Abstract

Introduction

Chapter 1 Trusteeship as a legal responsibility

Chapter 2 Trusteeship as a moral responsibility

Chapter 3 Moral Mission

Chapter 4 Trustee ethical responsibility

Chapter 5 Some implications of trustee ethical responsibility for the interpretation of mission

Conclusion

Bibliography
 
 

The primary ethical responsibility of trustees of independent colleges and universities is the interpretation of institutional mission. Mission is essentially moral, and the interpretation of it is a process of ethical reflection. A constructive, normative argument for trustee responsibility is presented. The thesis has importance for all trustee governed nonprofit organizations.

Trusteeship is a legal responsibility. Trustees' fiduciary responsibility, duty of loyalty, and duty of care are defined in terms that have broadly moral connotations. The legal doctrine of cy près is a model for trustee contextual interpretation of mission.

Trusteeship is a moral responsibility. Trust is essential in the creation and continuity of moral community and civil society. Moral communities, like voluntary associations, are communities of trust. In these organizations, trustees guarantee the intergenerational continuity of beneficent mission.

Mission is moral and is rooted in moral community. Mission is essentially charitable, focused on moral goals to be achieved for a set of beneficiaries. Trustees also focus on the good for beneficiaries. Mission and the good for beneficiaries are contextual rather than universal. They change as context and circumstances change, necessitating the interpretation of mission. Philanthropy is essential to the achievement of mission, for financial resources make mission concrete.

A five part ethical model of trusteeship is presented. The extension of trust and the acceptance of it by trustees is the motivating moment in their responsibility. When trustees are entrusted, they respond with fidelity, loyalty, and steadfast care for the mission and operations of a college. Trustee responsibility exists only in the context of continuing moral communities. Trustees' ethical interpretation of mission relies on a fundamental beneficent principle that focuses on the good of the other. In interpreting mission, the good is that which is contextually fitting for beneficiaries. The ethical interpretation of mission by trustees transforms mission.

A focus on the trustee responsibility for the interpretation of mission is an organizing principle for other trustee responsibilities. It also has implications for the practice of shared governance. A re-balance of the relative responsibilities of trustees, administrative staff, and faculty is proposed.
 
 

Trustees are the lead actors in the founding stories of most independent American colleges and universities.⁽¹⁾ When colleges recite their history, the narrative follows a typical pattern. They root the college's establishment in the voluntary action of a group of founders who bring together a conception of beneficent purpose--the original mission--with the capital resources necessary to establish the new institution. The founding trustees give identity to the new college, defining its initial beneficent and charitable goals, professing a mission to serve a specified set of beneficiaries in a particular geographic and social location. The mission is often framed within a particular moral tradition and community. Ambitiously grounded on lofty ideals, the new institution aspires to pursue its beneficent purposes in perpetuity.

The founding trustees invent the new college, creating an institution de novo. They secure the gifts of capital and operating resources that are necessary to give concrete legal and institutional form to the conception of beneficent mission. This mission is given concrete institutional form through the infusion of resources and the creation of formal institutional structures. The conception of moral mission precedes the provision of resources. For example, Methodist clerics conceived of the University of Southern California well before three local businessmen donated the land and resources that enabled the church to break ground for the new university. However, their act of philanthropy was essential in converting the mere idea of mission into a new and persisting institutional form.

The founding of independent colleges typically rests on this coupling of moral imagination--the definition of beneficent mission--and acts of philanthropy. Voluntary initiative and charitable purposes are joined with capital resources to create a new institution to serve a community of beneficiaries.

With the passing of the founders' generation, the stewardship of the college passes to successor trustees who are entrusted with the responsibility for guiding the institution. Social, cultural, economic, and institutional circumstances change. The college adapts in order to ensure its survival and exploit new opportunities in the changed environment. Trustees endeavor to secure the college's continuity and to ensure that the original mission is faithfully served as times and circumstances change. Founding trustees couple a conception of mission with the resources necessary to achieve it. Similarly, their successors also bear fiduciary responsibility for prudent administration of institutional resources and, importantly, for interpreting the institution's mission to ensure that they faithfully serve the fundamental purposes in light of new conditions. In this sense, trusteeship provides an organizational mechanism to ensure intergenerational continuity of beneficent intention, adapting the mission in light of change, whether the change is internal or external to the institution. As fiduciaries of both mission and resources, successor trustees are legally and morally accountable to preserve faithfully the institution's founding purposes, yet this fiduciary responsibility requires that they also be the transformers of the mission in light of the demands and opportunities of a new day. In the words of James Russell Lowell's abolitionist hymn, "New occasions teach new duties" (Worshipbook 540).

This dissertation presents a normative argument that the trustees' primary ethical responsibility is the interpretation of an institution's charitable and beneficent mission. My thesis is that trustees bear the moral responsibility for the interpretation of mission, and I propose an ethic of contextual interpretation as most appropriate to the execution of trustees' ethical responsibility for interpreting mission. The argument brings a new perspective to the nature of trustee duties and to the balance of responsibilities among trustees, faculty and administration in the higher education tradition of shared governance.

The fiduciary responsibility of trustees is both legal and moral in character. State law governs trustees' legal fiduciary duty to preserve an institution with loyalty and care, in the interests of the designated beneficiaries. Yet trustee responsibility is foremost a moral accountability. David H. Smith's important work on trustees, Entrusted: The Moral Responsibilities of Trustees, rightly describes trusteeship as, "A special kind of moral responsibility distinguished from some other fiduciary duties by the fact that it is triadic. In its simplest form, it comprises an entruster, a trustee, and a beneficiary" (5). Entrusted by their predecessors to secure the institutional mission on behalf of the beneficiaries, trustees have moral obligations that precede and extend beyond the purely legal accountability of their role.

Colleges typically frame their founding mission as a moral declaration of charitable, benevolent intention. They emerge from the moral aims of the founders and are, by their nature, legally constituted as nonprofit organizations. Such organizations are sui generis based on charitable, beneficent purposes, which the colleges publically enunciate in the founding mission statements of institutions and the subsequent revisions of those statements.

Because these declarations of institutional mission are affirmations of moral purpose, the interpretation and adaptation of these moral ends to new times must be, by definition, a process of moral reflection. The interpretation of mission--of fundamental institutional purposes--is a process of ethical reflection that precedes other institutional considerations. The discussion of academic strategy, the establishment of academic priorities, the allocation of resources, and the identification of faculty and executive leadership, only make sense in light of the overall institutional mission. Some understand the process of deliberating on the renewal of mission as an adjunct to the process of considering academic strategy (Keller 153-4). Yet to subsume consideration of mission under the discussion of academic strategy makes mission a matter secondary to other institutional considerations of resource allocation and educational policy. The renewal of the conception of mission, including both beneficent purposes and the intended beneficiaries, is a necessary precursor to and a determinant of other key institutional decisions.

A contextual ethic that discerns what is most fitting to the particular circumstances of a college is especially well suited to trustees' moral responsibility for interpreting mission. In the broadest sense, all ethical discernment is a matter of interpreting and applying a received moral understanding to new circumstances. In the interpretation of mission, account must be taken of the enormous variety of independent colleges, each operating within a local context, moral tradition, and history. There can be no single good or right mission for this panoply of institutions. An appropriate mission for a large independent university like Northwestern University will necessarily differ from the appropriate mission for a small rural institution with a distinctive historical identity, like the Tuskeegee Institute. Further, the appropriate mission at one point of history will differ from the fitting mission in a different era. The appropriate mission for the University of Southern California in the heart of a vast urban, international city in the 1990s will not be the same as the mission at the university's founding in 1880 when there were 11,000 citizens in the small town of Los Angeles. An appropriate mission is best determined by discerning what is most fitting to the particular time, place, and circumstances of an institution within a particular moral community and tradition.

Ethical interpretation transforms meaning, and in so doing, transforms institutions. When the mission of a college is reinterpreted in light of changed conditions, the fundamental moral mission of the institution is transformed. Transformation of the institution should follow in turn as the new understanding of mission is worked out in the university's structure and strategy.

My proposition about trustees' moral accountability for interpreting mission has implications for the balance of responsibility and authority in the higher education tradition of shared governance. From my perspective on trustees' primary responsibility for the interpretation of mission, I will address other contending governance conceptions that propose that presidents or faculty have priority over trustees in the renewal of institutional vision.

The focus here is on trustees' moral obligations in what are known as private or independent colleges and universities. Consideration of public higher education and proprietary institutions is excluded. An estimated 40,000 trustees serve on the boards of the almost 1,700 independent colleges and universities in America that serve 2.9 million students. The number of trustee governed private institutions exceeds slightly the number of public institutions, though many more students attend public colleges and universities (Ingram, Effective Trusteeship 1; US 209-10, 283).

The distinction between private and public higher education trusteeship warrants emphasis. Although the functional tasks related to institutional strategy, policy, and administration may make public and private collegiate trusteeship seem indistinguishable, they derive from two distinct moral traditions in Western society. Some authors elide the distinction between private and public trusteeship holding that, "The roles and functions of the trustee are essentially the same in public and private institutions" (Fisher and Koch 235). On the contrary, private and public trusteeship derive from substantially different traditions of moral legitimacy.

Private institutions are manifestations of the tradition of independent, voluntary association and voluntary initiative undertaken for the common good. Of most importance for a consideration of the responsibility for institutional mission, the purposes and goals of private institutions are defined by the founding trustees and interpreted by their successors. Independent sector trustees stand in a continuing lineage of trust, and the fundamental triadic character of the trust relationship focuses trustees on the interests of the beneficiaries. Legally, private university trustees own the institution on behalf of the interests of the designated beneficiaries. Private university and college assets are privately held in trust for the accomplishment of the mission in the interest of the beneficiaries. The institution's primary resource base, whether tuition, endowment income, or gifts, is private. To be sure, private institution trustees are legally accountable to the state under the nonprofit codes, but morally they are accountable within the context of the trust relationship. Because private institutions are part of the tradition of independent moral initiative, their trustees enjoy a degree of independent authority that gives greater latitude to their actions (Rauh, 117).

