Original Article: http://dartreview.com/archives/2008/05/19/tdr_symposium_1891_agreement.php
Monday, May 19, 2008
Editor’s Note: In light of recent debates about board-parity and the 1891 Agreement, The Dartmouth Review has asked several alumni leaders to contribute their thoughts to our symposium on the 1891 Agreement. We contacted an equal number of leaders from both sides of the issue, and the ones who responded appear in the symposium below. The question we asked is as follows: Is the 1891 Agreement contractual? If not, should it be honored anyway?
Frank Gado ’58: Second Vice-President, AoA
If my exhaustive research through the archives in Rauner had failed to convince me that two decades of tense struggle and negotiation had culminated in a contractual agreement between the Association of Alumni and Dartmouth’s Board, I would not have voted to file the lawsuit to prevent violation of that contract, and I would not have accepted the role of the Executive Committee’s legal liaison in the conduct of the case.
Through 1890 and into early 1891, virtually everyone had concluded that an increase in the ratio of alumni-elected trustees was desirable and necessary to obtain the alumni funding that would save the College. At one point, the trustee governance committee offered four of the ten non ex officio seats. The alumni rejected the offer as unsatisfactory, and the powerful Boston alumni group countered with a plan calling for all ten seats to be elected. Finally, both sides agreed on five seats each, which, given their firm belief that the Charter could not be altered, would ensure permanent parity.
The movement for a consequential alumni voice on the Board of Trustees was not unique to Dartmouth. Many of the leading colleges in the Northeast experienced similar demands from the middle to the end of the nineteenth century. (To a notable degree, Dartmouth followed most closely the example set by Williams.) But Dartmouth alumni had the greatest leverage, and they used it most effectively. Surely not coincidentally, once the reform was enacted and Dartmouth installed a new president, William Jewett Tucker, who recognized the value of collaboration and cooperation with alumni, the school that had been tottering on the precipice began a rapid ascent in quality, prestige, and financial stability.
Should Dartmouth abandon parity? To do so would be a reckless change of a system that has not only worked well for us but is being considered by other colleges and universities as an improvement on their current governance. Liberal as well as conservative think-tanks have begun to argue that alumni involvement may be the only hope for rescuing a system that is beginning to fail in its purpose.
Proponents of the board-packing plan try to portray the current struggle as a war of political ideology. They brand us “conservatives,” as though that were a term of opprobrium, alien to American life, implying nefarious designs. They speak of “hidden agendas” and imply that we seek to regress to a golden age that never was. I’m surprised that they have yet to spot black helicopters menacing this Peaceable Kingdom. This is nonsense, of course. My objective is to protect the rights of all alumni—regardless of their political orientation or convictions—to participate in a democratic process. I believe in free debate and democracy. It is worth all the expense and tumult that have been required to save it.
Rick Routhier ’73: Ex-President, Alumni Council
I cannot comment on the question of whether the 1891 Agreement is contractual. I also don’t think that is the key issue alumni should be debating. Rather, Dartmouth alumni should ask themselves what board composition makes for the best governance of the College.
I subscribe strongly to the simple principle that the Board, and thus the College, is best served by a board made up of a wide range of alumni voices. We live in a rapidly changing world with global competition for the best students, for the best faculty, and for the resources necessary to support them. The Board needs to ensure that its membership can bring perspectives and depth in a wide range of areas, and that trustees come from a broad and diverse range of political beliefs, professional backgrounds, and life experiences.
It has become clear that the alumni trustee election process in and of itself is not able to ensure this kind of diversity. Recent politicization of elections have made the problem even more difficult.
For an institution of the complexity and scale of Dartmouth, its Board has also been small. To accommodate more expertise in different areas and more diversity of view, it needs to grow. Yet it also cannot become so large that a small ‘executive’ committee becomes dominant. A Board of twenty-four trustees, all of whom are alumni, allows for the diversity that the Board needs. It is a size that allows each trustee to have a voice. Having eight ‘elected’ trustees also ensures a constant flow of new voices onto the Board that can represent the voting alumni constituency.
Dartmouth is best served with the governance changes the Board has voted to adopt. If it means changing an arrangement crafted in 1891, so be it.
