be successful because most references to Harvard by the state name "Harvard College." And the real name of the Corporation is still "President and Fellows of Harvard College."

THIS REVIEW indicates that major reforms of Harvard's government are not legally impossible at the present. It might also be sae to risk asking the legislature to change laws to provide for faculty representation on the Overseers or to extend voting powers to University members who are not now eligible to vote for Overseers.

Considerable resistance will be met, of course, in trying to persuade the University's two governing boards to allow these reforms even if they are possible--the old men who run the University appear quite willing to risk shutting down Harvard present to serve their vision of Harvard past. But if reform is impossible, it is not so for legal reasons. --JAY BURKE