Public institutions, by contrast, derive from the responsibility of the sovereign state to advance the interests and the welfare of its citizens. Public universities and colleges are created by public, legislative initiative. This public action also defines the mission of the institution. Although public trustees may also be understood as interpreters of the public mandate, the legislature retains the ultimate authority to redefine or interpret the mission in the legislature's own understanding of public needs and public interests as circumstances change. Public sector trustees are either directly elected or appointed by elected representatives of the people. They serve the people of the state and are accountable to them through their elected representatives. Although the laws that create a public institution may designate a set of beneficiaries, the citizens of the state are always implicitly the beneficiaries. Public university trustees do not own the institution; it is part of the public domain. Its resource base, though partially private, is primarily public through the state's power of taxation and the process of public budgetary appropriation.

Another distinction between independent and public higher education trusteeship is the different mechanisms for continuity of purpose in each. Private trusteeship may be thought of as a functional mechanism to provide for the intergenerational continuity of beneficent intention in the face of the deaths of the founders and other predecessor trustees. This trustee function is not necessary in the public sector. The state does not die. The legislative body that created a public institution and established its mission persists, bearing moral responsibility for assessing and addressing the needs of its citizens anew in new times. Although public institution trustees may be called upon to interpret the mission of the institution, responsibility for this interpretation ultimately rests with the state.

These distinctions in moral tradition, mission formulation, mission interpretation, trustee election, ownership, beneficiaries, resource base, and moral accountability lead to my focus on private sector higher education trusteeship rather than public. This does not mean that public trustees have any lesser sense of moral responsibility for their institutions. However, the moral traditions that create private and public institutions are very different, and the nature of the moral responsibility of private and public trustees for the renewal of mission is distinctly different.

A further distinction can be made between independent institutions and those owned by a particular religious denomination or order that retains the ultimate authority for the institution's mission. The college may be held in trust for the denomination, and the trustees of such religiously directed colleges may be appointed by and accountable to denominational governance bodies or ecclesiastical authorities. Although these colleges are within the tradition of voluntary moral initiative, the line of accountability differs because the denomination retains rights of ownership, mission definition, resource utilization, or trustee appointment. In these instances, a denomination's governance structure stands in a superior position of accountability analogous to that of the trustees of independent institutions.

The case presented here is not empirically or descriptively grounded, rather I present a constructive, normative argument about the nature of trusteeship based in three strands of literature. First, a substantial body of literature on trusteeship and higher education governance deals with the relative responsibilities of trustees, faculty, and administration. This literature generally relegates trustees to a role in renewing institutional vision that is secondary to presidents or faculty. This is understandable, since faculty or presidents have written much of the literature. They have strongly vested interests in the ordering of prerogatives within shared governance. While acknowledging the critical role that faculty and presidents play in the traditional constellation of shared governance, my goal is a reordering or re-balancing of roles in relation to an understanding of trustees' moral responsibility for institutional mission.

Second, a good deal of the literature on trusteeship itself understands fiduciary responsibility as fundamentally legal and financial in character, or the literature gives priority to other trustee responsibilities. Some authorities hold that the duty of the board is to hire and fire the president, and otherwise get out of the way. Some colloquially assert that the priority for resource generation, i.e., fund raising, makes it the trustees' duty to give, get, or get off. In counterpoint, I propose a different approach to trustees' responsibilities that views them from the perspective of the primacy of moral accountability for mission.

Third, a diverse body of ethical literature is brought to bear, a literature that has otherwise not been applied in the discussion of trustee responsibility. This is a critical perspective, since trusteeship is a moral responsibility and not purely a legal duty or organizational management task. Further, my reliance on philosophical and theological works rests on an assumption that norms shape behavior. The way people act reflects what they think and believe. Trustees conform their behavior to their ideas about trustee responsibility. I rely, therefore, on works that can form a conception of trusteeship as foremost an ethical responsibility. The work of Niklas Luhmann and Bernard Barber address the role of trust in creating society and morality. John Locke, Robert Bellah, and Francis Fukuyama all speak to trust's importance in creating moral community. With particular regard to the conception of trusteeship as a moral role, my argument is particularly indebted to David H. Smith's work on the ethical responsibilities of trustees. The idea of trustee governed institutions and trustee responsibility as a kind of stewardship for mission has important roots in the Reformed theological tradition. Two modern ethicists who derive from this tradition, H. Richard Niebuhr and James Gustafson, provide ethical conceptions of responsibility and interpretation that have value in the construction of an ethic specific to trusteeship. In particular, they understand moral reflection as contextual discernment of the fitting. Their exploration of ethics as a kind of interpretation is especially well suited for trustees' responsibility for the renewal of institutional mission.

The extraordinary variety of institutional histories, traditions, and environmental conditions found in independent higher education make it imperative that any ethic addressing the interpretation of moral mission be one that seeks that which is morally fitting to any institution's particular circumstances. Trustee responsibility is specific to the institution, mission, and beneficiaries that they serve. Consideration of trustee responsibility must, therefore, result in an ethical understanding that is fundamentally contextual in character. In the same sense that moral values are embedded in traditions, moral missions are deeply embedded in the specific nature of individual institutions, and the interpretation of mission is always institution specific.

Consequently, I do not present an understanding of mission that is universal or prescriptive. Although independent higher education is part of a long and rich tradition whose high purposes have been explored by the likes of James Cardinal Newman and John Maynard Hutchins, and although individual colleges and universities are readily identifiable as members of the same species of social institution, there has never been agreement on an ideal, universal model of academic life. On the contrary, individual institutional histories, values, and governance traditions have been most highly valued. It is also for this reason that this dissertation seeks an ethical understanding of trustee responsibility that focuses on, "the 'oral', the 'particular', the 'local', and the 'timely'" (Toulmin, "Recovery" 338).

This dissertation conceives of higher education trusteeship as primarily a moral responsibility. The sequence of the argument, therefore, begins with a perspective on the moral nature of trusteeship in relation to institutional mission and concludes with an exploration of the contending visions of trustee responsibilities in shared academic governance. The order of the argument is intentional. This is a normative thesis about the nature of a particular ethical responsibility, trusteeship, which ultimately has implications for institutional governance. It is not another treatise on higher education governance in which the moral responsibilities of the various participants are incidental to structural or functional considerations.

The argument begins by distinguishing the legal from the broader moral nature of trusteeship. In Chapter one, the legal duties of trustees are first spelled out and contrasted with the prior and broader moral obligations of the trust relationship. The legal doctrine of cy près, a formal judicial process, is examined as one model for the revision of institutional mission.

Chapter two continues this argument with an extensive examination of the moral nature of trusteeship rooted in the moral obligations of the trust relationship and the primal role of trust in constituting society and moral relationships. Trust is proposed as an essential element in the creation of moral community, in general, and the board of trustees is affirmed as what David H. Smith calls a moral, "community of interpretation" (Entrusted 19-20). Trustees are understood as guarantors of intergenerational continuity of beneficent purpose. Trustees' fiduciary responsibility makes them paradoxically responsible for the preservation of an institution's mission and its transformation.

In Chapter three, the essential moral nature of mission is spelled out, and the mission of higher education is also argued to be essentially moral, an expression of moral community. I explore the way in which mission is always context dependent and, therefore, subject to change. Scholars who address the trustee responsibility for transforming mission are examined. Mission is seen as a central organizing principle, the touchstone by which all other institutional considerations are tested. Contrary positions on the problematic character of higher education mission statements--that they are ambiguous in both purpose and in their organizational consequences--are explored. Similarly, the recent case for a "purposeless" college, George Allan's Rethinking College Education, is examined. Finally, the inextricable connection between philanthropy and mission is briefly treated.

Chapter four presents a novel, five-point framework for understanding the elements in trustees' ethical responsibility for interpreting mission. The ethical responsibility of trustees is rooted in trust and a response to it, and grounded in moral community. Ethical discernment is presented as a process of contextual interpretation that ultimately results in conceptual transformation.

The impact of the thesis on two key aspects of higher education governance is the subject of Chapter five. The responsibility for the interpretation is a lens through which all other trustee duties are put in focus. Further, the claim to priority for trustees in the interpretation of mission is contrasted with other claims to priority, either for presidents as the heroic, visionaries of renewed mission, or faculty as the custodians of academic values and institutional purposes. The higher education tradition of shared governance is the background to this exploration.

Based on the case for trustee responsibility for the interpretation of mission, the thesis concludes with a call for a new balance in the shared governance triad in relation to the transformation of institutional purpose. Avenues of scholarship on the nature and practice of trusteeship are suggested.

My argument has importance for the governance of American higher education. Independent, trustee governed institutions comprise the majority of public and private higher education institutions in the country. The conception presented here of the primacy of trustee ethical responsibility for the interpretation of mission is intended to clarify for trustees the nature of their role and responsibilities. The argument provides trustees with a framework for ordering their responsibilities and provides a framework for thinking about moral discernment in relation to institutional mission. The model of discernment proposed in Chapter four is a transformational ethic. In this same spirit, my argument proposes a transformation of the conception of trusteeship.

This dissertation has its roots in my abiding interest in the governance of nonprofit organizations, and particularly independent colleges and universities. It derives from my continuing personal reflections on how to be a good trustee. I have served as a trustee and officer of three independent organizations over the last dozen years, including a church body, a primary and middle school, and a theological seminary. For fourteen years I was Executive Assistant to the President and Executive Secretary of the Board of Trustees of the University of Southern California, a role that led me to reflect daily and concretely on the work and responsibilities of trustees in higher education governance. As a consequence, my thesis grows not merely out of the literature but also out of reflection on the practice of trusteeship.

I hope that this work will help trustees, presidents, and faculty to think anew about their relative and shared responsibilities for the well-being of colleges and the several classes of beneficiaries that they serve. Although directed to trustees of independent universities and colleges, the conception of trustee moral responsibility that is presented here may also lead to a renewed understanding of public sector trusteeship.

My basic thesis can also apply to any trustee governed nonprofit organization, since all are grounded in conceptions of a beneficent, charitable mission that is undertaken for the good of a set of beneficiaries. An understanding of the essentially moral character of trusteeship has broad implications for the host of organizations created to pursue charitable purposes.

Commenting on the relationship between moral discourse and social structures, Alasdair MacIntyre contends, "that we have not yet fully understood the claims of any moral philosophy until we have spelled out what its social embodiment would be " (23). In this spirit, my dissertation is about the social organization of beneficence.
 
 

The law gives formal definition and structure to the trust relationship, yet a moral trust obligation precedes the law. This duty is more extensive and complex than the purely legal requirements to which trustees are subject. Trustees have well-defined legal responsibilities, but conceiving of trusteeship as initially and essentially moral in character illuminates the nature of trustee responsibility.

