The opinion
Supreme Court of Texas
══════════
No. 20-0811
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University of Texas at Austin President Jay Hartzell, et al.,
Petitioners,
v.
S.O.,
Respondent
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On Petition for Review from the
Court of Appeals for the Third District of Texas
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~ consolidated for oral argument with ~
══════════
No. 20-0812
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Texas State University President Denise M. Trauth, et al.,
Petitioners,
v.
K.E.,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
JUSTICE BLACKLOCK, joined by JUSTICE DEVINE, dissenting.
According to a diploma on the wall in my office, “The University
of Texas at Austin has conferred on [me] the degree of Bachelor of
Arts . . . and all the rights and privileges thereto appertaining.” My
diploma certifies a historical fact: My degree was “issued by the Board
of Regents upon recommendation of the faculty,” and it was “awarded
on this eighteenth day of May, 2002.” Like millions of other Texans, my
college degree made possible most of what I have since done in my
professional life. I can hardly begin to calculate its value.
This precious asset was “conferred on” me and “awarded” to me
on a particular date, in exchange for my completion of the University’s
requirements and, of course, my payment of tuition. By memorializing
that the University has “conferred” the degree on me and “awarded” the
degree to me, my diploma demonstrates something very simple—and I
would have thought unremarkable—about the nature of my degree: It
is mine. It belongs to me, not to the University, and like other valuable
assets in my possession, it cannot unilaterally be taken from me by those
who later decide I never should have had it. Our Constitution
establishes courts, not universities, to adjudicate disputes about
ownership and possession of property.
Many will be surprised to learn from the Court’s decision that
they hold their college degrees not permanently, as their own property,
but contingently, only so long as their alma maters continue to believe
they should have received them. I would have thought that after I
graduated and left the University of Texas, the school retained no
authority whatsoever over me or my property. I can find no such power
2
over the rights of graduates mentioned in the voluminous Texas statutes
governing universities. Universities certainly have abundant statutory
authority to manage their own internal affairs, but they have no power
to manage the affairs of their graduates. If the Legislature wanted state
universities to possess the extraordinary power to unilaterally
adjudicate the rights of graduates, surely it would say so. It has not.
The power to decide whether a holder of property must return it
to the grantor is quintessentially a judicial power. Universities are not
judicial agencies. Modern universities routinely set up internal
tribunals that mimic some of the trappings of courts, with varying
degrees of fidelity, but these proceedings can impact only the rights of
people subject to the university’s internal jurisdiction—such as
students, faculty, and staff. These mock trials are a way for universities
to provide a semblance of due process as part of their executive-branch
management of the university’s internal affairs. Adjudicating the legal
rights of people in the outside world is an entirely different matter.
Nothing in Texas law confers such a power on state universities.
The Court suggests that overwhelming precedent from other
states favors its conclusion that revoking degrees held by graduates is a
necessary part of the internal management of a university. It is true
that several such cases exist, but the foundation of all of them is a 1986
Ohio case that does not engage deeply with the nature of college degrees
or the character of a graduate’s property right in a degree. Waliga v.
Bd. of Trs. of Kent State Univ., 488 N.E.2d 850 (Ohio 1986). The Ohio
case, in turn, relies on an English case from the year 1723. King v.
Cambridge Univ. (Bentley’s Case) (1723) 92 Eng. Rep. 818; 2 Ld. Raym.
3
1334; 8 Mod. Rep. (Select Cases) 148. In truth, the Ohio case relies on
one sentence—plucked out of context—from the English case. As
demonstrated below, Bentley’s Case from the King’s Bench has much to
teach us about the nature of university degrees under the common law
and about the traditional processes by which degrees could be revoked.
But the lessons of Bentley’s Case undermine, rather than support, the
Court’s conclusion that a modern university’s power of self-governance
includes the unilateral authority to revoke the degrees of its graduates.