Tim Dreisbach ’71: AoA Exec. Committee Member
Editor’s note: For his contribution to the symposium, Mr. Dreisbach ’71 submitted the e-mail below. In this e-mail, he is responding to Dartmouth senior Dan Dittrick ‘08, who has a letter published on the Dartmouth Undying website. Dartmouth Undying is a group that opposes the lawsuit about the 1891 Agreement, and opposes the petition slate for the Association of Alumni election. In his letter, Dittrick ’08 writes, “The Association has already done more harm than good in affecting my Dartmouth experience, and I do not appreciate being included among those who need to be given an explanation by them of what is happening at Dartmouth. I need an explanation of why it is that they feel that it is the Association’s prerogative to have a say in things that affect my education.”
I just read your thoughtful letter on the Dartmouth Undying website. First let me apologize that you did not receive a personal reply to your letter to the Association last October. You mention several, but I can only find one in the dartaoa e-mail box and apparently I did not receive a copy that you also sent to the Association mailbox monitored by the College’s Alumni Relations office. I can provide several semi-legitimate reasons for not responding, but do not want to be making excuses.
Let me jump right to the heart of the matter: your statement, “I need an explanation of why it is that they feel that it is the Association’s prerogative to have a say in things that affect my education.”
Let me begin by first stating that it is not the job of alumni to define the curriculum. That belongs to the faculty. It is not the job of alumni to define the broader “Dartmouth experience.” That is done first and foremost by students themselves, as supported by the administration and staff. It is not the job of alumni to manage the staff, as that is done by the President of the College, reporting to the Board. It is not the job of alumni to provide direction as set by the Board.
But alumni do care greatly about Dartmouth, are its principal benefactors, and add value beyond money because of the insights gained during their own years here. This is not an argument to turn the clock back. But those insights are instructive.
You wrote eloquently about the DOC’s Freshman Trips (and I chuckled that you called them that when I have been told the proper term is now First-Year Trips). I had the honor and invaluable experience of being the Director of all Trips my senior year, and I share your thoughts on how special they are. Imagine if five years from now, a new group of Student Assembly leaders beyond the DOC directorate combined with Parkhurst administrators and said the Dartmouth experience can be improved if we reduce the participants on Trips and encourage more incoming freshmen to participate in on-campus encounter groups instead. This might very well deserve discussion, but would you as a recent graduate not have something to contribute to the mix of ideas?
The same is true with respect to a longer-term view of Dartmouth. The College’s mission is to educate individuals such as yourself, in and outside the classroom, who will then leverage your talents and that education, as the next generation of societal leaders. Who better to assess how Dartmouth is doing in that regard than prior products of that educational system? I have seen how the strengths of Dartmouth helped me, and its weaknesses did not. By staying in touch with the College and current students (five percent of all living alumni live within fifty miles of campus), I can observe how those strengths have grown, or weakened, and how formerly-weak areas have improved, or remain to be addressed. Believe me that while my experience at Dartmouth was incredible, it is not one I wish to force on you or someone else twenty years from now.
This is not to say I am personally mister know-it-all. But there are 70,000 alumni whose insights collectively are of incredible value. And this is not to even say that the alumni body is always right. Far from it. But it is the only group who does not have a personal conflict of interest in trying to decide what is best for the College overall. Dartmouth faculty are incredible, and most are devoted to their work. But at times they must make trade-offs with career interests. Ditto staff people who are employees of the institution. Even students and parents of current students (I was one of these also) have potential conflicts, as what is beneficial in the immediate term may not be the best course of action for the long term. Only alumni operate without the pressures of such conflicts (unless they are hoping their legacies will be admitted).
Even with all this, it is still not the job of alumni to run the place. But given these arguments, it is my opinion that alumni should have a role in governance, deciding who the deciders will be. I trust 70,000 thoughtful alums to do at least as good a job to choose trustee nominees, via an open election process wherein important challenges are open for discussion in the Dartmouth community. As much as five appointed members of the governance committee pick nominees secretly behind closed doors. For that reason, I want to see parity maintained in the selection process. And I question why those who want to eliminate it are so afraid of it!
You wrote a letter of support to Dartmouth Undying. Please ask them why their web page states that I and five of my peers on the Association Executive Committee supported involvement of the NH legislature [the bill was designed to end Dartmouth’s control of its charter]? Only one person did. Others of us did not, and we still disagree with that effort. Ask Undying why they claim we have not revealed the source of the lawsuit funding, when it was discussed and disclosed in our public minutes. We are the first Association administration to take the recording and publication of minutes seriously. What is the motivation for such false accusations?
The lawsuit was painful to vote for. Ask the people at Dartmouth Undying to explain why there was not more dialogue between the trustees and the Association to prevent it from happening, as documented here: http://dartmouthaoa.blogspot.com/2008/05/association-issues-election-campaign.html.