Why should the trustees of colleges be accorded a position of privileged authority? The simple and formal answer is that the law gives them the authority and specifies their legal accountability for the well-being and continuity of the institution that is entrusted to them. Yet trustees' responsibilities and authority are not exhausted by the legal definition of the role. This chapter examines trustees' legal responsibilities as a prelude to Chapter two, which delineates the prior, broader ethical responsibilities of trusteeship which are rooted in the role's moral nature.
 

The trust relationship

Trusteeship can be conceived of as legal or moral in character. Under either conception, the basic form of trustee relationship encompasses three parties: a trustor, a trustee, and a beneficiary. David H. Smith in his important recent treatise, Entrusted: The Moral Responsibilities of Trusteeship, spells out the essential typology of trusteeship and the fundamentally moral character of trustee responsibility:

Trusteeship is a special kind of moral responsibility, distinguished from some other fiduciary duties by the fact that it is triadic. In its simplest form, it comprises an entruster, a trustee, and a beneficiary. The entruster sets up the arrangement by formulating a purpose and transferring power to the trustee, who then acts on behalf of the entruster for the benefit of the beneficiary. Thus, trusteeship is not a simple two-party fiduciary relationship between two individuals: professional and client, man and woman. In its tripartite formulation, it more closely resembles the relationship between parents whose love for each other leads to a bond with their children, or a religious ethic in which duties to other persons are dependent on a prior relationship with God. The trustee's actions for the beneficiary, like those of a spouse or a disciple, are always constrained in some way by a prior relationship or person--by the will of the founder or by the purpose for which the organization was created (5).

Although various forms of trusts are triadic in structure and in their functional relationships, charitable trusts are distinguished by their purposes and the beneficiaries who are designated. They have a "definite charitable purpose" and the beneficiaries are "the public" (Webster's). However, the specific charitable purposes and beneficiaries may vary widely. Colleges may have several classes of beneficiaries, including students, faculty, and the society at large.

The American Bar Association's Guidebook for Directors of Nonprofit Corporations links obligations to charitable purposes and beneficiaries in describing the organizational responsibilities of nonprofit directors:

Any person serving or asked to serve as a director must ask: For what purpose is the corporation maintained? What is the constituency which it is serving? It has been said that all organizations exist to maximize something for somebody; the nonprofit corporation is no exception. Defining the something and the somebody is a duty of every nonprofit board and every director. (Overton 10)

The linguistic and legal definitions of trustee confirm the dual moral and legal character of the role. The dictionary holds that a trustee is, "one to whom something is entrusted," and "a person whether real or juristic to whom property is legally committed in trust: one holding legal title to property that he must administer for the benefit of a beneficiary or for a purpose recognized as legally charitable or as lawful by statute" (Webster's, trustee). The legal definition has the same form. Black's Law Dictionary defines a trustee as, in part, "One who holds legal title to property 'in trust' for the benefit of another person (beneficiary) and who must carry out specific duties with regard to the property. The Trustee owes a fiduciary duty to the beneficiary" (Black's, trustee).

The remainder of this chapter examines trustees' legal obligations as distinct from their broader moral responsibilities. This review of trustees' legal duties illuminates trustee moral responsibility as far as the legal and moral languages intersect. As will be seen, the legal language related to trusteeship is surprisingly moral in character and definition. I have not infused the discussion with moral verbiage to make a point, rather the legal standards and principles that are pertinent to trustee responsibility are imbued with moral connotations that reflect their roots in relationships of trust.
 

The history of charitable trusts and nonprofit organizations

The legal role and responsibilities of trustees in American society are spelled out in state statutes and the accumulated interpretations of case law. A full treatment of trustees' legal responsibilities is beyond the scope of this dissertation, and the variability of judicial opinions from state to state makes a brief definitive treatment of them impossible. Further, a full history of trusteeship and the development of trustee accountability are beyond the present purpose. Nevertheless, there are key legal principles and definitions that illuminate trustee moral responsibilities.

David Johnston finds the analog of modern trust law in the Roman legal concept of the fideicommissum, which clearly stems from a different legal tradition than Anglo-American trust law but is functionally equivalent. The Roman fideicommissum and the English legal trust derive from different legal and cultural traditions. There is no developmental or historical link between the two, but they evolved similarly with respect to the prevailing legal system and are functionally parallel. Johnston observes that, "They have a common fiduciary nature: property is entrusted to one person for the benefit of another" (1). He also finds that the Roman fideicommissum existed as a social form and obligation prior to its legal codification under Augustus. The fideicommissum "is a relic of the times in which there was no legal sanction: an object was entrusted (commissum) to the good faith (fides) of the recipient, for the benefit of another person" (9). Augustinian codes formalized a relationship that developed in prior custom and practice.

The development of the legal concept of the trust in modern Europe and particularly in England, can be traced to the Western Christian church in the Middle Ages. Donations and bequests were subject to canon law in which, "the charitable bequest of chattels and the gift of land for the use of religious bodies in perpetuity involved the obligation of executors or trustees to effectuate the desires of donors in the interest of beneficiaries" (Berman, Law 236). The English legal doctrine of the charitable trust developed from the prior concept of the use that was prevalent throughout pre-Reformation Europe. In a use, "Land and other property were given to certain persons 'for the use' of individual churches, monasteries, or other ecclesiastical bodies." (Berman, Law 239). The use and the concept of the trust that evolved from it had the same functional form. Each encompasses a relationship among "a donor, a donee, and a beneficiary" (Berman, Law 239).

Charitable trusts and nonprofit corporations are not legally equivalent, strictly speaking. Trust law and corporation law emerge from different traditions and are legally distinct. Thomas Silk notes that the difference rests on the emergence of the trust from case law and the development of the conception of a nonprofit corporation through statutory definition. However, the discussion of charitable trusts and nonprofit organizations often merges, especially in the treatment of trustee governance and discussions of those nonprofit corporations that are organized for charitable purposes and exempt from taxation under section 501(c)(3) of the Internal Revenue Service code (in contrast to other categories of non-charitable nonprofit organizations, e.g., cooperatives, clubs, unions, or mutual assistance organizations). In charitable organizations, whether organized as trusts or as charitable nonprofit corporations, the legal concept of trusteeship infuses the role and responsibilities of nonprofit corporate directorship. Under both legal constructs, trustees or directors are entrusted with the care of the beneficiaries and the organization (Silk 78). The American Bar Association's Guidebook for Directors of Nonprofit Corporations acknowledges that the treatment of the duties of trustees and nonprofit directors are legally indistinguishable in the law of some states. Legal distinctions are obscured. The definitions of "trustee," "director," and "fiduciary" are used synonymously (Overton 6).

Bernard Barber believes that this linguistic ambiguity is not accidental. The language conveys an understanding that the trustees of nonprofit corporations have special fiduciary responsibilities to use corporate assets for the common good (45). Strictly speaking, a nonprofit director is held to a less exacting fiduciary standard (Stuart 142). However, the prevalent colloquial (if legally improper) use of the term "trustee" conveys the quality of duty that a nonprofit governing board has. It points specifically to the underlying trust relationship that the nonprofit corporate legal structure embodies.

A strong relationship exists between the older legal tradition of charitable trusts and the relatively modern emergence of nonprofit corporations. This is evident from the language defining the purposes of each. The admissible purposes for which charitable trusts might be created were first legally codified in the 1601 Elizabethan Statute of Charitable Uses. The statute spells out a series of purposes that resonate throughout the subsequent history of British and American charitable institutions. The Statute allowed trusts to be created and funds to be set aside,

some for relief of aged, impotent, and poor people, some for maintenance of and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities, some for repair of bridges, ports, havens, causeways, churches, seabanks and highways, some for education and preferment of orphans, some for or towards relief, stock or maintenance for houses of correction, some for marriages for poor maids, some for supportation, aid and help of young tradesmen, handicraftsmen and persons decayed, and others for relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers and other taxes. (qtd. in Hopkins 56-57)

religious, charitable, scientific, testing for public safety, literary, educational, fostering national or international amateur sports competition, or the prevention of cruelty to children or animals. [The nonprofit corporation] must be organized exclusively for one or more of those purposes; that is, its governing document must limit its activities to proper goals. And it must be operated exclusively for one or more of those purposes. Thus, it may not engage in activities that serve other purposes, except to an insubstantial degree. (Silk 73-74)

Clarification of these legal ambiguities is not necessary for the case presented here. The term trustee is used in regard to both benevolent legal structures. The organizational purposes and the moral responsibilities of trustees in charitable trusts and nonprofit corporations are parallel, even if they are not legally identical.
 

Trustee legal duties and their moral connotations

The specifically legal obligations of trustees illuminate broader moral duties. Trustees have legal fiduciary responsibility for an organization, which includes an express obligation to consider everything in terms of the interests of the beneficiaries. Trustees are also understood legally to have a duty of loyalty, a duty of care, and a duty of obedience. Although these are legal duties, they are framed in language that has a very distinctly moral cast.

Two writers, who comment on the legal obligations of trusteeship, employ language that is broadly moral in connotation, language in which trusteeship is presented as fundamentally an order of beneficence. One commentator on trustees' legal duties believes that all of them are subsumed in "a singular and enveloping duty to carry out the charitable purposes of the trust." The key duties of loyalty and care are included under this single overarching responsibility (Fremont-Smith 76). In other words, she believes that pursuing the organizational mission on behalf of the beneficiaries logically includes the subsidiary duties of trusteeship. Stated even more simply by another scholar, the encompassing duty is "to act for the good of others" (Axelrod 120).

In legal terms, trustee responsibility is summarized in the concept of trustees' fiduciary duty, that is, "A duty to act for someone else's benefit, while subordinating one's personal interests to that of the other person." This is "the highest standard of duty implied by law " (Black's). Organizational assets have a singular purpose, "the benefit of those for whose benefit it was acquired" (Berman, Law 238-9). The legal duty of trusteeship requires a relentless focus on the interests of the other, the beneficiaries. The dictionary defines this fiduciary relation in part as,

the relation existing when one person justifiably reposes confidence, faith, and reliance in another whose aid, advice, or protection is sought in some matter: the relation existing when good conscience requires one to act at all times for the sole benefit and interests of another with loyalty to those interests. (Webster's)

Under the umbrella of their legal fiduciary responsibility, trustees have a duty of loyalty, which is expressed both positively and negatively in terms of the interests of the beneficiaries and the trustees. Positively stated, "The duty of loyalty means that a trustee acting on behalf of a college must keep the institution's interests paramount to all others" (Lascell and Hallenbeck 350-51). Loyalty is owed, above all, to the interests of the beneficiary or institution for which the trustee is accountable. Stated negatively in terms of the potential for conflicts of interest, "The basic legal principle to be observed here is a negative one: the director shall not use a corporate position for individual personal advantage" (Overton 28). Trustees must exclude their own interests from any consideration. In sum, "The duty of loyalty requires directors and trustees to put aside their personal interests in favor of the interests of the entity they serve" (Stuart, 139-140). Trustees' duty of loyalty requires that they avoid conflicts between their own interests and those of the institution and its beneficiaries. The law's focus is very much on trustees' business dealings. Trustees are subject to legal sanctions for any actions that may be self-dealing financial transactions, i.e., those in which the duty of loyalty is transgressed through financial dealings in which a trustee's financial interests, rather than those of the institution or beneficiaries, are served by a particular financial transaction (Bowen 21).