The only resource in Texas legal history bearing on the question
presented is a 1969 Attorney General Opinion, with which I largely
agree. Tex. Att’y Gen. Op. No. M-466 (1969). The Attorney General
Opinion concludes that a state university wishing to rescind a
graduate’s degree must do what any other regretful grantor of property
must do to rescind the grant. It must ask a court to require the
property’s return. That is correct. A party seeking rescission of someone
else’s property is quite obviously not managing its own internal affairs.
It is seeking to manage the affairs of the party resisting its claims, and
for this it typically needs the judicial power of a court. Nor is it
exercising a power that flows naturally from the power to confer the
property in the first place. The power to bestow something of value on
another normally does not entail the power to unilaterally take it back.
This kind of “self-help” remedy is rarely found in the law. It is so rare
that I would expect it to be stated clearly in the governing statutes if the
Legislature indeed gave it to universities.
Whether the separation of powers would permit the Legislature
to bestow the essentially judicial function of degree revocation on a
4
university is itself an interesting question. The only question before the
Court, however, is whether the Texas Legislature has done so. I see
nothing in the governing statutes that would authorize a state
university to unilaterally determine the legal rights of graduates who
have no ongoing affiliation with the school. I therefore respectfully
dissent.
I.
The parties do not engage deeply with two questions I find
essential to a proper understanding of these cases. First, what is a
college degree? And second, what does it mean to revoke one? All
involved seem to agree that a degree is, at least in some limited sense,
the property of the degree holder. The parties offer little argument
about the nature of the thing over which they are fighting. Both the
universities and the Court acknowledge that a degree is in some ways
property, to which some unspecified degree of due-process protection
attaches. Ante at 17 n.11, 28 n.20. But elsewhere, the Court says that
a degree is merely the “university’s certification to the world at large of
the recipient’s educational achievement and fulfillment of the
institution’s standards.” Ante at 21 (quoting Waliga, 488 N.E.2d at 852).
If a degree is merely the “university’s certification to the world”—
essentially the university’s speech rather than the graduate’s
property—then I would agree that whether the degree persists is a
question within the university’s control. After all, it is up to the
university to decide what it will certify and what it will not certify.
I cannot join this line of reasoning, however, because I doubt that
a degree is merely the “university’s certification to the world at large of
5
the recipient’s educational achievement and fulfillment of the
institution’s standards.” This strikes me as an apt definition of a
diploma, but it does not adequately capture the nature of the intangible
asset that the diploma says now belongs to the graduate—the degree
itself. My diploma certifies to the world that I have fulfilled the
institution’s standards. It further certifies that, because I have done so,
I now possess a degree. While the diploma is the University’s
certification that I have earned the degree, the degree itself is much
more. As I see it, the degree is intangible property held by the graduate
as the fruit of a bilateral transaction with the university. After the
degree is conferred, the transaction has been consummated and the
property has changed hands. Graduates then possess their degrees as
a species of property, in a way that they could never possess the
university’s ongoing “certification.”
But even if we think of a degree as a “continuing certification
regarding the recipient’s fulfillment of the university’s requirements,”
as the Court does, ante at 21, it is at most a continuing certification that
the recipient was found to have fulfilled the requirements at the
appointed time. As my diploma reflects, the University certified that,
on the recommendation of the faculty, a degree was conferred on me on
a particular date. That will always be true. The faculty may later come
to regret their recommendation, and the University may later decide my
degree was awarded in error, but that does not change the truth of the
certification stated on my diploma.
In any event, it is my diploma—not my degree—that “certifies”
my fulfillment of the University’s requirements. I see no basis—other
6
than ipse dixit from foreign jurisdictions—for the Court’s view that a
college degree is, at bottom, merely a continuing certification by the
university that the degree should have been awarded. Adopting such an
impoverished understanding of the nature of these degrees—these
precious credentials for which we pay so much and work so hard—allows
the Court to reach the conclusion it reaches. But this paltry conception
of a degree is plainly insufficient. My diploma tells me that my degree
is much more than the University’s certification that I fulfilled its
requirements. As my diploma certifies, I now possess something of
value—a degree, to which “rights and privileges” appertain, which has
been “conferred on” me and “awarded” to me. The degree and the
certification of its having been conferred are two different things. My
degree is intangible, but it is something of great value that now belongs
to me, quite apart from the diploma’s certification of the fact of its
conferral. 1
That is what I take a degree to be. But then what does it mean
to revoke a degree? 2 The parties do not say, but I take it to mean the
1 Accord Bentley’s Case, 92 Eng. Rep. at 819 (concluding that a degree
is “a dignity and a freehold”); infra at 18–19.
