LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — March 30, 2023, Page 11

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giving the appearance of impropriety, causing confusion in the Synod, or creating potential liability.”
Regarding separating or divesting the university from the Synod, see the answer above.
Question 5:

Is a university of the Synod and its board of regents an eligible party subject to the Dispute
Resolution Process set forth in Synod Bylaw 1.10?

Opinion:
Yes. Agencies of the Synod are included in those to whom the Dispute Resolution Process
applies. (Bylaw 1.10.3)
Question 6:

Assuming a university of the Synod and its board of regents are eligible parties to the
Dispute Resolution process set forth in Synod Bylaw 1.10, does the Dispute Resolution
process apply to a dispute between the Synod (or its President or Board of Directors) and
a board of regents regarding that board of regents unilaterally amending or modifying its
governance documents, and regarding whether the action of the board of regents is within
the authority granted to it under the Constitution and Bylaws of the Synod?

Opinion:
Essentially, no. The fundamental material question of whether a Synod university has the
authority to unilaterally change its governance from that prescribed in the Constitution, Bylaws,and
resolutions of the Synod, since such a question pertains fundamentally not to the presenting fact situation
but to the interpretation and meaning of the Constitution, Bylaws, and resolutions of the Synod, is outside
of the authority of the Dispute Resolution Process to arbitrate or adjudicate, as stated in the Bylaws.
Authority to interpret the Constitution, Bylaws, and Resolutions of the Synod is specifically given by the
Bylaws only to the Synod’s Commission on Constitutional Matters (Bylaw 3.9.2.2). Any Dispute
Resolution Process is subject in all its aspects to “Holy Scripture, the Lutheran Confessions, and the
Constitution and Bylaws of the Synod” (Bylaw 1.10.18). As to the Constitution and Bylaws of the Synod,
opinions of this commission are finally dispositive of any questions as to their interpretation that arise
during a Dispute Resolution Process (Bylaw 1.10.18 [h], [h][1]). While the question of whether a board of
regents has the authority described is thus finally resolved by this commission’s interpretation of the
Constitution and Bylaws in the negative, this is not to foreclose the applicability of the Dispute Resolution
Process to disagreements or disputes, related to or arising out of this action, as may apply to the board of
regents as a whole or to individual regents as “members of congregations of the Synod elected or appointed
to positions with…an agency of the Synod” (Bylaw 1.10.2 [5]).
Question 7:

Assuming that the noted parties and issue would be subject to the Dispute Resolution
Process, would the outcome of the process, presuming that it is consistent with the
Constitution, Bylaws, and resolution of the Synod, be binding on the parties involved.

Opinion:
The Constitution and Bylaws of the Synod are of themselves generally, and as to the central
material question noted above in particular, already binding on both the parties and on the outcome of any
Dispute Resolution Process, as explained above. As to other aspects of related disagreements or disputes,
the outcome of any Dispute Resolution Process, provided it is consistent with “Holy Scripture, the Lutheran
Confessions, and the Constitution and Bylaws of the Synod” (Bylaw 1.10.18), would be binding on the
parties.
Question 8:

Can a university of the Synod and its Board of Regents avoid the Dispute Resolution
Process set forth in Synod Bylaw 1.10 by taking unilateral action purporting to separate
the university from the Synod (cf. Synod Bylaw 1.10.2)?

Opinion:
No. “No person, congregation, or agency to whom or to which the provisions of this dispute
resolution process are applicable because of their membership in the Synod may render this procedure
inapplicable by terminating that membership during the course of the dispute resolution process” (Bylaw
1.10.2).
Question 9:

What is the nature and scope of a board of regents’ fiduciary duties to the Synod as stated
in Synod Bylaw 3.10.6.4 (i)(1)? Are these fiduciary duties solely secular duties or do these
CCM Minutes – March 30, 2023 – Page 137