Original Article: http://dartreview.com/archives/2008/04/21/pullout_the_aoa_lawsuit_a_short_history.php

Pullout - The AoA Lawsuit: A Short History

Monday, April 21, 2008

Editor’s Note: The Association of Alumni lawsuit against the proposed board packing measure supported by the Dartmouth administration is a battle for the future of Dartmouth College. The result of this historic lawsuit will determine whether Dartmouth can continue its proud tradition of alumni governance or whether it will become just another university where alumni are sources of revenue without having any real say in their alma mater. The upcoming Association of Alumni election will essentially determine the fate of the lawsuit: if the petition trustees win, the lawsuit will continue and Dartmouth will retain its largely unique governance structure. If, however, the administration’s insider candidates win, the college’s alumni will, in large part, lose their voices at Dartmouth forever. At this important juncture, The Dartmouth Review presents you with an overview of the history of the lawsuit.

Introduction: The Petition Trustees

The lawsuit was born out of the Dartmouth administration’s worries about the election of four petition candidates to the Board of Trustees. Since 2004, in what has since been deemed the ‘Lone Pine Revolution,’ Dartmouth alumni have elected petition candidates T.J. Rodgers, Peter Robinson and Todd Zywicki to the Board. When the administration proposed a new constitution in 2006 to stack the cards against petition trustees in future board elections, the alumni spoke out against the administration once more: the alumni elected the fourth successive petition trustee in the Spring of 2007, Trustee Stephen Smith. The rapid succession of five losses for the administration—one of them being the failed constitution—was a cause of much concern for insider forces, which includes the likes of President Jim Wright, the Alumni Council, and Board members who were not sympathetic to the Lone Pine Revolution. The response from these players revealed nothing short of desperation: a last ditch effort to halt the obvious trend in alumni opinion­—also known as the proposal to pack the Board of Trustees.

Stacking the Cards: The New Alumni Constitution

To understand the full extent of the motives that lead to the FDR-esque maneuver to pack the Board, one must first consider the first step taken in this direction by the College: the effort to rewrite the constitutional rules surrounding the trustee election process. The proposed constitution was ultimately drafted by a committee under the Alumni Council, which is the undemocratically elected body of alumni governance. Unlike the Association of Alumni’s executive committee, whose members the alumni vote for, the Alumni Council’s members are in large part appointed or rubber stamped by the administration.

The alumni constitution typically outlines the procedures by which trustees are nominated and elected. Historically, to ensure a minimal amount of diversity in the candidates, the Constitution required the College to nominate three candidates to the trustee slate.

Unable to deal with the standard rules, the College attempted to force an anti-democratic procedure into the proposed constitution that would require it to nominate one official candidate, thereby severely reducing the choices given to potential voters and channeling more votes to the insider. It would have also required petition candidates to declare their candidacy before the nominated candidate was announced.

The prompt and decisive defeat of this new Constitution (a defeat supported by both liberal and conservative groups on campus), was a stunning blow to Dartmouth’s anti-alumni governance forces. This, along with the election of petition trustee Stephen Smith, which served as a vote of no-confidence in the administration and the constitution, seemed like a clear mandate to change the direction the College was taking in terms of restructuring alumni governance. The Administration believed, however, that the only hope to check the alumni’s vocal disapproval of its policies would be to dilute the alumni’s voice on the board.

Secret Governance Committee

In response to the defeat of the constitution and the victory of the fourth petition candidate to the Board, the Dartmouth Board of Trustees created a Governance Review Committee, which examined the governance structures at other colleges and universities. The committee met secretly for six months prior to their announcement to change the structure of the Board, an announcement which occured in June 2007. In addition, the Committee included Chairman of the Board, Ed Haldeman, and did not include a single petition trustee.