But most importantly, please ask yourself if you believe that on June 8, your insight into the Dartmouth experience will suddenly have less value. My guess is that you will find your opinions actually grow and are more refined with time and reflection.
Best,
Tim Dreisbach ‘71 P’00
P.S. Congrats also on the skating title. You and the team have represented Dartmouth well for many years, and can take great pride in that.
P.P.S. Feel free to share this email as you wish.
Joseph Asch ‘79
The 1891 Agreement is just one of the checks on the power of Dartmouth’s President that have served the College well for more than a century.
However, if Jim Wright’s presidency is to be remembered for anything, it will be for Wright’s multi-pronged efforts—after seeing his Student Life Initiative rebuffed—to concentrate power in his own hands and reduce the influence of other stakeholders over the College.
The 1819 Dartmouth College case affirmed that neither the College nor the legislature could unilaterally change Dartmouth’s Charter. This balance ended in 2003. In that year, after intensive lobbying by the College, the New Hampshire legislature voluntarily relinquished its centuries-old veto power over any changes to the Charter.
In December of the same year, a push to absorb the popularly elected Association of Alumni into the unelected Alumni Council was defeated by only a handful of votes.
During this time frame, Wright went to work filling the Board of Trustees with supporters. He could do so because he sits on the Board’s five-person Governance Committee, in clear contravention of the Principles of Governance of Nonprofit Corporations promulgated by The International Journal of Not-for-Profit Law.
This “board within a board” chooses the Board’s charter trustees on its own, and one can expect that Wright is primus inter pares in this small group. After all, a review of the charter trustees shows that they are all donors that Wright has been able to vet during years of fundraising.
As well, many of the Trustees are professional investors, and a good number of them manage a portion of the College’s endowment, further ensuring their loyalty to Wright.
Finally, on Wright’s Board, no charter or alumni trustees, other than petition trustees Todd Zywicki and Stephen Smith, have any meaningful experience inside institutions of higher education.
One can legitimately ask how trustees who were well known to Wright, who were chosen by him, who count the College as a client, and who don’t understand the world of higher education, can be expected to oversee Dartmouth’s President with objectivity and rigor?
In fact, given these characteristics, it is easy to understand why Trustee T.J. Rodgers described the role of Dartmouth’s trustees as “ceremonial” to the Wall Street Journal.
Inside the College, Wright has staffed most senior administrative positions with longtime loyalists. The Dean of the Faculty, the Provost, the Director of Admissions, the Director of Athletics, and the Dean of Student Life have all been in Hanover for decades.
The role of the faculty in governance has been severely limited. Many faculty meetings don’t achieve a quorum, and discussions at meetings are thoroughly scripted by Parkhurst. As a result, most faculty choose not to attend.
The capstone in Wright’s drive for control lay in last year’s move to abrogate the 1891 Agreement and reduce alumni influence on the Board. Had a majority of the Association of Alumni Executive Committee not been resolute in bringing suit, and without the good sense of a New Hampshire judge, Wright’s victory would have been complete.
Rick Silverman ’81: Alumni Council President
I will leave the contractual nature of the 1891 Agreement to the experts in contract law. As for board composition, the essential issue is that Dartmouth have the best board possible. Speaking as an individual alumnus rather than for the Alumni Council, I’d point out that in a perfect world, parity can be a good thing, and it served the College well for over a hundred years. Of course, up until 1990, alumni mostly had one candidate to consider during the nomination process, and ‘elections’ were predominantly an affirmation of that recommended, rigorously vetted nominee. Only one petition candidate was elected in that first hundred years, but in view of the desire to provide alumni with more choice, the method of selection was altered. Those alterations, however, were made during a less politically charged time.
Alas, we are not living in a perfect world, and the election process has become highly politicized and incredibly polarized to the detriment of Dartmouth. Applying democratic principles is great but requires a fully informed, fully engaged electorate. We have neither. Less than thirty percent of alumni vote in most elections. Information, whether accurate or inaccurate, is disseminated simply and rapidly, especially since the advent of e-mail, thereby raising alarms about things like the demise of Dartmouth as a “college” in favor of a “research university.” In confronting issues at the College, we need respect for divergent views and we need to rebuild trust among alumni. I could favor a return to parity once honesty, accuracy, and transparency can be restored to the alumni trustee nomination process, with the elimination of Washington-style political maneuvering, and greater participation by alumni. I would favor a return to parity, if this would result in a board composition which provides the most effective stewardship to preserve the best of what Dartmouth has to offer her students.