2 The concurrence would hold that what is really at stake here is not
whether a university actually has the authority to revoke degrees, but whether
these universities have the authority to take the particular administrative
actions they took when attempting to do so: (1) placing a notation on a
transcript that the degree has been revoked, (2) requesting that the plaintiffs
no longer represent that they hold a degree, and (3) requesting that the
plaintiffs return their diplomas. See ante at 2 (Boyd, J., concurring). But the
plaintiffs do not argue that the universities lacked the power to take these
predicate administrative actions designed to accomplish revocation of a degree,
such as letter-writing or transcript-notation. Instead, the argument is that the
7
following. To revoke a degree would be to make this statement by the
graduate false: “I have a degree from X University.” Assume the
statement is true unless the degree is revoked. If the degree is
revoked—in a way that is legally binding on the graduate—then the
statement becomes false. This is not an abstract matter. The ability to
state truthfully that “I have a degree from X University” is a very
important thing, for which people pay many thousands of dollars and
devote years of time and effort. If the statement is rendered false by the
legally binding revocation of my degree, then if I continue to say it, I am
misleading others and perhaps liable for fraud. If, on the other hand, a
university without the authority to revoke my degree merely claims to
have done so, the statement is not rendered false. If the university lacks
universities lack the power to revoke degrees at all, so there is no
administrative action that would accomplish revocation. By analogy, a
plaintiff challenging a state agency’s administrative action might argue that
the agency (1) lacks authority to do the substantive thing its administrative
action claims to be doing or (2) lacks authority to take the procedural steps it
used to carry out its action. Either would be a valid line of attack, but the
claims in this case fit comfortably within the first category. The issue here is
not how the universities communicate or memorialize their decisions to revoke
a degree. The issue is whether the universities have the power to revoke
degrees at all. The parties’ arguments bear this out. See, e.g., 20-0811,
Petitioner’s Brief on the Merits, at 6 (“The power to revoke an improperly
conferred degree likewise fits comfortably within Defendants’ academic
authority.”); 20-0811, Respondent’s Brief on the Merits, at 43 (“[T]he Court
must affirm that portion of the trial court’s judgment declaring that UT
Officials lack express and implied authority to revoke a degree.”); 20-0812,
Petitioner’s Brief on the Merits, at 5 (“The power to revoke an improperly
conferred degree likewise fits comfortably within the TXST Defendants’
academic authority.”); and 20-0812, Respondent’s Brief on the Merits, at 1
(“The central question in this case is whether the Legislature has granted
Texas State University any authority over a former student, namely the power
to revoke a former student’s previously conferred degree.”).
8
the power to revoke degrees, then I may continue to say I have a degree
without misleading others, irrespective of the university’s position on
the matter. 3
II.
With these preliminary questions addressed, I turn to the
statutory question presented. The Court finds two places in statute that
it believes confer on state universities the power to revoke degrees. The
first is the statutory power to grant degrees. The second is the
universities’ general power to manage their internal affairs. Neither
supports the authority the Court grants the universities today.
