The Administration's Hostile Takeover at Dartmouth

Dartmouth College was little more than a cash-strapped finishing school when it asked alumni for a financial lifeline in the late 19th century. Graduates, in exchange for donations, demanded an effective voice in the college’s management. The resulting compromise: Dartmouth’s governing board would consist of an equal number of alumni-elected and administration-appointed trustees.

Then and now, degree-holders have fulfilled their end, providing ample resources for the New Hampshire institution to maintain, for example, one of the nation’s best undergraduate programs, according to U.S. News & World Report.

Over the last half-decade, however, administrative actions have made this historic agreement a virtual dead-letter. After a series of so-called “outsider” petition trustees were elected to the board by alumni, plans were approved in September 2007 to increase the number of appointed “Charter Trustees” without adding elected “Alumni Trustees.”

Parity between these different trustee classes and, by extension, a powerful alumni board presence—arguable pillars of modern Dartmouth’s success—came to an unceremonious end. Litigation, a last-ditch effort by alumni to restore parity, has been before New Hampshire courts ever since.

Harvey represented Dartmouth alumnus and former Petition Trustee Todd Zywicki and  filed a friend-of-the-court brief in support of preservation of parity. He has also advised current Petition Trustee T.J. Rodgers. (In this litigation, Harvey acted in his capacity as a private lawyer, not as Chairman of the Foundation for Individual Rights in Education, FIRE.)

Dartmouth trustee elections, historically speaking, were non-competitive, non-newsworthy events. That changed in 2004 when T.J. Rodgers, a Silicon Valley entrepreneur and Dartmouth alumnus frustrated with the college’s direction, decided to take advantage of what was then a seldom-used “petition” route to trusteeship, in which trustee-hopefuls gather signatures to appear on the ballot.

With a nonpolitical emphasis on improving Dartmouth’s undergraduate education and repealing the school’s speech code (PDF), his message resonated with alumni. Not only was he able to gather the required signatures, but he defeated other official candidates nominated by those close to the administration.

Fellow graduates followed suit. In the next three Alumni Trustee elections, petition candidates—whom Rodgers referred to as “independent people willing to challenge the status quo”—were victorious.

These Dartmouth representatives’ support for free speech on campus caught FIRE’s attention in 2005. They were trustees interested in substantive change—not just nominal support for free expression. When negotiations inside the boardroom stalled, these independent trustees weren’t afraid to publicly air their views.

Sunlight, not always popular with those in power, was undoubtedly effective. In May 2005, a letter from Dartmouth’s general counsel confirmed that the college was repealing its speech code. As then-FIRE President David French wrote, it was a huge victory for free speech at Dartmouth; shortly thereafter, Dartmouth became a speech-friendly green-light institution.

To some board members and high-level administrators, these efforts—specifically, taking such issues outside the boardroom and into the public realm—violated a trustee’s role to serve the college; to the Petition Trustees, bringing public attention was a necessary antidote, at times, to what they viewed as board inaction on crucial issues. In other words, it was part of how Petition Trustees fulfilled their obligation to act in Dartmouth’s best interest.

Citing “divisive” campaigning and the negative effects of recent elections, a board-commissioned review recommended in August 2007 that the structures of Dartmouth’s governance be changed. A month later, amid stiff alumni resistance and pleas from Petition Trustees to preserve parity, the board approved the controversial plan. Thus, alumni input was significantly diluted.

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.

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 nonetheless continued. In September 2009, a group of seven individual Dartmouth alumni asked the court to re-open the case. These graduates are challenging the college’s contention that the lawsuit was conclusively ended with the alumni association’s voluntary dismissal.

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.

Judge Timothy Vaughan, in January 2010, 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 for the judge to reconsider the case. 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.