The Governance Committee found that all the other universities they examined had larger trustee boards and less alumni representation on those boards. As a result, Chairman Haldeman announced the Committee’s decision to add eight appointed trustees to the Board. As it stood at the time, the Board was divided evenly between eight trustees appointed by the Board itself, and eight elected trustees, voted into office by alumni. By adding eight appointed trustees, the voice of alumni trustees was cut from one half to one third.

The 1891 Agreement

In 1891, the College was at odds with alumni, as it is now. Back then, alumni were withholding funds from the College, because they disapproved of the College’s policies at the time, which they could in no way control since they were not represented on the Board of Trustees. Striking a compromise between the College and the alumni, the 1891 Agreement was enacted. The 1891 Agreement establishes that one half of the Board will be composed of alumni elected trustees; the other half will be composed of trustees appointed by the Board itself. The 1891 Agreement further establishes that this arrangement should be upheld with each successive board vacancy. Indeed, the 1891 Agreement has been honored for 117 years. Each time the Board has expanded since 1891, the parity established 117 years ago was honored. Each time, that is, until the Governance Committee decided to overthrow 117 years of Dartmouth history.

With few other options to oppose this threat to alumni governance, the Association of Alumni filed a lawsuit to prevent the near death of democracy at Dartmouth.

The Association of Alumni Lawsuit

The Association of Alumni, a body that is elected by and represents the alumni, voted six to five to file a lawsuit against the College to prevent the move to pack the Board. The suit is being heard in New Hampshire’s Grafton Country Court. The Association’s lawyers argue that the 1891 Agreement between the College and the alumni is a living contract, and therefore, is enforceable as law. The Board’s move to alter the 1891 Agreement, therefore, is a violation of that contract. Needless to say, the College has fought the suit tooth and nail.

— The Board takes questions about board packing scheme —

Conflicting Claims to Representation

One of the first attacks on the AoA suit against the College was the claim that the Alumni Council, not the Association of Alumni, was the true representative body of the Alumni. This move would have cut much credibility from the AoA’s clam that the lawsuit represented the views of the alumni. A brief investigation into the facts, however, quickly shows that this claim is false: whereas the AoA is a fully representative body, the Alumni Council is chosen by administration loyalists. The Council also includes a faculty member, and a disproportionate number of representatives from various minority alumni communities, both racial and sexual.

The Motion to Dismiss

The College filed a motion to dismiss the lawsuit. Much to the disappointment of the College—and a preliminary victory to the Old Dartmouth faction of the alumni—the motion was summarily dismissed by the judge. The judge acknowledged the pressing contractual precedent of the 1891 Agreement.

The case is now in a discovery period, and will be heard out in full, unless it is settled out of court. The College has few options but to defend its move to disenfranchise alumni in court.

— President James Wright —

The Resignation of Wright

Three days after this crushing defeat, President Jim Wright announced his resignation. Wright will officially step down as President next June. He has been credited with causing alumni dissatisfaction, starting with his ill-fated plan to kill the Greek system at Dartmouth via the Student Life Initiative, followed by his role in developing the plan to pack the Board.

AoA Elections and the Future of Dartmouth

In the midst of this legal turmoil, the election for the Association of Alumni’s Executive Committee is soon to be underway: April 28 through June 5. With a broad field of both insider and petition candidates, this election will determine the fate of the lawsuit to preserve Dartmouth. If insider candidates win and are able to take a majority on the Association’s Executive Committee, the lawsuit will almost certainly be dropped, and any hope that Dartmouth’s graduates had of ensuring future governance of their beloved college will evaporate. As in previous elections, it is imperative that those who love Dartmouth mobilize and speak out throughout this campaign and through the voting process. If this battle is lost, then Dartmouth will likely never be the same again. Only through the victory of petition candidates in the AoA election can the lawsuit, Dartmouth’s only chance of holding true to its traditions, prevail.

In this case, as in prior cases, the involvement and dedication of Dartmouth’s alumni will be key. This is a crucial battle for the future of the College, and any graduate who cares about the College must speak out through the electoral process. The very future of the College is at stake.