The universities have explicit statutory authority to award
degrees. TEX. EDUC. CODE § 65.31(b) (University of Texas); id. § 95.24
(Texas State University). Once a degree is awarded, however, does the
graduate’s possession of the degree remain subject to the universities’
oversight? The statutes are silent. Authority to revoke degrees might
exist by implication, despite the statutes’ silence, but only if the implied
3 I do not doubt that state universities have authority to conduct
internal investigations into past student conduct and to come to their own
conclusions, which are not binding on graduates, about whether previously
awarded degrees should have been awarded. This clearly falls within their
internal powers of “operation, control, and management [over] the university
system.” E.g., TEX. EDUC. CODE § 65.31(c). Likewise, a university’s powers of
internal management would include the power to add a notation to a student’s
file or transcript—documents within the university’s control—indicating a
finding of fraud or deceit in the achievement of the degree. Whether a graduate
who is the subject of such a finding by a university has recourse to challenge it
in court is not a question raised by the cases before this Court. These cases
ask only whether state universities have statutory authority to unilaterally
revoke the degree itself, which I take to mean the authority to render the
graduate a liar if the graduate continues to say “I have a degree” after a
university deems the degree revoked.
9
power to revoke a degree is “reasonably necessary to carry out” the
express power to confer degrees. Tex. State Bd. of Exam’rs of Marriage
& Fam. Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017).
Surely it is not. The absence of degree-revocation power has no
effect on the power to confer degrees. A university is perfectly capable
of examining current students, determining their eligibility for
graduation, and conferring degrees accordingly without the ability to,
afterwards, exercise unilateral control over the graduate’s continued
possession of the degree. As observed above, in most instances the
power to confer something of value on another decidedly does not carry
with it the power to unilaterally dispossess the grantee. One who
confers something of value on another does not normally retain the right
to act as judge, jury, and executioner in a later dispute about whether
the transaction was procured by fraud. When it comes to the transfer of
property, the power to grant property and the power to revoke it are
more like opposite poles than they are like fellow travelers. It is possible
for both powers to belong to one party, but it is in no sense necessary—
or even likely—that they do.
The Court also finds degree-revocation authority implied within
the universities’ broad statutory authority to manage their internal
affairs. For example, Texas State University is “responsible for the
general control and management of the universities in [its] system.”
TEX. EDUC. CODE § 95.21(a). It may “perform such other acts as in the
judgment of the board contribute to the development of the universities
in the system or the welfare of their students.” Id. And its board of
trustees has the authority to promulgate rules “for the operation,
10
control, and management of the university system and its institutions
as the board may deem either necessary or desirable.” Id. § 95.21(b).
The University of Texas has similarly broad authority. It may
“promulgate and enforce such other rules and regulations for the
operation, control, and management of the university system and the
component institutions thereof as the board may deem either necessary
or desirable.” Id. § 65.31(c). It may also “prescribe the number of
students that shall be admitted to any course, department, school,
college, degree-program, or institution under its governance.” Id. The
governing boards of both schools may “exercise the traditional and
time-honored role for such boards as their role has evolved in the United
States.” Id. § 51.352(a). They are further empowered to “enhance the
public image of each institution under [their] governance,” id.
§ 51.352(a)(2), and “strive for intellectual excellence,” id. § 51.354(6).
These statutes certainly convey abundant internal governing
authority. But the moment a university seeks to employ this
inward-facing authority to prejudice the legal rights of people outside its
internal jurisdiction, our judicial hackles should rise. The power to
“control” and “manage” the affairs of a university cannot include the
power to control and manage the affairs—or the legal rights—of people
or entities outside of the university.
The Court, however, relies heavily on the broadly stated statutory
powers vested in the universities, such as the power to “perform such
other acts as in the judgment of the board contribute to the development
of the universities,” to “enhance the public image of each institution,”
and to promote “the welfare of students.” On their face, these powers
11
bestow vast authority on universities to do all kinds of things regardless
of the legal rights of outsiders. But within their context (and in order to
be constitutional), these broad grants of authority must carry with them
an implied limitation: A university cannot unilaterally adjudicate the
legal rights of those outside its internal jurisdiction merely because
doing so would “contribute to the development of the university” or
“enhance the public image” of the institution. The broad power to act
for the university’s benefit is, and must be, purely inward facing, purely
about matters internal to the university that do not prejudice the legal
rights of those in the outside world.
