“Are Universities Above the Law?” is the question put by Peter Berkowitz in The Weekly Standard. His subtitle is “For the sake of liberal education they shouldn’t be,” but of course that is not the reason why universities should be (and are not) “above the law.”

Berkowitz is exercised by three recent university controversies that have had formal legal repercussions: the dispute at Dartmouth College over the selection of trustees, the controversy at Duke University over its treatment of the lacrosse players accused of rape at a party, and the litigation brought against Princeton University by the heirs of donors who endowed the Wilson School. I have my views of the merits of each of these legal actions, just as many readers will have, but I do not want to comment on the merits of the cases — in part because I am a member of the Woodrow Wilson School faculty and it would be inappropriate for me to comment on the merits or the Robertson lawsuit.

What drew my attention to the Berkowitz piece is his argument that “More than the scope of universities’ legal responsibilities is at stake here. That’s because upholding the rule of law on campus can contribute to the reform of university governance — and the reform of university governance is an indispensable precondition for the restoration of a liberal education worthy of the name.” Well let me say that it is a pleasure to read a conservative intellectual supporting the rule of law, since in recent years that is something that could not be taken for granted. But the subtext of the Berkowitz argument is that a particular version of the rule of law is what ought to be applied — and that is a more familiar argument. And it is quite wrong, in my view.

The three legal actions referred to are in fact quite different in form and content: one concerns the governance of a nonprofit corporation, another is about the behavior of university authorities toward students accused of crimes, and the third is about university fidelity to donor intent in administering a charitable gift. These are all significant legal and policy questions, but they have little in common legally. In each case university management is defending itself against allegations that it has violated legal norms, and it has employed traditional legal defenses. None of the institutions has claimed that its actions are not covered by law, nor refused to defend itself against legal claims. On the contrary, the institutions have appealed to law in support of their actions, and in my view their defenses are far from frivolous.

Dartmouth, Duke, and Princeton are of course all private, nonprofit institutions. They are subject to precisely the same legal constraints (and duties) as all other nonprofits. What is particularly worth noting (and what I think Prof. Berkowitz really objects to) is that the law permits considerable discretion to such institutions in organizing and managing their own governance. Most of these institutions have self-perpetuating boards of trustees, to which courts have always given considerable leeway for self-governance. Prof. Berkowitz recognizes that courts should not intervene in university academic affairs, but wants courts to compel universities “to honor their formal promises of impartial treatment and their specific guarantees of fair process for students and professors alike.”

Quite so, and none of the institutions involved have argued that they should not be subject to legal scrutiny. “Formal promises” does not clearly cover the alleged university infractions. But in any case, resort to law is usually not the best way to resolve institutional conflicts. The real issue here, as Dartmouth argued almost two hundred years ago, is whether these institutions should be able to govern themselves in a manner consistent with law. Our tradition is that governance controversies are best resolved in accordance with established institutional principles, and I don’t think we want courts substituting their judgments for those of institutional stakeholders in the absence of clear violations of legal norms. My guess is that Berkowitz’s underlying grievance is more important than law avoidance — it is what he believes is bad institutional policy. Legal force is not much help with that. Nor should it be.