Trustees' fiduciary duty also encompasses a legal duty of care. This duty is framed as a prescriptive, affirmative obligation, and it is coupled with an exclusion of proscribed behavior. Both the prescription and proscription refer to the interests of the beneficiaries or institution. The duty of care is described in The Handbook of College and University Trusteeship as requiring, "That a trustee be well-enough informed to set policy for the institution and to make honest, good faith business decisions about the conduct of its affairs" (Lascell and Hallenbeck 350). Attending board meetings, participating in decision making with "independent judgment," and taking care to be well informed are all constituent elements of the duty of care (Overton 21-23). As with the duty of loyalty, so it is in regard to the duty of care. The financial affairs of an institution are of most concern to the law and the courts. As guardians of an institution's financial resources, trustees are to exercise their good judgement in overseeing its financial affairs. One legal distinction between charitable trusts and nonprofit organizations is that trustees of the former are held to a more stringent rule of judgement that assesses whether, in their financial dealings for the institution, they have exercised, "the skill and care that a man of ordinary prudence would exercise in dealing with his own property" (Balda 130). This so called prudent person rule differs from the business judgement rule, a less exacting standard that is applied to nonprofit trustees (or directors). Under the business judgement standard, trustees' decisions are assessed by whether the trustees have acted in a manner that an ordinary person might in pursuing business dealings.

Alice Stuart grounds the conception of the duty of care in self-interested human economic behavior. She observes that:

The law imposes standards that are intended to compensate for the absence of inherent self-interest. The director or trustee lacks a personal stake in the economic success or failure of the entity served. Accordingly, the law attempts to address this lack of incentive by requiring the trustee to treat the assets of the entity with the same or greater degree of care than the trustee or director would use in the management of his own affairs.  (Stuart, 139-140)

The duty of loyalty and the duty of care are legal standards by which the particular actions of trustees are evaluated. However, the specific requirements of each duty are not spelled out in detail. No clear line distinguishes acceptable legal performance from transgression. The duties are general standards of conduct and judgement, requiring circumstantial interpretation and discernment. In this sense, the law requires a kind of discerning moral judgement.

Nowhere is this clearer than in the overriding moral requirement that the legal duty of care embodies. Harold J. Berman finds a powerful underlying moral principle in the specifically legal duty. He writes that, "Under the law of trusts, for example, a trustee owes to the beneficiary of the trust a duty of care higher than that which he would apply to himself. He must love his neighbor, the beneficiary of the trust, more than himself" (Berman, Faith and Order 316). For Berman, the legal duty of trustees is grounded in a broader moral obligation.

Some legal authorities also articulate a third legal trustee duty of obedience that requires trustees to obey assiduously the declared intentions of the entruster in carrying out the organization's mission on behalf of the designated beneficiaries (Balda 130; Bowen 21). Like the duty of loyalty and the duty of care, the duty of obedience is an amplification of the overarching fiduciary responsibility of the trustees. In the trustee triad, the duty of loyalty is a fiduciary obligation toward the beneficiary. The duty of obedience is an obligation owed to the other point of the triad, the founder or entruster, who may be deceased or otherwise separated from the life of the institution.

Trustees are fiduciaries not only of an institution's resources but--most importantly for the argument of this thesis--for the mission of an institution as well. Trustees are to be faithful to the goals of the entrusters, carrying out the purposes of an organization. While noting that the other legal trustee duties and liabilities pertain principally to the financial affairs of an institution, Alice Stuart also observes that, "a director cannot properly fulfill his responsibilities to the organization he serves without considering whether the organization is working to fulfill the purposes for which it was formed and acting in compliance with applicable law" (144). Trustees could be in legal peril when they ignore the purposes for which an institution was created. As with the duty of loyalty and the duty of care, the application of the standard of obedience and the identification of transgressions of the duty of obedience require discerning judgement rather than observance of clear legal lines of demarcation. In the same manner that the duty of loyalty and the duty of care are expressive of broader moral responsibilities, so the duty of obedience is also characterized by a wider moral obligation, in this case fidelity.

Trustees are to be faithful and trustworthy in pursuing institutional purposes. The broader moral nature of trustee responsibility, including the obligations of fidelity, will be explored in the next chapter. It is important to note here that trustee responsibilities under the law, expressed as broad legal standards, are heavily imbued with moral language.

How are trustees held legally accountable for their observance of these duties? Although their obligations are expressed in terms of duties to the beneficiary, the institution, and the entruster, trustees are legally accountable to the state. Their governing responsibilities are for institutions that are organized under the laws of a state and for purposes that promote the public interest. Trustees are, therefore, held accountable for their legal duties by the attorney general acting on behalf of the state. David H. Smith's conception of trusteeship as a moral responsibility is that it essentially involves three parties, the person extending the trust, the trustee, and the person or institution for whom the relationship is established. Moral trusteeship is "triadic." As a legal responsibility, however, trusteeship is quadratic. It involves not three parties but four. The state, through its legal officers, is a fourth party ensuring that trustees' legal responsibilities are faithfully carried out, enforcing the law on trustee duties through the courts.

The attorney general's oversight responsibility over trustees emerged historically in order to ensure that there be a third-party watchdog safeguarding the interests of trust beneficiaries who were often persons of lesser social standing and power (Overton 12). In the process of legal development, "the attorney general spoke for the beneficiaries of a charitable trust or corporation and, in effect, became the voice of the somebody for whom a charitable corporation was organized" (Overton 13). Compliance with the terms of charitable trusts was understood as falling within the realm of the public interest, subject to the authority of the courts.

Although private universities and colleges are voluntary in their initiation and independent in governance, Richard T. Ingram believes that they "have a clear obligation to act in the public interest," because they are corporately licensed under state law and granted federal tax exemptions (Effective Trusteeship 2-3). He further defines collegiate trusteeship as "a civic responsibility" with a duty to oversee institutions that "are properly expected to operate as a public good and to serve the public interest" (Effective Trusteeship 17). Just as trustees legal duties have a broader moral basis, so too, the legal accountability of trustees to the public interest is described in terms of a broadly moral obligation.

Trustees' indeterminate legal duties and accountability require that they exercise discerning judgement in making decisions affecting the institutions that they hold in trust. In this sense, trustees have a pervasive duty of discernment in addition to their other legal duties. The duty of discernment is implicit in their fiduciary responsibility. How are the interests of beneficiaries, the institution, or the public to be construed in the context of a particular set of circumstances or needs, and in observance of the duties of loyalty, care, and obedience? The need for trustees to be interpreters is implicit in their several legal duties. These broad legal standards are the context for every decision that a board of trustees faces.

Trustees must discern whether and how the defined institutional purposes--as framed by the founders or as subsequently amended by successor trustees--are advanced by their decisions. The normal course of institutional business requires that trustees exercise their judgement and make decisions meeting by meeting. Major changes in an institution's internal and external environment present an even greater challenge to trustees who must discern how institutional purposes and beneficiaries' needs are met in light of these changes. The need for trustees to be interpreters extends to the revision of an institution's fundamental moral purposes.
 

Institutional change and the legal doctrine of cy près

Legally, an institution's basic mission may be redefined by the courts under the doctrine of cy près which provides for the judicial redefinition of institutional purposes that are determined to be illegal, impossible, or even impractical to be pursued. The term cy près derives from the Norman-French cy près and means as near as. Under the doctrine of cy près, the court will determine a new use for a charitable bequest that is as near as possible to the original intention of the donor (Berman, Law and Revolution 236). Trustees may petition the court to alter the purpose of a trust when time and circumstances have defeated the original intent of the person who established it. The passing of time and the particularities of a bequestor's specific designation may render obsolete that person's original purpose. In such cases, the courts "will perpetuate the social benefits deriving from his gift by a new application of his property to contemporary objects" (Sheridan and Delany 2-3).

L.A. Sheridan and V.T.H. Delany cite the American Law Institute's formal definition of cy près in their treatise on the doctrine:

If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor. (4)

Where the wishes of the testator could not be fulfilled because of physical impossibility (for example, if the legatee was no longer alive), or because of illegality (for example, if the legatee was a heretic, or the device was illegal under the secular law), the ecclesiastical court would carry out the testator's intention "as near as may be possible" . . . Another legatee, similar to the one named, would be found. Some equivalent of the land, or some rights in it, would be given to the legatee. (Law and Revolution 236)

Stephen Toulmin has pointed out the importance of the cy près reviews as a legal analog to this dissertation's thesis about the interpretation of mission as a moral responsibility of trustees (Letter). All cy près reviews are by their nature about institutional purposes and their interpretation. As a judicial process, the review is strictly legal in character, yet it requires discernment both of donor intent and the interests of beneficiaries. The usefulness of this analogy of cy près review to trustee ethical discernment can be further seen in Sheridan and Delany's proposal for measures for the legal application of cy près, namely that a new purpose must be fitting in, "proximity, usefulness, and practicability." These tests must be set in relation to the particular circumstances of the charity in question (Sheridan and Delany 42).

Not all changes of institutional mission require judicial intervention under the doctrine of cy près. Cy près reviews are relatively rare. They are only necessary when trustees lack the discretionary authority to discern new institutional goals. Sheridan and Delany remark that, "The bestowal of a discretion upon trustees is in the nature of a personal cy-près power . . . provided it is properly exercised, it will often prevent the necessity of an application to the court." They advocate that charitable purposes be defined in a manner "that will ensure flexibility coupled with certainty" (134). They recognize explicitly that there is a realm of trustee authority and interpretative discretion that extends beyond the strictly legal canons of the cy-près doctrine. A construction of institutional purposes and trustee authority that permits independent trustee discretion in interpreting beneficent purposes is preferable to the narrow definitions of authority and purpose that result in the need for cy-près reviews (134-5).