The Court reasons that a university’s power of internal
management must include the authority to investigate and act upon
allegations of academic misconduct. I agree. The Court’s mistake, as I
see it, is to downplay the difference between expelling a current student
for academic misconduct and revoking the degree of a former student for
academic misconduct. The Court says the difference should not matter
because it is merely “one of timing.” Ante at 20. 4 Of course, differences
of timing—such as statutes of limitation—often make all the difference
when the question is how allegations of past wrongdoing may be
adjudicated.
4 The Court struggles to locate a “point of no return,” after which a
university may not unilaterally revoke the degree of a former student for
conduct that would bar a current student from obtaining a degree. Ante at 21.
The obvious answer is the date on the diploma. A degree was conferred on the
graduate—and thereafter belonged to him as a private citizen outside of the
university’s jurisdiction—as of that date.
12
More fundamentally, the difference is not merely one of timing.
It is one of power, of jurisdiction. To use familiar judicial parlance, I
agree with the Court that a university has subject-matter jurisdiction
over allegations of academic misconduct. But unlike the Court, I would
hold that a university lacks personal jurisdiction over its graduates, who
take their persons and their legal rights—including their degrees—into
an outside world that is entirely beyond the university’s reach.
Courts must possess both elements of jurisdiction in order to issue
judgments binding on the parties. The same rule should apply here,
particularly because the power the universities seek is in many ways
judicial. We ought to be very reluctant to adopt any reading of a statute
that gives universities jurisdiction to adjudicate the legal rights of
people outside the university. The default rule should be that graduates
living in the outside world are not subject in any way to the
internal-governance powers of their alma maters, and only a clear
legislative statement to the contrary should be permitted to change this
fundamental limitation on a university’s authority, subject to the
Constitution. No such legislative statement exists here, and I would not
imply one as the Court does. Whether a graduate will continue to
possess his degree is no mere question of internal university governance.
It is a question of property rights existing in the world outside the
university, and Texas law gives state university administrators no
authority to decide such questions. 5
5The Court suggests that while state universities have the power to
revoke their graduates’ degrees, they cannot do so for conduct occurring after
graduation. Ante at 19. I like this rule, although I fail to see how the rest of
13
III.
For further insight, I turn to the same place the Court does—
judicial precedent. None of the American cases cited by the universities
and the Court pre-date the 1986 Ohio Supreme Court case of Waliga v.
Board of Trustees of Kent State University. 1986 seems a strange
starting point for judicial analysis of the “traditional and time-honored
role” of the governing boards of universities. TEX. EDUC. CODE
§ 51.352(a). In any event, nearly all the American cases rely on Waliga,
which itself offers little thoughtful analysis of the nature of the property
interest entailed by a university degree or the legal relationship (or lack
thereof) between graduates and their alma maters.
the Court’s opinion supports it. And even if the offending conduct must have
taken place while the graduate was a student, no principle arising from the
Court’s decision would limit the degree-revocation power to cases of academic
fraud. Today’s universities enforce elaborate codes of conduct on threat of
suspension or expulsion, and it is no startling revelation to observe the
unwelcome reality that they often do so in a heated political and ideological
environment. The University of Texas labels a number of actions as
sanctionable misconduct, including violations of law, unauthorized possession
of weapons, use of hazardous substances, theft, hazing, drug use, harassment,
stalking, gambling, disruptive or violent conduct, animal cruelty, and
retaliation. UNIV. OF TEX. INST’L. RULES ON STUDENT SERVS. AND ACTIVITIES
§ 11–401(a). Could a degree be revoked if the University later determines a
graduate committed one of these acts while a student and therefore should
have been denied a degree? Under the Court’s decision, the answer seems to
be yes. Furthermore, what about private universities? If the validity of a
graduate’s degree is a matter of internal university governance and
rescindable by administrative decree—rather than a property right
rescindable by judicial process—then private universities, whose powers are
neither defined by statute nor limited by the First Amendment, may be at
liberty to rescind their graduates’ degrees for any reason at all, including
ideological whim.
