LCMS Commission on Constitutional Matters — Minutes St. Louis, Missouri — August 9–10, 2024, Page 8

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ecclesiastical authority on behalf of the Synod with respect to CUSP, it no longer exercises
property, business, or legal supervision or oversight over CUSP and may not need to be mentioned
in the CUSP Bylaws, leaving such details to be incorporated by reference from the Synod’s Bylaws.
Property, business, and legal supervision / oversight is now exercised directly by the Synod Board
of Directors (Bylaws 3.3.4.4, 3.3.4.5 [e], 3.3.4.6 [b–c], 3.3.4.7, 3.3.4.10–3.3.4.10.1, 3.10.6.5, etc.).
If it is necessary to note CUS, its relation to the school is as described essentially in Bylaw 3.6.6.
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Section 2.1: The assertion that the board of regents’ obligation to adhere to the Constitution,
Bylaws, and resolutions of the Synod is subordinate to “applicable law, regulation, accreditation
requirement, or the board’s fiduciary duties to the corporation” falls short of the requirements of
the Synod Bylaws in at least four significant respects:
First, this is contrary to the Synod’s stated intention that the board of regents govern the university
at all times consistent with Synod’s polity (Bylaws 3.10.6, 3.10.6.1 [b–d, q–r]; 1.5.2 [b]). Bylaw
3.10.6 is explicit in this regard: “The board of regents shall have no authority to and shall never
exercise any power contrary to the Constitution, Bylaws, or resolutions of the Synod.” Synod’s
Bylaws thus do not admit what amounts to a unilateral and general subordination of Synod’s
Constitution, Bylaws, and resolutions to various extra-ecclesial authorities, which are broadly and
nebulously defined and themselves subject to varying interpretation.
Second, by distinguishing the Board’s “fiduciary duties to the corporation” from the mission of the
university which is essentially aligned and intertwined with the mission of the Synod, the language
conflicts with that of Bylaw 3.10.6 and the contention of Bylaw 3.10.6.1 that it is precisely in
“fulfilling its commonly understood fiduciary duties owed to the institution and its governance
responsibilities” that the board is bound to act in accordance with the Synod’s Constitution,
Bylaws, and resolutions. It would thus be impossible for a regent to fulfill his or her fiduciary duty
to the university by acting contrary to the Synod’s Constitution, bylaws, and resolutions. (The
commission notes again that regents are also obligated to govern consistent with the “policies of
the Synod’s Board of Directors,” Bylaw 3.10.6.)
The duty of the regent to serve the institution is the regent’s duty to serve the institution as an
institution of the Synod. There is and can be no conflict between the duty to the former and the duty
to the latter, because the former duty is the latter duty. The fiduciary duty of the regent is one,
precisely as expressed in Bylaws 3.10.6–3.10.6.1.
Third, by this language the university may indicate willingness to abdicate in some measure its
responsibility to coordinate with the Synod’s Board of Directors “in the legal defense of the right
to the free exercise of our confession” (Bylaw 3.10.6.1 [l]).
Fourth, the language “shall…unless doing so would” may even create the impression that a regent
could be positively obligated to act contrary to Synod’s Constitution, Bylaws, and resolutions,
which obligation would be completely contrary to the expectations of Bylaws 3.10.6, 3.10.6.1, and
1.5.2 noted above.

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Section 2.2: The language of this section underscores the concern raised above, that the CUSP
bylaw proposal not only threatens to cabin (limit the force of) Synod’s Constitution, Bylaws,
resolutions, and BOD policies in the event of a supposed conflict, but makes such cabining
obligatory on regents when there is an opinion that an ordinary prudent person would so act. Of
course, it is not a generic “ordinarily prudent person” but a member of a member congregation of
the Synod, committed to the confession and mission of the church and set into a churchly office,
who is called upon by the Synod to govern the university as an institution whose mission is
ontologically bound up with the ecclesial life and polity of the Synod. The substitution of an
“ordinarily prudent person” as even the theoretical arbiter of decisions potentially affecting the
essence of the university is improper. This material not only invites a board member to surmount
CCM Minutes – August 9–10, 2024 – Page 31