This is the second entry in a five-part series on recent developments at Dartmouth College. Read Monday’s post here.
It was the fall of 2007, and Dartmouth’s governing board had just ended more than a century of equal balance between elected "Alumni Trustees" and appointed "Charter Trustees." With negotiations to restore board parity at an impasse, the college’s Association of Alumni was left with a difficult choice: accept its members’ diminished role in overseeing Dartmouth, or bring the case to court.
In October 2007, the alumni association chose legal action, claiming in the Grafton County Superior Court that the trustees were contractually bound by an agreement made in 1891 to honor board parity. For these graduates, settling the matter in court was a last-resort effort to restore their effective voice on the board—a voice that, as detailed in yesterday’s post, was instrumental in abolishing the school’s speech code in 2005, to name just one example.
The college, in response to the lawsuit, claimed that the 1891 Agreement was a board resolution, not a legally enforceable contract, so the board could modify its membership at its own discretion. In denying this request to dismiss the case, however, a New Hampshire judge wrote (PDF) that "sufficient evidence" supported the claim that the 1891 Agreement was a contract. He specifically noted that parity was maintained through two previous board expansions.
After clearing this initial legal hurdle, the alumni association and the college prepared for trial. In the meantime, though, the alumni association held its annual elections to determine leadership positions in the organization. A so-called "unity" slate, opposed to the lawsuit as a means to restore parity, squared off against a "parity" slate that saw the lawsuit as an unfortunate necessity. It became clear that the winner of this election would control the alumni’s position in the lawsuit.
With roughly 60% of the alumni vote, the "unity" slate was victorious, and it moved to withdraw the lawsuit—despite the alumni’s preliminary victory—in June 2008. (Though it ended the lawsuit, the alumni association leadership promised "constructive dialogue with the trustees" in order to restore parity. Two years later, the promise remains unfulfilled.)
But the legal struggle for parity has continued. In September 2009, a group of seven individual Dartmouth alumni asked the court to re-open the case (PDF). These graduates are challenging the college’s contention that the lawsuit was conclusively ended with the alumni association’s voluntary dismissal. (Harvey Silverglate, FIRE’s Chairman, is representing Dartmouth alumnus and former Petition Trustee Todd Zywicki and has filed a friend-of-the-court brief in support of preservation of parity. Harvey is acting in his capacity as a private lawyer, not as a FIRE board member.)
In the December 2009 oral argument, the college’s counsel focused on whether the 1891 Agreement is a legally binding contract and whether individual alumni can enforce it, while lawyers for the alumni group also discussed the case’s implications in terms of beneficial public policy. Zywicki’s friend-of-the-court brief expands upon how the case is crucial to active alumni who exercise critical oversight at colleges and universities across the country.
Earlier this month, however, Judge Timothy Vaughan decided to dismiss the lawsuit, stressing that the prior litigation precluded a rehearing and leaving aside the important public policy considerations.
Finding fault in Vaughan’s opinion, the alumni plaintiffs filed a motion yesterday for the judge to reconsider the case. Without getting into the technical details, the alumni dispute what Judge Vaughan viewed as their apparent "admission" that alumni, in effect, could not enforce the 1891 Agreement after the association dismissed the first lawsuit.
The motion for reconsideration also contends that the case deserves to be decided on its merits. Though more than 27 months have passed since litigation began, there has yet to be a definitive judicial ruling on whether the 1891 Agreement is an enforceable contract, and the continuing debate has arguably distracted the college from other pressing concerns.
Perhaps, at the end of the day, all this legal wrangling misses the point. As Zywicki wrote in The Dartmouth:
The Board should honor the spirit and wisdom of this partnership and appreciate the benefits it has produced, rather than treating alumni as adversarial parties to an arms-length contractual negotiation governed by only the minimum of what may be legally mandated.
Yet such was the result for the steadfast graduates who refused to stand idly by as Dartmouth charted what they deemed an unworthy course—even if it required taking their alma mater to court. It’s a partly cautionary, partly motivational story for any alumnus willing to speak up and hold his or her university accountable.