14
The Waliga court, in turn, bases its analysis on a misreading of
the only pre-1986 case cited to this Court, a 1723 English case about
degree revocation at Cambridge called Bentley’s Case, which appears to
be the leading common law case on the subject. 6 Other courts on which
the Court relies have followed suit. E.g., Crook v. Baker, 813 F.2d 88,
93 (6th Cir. 1987).
Waliga focuses narrowly on one line from Bentley’s Case, which
says Cambridge could “revoke a degree for ‘a reasonable cause.’” 488
N.E.2d at 852 (quoting Bentley’s Case, 88 Eng. Rep. at 119). Waliga
otherwise construes Bentley’s Case to require only that a university
provide a degree holder with sufficient due process while revoking a
degree. In reality, the lessons of Bentley’s Case are considerably more
complex and, when properly understood, stand at odds with the outcome
reached by American courts 250 years later.
Before delving into Bentley’s Case, it is worth asking why we
would bother analyzing a 1723 English case in a modern
statutory-interpretation dispute. The answer is simple. The
Legislature has provided that the powers of our state’s universities are
to be understood in light of a university’s “traditional and time-honored
role.” TEX. EDUC. CODE § 51.352(a). As the only resource pre-dating
6 Reporting on Bentley’s Case appears in at least three separate records
in the English Reports: first at 88 Eng. Rep. 111; again at 92 Eng. Rep. 370;
and finally at 92 Eng. Rep. 818. This is in part because the case was argued to
the King’s Bench at least twice. See Bentley’s Case, 92 Eng. Rep. at 373.
Throughout this opinion, the volume of the English Reports cited is adjusted
to reflect which record of the case is being cited. Like the Gospels, each report
of Bentley’s Case adds detail the others lack, but all of them tell a consistent
story.
15
1986 to which the Court is directed on the question of a university’s
time-honored role—and as the foundational authority for all the modern
American cases on the subject—Bentley’s Case plays an unusually
important role here for a case of its vintage. Moreover, I cannot find a
single decision from this Court’s history that sheds light on either the
nature of a college degree or on a public university’s authority to revoke
one. Given the influential role Bentley’s Case has played in the
development of the American precedent on the topic and the absence of
any other persuasive authority, a proper understanding of Bentley’s
Case seems not just helpful but required. 7
The University of Cambridge traces its founding to 1209 A.D.
From Henry III to Elizabeth I, the English Crown chartered Cambridge
as a corporation, provided legal protections for its teachers and students,
and augmented Cambridge’s legal status above that of a normal
corporation by charging it with certain functions usually reserved for
government. 8 As the power of Parliament grew relative to the Crown,
7 An additional reason to consult Bentley’s Case is that it is part of the
“common law of England,” which was adopted into Texas law as soon as our
state achieved independence from Mexico and remains part of our state’s law
today. See Repub. of Tex. Const. of 1836, art. IV, § 13 (“The Congress shall, as
early as practicable, introduce, by statute, the common law of England, with
such modifications as our circumstances, in their judgment, may require.”); see
also TEX. CIV. PRAC. & REM. CODE § 5.001(a) (“The rule of decision in this state
consists of those portions of the common law of England that are not
inconsistent with the constitution or the laws of this state, the constitution of
this state, and the laws of this state.”).
8 E.g., Charter of 20 Edward I Confirming the Privileges of the
University of Cambridge (Feb. 6, 1291/92) (Latin language document),
available at https://cudl.lib.cam.ac.uk/view/MS-UA-LUARD-00007-AST/1 (last
visited March 29, 2023).
