In the middle of February in 2001, a female student happened to be walking by Psi Upsilon fraternity.
What she heard shouted from the porch -- a chanting rendition of "Wah-hoo-wah, scalp 'em, scalp 'em" -- would become the focus for tense campus debate and, eventually, six months of social probation for the fraternity.
In all the controversy over the sanctions, one criticism emerged that would highlight the sometimes cloudy status Dartmouth enjoys as a private institution: because the College receives federal funds it should have to abide by free speech principles that would make such a punishment unconstitutional.
Dartmouth itself has a quick answer to that complaint -- no.
Officials covet its status as a private institution, which effectively shields the College from potentially costly First Amendment lawsuits.
Almost 200 years ago in the precedent-setting Dartmouth College Case, Daniel Webster arbitrated in front of the U.S. Supreme Court to preserve the private status of the institution. "It's a small college, but there are those who love it," he said, securing Dartmouth's independence from the federal government.
While most court rulings since then have supported those claims, the debate over whether universities that receive federal money must honor the Bill of Rights continues to be relevant.
Constitutional experts agree that private groups of affiliation, because of the voluntary nature of their membership, are legally entitled to establish their own codes of conduct.
Yet public entities -- those financed almost exclusively by the government -- must strictly abide by the Constitution and its various amendments. Freedoms of speech, the press, religion and the right to assemble cannot be restricted or prohibited at such places.
"Agencies of government are sharply restricted," said Sheldon Novick, professor of constitutional law and history at Vermont Law School.
But is Dartmouth a private institution?
Dartmouth, after all, does receive about $150 million annually in federal money, according to Bill Walker, vice president of public affairs. These funds are allocated specifically for research funding.
In addition, Dartmouth receives assistance from Washington in the form of student financial aid. But because this money essentially goes to individual students, and therefore does not influence the school directly, it is not considered to be direct subsidies for the College.
The question of whether Dartmouth is private or public concerns the involvement of the federal and state governments in the financing and administration of the College. Usually the right of the government to involve itself in the affairs of an institution comes from the amount of money the government provides.
Neither the College's budget office nor the Office of Public Affairs could say the percentage of the College's income received from the federal government.
But the debate remains as to whether or not grant and research money can be considered as excessive government influence, enough to make Dartmouth a public college.
In the opinion of Novick, grants are different than, say, the kinds of funds that the University of New Hampshire receives.
"Generally speaking, the answer seems to be no," he said. "If it receives federal funds that have strings attached they have to abide by those strings."
Robert Donin, general council for Dartmouth, explained, "It's been held consistently by the courts that because you receive federal funds does not convert you to a public entity."
One instance in which the courts held such an opinion came in Keady v. Nike, Inc. and St. John's University, a case that reached the U.S. District Court for the Southern District of New York.
James Keady, the plaintiff, was censured by his employer, St. John's athletic department, for refusing to wear apparel bearing the Nike logo. His refusal was based on personal disapproval of Nike's labor policies in developing nations. He claimed that because the university received federal money for grants and student loans, he was entitled to express his First Amendment freedom of speech rights.
But in September of 2000, the court held that "mere financial assistance from a public authority to a private institution does not constitute state action."
The U.S. Supreme Court maintained a similar position in Blum v. Yaretsky. "For state action to be found, state must exercise coercive power or give significant encouragement over the private entity," the court ruled. That decision was in 1982.
Dartmouth appears, then,to enjoy private status.
However, the College claims to dismiss the legal opportunity it has to vastly restrict constitutional freedoms.
"The university does place a great deal of importance on freedom of expression," Dartmouth's Donin's.
"The mission of the university," he said, "is the dissemination of knowledge and exchange of ideas."
That sentiment comes clearly across in the official student handbook. "Dartmouth College prizes and defends the right of free speech and the freedom of the individual to make his/her own disclosures," the document reads.
Just how that is interpreted, ultimately, is up to the College.