The doctrine cy-près presents, therefore, a legal model and process for redirecting institutional mission. However, its strictly legal application and the relative infrequency of its being invoked make it clear that a much broader area exists in which boards of trustees have moral authority and discretion to exercise their discerning judgement to determine whether changing times and conditions warrant reinterpretation of institutional mission.

As this chapter has discussed, trustees are legally accountable, yet their legal duties are broadly defined and point to a wider moral conception of their role and responsibilities. The next chapter turns to this broader moral conception of trusteeship.
 
 

Although trusteeship is a specific legal responsibility, it is, above all, a moral responsibility that is only secondarily given legal and institutional form. Trustee moral responsibility is grounded in the essential connection between trust and the construction of moral community. In order to demonstrate that trusteeship is a moral responsibility, and not solely a legal one, this chapter initially explores the role of trust in relation to moral obligation. It then turns to the role of trust in creating civil society and moral community. These examinations are background to an exposition of three authors' views of trusteeship as a moral responsibility. The broader argument about trust is tied to the conception of moral community for which trustees are responsible. These communities include voluntary associations, of which independent higher education is a particular manifestation. Finally, the section examines how trustees are responsible for the continuity of beneficent purposes in these moral communities.
 

The role of trust in creating society and moral community

Relationships of trust precede the law; trust cannot be legislated or mandated by the courts. On the contrary, it is trust that determines the nature of fiduciary obligations, which the law then formulates in statutes and standards. As Johnston says of Roman trusts, "The ground of the obligation was fides rather than form . . . " (287). By one scholar's account, the existence of law itself depends on trust (Luhmann 35).

Human social interaction is replete with relationships of trust that do not rely on legal sanction for their initiation or continuation. A host of contracts and legal obligations have their genesis in the mutual trust of the parties to the agreements. To cite a simple example of a relationship grounded profoundly in trust, the decision of two people to marry precedes the legal formalization of marriage in ceremony and in the legal recording of the marriage contract. Similarly, the decision to name an individual as the legal guardian or trustee of one's children is grounded in a prior relationship of trust. Trust is first accorded to the guardian, a trusted relative or friend, and the delegation of responsibility is then made legally concrete in a trust or will. The creation of an independent college follows the same pattern, proceeding from an act of moral imagination that creates a community of moral purpose. The new community is then given legal and institutional form.

Even the conception of a trustee as a fiduciary conforms to this pattern of relationship preceding legal form. The dictionary implicitly recognizes the priority of a trusting relationship over legal structure by giving as the first definition of fiduciary a more general denotation related to confidence and trust. It is only the second definition that is related to specific legal responsibilities (Webster's).

Further, a relationship can entail fiduciary obligations without the relationship being legally sanctioned. Daily life is full of instances in which we trust others to act faithfully in matters that have been entrusted to them, whether in our interest or the interests of others. We ask another person to do something on our behalf, and that person's assent completes a moral exchange in which trust is extended and a duty is accepted. All of these trusting transactions entail moral, rather than legal, fiduciary obligations.

Trust engenders moral obligation, and trustee moral responsibility is rooted in the moral character of the trust relationship. The Dictionary of Ethics says of trust that, "In the broad sense, [it] is the expectation that the other will act in accord with his or her public presentation of self; in its narrow sense, it is the expectation that the other will act morally" (Childress and MacQuarrie 632). These expectations are born of the serial social interactions between and among individuals and groups. Trust builds trust. These interactions affirm the trustworthiness of others to behave reliably and in expected ways. In this sense, trust is prerequisite for all ethical interaction.

Trusting expectations are at the core of our sense of the reliability of the natural, social, and moral orders as Bernard Barber recognizes in his treatise, The Logic and Limits of Trust. We rely on others in society to function in ways that are both reliably competent and morally faithful in carrying out duties to others (9). Every person owes fiduciary duties to others, since "fiduciary responsibility is essential for the relatively orderly functioning of society" (16). Barber defines fiduciary obligation in general moral terms as, "the expectation that some others in our social relationships have moral obligations and responsibility to demonstrate a special concern for other's interests above their own" (14). In the sense in which Barber uses the term, all moral actors in a society bear fiduciary obligations to others and not just trustees to whom fiduciary responsibility is legally ascribed. Indeed, society is constructed, in part, by mutual fiduciary responsibilities.

The essential connections among trust, moral obligation, and the creation of society are also established in the theory of trust propounded by German sociologist Niklas Luhmann. In his notable analysis of the function of trust in society, Trust and Power, Luhmann like Barber holds that trust is one of the critical elements in the genesis of society and morality. Luhmann presents a functional social theory of trust at a very high level of abstraction in order to make statements about trust that are universally true for both human sociology and psychology (6). Luhmann's entire conception rests on an understanding that trust, along with other key elements in the creation of society, functions to reduce the uncertainties inherent in social complexity (5). For Luhmann, trust does not do away with complexity in society, rather it reduces complexity in any social system (Poggi x). Human freedom results in innumerable unpredictable actions by persons and is the cause of social complexity. Luhmann holds that trust functions to enable persons "to comprehend and reduce this complexity" (30).

Trust makes society itself possible. It is "a basic fact of social life," for Luhmann, who understands it as "a natural feature of the world, part and parcel of the bounds within which we live our daily lives" (4). The existence of trust as a complexity reducing mechanism permits the development of yet more complex social structures and functions, for, "Where there is trust there are increased possibilities for experience and action, there is an increase in the complexity of the social system and also in the number of possibilities which can be reconciled with its structure, because trust constitutes a more effective form of complexity reduction" (8). Luhmann sums up his position: "Trust is not the sole foundation of the world; but a highly complex but nevertheless structured conception of the world could not be established without a fairly complex society, which in turn could not be established without trust" (94). Without trust, society at any level of complexity is impossible.

Luhmann also conceives of trust as essential in the creation of morality in society. Within his theoretical framework, trust is necessary for the functioning of society, and that includes trust as, "the correct and appropriate starting point for the derivation of rules for proper conduct," (4). Though trust is a necessary condition for morality in society, trust is not morality itself. One cannot deduce "clear-cut ethical instruction"on the basis of trust alone (93). There cannot be a universal moral obligation to trust, since the contextual circumstances of any particular situation may warrant distrust rather than trust (86). Nevertheless, trust is essential as far as our functioning in society depends on others to be morally reliable and trustworthy (39).

Trust as a necessary condition for the existence of society can be distinguished from moral trust. Moral trust can be understood as, "a consideration of the interests of others, beyond one's own present interests" (Brenkert 310). This qualification that moral trust includes beneficence is essential, since it can be readily recognized that a community of trust can exist even among the members of a criminal gang. The moral valence of trust is, thus, context dependent. It is not enough that a relationship is forged of trust; it must also have moral content and moral ends. George Brenkert's assessment of moral trust in relation to business ethics makes this point: "If trust is employed concerning morally worthy projects, then such trust is valuable. On the other hand, when it is formed around morally unworthy projects trust may lack moral value" (301).

A full treatment of the literature of trust--and the relationship of trust and morality--is beyond the case presented here. However, it is important to note that communities with moral missions, like colleges, are grounded in moral relationships of trust and not solely in the facts of legal incorporation. Trust is not morality itself. Trust can exist even among those pursuing immoral purposes. However, trust is essential to moral community in which there is a recognized "commonality of values or aims."  The moral community of trust is constructed on the basis of these shared values (298).

Moral communities are communities of trust. Interpreting James Luther Adams extensive treatment of the moral (and theological) character of voluntary associations, Douglas Sturm describes voluntary moral communities in terms of covenantal obligations. These associations are created by trust and the exchange of freely given commitments. They are "sustained more by mutual trust and affection than by legality." Law is not the safeguard of the fulfillment of responsibilities in the moral community; the transgression of covenantal obligations is a violation of trust, not law. "Covenantal associations," as Sturm refers to them, rely on the faithful fulfillment of, "promises that each member of the association will do all that is possible to enhance the life of the entire community "(194). Importantly for my argument, Sturm holds that the mutual promises for the common good extend to, "the improvement of agreements, honoring the long-range intention of originating promises," i.e. to the renewal of mission (194).

The proposition that voluntary moral associations, and moral society itself, are grounded in relationships of trust, can also be found in John Locke's social contract proposal in "An Essay Concerning the True Original, Extent and End of Civil Government" in which he holds that the contracts of both society and government depend fundamentally on trust. Although the focus of his argument is neither on trust nor morality per se, Locke posits that trust for the other is the basis of the contract of society (63). The contract of government depends even more clearly on trust. Government has trusteeship responsibilities; it is explicitly "entrusted" with specific ends (82). The powers of the legislative exist only as far as they are given to it freely by the people in trust; the people's trust limits the powers of the legislative (84). The legislature is accorded, "a fiduciary power to act for certain ends," and when these purposes are violated, the trust may be withdrawn just as it was freely given (87). Good government is like trusteeship. Locke asserts that a beneficent responsibility for the interests of citizens and the protection of their property interests is the purpose for which government is entrusted with authority. This trust may be either "express or tacit" (101), and government has, "no other end but the peace, safety, and the public good of the people" (76). In Locke's expression of the conception of the social contract, voluntarily given trust is the basis of society and government that is entrusted with beneficent purposes. The role of trust in voluntary associations is analogous to its role in Locke's schema. Voluntary associations are moral communities created by voluntary mutual consent, communities of trust organized for socially beneficent purposes that serve a public good.