16
the legal efficacy of the royal charters came under doubt. So, in 1571,
Parliament officially incorporated both Cambridge and Oxford,
reaffirming the traditional legal protections and privileges previously
guaranteed by royal charter. See An Act for Incorporation of Both
Universities 1571, 13 Eliz. c. 29 (Eng.). 9
One privilege bestowed by law on Cambridge was the right to
exercise judicial power within prescribed jurisdictional limits. By the
time Bentley’s Case was argued before the King’s Bench in 1723,
Cambridge had long held the authority—conferred explicitly by Act of
Parliament—to operate a court. 3 WILLIAM BLACKSTONE,
COMMENTARIES *83. The University’s chancellor or vice-chancellor sat
as its judge. Bentley’s Case, 92 Eng. Rep. at 818. 10 The court at
Cambridge enjoyed “sole jurisdiction, in exclusion of the king’s courts,
over all civil actions and suits whatsoever, when a scholar or privileged
person [was] one of the parties.” 3 WILLIAM BLACKSTONE,
COMMENTARIES *83–84. Despite the court’s apparently wide
9See also 4 EDWARD COKE, THE INSTITUTES OF THE LAWS OF ENGLAND
227 (1644) (“[T]o the intent that the ancient privileges, liberties, and franchises
[of Cambridge] . . . might be had in greater estimation, and be of greater force
and strength . . . it was enacted by authority of Parliament 1. That each of the
universities should be incorporated . . . 2. That all letters patent . . . should be
good and effectual [and] 3. That the chancellor, masters, and
scholars . . . should several have . . . all manner of liberties . . . and privileges,
which [Cambridge] had held, occupied, or enjoyed . . . according to the true
intent and meaning of the said letters patent.”).
10To this day, Cambridge’s own recounting of its history notes that the
university maintained a court over which its university administrators acted
as judge. See UNIV. OF CAMBRIDGE, About the University: Moves to
Independence, https://www.cam.ac.uk/about-the-university/history/moves-to-
independence (last visited March 27, 2023).
17
subject-matter jurisdiction, its authority appears to have been
constrained by two important limiting principles. First, one of personal
jurisdiction: “the party proceeded against must in general be a resident
member of the university.” Id. at *83 n.9. Second, a geographical
limitation: the cause of action must have accrued “within the town [of
Cambridge] and its suburbs.” Id.
The Cambridge court was, in every relevant sense, exercising
judicial power as we conceive of it today. Though Blackstone labelled it
a “private court,” such tribunals only bore that label because their
jurisdiction was “private and special, confined to particular spots, or
instituted only to redress particular injuries.” Id. at *71. Subject to the
limitations described above, Cambridge’s courts were otherwise able to
exercise the usual powers of a court of that time.
Bentley’s Case proceeded as follows. An action was initiated in
the Cambridge court of the vice-chancellor to revoke Bentley’s degree for
non-payment of debt. Bentley—then a resident scholar at Cambridge
and a head of one of its academic departments—was issued a summons,
which he ignored. Evidence was collected through affidavits and
depositions. After Bentley repeatedly refused to submit to the
Cambridge court’s jurisdiction, a default judgment was issued against
him on the debt charge, and Cambridge revoked his degrees. The King’s
Bench later granted Bentley’s mandamus petition in what we call
Bentley’s Case, which had the effect of restoring his degrees, but only on
procedural grounds. 92 Eng. Rep. at 820.
Bentley’s Case bears on the matter at hand in at least three
important ways. First, the King’s Bench treated Bentley’s degree as “a
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freehold and a dignity”—in other words, a species of property belonging
to Bentley, which could not be taken from him without judicial process.
Id. at 819. Today, the word “freehold” still connotes ownership and
control of property, similar to how it was understood in 1723. 11 But the
word “dignity” conveyed more in those days than it might to the modern
eye. Blackstone defined a “dignity” as a kind of property interest, an
“incorporeal hereditament” that one could own, not unlike how real and
personal property are owned. 2 WILLIAM BLACKSTONE, COMMENTARIES
*16–18. An “incorporeal hereditament” was “a right issuing out of a
thing corporate (whether real or personal) or concerning, or annexed to,
or exercisable within, the same.” Id. at *20. The judges in Bentley’s
Case were acutely concerned with ensuring that the appropriate judicial
process had been followed before Bentley was divested of the “freehold”
and “dignity” represented by his Cambridge degree. 92 Eng. Rep. at 819.
