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Loosening the Grip--The Corporation In Spring, 1969

By Jay Burke

DURING the past serious proposals for reforming the University's governance have been cut off with the curt remarks, "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 statues. It also suggests that it 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 Overseas 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 Character of 1650 which the province of Massachusetts-Bay granted 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 makes all permanent appointments in the University; it meets every other Monday morning for about three hours Massachusetts Hall. The Board of Overseers meets about once every month, except during the summer, to approve Corporation decisions and appointments. The general pattern of responsibility is specific in the Charter and its Appendix (1657).

* There are no restrictions on Corporation membership, except that new appointment 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 a noverseer, 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 overseers 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 Overseas have granted nominating power 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.

OTHER POINT'S relevant to the legal side of reform are not so definite as the ones listed above see to be.

* All legislative acts which have affected the government of Harvard have stated 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, the more likely it is an essential provision. In Dartmouth College v. Woodward (1819), John Marshall ruled that a state charter cannot be altere without approval of the corporation's governing body. Since the Harvard Charter cannot be altered without approval of the corporation's governing body. Since the Harvard Character of 1659 does not specify that the legislature granted it on condition of being able to change it all will, Harvard might be protected under the Dartmouth College decision. In that cast, the University can protect itself against any vengeful acts by Ronald Reagans in the legislature, and petitioning the state for changes in specific laws could not be so dangerous as it has seemed.

The original prohibition against faculty or administration members voting of oh 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 not 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 reference to Harvard by the state name "Harvard College." And the real name of the Corporation is still "President and Fellow of Harvard College."

RESPONDING TO THE over jor reforms of Harvard's government are not legally impossible at the present. It might also be safe 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.

THIS REVIEW indicates that whelming hostility students felt for the Corporation last month, the Committee of Fifteen has announced that it will consider possible changes in "character of membership, method of election..." of the Governing Boards. Most of those who went on strike to re-structure Harvard were mainly concerned with this simple problem, but it is easily overlooked when compared to all the other questions in the wide range of the committee's concerns. A review of the situation suggests, though, that the emphasis given this aspect of Harvard's governance during the emotional period after the bust was well placed.

* Nathan Pusey will leave his post in 1973, when he reaches the retirement age of 66 which Harvard imposes on administrative officers. Since the President and Fellow have "perpetual succession" under the University's 1650 charter, the Corporation will choose his replacement, subject only to consent of the Overseers. Within will form a search committee to begin the next year or so the Corporation looking for a new president, and the men on this committee will talk to "an infinite variety of sources," according to Sargent Kennedy, secretary of the Corporation.

But the final decision will be made by the seven Corporation members. The Corporation is primarily interested in the financial and social position of the University and it seems likely that the man they choose will be both a capable fund raiser and prominent in the nation's academic establishment. As a reflection of their own isolation from the University, the members of the Corporation will probably be less concerned that the new president share this community's sentiments or even that he be willing to listen to them. This selection policy seems to have been followed in the past, but Harvard's internal rumblings will be even more severe in the next twenty years if, after Pusey's retirement, it is faced with the outcome of similar process conducted by the men now serving on the Corporation.

* Corporation membership probably represents the only area where SDS rhetoric has been too cautious. The Fellows fill their own vacancies by the same procedure, having a survey committee solicit a wide range of recommendations, but the process has resulted in an incredibly homogeneous body. Four lawyers, three of them with extensive financial interests which have been repeatedly publicized by radicals, serve on the Corporation; the fifth Fellow, A.L. Nickerson, is a Republican from New York who heads the Mobil oil company. With the exception of the youngest Fellow, Hugh Calkins from Cleveland, the Fellows maintain nearly identical life-styles in a select and self-contained world. For example, they share membership in the same exclusive clubs in Boston and New York; although Samuel Eliot Morison, who wrote authoritative histories of Harvard, reported that 'no religious test has ever existed for membership in the Corporation," all three Fellows whose religious ties are listed in the current Who's Who are, along with Pusey, Episcopalian.

