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It's not legal for state to get rid of Rutgers' board of trustees

(Note to readers: This is an abridged version of a letter sent to the members of the N.J. Senate and General Assembly regarding proposed legislation concerning the Rutgers Board of Trustees)

We are writing — as two professors of law who have taught, written and practiced extensively in both federal and New Jersey constitutional law — to express our deep concern about the legality of S-2902/A-4315, which we understand has been advanced to second reading in both houses without committee reference.

S-2902/A-4315 would purport to eliminate the 247-year-old board of trustees of Rutgers University and transfer all governance power over the university to the board of governors. If enacted, this bill would, in our view, violate the U.S. and New Jersey constitutions, which both contain guarantees against impairment by the state of its own contractual obligations. The compact that the state made with Rutgers, as embodied in the Rutgers Act of 1956, is just such a contract, and therefore is constitutionally protected from unilateral revision or rescission by the state.

Under the 1956 Rutgers Act, the board of trustees was charged with safeguarding the guarantees of autonomy that the state pledged in consideration of use of the Rutgers assets controlled by the trustees. In particular, the state pledged to the trustees that "the corporation and the university shall be and continue to be given a high degree of self-government and that the government and conduct of the corporation and the university shall be free of partisanship."

By its terms, however, S-2902/A-4315 would abrogate these contractual guarantees of autonomy by eliminating the protections of self-government inherent in the continued existence of the board of trustees, and vesting governance of the university in a board of governors whose voting membership is comprised completely of political appointees. This action would constitute an attempt by the state to impair the obligations of its own contract.

While we believe that S-2902/A-4315 would be found unconstitutional in either federal or state court, such litigation would be costly and destructive to the goals we all share of promoting higher education in New Jersey. Even universities as large and ancient as Rutgers can be fragile institutions whose reputation and legitimacy can be easily diminished if not protected against the ebb and flow of political tides. Academic freedom and autonomy are the basic pillars that allow a university to maintain its credibility.

Ronald K. Chen
Acting Dean
Rutgers School of Law–Newark

Robert F. Williams
Distinguished Professor of Law
Rutgers School of Law–Camden

Cheering bipartisan budget

AARP hails the bipartisanship displayed in Trenton this week. We need more of it. The new state budget is far from being all things to all people. But it is good for New Jersey.

Governor Christie and legislative leaders deserve our appreciation for a budget that puts the state pension system back on the road to solvency and for including the Medicaid expansion as well. Medicaid and the Affordable Care Act, with its health insurance marketplaces and subsidies for lower income folks, will help many New Jersey citizens and institutions like nothing else can. Those institutions that will be helped include hospitals, other health care providers and small businesses that wouldn't otherwise be able to afford coverage for their employees.

And that, in turn, will help us all because it will support our economic recovery, leading to more jobs and more revenue for our state government to improve its solvency and enable it to help other folks in need.

Douglas Johnston
Manager of Advocacy
AARP New Jersey

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