Second, the only reason Cambridge could revoke Bentley’s degree
without resort to outside judicial process was that—quite unlike modern
state universities—Cambridge had been given specific authority by both
the Crown and Parliament to exercise judicial power. In other words,
Cambridge was authorized by law to operate a court—not the kind of ad
hoc tribunal playing at due process in a modern university, but a real
11 Compare Freehold, BLACK’S LAW DICTIONARY (11th ed. 2019) (“An
estate in land held in fee simple, in fee tail, or for term of life, any real-property
interest that is or may become possessory.”), with Freehold, SAMUEL JOHNSON,
A DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1755) (“That land or
tenement which a man holdeth in fee, fee-tail, or for term of life. Freehold in
deed is the real possession of lands or tenements in fee, fee-tail, or for life.
Freehold in law is the right that a man has to such land or tenements before
his entry or seizure.”).
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court exercising the judicial power of the sovereign to adjudicate the
property rights of those, like Bentley, who lived within its jurisdiction.
The King’s Bench in Bentley’s Case was not reviewing the
internal-governance decisions of administrators hired to manage the
university’s affairs. It was reviewing the judicial action of an inferior
court established by law to neutrally adjudicate disputes over property
and other legal rights. Modern universities do not—and cannot—play
the judicial role Cambridge played in 1723.
The King’s Bench did affirm that Cambridge possessed the
judicial power to revoke degrees, but this holding in no way suggests
that modern state universities—which lack any statutory authority
remotely resembling Cambridge’s—possess an implied, “time-honored”
power to unilaterally revoke degrees. Instead, the “time-honored” rule
reflected by Bentley’s Case is that revocation of a degree dispossesses the
graduate of a valuable property right, which can only be accomplished
by a neutral judicial process, not by the unilateral decree of university
officials. Indeed, the King’s Bench held Cambridge’s court to all the
standards of due process applicable to common law courts of the time,
and this requirement formed the basis for a ruling in Bentley’s favor.
Bentley’s Case, 92 Eng. Rep. at 378 (“[P]roceedings in the
vice-chancellor’s court . . . must be intended to be agreeable to the rules
of the common law” and “this Court will relieve him, if he has been
proceeded against and degraded, without being heard, which is contrary
to natural justice.”).
This leads to the third lesson from Bentley’s Case. The reason
Bentley was subject to the jurisdiction of Cambridge’s court was not that
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he held a Cambridge degree. It was only because he lived within
Cambridge’s corporate limits as a resident scholar at the University that
Bentley—and his degree—were subject to Cambridge’s judicial power.
See 3 WILLIAM BLACKSTONE, COMMENTARIES *83 n.9 (“[T]he party
proceeded against must in general be a resident member of the
university.”). Thus, even assuming (incorrectly) that state universities
could exercise judicial power within their own spheres, Bentley’s Case
provides no support for the notion that a university’s jurisdiction
traditionally extends to graduates with no ongoing connection to the
university. Quite the opposite. Bentley’s Case indicates that even a
university granted broad judicial power within its boundaries—a power
modern state universities lack—did not traditionally have authority to
adjudicate the legal rights of graduates in the outside world.
***
The point is not just that Bentley’s Case provides no true support
for the Ohio court’s decision in Waliga or for the later decisions of the
American courts that have followed suit. Instead, the more important
point is that Bentley’s Case—the only “time-honored” authority cited to
this Court regarding the “traditional and time-honored role” of
universities—affirmatively undermines the foundation of the Court’s
reasoning. The Court proceeds as if revocation of a degree is essentially
a matter of internal university governance, a kind of internal,
educational “disciplinary decision” with which courts should be loath to
interfere. Ante at 26–27. Bentley’s Case is entirely to the contrary. It
teaches that a degree is the graduate’s property, that it cannot be taken
from its holder without judicial process, and that the power of a
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university does not extend to those who live and work beyond its
borders. We ought to be guided by these time-honored principles, and
we ought to interpret modern Texas statutes about the “traditional”
power of universities in light of them. Instead, the Court gives the
University of Texas in 2023 more power to revoke the degrees of its
graduates than the University of Cambridge had in 1723. I must
respectfully dissent.
James D. Blacklock
Justice
OPINION FILED: March 31, 2023
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