The Fellow's non-Harvard interests often converge on the same company. Since early in this century the Corporation has retained the Boston firm of Ropes & Gray as the University's legal counsel. During that time at least three Fellows--Thomas Nelson Perkins, Charles A, Coolidge and Francis H. Burr--have been partners in Ropes & Gray. From 1954 to 1965, when Coolidge retired, he and Burr served as Fellows at the same time. Burr also sit on the Board of Directors of State Street Investment Corporation, whose relationship with Harvard's treasure, Gorge Bennett, is discussed below; Bennett, Burr, and Coolidge all served as directors of the New England Electric System.

Calkins, the symbolic outsider from the Mid-West, was named a Fellow because the Corporation wanted to change its image. But he is a thoroughly Eastern product--born in Newton, prepped at Exeter, degrees from the College and Law School--and he admits that he was groomed for service to Harvard by a friend on the Corporation and was the logical choice when a vacancy occurred because the friend died.

* The college charter of 1650 provides that, besides the President and Fellows, the University treasurer shall be a member of the Corporation George Bennett, the current treasurer, is also president of the State Street Investment Corporation. His Predecessor, as treasurer, Paul C. Cabot, was president of that investment firm and now serves a schairman of its board. Bennett served as deputy treasurer of Harvard under Cabot because he was then vice-president of State Street; he was elevated to Harvard's Corporation when Cabot retired from it. The present deputy treasurer is Mayo A. Shattuck, who is also vice-president of State Street.

A pattern seems to have developed since 1948, when Cabot became treasurer. Harvard chooses as its treasurer the head of State Street Investment and as its deputy treasurer the next-ranking executive of that firm. So one of the seven voting members of the Corporation is simply a delegate from this Boston investment company.

Beyond the Corporation's apparent surrender of the power to name Harvard's treasurer, this relationship could be unwise for the University's own selfisr interest which the Corporation claims to protect. In a recent book James Ridgeway, and editor of The New Republic charges that State Street agreed to this arrangement on condition that its investment funds receive priority over Harvard's when trading shares of the same stock.

Bennett has been criticized by SDS Middle South Utilities, a holding company for allegedly racist utility companies in the Deep South. Even if the companies do not discriminate, it might be considered unusual for Harvard's treasurer to invest the University's funds in a corporation which he has served as a director since its founding in 1949 and in which his own investment firm and he personally have financial interest. Middle South might be a profitable investment, but what seems like a possible conflict of interest could in some cases result in imprudent uses of Harvard's money.

It would probably be better for Harvard to follow Yale's lead in this area. The treasurer of Yale is an employee named by the university. He makes investment decisions with the help of an investment firm, established and half-owned by Yale. And the university's funds receive priority in the market over the firm's own funds.

* Changing the Corporation's method of election (for example, by having a student-faculty search committee) or its character of membership (by having faculty or recent graduates serve limited terms) face no legal restrictions. The only state laws restricting the Governing Boards apply to the Overseers--only alumni can vote, but faculty and administrative officers cannot vote of or serve on the Board. A recent article on this page indicated that--however foolhardy it would be politically to ask politicians now to consider matters affecting a university--it might be safe, in legal terms to petition the legislature to remove the limits on the Overseers. It is possible that the Supreme Court's Dartmouth College decision, in 1819 means that no law affecting. Harvard's Governing Board could take effect unless it were approved by the Governing Boards themselves, since such a law would constitute an amendment to the College's original charter.

Further research has suggested that this interpretation is correct, although no one know for sure because no legal scholars have ever had any reason to consider the problem. A source in the office of the Counsel to the Massachusetts Senate has said that it seems probable the Governing Boards' approval is required. And Morison, in his Development of Harvard University, 1868-1929, agrees that this principle may now be considered a settled point in American constitutional law."

* Besides their legal responsibility for the University, the Governing Boards also write the Statutes which regulate Harvard's internal affairs. Because these rules are so general, each faculty's responsibility within the university has long been a matter of custom rather than regulation. After the controversy over ROTC, the Committee might wish to re-write the Statutes should probably also be revised to contain any new provisions for selecting members of the Corporation and Overseers; these reforms can now be made only by the Governing Boards.

That the Governing Boards as so remote from this community and that the Corporation can be stereotyped so easily and so much more clearly than even radicals have said, indicates that significant changes in Harvard's Governing Boards essential. The Major difficulty in making these reforms will be the resistance offered by the men who run the University. And they have already resorted to police violence once to keep their grip on power from slipping.

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