A trial court in Pennsylvania has dismissed a claim by a Penn State University trustee that amended and restated bylaws at the University are invalid on their face.
The Court has sustained the University’s preliminary objections to Trustee Barry Fenchak’s complaint, finding that the University’s amended bylaws are “inoffensive and likely not inconsistent” with existing Pennsylvania law. The parties had agreed that Fenchak’s complaint was not based on actual specific acts that were prohibited by the rules and that the complaint could be sustained only if the rules were invalid on their face. To meet that standard, the Court said, Fenchak would have to show that “there are ‘no circumstances’ in which the Amended Bylaws are valid.” The Court said Fenchak had failed to do so.
Fenchak, now a former member of the University’s Board of Trustees, was elected as a trustee in 2022 and served until the end of his term on June 30, 2025. (His personal website says he has attended over 300 meetings of the board since 2005. Penn State is subject to an Open Meetings law.) He was one of nine voting board members elected by alumni to serve on the 36-member governing body.
In July 2024, the University adopted amended and restated bylaws including section 2.03(c), which Fenchak claimed was a “draconian gag order” for trustees.
Section 2.03(c) states:
“Trustees must prepare diligently, attend required meetings of the Board (as set forth in Section 2.04), and assigned committees, and participate constructively in all Board of Trustees meetings and related activities by reading the agenda and supporting materials. Trustees shall speak openly, freely, and candidly within the Board, while being mindful that any public dissent from Board decisions must be done as trusted stewards of a public institution. Because a university is a free marketplace of competing ideas and opinions, its governance mandates open communications as well as principled, civil, and respectful debate. At the same time, Trustees must always protect and act in the best interest of the University, being cognizant that the tone and substance of their words whether in the board room or in public, including on social media platforms, reflect on the University that they are entrusted to serve and can adversely affect its well-being. While Trustees think independently and make informed individual decisions about what they feel is in the best interests of the University, they shall support majority decisions of the Board and work cooperatively with fellow Board members and the Administration to advance the University's goals. Negative or critical public statements about the Board, the University or its students, alumni, community, faculty, staff, and other stakeholders do not serve the University's interests and are inconsistent with a Trustee's fiduciary obligation to act always in the best interests of the University. Trustees shall extend goodwill to one another and to all members of the University community in board sessions and in public forums, including social media.”
Fenchak filed his complaint in April 2025 while still a member of the board. He sought a declaratory judgment that multiple sections, including 2.03(c) of the University’s amended bylaws, violated the Pennsylvania Nonprofit Corporation Law and the state Constitution because they were “inconsistent with law.”
The state’s Nonprofit Corporation Law provides that “bylaws may contain any provisions for managing the business and regulating the affairs of the corporation not inconsistent with law or the articles [of incorporation].” The University argued that the provisions were within the board’s “inherent authority to govern itself.”
The Court said a nonprofit corporation’s right of self-governance may permit limitations on a board member’s speech as enumerated in duly adopted bylaws.
The Court also considered the scope of an individual’s right to freedom of speech and freedom of the press as enumerated “fundamental rights” under the Pennsylvania Constitution and when these rights may be restricted. The Court equated the University to the role of an employer whereby the University may impose restrictions “directed at speech that has some potential to affect its operations.”
Although the Court determined that section 2.03(c) was a restriction on the speech of trustees, it said that under the business judgment rule, it presumed the trustees acted in the best interests of the University and should not be second guessed in enacting the amendments.
The Court concluded that a trustee is “a position that carries more authority and public accountability than any other” and should “be held to the highest standard.” It dismissed Fenchak’s complaint with prejudice and found that the amended bylaws represent the University’s right to self-governance where a trustee, like a citizen who enters government service, “must accept certain limitations on [their] . . . freedom.” (Fenchak v. Pennsylvania State Univ. Bd. of Trustees, Ct. of Common Pleas, Centre County, PA, No. 2025-CV-0882-CI, 8/24/25.)
YOU NEED TO KNOW
Penn State has had a contentious relationship with its alumni trustees for many years. (See Nonprofit Issues®, September-October 2015, March 2017, and Vol. XXXIV No. 5.) The Court may be correct that there are situations in which this bylaw provision is valid, but it is easy to imagine situations in which it could be used to curtail a trustee’s right of free speech and attempt to force the trustee to breach his or her fiduciary duty. Consider the case in which the alumni trustees sought to gain access to confidential materials in the Louis Freeh report on sexual abuse by Jerry Sandusky in 2015. (Nonprofit issues®, September-October 2015). Would they have violated this bylaw by not giving “support” to the majority of the board who said they did not need the information and should forget it? Did they make “negative” or “critical” public statements about the University or its other trustees when they went to Court to protect their right to the information, which was confirmed by the judge?
What if the board decided to double tuition in order to raise salaries for athletic coaches? Must a dissenting trustee “support” that decision when the dissenting trustee believes it would be contrary to the best interests of the University? Is the trustee prohibited from urging alumni and others to help convince the board to overrule the decision?
We generally don’t like “aspirational” bylaw provisions that effectively can’t be enforced. This one is far more aspirational than most. —DK.
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