Merle Adelman '80: Past President, Association of Alumni
Editor's Note: The Dartmouth Review received this e-mail correspondence from Former President of the Association of Alumni, Merle Adelman, on the day the issue went to press; hence, this section is exclusive to dartreview.com.
The Trustees should have one overriding goal: act in the best interests of Dartmouth's students. Certainly preserving our alumni's historical role in the governance of the College is important, but the College's highest priority must always be its students. I fear that some of my fellow alumni/ae have forgotten this in the heat of battle.
Last year, the Board conducted an exhaustive review to ensure its governance structure was the best possible to meet that goal. It solicited input from thousands of alumni. It looked at best practices of more than a dozen peer schools. Ultimately, the majority of the Board - every one of them an alum - voted to add 8 new charter trustees to ensure that Dartmouth has the broadest possible range of experience and expertise on its Board.
It also voted to maintain eight alumni-nominated seats, because it valued Dartmouth's long-standing tradition of direct alumni involvement in the College's governance. But the Trustees also expressed concern about having even more elections than we do today, because they have become increasingly bitter and political. They sought to strike a reasonable balance between various competing interests, and they did.
On the question of whether the 1891 agreement was a legal contract, the Board sought expert outside advice, which said it was not. That is obviously now the subject of litigation. But among those who have looked at the issue closely was the distinguished Yale law professor, alumna and former Trustee Kate Stith-Cabranes '73. In an essay (available at www.dartmouthindependent.com/archives/2007/08/no_contract.html) Professor Stith-Cabranes wrote: "not only does the Board have the authority to alter the selection of Trustees, it has the obligation to do so if it concludes, in the exercise of its fiduciary responsibilities, that the current process is not serving the interests of the College."
I respect that some alumni - including close friends and classmates - disagree with the Board's decision. But just as the Board determined what was in the best interests of the College in 1891, the Board in 2007 determined that this slightly altered structure was in the best interests of the college and its students, given the challenges and opportunities we face today. That is what their job demands and I'm glad they had the courage to do it. The students of tomorrow will thank them.
Todd Zywicki ‘88: Alumni Trustee
Editor’s note: When The Dartmouth Review contacted Trustee Todd Zywicki ’88 about contributing to this symposium, Mr. Zywicki ‘88 referred the Review to his exchange with Yale Professor Kate Stith-Cabranes ’73 on the matter. Mr. Zywicki has kindly given the Review permission to reproduce part of his response to Ms. Stith-Cabranes ’73 below. Mr. Zywicki notes that he wrote this analysis before the lawsuit about the 1891 Agreement went into litigation; in addition, the thoughts below reflect his own opinions, and not necessarily those of his fellow trustees.
In a communication with alumni earlier this summer, Chairman of the Board Ed Haldeman expressed his personal opinion that Dartmouth’s alumni are “confused” about the 1891 Agreement that gave alumni the right to elect half of the Dartmouth Board of Trustees.
In a column published in The Dartmouth entitled “Honoring the 1891 Agreement” [published August 3, 2007] I expressed my own opinion: “And, in fact, it is an agreement, it does contain ‘the concept of parity,’ and it does promise alumni the right to elect half of the Board.”
In a recent essay, Trustee emeritus Kate Stith-Cabranes’73 provides her own commentary.
Professor Stith-Cabranes offers several arguments to support her conclusion that the 1891 Agreement was not a “contract.” Although as a trustee, I am constrained from expressing my 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. Now follows one of the arguments Professor Stith-Cabranes makes supporting her claim that the 1891 Agreement is not contractual.
Professor Stith-Cabranes argues that there could be no valid reliance interest by some or all alumni based on the 1891 Agreement. She first argues that there could be no reliance on the 1891 Agreement specifically because it superseded a prior plan for alumni election of Trustees that had been adopted in 1876. She then goes on to argue that there never could be a valid reliance interest on any Board resolution more generally, citing as an example the decision of the Board to adopt a new resolution to become coeducational, thereby reversing a previous board resolution, which might be thought to defeat the reliance interest of some alumni. Although she seems to actually have the applicable law correct here, on this issue her conclusions appear to be based on a faulty or incomplete understanding of the historical facts.