A contemporary version of Locke's schema is found at the conclusion of Robert Bellah's The Good Society. His value laden sociological analysis is a commentary on the role of social institutions in American life. He presents a communitarian vision, a definition of a good society set against a critique of the pervasive individualism of American society that he attributes to another--and in this case, detrimental--facet of Lockean influence on the formation of American ideas. Although Bellah presents an explicit critique of Lockean individualism (85-90), he concludes with a coda on the role of trust and responsibility in creating institutions in the good society that echoes Locke. In so doing, Bellah reveals a conception of trust that parallels the role that trust plays in social institutions in Locke's social contract philosophy (283-6)

Bellah regards trust as essential to the creation of the good society. He closes his critical commentary by noting that trust and responsibility are intertwined in the creation of the institutions on which a good society rests, declaring, "When enough of us have sufficient trust to act responsibly, there is a chance to achieve, at least in part, a good society" (286). Bellah derives his understanding of trust and responsibility explicitly from Erik Erikson and H. Richard Niebuhr. He links Erikson's assertion that an individual must overcome basic mistrust with basic trust in order to participate in society, to Niebuhr's ethic that includes interpretation of circumstances and social interactions in relation to accountable action:

In our relation to the world, trust is always in conflict with mistrust. Because of previous experiences a degree of mistrust is usually realistic; yet if we are dominated by mistrust we cannot attend or interpret adequately, we cannot act accountably, and we will rupture, not strengthen the solidarity of the community or communities we live in. (284)

Bellah refers to Niebuhr's conception of "the moral life as the responsible life" (284). Trust is essential in expanding the scope of responsible social action, and Bellah notes that, "Since we can only attend to those we trust, we cannot interpret accurately, we cannot be accountable to, we cannot grow in solidarity with those we have put outside the circle of our trust" (284). He echos Niebuhr's understanding that trust expands the realm of possible social engagement, declaring that, "Any limitations on our trust puts limitations on our ability to live responsibly in the Niebuhrian sense. The range of our actions, our accountability and our social solidarity are constrained" (284). Bellah's expansive vision of trust in creating social commitment extends ultimately to the level of religious faith that makes possible radically greater involvement in social institutions, even to the level of "the universal community" (285).

Francis Fukuyama also envisions trust as the essential factor in the creation of moral community, society, and social institutions. In Trust: The Social Virtues and the Creation of Prosperity, he presents a cross-cultural economic analysis that contrasts "high trust" and "low trust" societies. "High trust" societies engender a level of social, organizational and institutional life that makes them more economically productive, adaptable, and therefore, more competitive than "low trust" societies. Fukuyama states his thesis succinctly:

As this book will show, one of the most important lessons we can learn from an examination of economic life is that a nation's well-being, as well as its ability to compete, is conditioned by a single, pervasive cultural characteristic: the level of trust inherent in the society. (7)

For Fukuyama, shared moral community is the creator of a high level of social trust, a necessary condition for an economically successful society. Though his primary interest is in trust as a necessary condition in fostering a society's economic productivity, he extends his case to trust's relation to moral community and voluntary associations that are based on trust. He observes that social trust enables a society to create voluntary moral associations that can adapt readily to new situations.

The level of social trust and the moral fabric of a society are related. In Fukuyama's comparative economic analysis of societies, social trust is the source of a society's ability to generate greater economic capacity. This social trust is rooted in moral community, in shared moral values (270). For Fukuyama, successful societies are "formed not on the basis of explicit rules and regulations but out of a set of ethical habits and reciprocal moral obligations internalized by each of the community's members" (9). Fukuyama defines trust as "the expectation that arises within a community of regular, honest, and cooperative behavior, based on commonly shared norms, on the part of other members of that community" (26). Tying trust to the economic concept of capital, Fukuyama posits the existence of "social capital," a society's capacity "that arises from the prevalence of trust in a society or in certain parts of it." In contrast to other conceptions of capital, social capital "is usually created and transmitted through cultural mechanisms like religion, tradition, or historical habit" (26). The accumulation of social capital "requires habituation to the moral norms of a community and, in its context, the acquisition of virtues like loyalty, honesty, and dependability" (26-7). Society is expressive of a culture of "inherited ethical habit" (34).

These habits, obligations, and virtues are the foundation of moral communities that are essentially communities of trust. Fukuyama asserts that:

Ethical systems create moral communities because their shared languages of good and evil give their members a common moral life. To some extent any moral community, regardless of the specific ethical rules involved, will create a degree of trust among its members. Certain ethical codes tend to promote a wider radius of trust than others by emphasizing the imperatives of honesty, charity, and benevolence toward the community at large. (36)

One distinguishing trait of this social capacity for association is flexibility, the ability to adapt readily to new situations and new circumstances (318). For Fukuyama, the adaptability that is characteristic of voluntary associational relationships is essential to an economically successful society ( 318). High trust societies that readily promote associations are also able to adjust quickly to changes in circumstances and conditions.

Fukuyama finds the ability to create voluntary associations to be particularly characteristic of American society, which Fukuyama counts among the most successful, high trust societies. He attributes the "American penchant for association" (288), to the pivotal role of sectarian Protestantism in shaping American society, a role that has paradoxically fostered both individualism and the strongly shared moral norms that create communities of trust (288-294).

Fukuyama does not explicitly connect his thesis to independent higher education as one manifestation of associational life; his primary goal is a comparative economic analysis of societies. Nevertheless, he understands that moral communities of shared norms and purposes--a category that, of course, includes colleges--are communities built on trusting relationships.

Barber, Luhmann, Locke, Bellah, and Fukuyama, though writing from different theoretical perspectives and with different purposes, all argue that there is an essential connection between trust and moral obligation, and between trust and the creation of moral communities. The nature of that connection differs with each writer, of course, but each holds that trust is an essential condition for society, morality, and moral community. Further, it should be observed that none of these writers consider legal sanctions necessary either for the creation of trusting relationships or trusting moral communities.

Further simple confirmation of the moral nature of trust is found in the richly moral denotations and connotations of the language of trust and the concepts related to it: fidelity, loyalty, faith, faithfulness, trustworthiness, confidence, reliability. The same is true of the antonyms of trust that are also heavily laden with moral import: infidelity, deceit, betrayal, treachery, treason, perfidy, disloyalty, faithlessness, disloyalty, distrust, and mistrust. Even the legal language related to trusteeship is broadly moral in character. It is difficult, if not impossible, to think or communicate about trust and trusteeship except in language that is moral.
 

The ethical character of trusteeship

With this general discussion on moral trust and moral community as background, I turn to an examination of the specifically ethical character of trusteeship. The most thorough recent exposition of trusteeship as a moral responsibility is found in David H. Smith's work, Entrusted: The Moral Responsibilities of Trusteeship, and in his other articles on the same theme. My thesis owes a great deal to Smith's conceptual framework, while giving much greater attention to the particular trustee responsibility for the interpretation of mission and placing it first among trustees' moral duties. As was noted, Smith considers trusteeship, "a special kind of moral responsibility" that is "triadic," involving three parties, "an entruster, a trustee, and a beneficiary" (5). A trustee has responsibilities toward both the entruster and the beneficiary. Because of the special nature of the relationships among the entruster, trustees, and the beneficiaries, trustee governance in nonprofit organizations is different from governance in other kinds of institutions and organizations.

Smith therefore proposes three moral obligations of trusteeship. Trustees' work, he says, "should be guided by three principles: the fiduciary principle, the common good principle, and the obligation to act as a community of interpretation" (Smith, "When Principles Conflict" 14).

Smith's formulation of the fiduciary principle encompasses the legal duty of loyalty and trustees' fiduciary responsibilities. As a moral principle, however, he extends it beyond the law to the "special relationship to person or purpose" that is at the core of the trusteeship triad ("When Principles Conflict" 14). The principle embraces the trustees' relationship to the entruster or founder and his or her intentions, on the one hand, and the obligations to the beneficiary within the entruster's intended purposes, on the other. Smith succinctly notes the relationships among entruster, beneficiary and purpose: "The trustee's actions for the beneficiary are always constrained in some way by a prior relationship or person - by the will of the founder or by the organization's purpose" ("When Principles Conflict" 14). In delineating both moral relationships and purposes, the fiduciary principle, in a sense, defines an institution's identity.

Smith also posits the common good principle as a contextual moral guide for assessing the moral validity of the purposes which trustees are called to serve faithfully. He describes it as, "the idea that trustee action is constrained by general social morality" ("When Principles Conflict" 14). Trustees' decisions and actions are guided and limited by the community's moral milieu and standards. Trustees must be attentive to society's standards and to any changes in community values. Smith holds that the common good principle requires that trustees be interpreters of changing standards and, if necessary, alter their decisions and actions. Compliance with the principle requires "a certain degree of change and adaptation" to ensure that institutional ends and actions are appropriate to changing community standards ("When Principles Conflict" 14). Trustees do not act in a vacuum; their independence is not unfettered. In making decisions about an institution and on behalf of beneficiaries, trustees are limited by their need to work within the framework of the broader community's moral fabric and values. Smith states that, "As long as trustees attend to the ebb and flow of commonly held values within their community, we can say they are acting in conformity with the common good principle" ("When Principles Conflict" 14). They do this when they engage publicly in moral justification of institutional purposes and decisions, "appealing to considerations and values that the larger community finds plausible" ("When Principles Conflict" 14). Moral rather than legal reasoning is the content of any public discussion of a board's actions and purposes.

A key considerations for Smith is that, "Trustee discretion is constrained by reasonable moral perceptions about what people need within the society" (Entrusted 15). In raising this question of the needs of people in the broader society, Smith implicitly extends the set of institutional beneficiaries radically beyond those designated by the entruster and the stated purposes of the organization. In a sense, the common good may be regarded as the good of a more broadly defined set of beneficiaries. Thus, Smith's common good principle not only sets a frame of moral reference for board decision making, it also implicitly broadens the set of beneficiaries for whom the trustees of any particular organization are to be concerned, extending their responsibility to encompass the general good of society.

Smith believes that trusteeship is inherently susceptible to a critique that it is paternalistic. Trustees are morally and legally obligated to make decisions about the best interests of beneficiaries. This beneficent oversight of others' interests can be regarded as paternalistic. Smith views the common good principle, which calls for trustees' measuring their decisions and actions against external standards, as a necessary corrective to the dangers of paternalism and an answer to the critique of trusteeship as a paternalistic relationship. Trustees actions should be subject to discussion and debate, and measured against external values and standards.

Smith suggests three questions that trustees may ask in determining whether institutional purposes are, in fact, consonant with community moral standards. The questions are: the moral worthiness of the institutional purpose, the means that the institution uses to achieve its ends, and in a utilitarian turn, whether the institution is capable of achieving its designated purposes ("When Principles Conflict" 15). He does not prescribe what prevailing community standards should be or how their validity may be assessed by trustees. Community standards will vary as the community and time vary. As community values change, institutional purposes may also change. Thus, institutional mission is contextual, and its moral validity is assessed with reference to the values of the larger community.

