Original Article: http://dartreview.com/archives/2008/05/19/lacessit_me_uphold_1891.php
Monday, May 19, 2008
In this issue, The Dartmouth Review presents readers with a symposium of ideas about the 1891 Agreement. The 1891 Agreement is where the parity debate pivots: some argue that the 1891 Agreement ensures that one half of the Board will be alumni-elected, while the other half will be appointed; others argue that the 1891 Agreement is just another Board resolution, which can be easily overturned according to the Board’s will.
Though on pages 8-9 we have opened up the conversation to allow various opinions on this matter, at the Review, we emphatically believe that the 1891 Agreement should be upheld. We specifically asked contributors to the symposium the following questions: Is the 1891 Agreement contractual? If not, should it be honored anyway?
We are not lawyers at The Dartmouth Review, so we will defer to lawyers when considering whether the 1891 Agreement is contractual or not. The most highly publicized disagreement about the 1891 Agreement’s contractual nature was between Trustee Todd Zywicki ’88 on the parity side and Trustee emeritus Kate Stith-Cabranes ’73 on the board-packing side. Both are lawyers. Mr. Zywicki writes that though as a trustee he is “constrained from expressing [his] opinion publicly as to whether the 1891 Agreement is a ‘contract,’ Professor Stith-Cabranes manifestly has failed to demonstrate that it is not a contract.”
The two disagree about whether the 1891 Agreement was in fact an agreement meant to be upheld and honored through the years, as a contract would be—Ms. Stith-Cabranes claims that it was merely a resolution that “no more binds the Board in the future than did the earlier arrangements.” Mr. Zywicki provides a compelling counter-argument to Ms. Stith-Cabranes’ claim on page 9. The arguments Mr. Zywicki presents allow us to conclude that the 1891 Agreement is an agreement that Dartmouth’s trustees have a fiduciary duty to honor.
The question of honoring the 1891 Agreement can be paraphrased as, “Should the Board retain an equal number of charter (appointed) and alumni (elected) trustees?” Yes, we believe it should. Regardless of whether the 1891 Agreement was a contract, an agreement was certainly struck in 1891 that was followed for more than a century afterward.
For its entire modern history Dartmouth has valued the ideals of active alumni governance and democracy. Indeed, such an ideal has secured the success of the College in the past, and saved the college in 1891 when it was about to buckle under financial pressures. In order to secure the alumni funding that would resuscitate the College, the trustee Governance Committee worked a compromise out with alumni: the Board would no longer be fully appointed, but rather, one half of its members would be alumni-elected, and one-half appointed. Control of Dartmouth would be divided between alumni and Parkhurst.
The reason why the College wants to do away with the 1891 Agreement today is that the administration is suffering from a loss of control, as alumni choose no longer to follow Parkhurst blindly into the future and accept its trustee nominees. Instead, alumni nominate and vote for their own candidates through the petition process. This is the 1891 Agreement most vitally at work: the purpose of the 1891 Agreement was for such a time as now, allowing the alumni to exercise control through the Board of Trustees when they find the administration failing to do what they as alumni think right for the College.
If convincing arguments for altering the proportion of the Board exist, we have yet to hear them—least of all from the Board, whose only reason for changing the Board’s composition is the “politicized” and “polarizing” nature of recent elections. But this is what democracy is about: free and open debate, acrimonious or not. Losing the game does not give the Board the right to change the rules of the game—especially when those losses, in themselves, uphold the spirit and purpose of the 1891 Agreement.