AND UNIV. OF HIGHER EDUCATION THE LEGAL, POLITICAL AND By ALEXANDER BRODY, M.A., LL.M., Ph.D. Brooklyn, N. Y. Member of New York Bar The Committee on Administrative Phases of State Educational Systems was COPYRIGHT, 1935 II. POWER OF THE STATE GOVERNMENT TO ASSUME THE FUNCTION OF HIGHER EDUCATION-Higher Education as a Public Function 49 III. LEGAL AND ADMINISTRATIVE DISTINCTIONS BETWEEN THE COM- MON SCHOOL SYSTEM AND THE SYSTEM OF HIGHER PUBLIC EDUCATION State and Local Relationships in School Adminis- VIII. STATUS OF UNIVERSITIES AS INDEPENDENT AGENCIES OF THE STATE GOVERNMENT-Relation to the Legislative Power.... IX. STATUS OF UNIVERSITIES AS INDEPENDENT AGENCIES OF THE 922480 AUTHOR'S PREFACE The purpose of this study is to present higher education as a function of government and to show the political factors which affect its administration. To that end an analysis has been made of the political and legal conditions which underlie the creation, support and administration of state institutions for higher education in the United States. The basic materials used are the constitutional and statutory provisions relating to higher education and the judicial cases decided thereunder in the several states. This material has been selected, arranged and presented with a view to acquaint the student of education as well as the student of government with the pattern of legal control of higher education in the United States, and with those aspects of the legal and judicial process which enter into the determination of educational questions. State activity in higher education through the medium of organized government involves first, the problem of formulating sound social policy and second, the problem of implementing these policies by law. The effective use of law and governmental agencies in the furtherance of educational policies necessarily involves an understanding of the place of education in the governmental process; for the educational policies of the state are carried out through the instrumentality of its legal system. The status of educational institutions is studied not merely in relation to the state government as such but also in their broader relations to the interest and welfare of the whole community. ALEXANDER BRODY. ACKNOWLEDGMENT The writer wishes to express his gratitude to Dr. A. B. Meredith, Professor of educational administration, New York University, and to Dr. J. O. Creager, Professor of higher education, New York University, for their encouragement and assistance. Mr. M. O. Price, law librarian of Columbia University, cordially extended the facilities of Kent Hall to the use of the writer. The writer is also grateful to Dr. George W. Matheson, Dean of St. John's University, School of Law, and to Mr. William J. Weary, Vice-Dean, School of Commerce, St. John's University, Brooklyn, N. Y.; to Miss Elsie A. Hug, secretary at New York University, for her courtesy. FOREWORD With the widening of economic and social forces in the middle of the nineteenth century, the phenomenal growth of population, the expansion westward, and the development of our country's industrial resources, there also developed a greater need for facilities and opportunities for higher education. The historic American universities could no longer cope with the educational needs concomitant with the growing heterogeneity of interests. The private character of the older colleges and universities was already declared inviolate by the Supreme Court of the United States. Hence it was constitutionally impossible for the state to make these institutions more responsive to public needs. It was natural, therefore, for the state itself to assume the financial burden of providing its citizens with the opportunity for higher education. With the help of the Federal Government, many colleges were established, and the principle gradually became to be recognized that the provision for a higher education is a vital function of the American State, and its administration an organic part of its governmental structure. The colleges in the West were pioneers in the field of public higher education; and the East tax-supported colleges supplemented the private institutions already in existence. The administration of institutions of higher education occupies a unique position in the government of the state, a position different in almost all its relationship from that of other administrative bodies. In this respect higher education is a new departure in government. It must be remembered that the function of higher education was assumed by the state after its governmental structure was already crystallized. The main reason, however, for the extraordinary position of the university in the American political system was due to the fear of political influence and the desire of the American people to separate the function of education from other functions of government. The problem of assimilating higher education to the political state was accomplished in the following two ways: In some states the administration of the university was provided for in the constitution of the state and its position so entrenched as to make it similar in status to that of an independent branch of government. In these states it may be said that there are four branches of government: executive, judicial, legislative, and a fourth, educa |