In 1876 the trustees, through President Smith, proposed a plan for “Alumni Suffrage,” which was jointly adopted by both the Board and the Association of Alumni. The 1876 plan provided for an attenuated form of alumni election of three trustees, but immediately evolved into de facto direct suffrage. This plan was superseded by the 1891 Agreement. She takes this course of action as evidencing that the Board has the power to transcend its own resolutions with impunity and without regard to any reliance interests of third parties that may have accrued, a principle which purportedly applies to the 1891 Agreement as well.
But this inference is incorrect. Paragraph II.1st. of the 1876 plan specifically provided, “This arrangement may be terminated by vote of either the Association or the Board, if at any future time it shall be deemed desirable by either.” Thus, the express language of the 1876 plan would defeat any claim of reliance when that plan was superseded by the 1891 Agreement.
The 1891 Agreement, by contrast, is silent on the matter of termination and reserves no power of unilateral termination by either party. In contrast to the 1876 plan, this silence indicates that the 1891 Agreement was intended to be binding on both parties, and could be superseded only by the joint agreement of both parties. In fact, Paragraph 3 of the jointly-adopted resolutions that comprise the 1891 Agreement expressly provides, “That this plan of nomination shall be taken and held to supersede the plan heretofore adopted in 1876.” Thus, this historical episode actually demonstrates that the Board and alumni of the time believed that the 1891 Agreement could be superseded or amended only by joint agreement—thereby proving the exact opposite of Professor Stith-Cabranes’s proffered inference.
Thus, just as the language and structure of the 1876 plan makes clear that both parties reserved a unilateral power of termination, thereby invalidating any reliance claim, the language and structure of 1891 Agreement is equally clear that it was to be perpetual and binding on both parties unless the Board and the Association of Alumni decided by mutual agreement to transcend the 1891 Agreement with a new agreement. That the Board has for over a century held itself out as acting in compliance with the 1891 Agreement and has induced good-faith reliance by Dartmouth’s alumni on its actions further reinforces this understanding. If Professor Stith-Cabranes has actually read the 1876 plan, it is not clear why she ignores this crucial difference in the plain language of the two documents.
The 1891 Agreement, unlike the 1876 plan, thus permits amendment only by the joint agreement of both parties. Today’s Association of Alumni has stated quite clearly that it will oppose any attempts to “violate, restrict, abridge, or dilute” the rights of alumni reached in the 1891 Agreement. Unlike the collaborative process that resulted in the 1891 Agreement and the joint decision to supersede the earlier pact, however, the Board this time has implied that it believes that it has the power to act unilaterally and impose by fiat any decisions that it reaches.
Regardless of the legal technicalities involved, it is absolutely clear that in 1891 Dartmouth’s Board promised Dartmouth’s alumni the right to elect half of the Board of Trustees and that this pact has served the College well for over a century. As noted at the outset, even Professor Stith-Cabranes seems to admit that the Board promised parity in the 1891 Agreement; she argues only that the Board retained the right to renege on that promise whenever it feels like it.
I have taught Corporations Law for many years and I am not aware of any doctrine that mandates that my fiduciary duties as a Trustee require me to be bound only by the bare minimum required by law. Other current and former Trustees such as Professor Stith-Cabranes apparently disagree, and believe that Dartmouth’s Board should be constrained by only the bare technical minimum that may be required by contract law. If Board were to adopt this radical doctrine that its fiduciary duties are defined coterminously with the minimum duties imposed by law, then Dartmouth will have to reevaluate its policies in many areas where it imposes obligations on itself that exceed the bare minimum required by law.
I disagree with this view and I believe that the Board’s promise—legal wrangling aside—is one that the Board is honor-bound to keep and that keeping this promise would in no way violate my fiduciary duties to the College.
This principle applies to any action that would clearly violate the 1891 Agreement, such as ending the tradition of parity or tampering with the alumni’s power to control their own elections. But it would also apply to any actions that would violate the governance partnership that it creates between alumni and the Board, such as adopting a two-tiered Board with a small executive committee of loyalists hand-picked by the College president and a larger group of largely powerless “overseers.” Such a scheme would violate the intent of the 1891 Agreement by effectively empowering the College president to control the Board, thereby emasculating the alumni’s independent voice in College governance intended by the 1891 Agreement. The Association of Alumni wisely rejected exactly such a toothless scheme repeatedly during the nineteenth century, noting in the Minutes of the 1891 AoA meeting, “[A] mere advisory board with no rights, or the mere privilege of occasionally making a nomination of a possible trustee, would be too uncertain, contingent and remote a right, to excite and keep up that clear, constant, active interest of the Alumni, which is needed, and which it was the duty of your Committee to secure, if possible.”