Smith observes that the common good principle and the fiduciary principle may conflict. In order to resolve conflicts that arise in the application of the two, trustees are obligated to be a community of interpretation. When the original institutional mission established by the founders or entruster is in conflict with a contemporary moral understanding of community standards, the institution's place in society, and social needs, then trustees must be interpreters in order to reconcile the two principles. Interpretation brings "the interests and concerns of the founders in line with contemporary values and new understandings of the common good" (Entrusted 16). Under the obligation to function as a community of interpretation, Smith understands that, "The boardroom should be the place where past and future, particularity and the common good, are reconciled" (Entrusted 20). Interpretation may also enable a board to unravel difficulties created by an entruster who establishes a mission or expectations that are inherently flawed or conflicted from their inception (Entrusted 16).

Smith extends this duty to operate as a community of interpretation to the fundamental mission of the institution. In this regard, he holds that, "The board's major role is reflective: Its major moral responsibility is to establish the identity or vocation of the organization" (Entrusted 20). In Smith's words, trustees are "the custodians of mission" (Entrusted 20). In this role, they publicly articulate the institutional vocation in a mission statement, "which at its best relates founding purpose and community need" (Entrusted 17). The mission statement is the product of the board functioning as a community of interpretation, and the statement rightly changes with changing times, as trustees reinterpret institutional identity in the social and moral context. Smith believes that mission should change with time, for

An organization's charter is a document written in a particular time and place with specific problems in mind. As time passes, the specific situation visualized by the founder will no longer be exactly pertinent. The configuration of human needs and society will have changed. At that point the organization either should cease to exist or should transform its purpose into one that is both congruent with the values and vision in place at the founding and serves a legitimate social purpose. The process of reasoning involved is one of interpretation. ("When Principles Conflict" 15)

This dissertation affirms Smith's contentions that a board of trustees is a community of interpretation and that an institution's mission, as interpreted by the board, should change over time. Smith, in focusing on interpretation, has identified the core moral responsibility of trustees. It is the trustee responsibility sine qua non that encompasses all other trustee moral responsibilities. It is my intention to build on Smith's understanding of trustees as a community of interpretation, expanding on the relation of this responsibility to other trustee duties, proposing a model for the ethical interpretation in which trustees are involved, and examining this responsibility for moral interpretation in the context of independent higher education.

In addition to David H. Smith, two other scholars of the nonprofit sector have made recent illuminating contributions to the conception of trusteeship as a moral responsibility. Craig Dykstra has written briefly about trusteeship as a calling, using terms that are reminiscent of a theological conception of vocation. However, he avoids explicitly theological categories. He suggests that trustees are called, "to hold something valuable in trust for the sake of some other good than one's own self-interest" (3). The commitment of resources for the benefit of a set of beneficiaries is the call. With their assent to safeguard the resources of an institution for the good of the beneficiaries, trustees respond to the call. Importantly, this response is not limited to a single act of assent. The vocation is renewed continually throughout the regular and continuing service of the trustee. Dykstra holds, therefore, that the moral character of trusteeship is not discovered in the rightness or wrongness of individual board decisions; it is the nature of the role itself. The morality of trusteeship is a matter of, "Moral character, practices, and traditions . . . [that] make moral acts and choices possible" (3). He conceives of trusteeship in terms of character and virtues. Dykstra relies on the moral philosophy of Alasdair MacIntyre, presenting trusteeship as a moral tradition. The moral institutions that trustees serve are the locus in which the tradition is carried forward. Trusteeship as a moral calling is inseparable from the institutional life of organizations that are "bearers or moral traditions and practices" (4). Dykstra holds that institutions are essential in the transmission through time of an understanding of what is morally good. He states that, "Moral practices are either sustained in and by institutions, or they die" (4). Since trustees are accountable for institutions of moral purpose, they are engaged in "the activity of creating and re-creating the fundamental moral practices that form and shape the character of individuals, of communities, and of society as a whole." (4). Extending Dykstra's argument, trustees' decisions and actions are morally transformational. Their moral responsibility includes the re-creation of the institutions which they serve.

Thomas Jeavons presents another concept of trusteeship as a moral responsibility that, like Dykstra's, has biblical and theological roots, namely in the image of the trustee as faithful steward. Jeavons relies on Douglas John Hall's reinterpretation of the biblical teaching on stewardship. The conception of stewardship has been diminished by its association solely with responsibility for resource development and administration. Stewardship has, on the contrary, "broader and deeper relevance to the organization of human life, especially to concerns about the right relationship between moral and material matters" (Trustees 71). Stewardship is not only about financial management. It is also a perspective that connects financial matters to the fundamental purposes of an organization. Jeavons' summary definition of stewardship links financial management and moral values:

a wise steward is a person who sees to it that things are kept in right order in terms of ultimate values, who makes certain that the things that truly matter most are cared for first; who ensures that a household or establishment is in fact managed to properly reflect the values of its master. (Trustees 73)

To conceive of trustees as stewards raises the question of whom precisely the master is whom the steward or the trustee serves. In the biblical teaching, it is God. Jeavons, however, gives a non-theological answer. Trustees serve the public interest. It is noteworthy that he does not suggest that it be either the entruster's purposes or the designated beneficiaries that are served, as is the case with David H. Smith. Jeavons also explicitly rejects the idea that the master is the organization. It is "the public good and the welfare of others" that holds the primary claim on trustees (Trustees 73).

This claim of the common good on the loyalty of trustees is rooted in the public commission and privileges given to independent institutions. In Jeavons' eyes,

There exists in this context . . . an implicit social contract undergirding the presence and function of private nonprofit, especially philanthropic, organizations in our society. These organizations are given a special standing, and even certain legal advantages over other private organizations, on the basis of the promise that they will serve the public good. The public expects these organizations to be motivated by and adhere to such a commitment in their performance. (Ethics 186)

The earlier part of this chapter discussed the way in which trust is essential to the formation of society and particularly the creation of morality and moral community. The chapter then turned to a discussion of the specifically moral character of trusteeship as understood by David H. Smith, Craig Dykstra, and Thomas Jeavons. Connecting these two strands, the remainder of the chapter returns to the idea of trust and moral community, examining how trustees constitute a particular voluntary association with a moral mission, on the one hand, and on the other have continuing responsibility for safeguarding the intergenerational transmission of the mission for which an institution was created.
 

Voluntary associations as moral communities

When a founding board of trustees gathers voluntarily to pursue a moral mission on behalf of a set of beneficiaries, the trustees literally create a new moral community based on trust. The act of moral invention that establishes the group's moral goals animates the new community. The new community of trust is inseparable from the moral purpose for which it is created. As Brenkert points out, the construction of mutual trust relies on shared values (298). Neither law nor regulation, rules nor external mandate, create the community, rather it is the association in trust of a group of individuals motivated by a shared moral purpose that constitutes the new community. The voluntary association has its genesis in the trust extended by individuals, yet the moral responsibility for an institution and its mission becomes a shared, group responsibility. The shared moral goals and responsibility are the associational glue.

Trustees are morally responsible individually and collectively, yet formal legal authority resides only in the group and in the corporate structure. In this legal sense, only the community of trustees has authority to act; individual trustees are legally powerless. It is only as the board convenes in a meeting, whether face-to-face or electronically, that legal authority is exercised. As Morton Rauh summarizes, "This authority belongs to the trustee not as an individual but only as a member of a group, the board" (6). The process of legal incorporation creates the formal structure that holds authority collectively, but as noted previously, it is grounded in a prior moral association and moral mission.

The idea of a moral voluntary association that is created in trust, institutionalized, and collectively governed evolved in Western society. It developed first in Europe and then took deep root in the United States. The idea of a moral voluntary association figures importantly in my argument. Although a treatment of the history and theory of moral voluntary associations is outside the scope of this dissertation, a brief examination is appropriate, since colleges have their genesis as voluntary associations. The moral tradition of independent higher education--and the tradition of trustee governance--can be better understood in light of the history and theory of voluntary association.

Social ethicist and theologian James Luther Adams wrote extensively on the history, theory, and moral tradition of voluntary associations in the sense that I use the term. See especially his Voluntary Associations: Socio-cultural Analyses and Theological Interpretation, collected essays by him in The Prophethood of All Believers edited by George K. Beach, and the commentary on his ideas by James D. Hunt in Associations: A Study of Groups in Free Societies, edited by D.B. Robertson.

Adams argues that all human beings are born into two involuntary associations, the state and the family (Indispensable, 257). Before the Protestant Reformation in Europe, the pervasive unity of the Roman Catholic church and its identity with the state meant that all individuals were also born involuntarily into the church. The Reformation brought a demand, particularly from the left-wing Protestant sects, for a voluntary church, separate from any state and from the established Roman church. Participation was no longer to be a matter of birth. Rather, it became a matter of faith and volition, of voluntary commitment (Voluntary 176). The model for these new independent churches was the congregational autonomy and polity of the primitive church (Voluntary 231). The patterns of lay governance in the church are for Adams and Hunt the paradigm for the principle of governance within voluntary associations, though neither spells out how the principle functions in practice within these associations.

The rise of independent churches and the eventual rise of their secularized counterpart, the voluntary association, created a new social space between the two involuntary associations, the family and the church/state (Voluntary 176-77). Adams acknowledges the presence of other "middle structures" in earlier European history, e.g., guilds, universities, monasteries, and even heresies (Voluntary 229). Nevertheless, he holds the independent Protestant congregation that is voluntarily gathered, independently financed, and autonomously governed to be the prototype for the modern voluntary association. Adams succinctly observes that, "All these forms of association . . . are in large part the outgrowth of left wing Protestantism; indeed, they may be characterized as the secularization of the Free church doctrine of the church" (Adams, "Our Responsibility" 159). James D. Hunt, commenting on Adams, also holds the modern voluntary association to be an extension of the voluntary principle in religion and of the idea of lay governance:

Adams' associational conception of religion owes more to Calvin and the Left Wing of the Reformation. Calvin considered the polity of the church to be a central issue, and in subsequent history the Calvinists have shown a genius for establishing associations, as Troeltsch has pointed out. Through Calvinism came also a revival of the doctrine of the covenant. The Left Wing, in the name of the freedom of the Spirit, asserted a new conception of autonomous Christian personality supported by "inner light," the rejection of coercion in belief and in the shaping of public policy, the principle of the consent of the governed, and a pluralistic conception of the churches and society. Such principles of radical laicism, as derived from the Radical Reformation through English Nonconformity, provide the basis for the development of voluntary associations. The congregational form of church government and its separation from the state are the prototype of the voluntary association concerned with public policy. (370)

Clark Kerr and Marian L. Gade, though not relying on Adams' theoretical framework, also make the connection between Reformation principles and the emergence of independent trusteeship. They review the history of trustee governance in their notable study on collegiate trusteeship, The Guardians: Boards of Trustees of American Colleges and Universities, What They Do and How Well They Do It. They locate the historical roots of independent collegiate trusteeship in the Calvinist arm of the Reformation. They hold that this form of institutional academic governance has its genesis specifically in Reformation Geneva. They assert that, "The Academy that John Calvin founded in Geneva in 1559 was the first of the Reformation colleges and embodied this theory of lay (nonacademic) control" (18). Kerr and Gade recognize that the fundamental instruments of power in Reformation Geneva were firmly held by Calvin and the church. However, they observe that Calvinist theology and social theory also led to the emergence of the principles and mechanisms of lay governance of institutions that have their mission in the pursuit of the community's interest in educating its citizens (18). Like Adams and Hunt, Kerr and Gade make the link between institutional mission and trustee governance.

