Dartmouth College is one of the few institutions of higher education that provide alumni a direct voice in college leadership. Since 1891, when an agreement was reached between the administration and alumni, Dartmouth degree-holders have had the opportunity to elect half of the Board of Trustees (not including the College President and the New Hampshire Governor, who serve as ex officio members). This representation is undoubtedly a reason that Dartmouth has consistently ranked among the highest colleges in percentage of alumni contributions. Yet, despite the long-term benefits, this unique form of alumni democracy has come under fire in recent years.
A September 2007 decision by the Board to double the number of self-perpetuating trustees (known as "Charter Trustees"), without adding any alumni-elected trustees ("Alumni Trustees"), has sparked an ongoing controversy. When five new Charter Trustees were appointed in September 2008, without a like increase in Alumni Trustees, more than a century of balance between selected and elected college leaders abruptly ended.
The Dartmouth Association of Alumni initially filed suit on behalf of alumni in October 2007, claiming that the 1891 Agreement was a valid contract, and that changes to the Board's make-up needed alumni consent. Following a contentious election for the Association's leadership positions, however, the lawsuit was voluntarily dismissed in June 2008. The Association of Alumni, under a new pro-administration leadership slate, essentially waived its ability to keep a strong alumni voice on the Board.
Although the fairness of that Association of Alumni election remains in question—the "parity" slate did not, for example, have access to the college's e-mail list of alumni voters—the lawsuit appeared to be dead.
Last week, a group of Dartmouth alumni asked the Grafton Country (New Hampshire) Superior Court to re-open the seemingly closed case (PDF). The seven alumni challenged the College's contention that the lawsuit was conclusively ended. The controversial legal dispute, to be sure, is not usual FIRE territory. But the underlying factors that have brought this case to the courtroom are of central importance to FIRE's mission.
"Petition Trustees"—a subset of the elected Alumni Trustees who appear on ballots via signature-gathering—have been the target of these governance reforms. In the last four elections, these "outsiders" were elected to the Board, an indication that Alumni Trustee candidates favored by the administration were unsatisfactory to Dartmouth voters.
These Petition Trustees have been unafraid to provide the critical oversight that is often lost in calls for "collegiality" on college and university boards. As such, they have been cast as detractors and spoilers by the College's entrenched authority.
Yet the record speaks for itself. Petition Trustees advocated for free speech and urged Dartmouth to live up to its mission of "providing the best undergraduate liberal arts experience." They were instrumental, for example, in urging the College to repeal its speech code in 2005. Dartmouth subsequently shed its "red light" rating and became a free-speech-friendly "green light" institution.
Over the past five years, however, administrative maneuvers and decisions by the Board majority have effectively attempted to muzzle the voices and mitigate the influence of these alumni-elected leaders. In the process, Dartmouth has brought damage onto itself by altering its unique democratic process by which degree-holders could influence their alma mater.
The background of this case has been chronicled in an extensive article published by FIRE Co-founder and Chairman Harvey Silverglate and Joe Malchow, a 2008 graduate of Dartmouth and founder of the Dartblog. The article, in the preparation of which yours truly and fellow research assistant Maria Romero participated, explores how the duties of college directors—and nonprofit organizations at large—have been redefined in recent years. Harvey and Joe write:
Fidelity to institutional leaders, rather than institutional mission, is now paramount in higher education, as deviation from accepted decisions is perceived as potentially shrinking the donor base. Administrators cringe at public disagreement; rather than focusing on the long-term likelihood that competing ideas will result in implementation of the fittest, they tend to focus on the short-term possibility that a particular alumni subset may be offended.
The article, Dartmouth College, the Battle Over Parity, and the Legal Notion of Fiduciary Duty (PDF), attempts to put the current Dartmouth contretemps in a larger context. Currently before the New Hampshire court is a somewhat narrow legal question—whether the powers-that-be can bury the alumni litigation without the case ever being decided on the merits of the contract question—but the implications of the case are of wide-reaching importance. Silverglate and Malchow write:
These events, at first glance, may appear to be one elite college's internal governance dispute. But what happens in Hanover both indicates and influences current trends in academic board oversight—a realm undergoing significant rethinking in light of the ongoing economic downturn. And with the ongoing governance revolution, the eyes of higher education are looking on. Dartmouth, to be sure, is far from the only place where fealty to organizational leaders-and the notion of "going along in order to get along"—has been placed before true fiduciary duty.
The article complements court documents in the ongoing litigation, filed on September 4, challenging these governance changes at Dartmouth. An amicus curiae (friend-of-the-court) brief was filed on behalf of Todd Zywicki, a Professor at the George Mason School of Law and a former Petition Trustee. Zywicki was bounced by the Charter Trustee majority in April because they did not like comments that he made, to an academic audience, criticizing certain aspects of Dartmouth's governance.
Zywicki's amicus brief provides ample reason for the court to turn-back a cynical power grab by entrenched authority, who are intent on destroying a more than century-old system by which Dartmouth practices alumni democracy. Stay tuned.