Using Eminent Domain to Take Property For Universities

The Chronicle of Higher Education has an interesting article on the use of eminent domain to forcibly acquire land for universities. It quotes various scholars and commentators on the subject, including yours truly:

At a time when public university leaders regularly point to the advantages that private institutions have enjoyed over them in recent years – such as freedom from most state regulations, freedom to raise tuition, and often significant financial resources — it’s easy to forget that the public universities still have one significant advantage. They are parts of the state, and that comes with a lot of powers.

Earlier this month, Ball State University’s board of trustees authorized the use of eminent domain – the power of the state to seize private property without the owner’s consent so long as the owner is compensated – to take a piece of property on which it plans to construct a hotel, conference center, restaurants, and dormitory for hospitality students.

If the university does follow through with the plan – and administrators stress that they are trying to reach an agreement with property owners to avoid actually using the power – it will be a rare example of a public university invoking eminent domain, and it could generate controversy, particularly given that the property wouldn’t be used for “traditional” educational purposes….

Ilya Somin, a law professor at George Mason University who said he doesn’t think the 2005 Kelo case was decided correctly, has argued that even if the law permits states to condemn land for the purposes of private university development, the policy rationale for doing so is dubious…..

“Condemnation of property is rarely if ever actually useful for the purposes of advancing research or educating poor students. In general, research can be undertaken and students educated just as well on voluntarily purchased land,” he wrote in a 2006 blog post about the Columbia [University] dispute. “If universities wish to pursue these goals by acquiring additional land, they should do it by competing with other potential buyers in the real estate market.”

Even in cases such as Ball State, where the legality of the university’s action doesn’t appear to be in question, Somin said universities should still avoid use of the power. “It might well be legal under the state law and under the federal constitution, but that does not mean it’s good idea,” he said. “It does tend to destroy economic value.”

The 2006 post cited in the article is here. In it, I explained why takings for the benefit of universities are generally a bad idea even if they are legal. In this article, I criticized the New York Court of Appeals’ decision upholding the controversial blight condemnations that transferred property to Columbia University.

In the last paragraph of the Chronicle article, another legal scholar defended the use of eminent domain in this context:

In many states, because of rigorous legal requirements and the potential for litigation, the use of eminent domain isn’t any cheaper than buying the property outright, said Cynthia Baker, a law professor at Indiana University-Purdue University Indianapolis. But that doesn’t mean it isn’t a good power to have.

“More and more as the burden of the cost of higher education is placed on the backs of students, eminent domain is something the state can do for higher education,” Baker said. “It’s a different kind of relationship.”

If the problem is that students are paying too much for their education, eminent domain is a poor solution. Many of the benefits of using eminent domain to acquire land are likely to go to faculty and administrators rather than students. The state could instead simply subsidize tuition or, in the case of public universities, charge lower tuition in the first place. If there is a genuine public interest in increasing tuition subsidies, the cost should be spread among all the state’s taxpayers rather than concentrated on property owners who happen to own land near a university.

Finally, I would like to thank Chronicle reporter Kevin Kiley for promptly recognizing and correcting a minor mistake in his summary of my views in the original article.