In determining institutional mission, trustees create institutional identity. The makeup and nature of a board--of the aggregated and blended values of the collection of individual trustees in association--create the moral character of an institution. Peter Dobkin Hall, in his important study, Inventing the Nonprofit Sector, and other Essays on Philanthropy, Voluntarism, and Nonprofit Organizations, notes the extraordinary degree to which nonprofit organizations permeate pluralist American society. Highly differentiated, this panoply of organizations carries "different institutional orientations" (206). Importantly, he also observes that it is precisely within the boards of these organizations that institutional identity is created and sustained. He observes that, "In a pluralist society, boards of trustees are inevitably an arena for the playing out of different visions, expectations, and values" (206). The values and purposes of boards of trustees are, therefore, among the creators of the plural character of American institutional life. The values held by the board differentiate one organization from the next. With respect to independent higher education, the plural values of boards operating in distinct local contexts and within individual moral traditions have led to an extraordinary degree of institutional variation within the broader moral tradition of independent higher education.
 

The lineage of trust

The values of a board are major determinants of institutional identity. This is true at the initial creation of an association, and it continues to be the case as a board's moral responsibility for an institution continues over time. Having examined trustees' involvement in the creation of institutional mission, how then are trustees responsible for institutional continuity?

Trust is the key factor in the formation of voluntary associations, and trust is the essential element in the continuing ethical responsibility of trustees over time. David H. Smith writes about the original entruster, "formulating a purpose and transferring power to the trustee, who then acts on behalf of the entruster for the benefit of the beneficiary" ("When Principles Conflict" 14). However, Smith does not elucidate precisely how authority and responsibility are transferred to the successor trustees. The nature of this transfer is critical, for on it rests the legitimacy claims of trustees as the moral successors of founders or trustee predecessors.

In the transfer of moral responsibility, trust must be extended, it must be accepted by the trustee, and the trust must be carried out in the continuing oversight and decisions of the trustee on the behalf of the beneficiary. In the most elemental terms, trustees are entrusted (hence the title of Smith's pivotal book, Entrusted: The Moral Responsibilities of Trusteeship). Because of the facts of human infirmity or mortality, the founders of an organization must eventually transfer responsibility to other individuals who will faithfully carry out the mission of the organization. In order to ensure the continuity of mission, these successor trustees must similarly select and entrust yet others to share responsibility with them in the present and beyond their retirement or demise.

Thus there is a lineage of trust, a continuity of trust from original entruster to successor trustee and from successor trustee to further successors. The continuing legitimacy claim of trustees rests on this lineage of succession in trust. One analog is the principle of apostolic succession in the church embodied in the act of ordination, in which ecclesiastical responsibility and authority are transferred to new priests, ministers, or lay elders. Academic investitures, governmental inaugurations, and oath takings of all sorts function similarly to transfer authority and responsibility in a line of succession.

Trust is extended by the entruster. However, the trust must be accepted. It is not enough that an entruster selects another person to have the responsibility of trusteeship. That individual must freely accept the responsibility, promising to carry out the intentions and purposes of the organization. Trusteeship cannot be compelled. It requires selection or election by existing trustees, on the one side, and free acceptance of responsibility by a new trustee on the other. As noted, oath taking can be a formal ceremonial recognition of the acceptance of responsibility. The promise of fidelity is symbolized in the ceremony, but the moment of public promise can also be the actual transfer of authority and responsibility in the lineage of trust.

One example of such a ceremony is the investiture of new trustees of San Francisco Theological Seminary. Following election--the decision by the existing trustees to extend responsibility to a new trustee who will share authority and responsibility for the seminary--new trustees must accept election. They signify their acceptance by repeating an oath that is prescribed in the bylaws of the seminary. They then inscribe their name in a register of trustees begun with the institution's founders and continued from trustee to trustee through 125 years. With these acts, the seminary's new trustees assume both the moral and legal duties of trusteeship.

The transfer of trust within the institution's governing board is also accepted by the state as the mechanism for ensuring institutional continuity. In that sense, trust is also extended to new trustees by the state. In the independent extension of trust, with the concomitant transfer of moral authority and responsibility, the transfer of legal responsibility also transpires. New trustees accept new legal responsibilities and are immediately fully legally accountable for the governance of the organization. In the extension and acceptance of trust, they become subject to the legal duties of loyalty, care, and obedience.

Independent, trustee governed institutions can theoretically continue in perpetuity. All such institutions must solve the problem of intergenerational continuity. In one sense, the extension of trust to successor trustees is a voluntary act, but on the other hand entrusting successors with the moral mission is a necessity if the founders are to guarantee that their original intentions in creating an independent institution continue to be observed in their absence, whether during or after their lifetime. Each succeeding generation of trustees is faced with the same problem of human mortality.

Trusteeship exists to ensure the intergenerational continuity of moral responsibility and authority for an independent institution. In the most general terms, the trustee relationship functions to solve the fundamental human and social limitations of death and distance. Trusteeship's existence includes the presumption of death, absence, and potential discontinuity. Trusteeship is not the only social mechanism devised to deal with these problems. There are multiple social structures and functions that ensure intergenerational continuity, including kinship, law, government, orders of succession, corporations, endowments, trusts and nonprofit institutions, etc. Trusteeship is one such mechanism of social continuity, and to be sure, one that is focused on moral purposes and beneficiaries. The lineage of trustee succession ensures that the fundamental moral purposes for which an institution is created are faithfully pursued in new generations. It is not simply continuity of institutional structures that is achieved; trusteeship secures the continuity of moral mission.

Niklas Luhmann's theoretical framework confirms this understanding. He also regards trust as but one of many mechanisms for reducing complexity in social interactions, one that deals with uncertainty and the future. Luhmann observes that there are other mechanisms for reducing complexity, e.g., law, organization, and language, that operate in conjunction with trust. Trust, however, is the mechanism that helps deal with uncertainty and the future, substituting "an internally guaranteed security" when the certainty of knowledge fails (93-94). For Luhmann, "trust is required for the reduction of a future characterized by more or less indeterminate complexity" (15). However, Luhmann does not deal with the indeterminacy in institutional futures introduced by the problem of death. While recognizing that a theory of time is implicit in a theory of trust (22), his time framework does not extend beyond the lifetime of the one who trusts. For Luhmann, the evaluation of whether the extension of trust was valid relies on a "retrospective reckoning" by the one who trusts (25). It is impossible, of course, for a deceased trustor to engage in any "retrospective reckoning" to ascertain whether the extension of trust to trustees was warranted. In this regard, Luhmann's theory of trust, while illuminating for this discussion of trusteeship, requires modification to deal with the issue of the succession of trust beyond the death of the trustor.

In fact, in the specific case of trusteeship, the need to extend trust occurs explicitly because of the need to create a kind of certainty with respect to a future in which the one who trusts is absent, either because of death or distance. This is true not only at the point of the initial transition from the founders to the first generation of successor trustees. It is also true at any point in the lineage of trustee succession. The continuity of trustee governance is always related to time or distance and trustees' moral reliability. In Luhmann's vernacular, the expectation that trustees will faithfully carry out the purposes of an institution on behalf of a set of beneficiaries creates a secure and assured understanding on the part of a trustor in the face of the complexities and uncertainties created by death. This is true whether the trustor is the original founder or others farther along in the lineage of succession. Ultimately, however, the trustor has no opportunity for validation of whether the trust was warranted. It remains to the law and trustees' understanding of their moral responsibilities, as proposed here, to secure the degree of certainty that an institutional mission will be faithfully served.

The line of trustee succession provides for a degree of security in institutional governance in the face of an uncertain future, but trusteeship also has to deal with one characteristic of the future that is certain, namely, that internal and external institutional circumstances will change. Sheridan and Delaney observe that, "the very fact that a charitable trust need never come to an end raises an entirely new problem for the trustee charged with its administration, the problem of obsolescence" (2). The theoretically perpetual character of charitable institutions when coupled with the discontinuities of human life and society, means that a time will eventually come in which an independent charitable institution's original mission is hindered, hampered, or even thwarted by changing circumstances. New internal and external conditions can threaten the ability of the institution to continue to serve its historic mission. Conversely, changing times and conditions may present new opportunities for an institution to pursue its mission more expansively and more effectively.

In the face of changing conditions, a board of trustees must be, adapting David H. Smith's term, a community of moral interpretation, transforming an institution's mission in a way that is at once faithful to founding purposes but also modified to serve a new day. Paradoxically, trustees' continuing moral responsibility to pursue with fidelity the institution's mission requires that they also be the stewards of transformation. In the line of trustee succession, they are fiduciaries of the institution's historical beneficent purposes. They are also, "the overseers of change" (Ingram, Trusteeship, 2). They serve both conservation and transformation. As noted above, the founding trustees of an independent college literally invent the institution by defining its moral purposes. By interpreting that mission in light of changed conditions, their successors reinvent the institution. Craig Dykstra comments expansively on this ethically transforming character of trusteeship:

Here is where morality and trusteeship most fundamentally connect. Trusteeship is the activity of "creating and re-creating the institutions that make life possible." And through this, trusteeship is thus also the activity of creating and re-creating the fundamental moral practices that form and shape the character of individuals, of communities, and of society as a whole.(4)

Trustees may rely on other individuals or groups in fulfilling their continuing moral responsibility as stewards, interpreters, and transformers of institutional mission, but the involvement and responsibility of other parties derive from the prior responsibility of trustees. These parties may be either inside or outside the institution. In the tradition of shared governance in higher education, an institution's faculty and its administrative leade