Lawsuit Update:  January 2011

The New Hampshire Supreme Court has scheduled oral argument in the case (the Appeal) for Thursday, February 10, 2011.

Lawsuit Update:  September 2010

Dartmouth College trustees, continuing their fight to deny alumni their just governance rights (and their right to be heard in court), file a reply to the alumni brief.

In July 2010, the representative group of individual Dartmouth College alumni filed an appeal of the Grafton County Superior Court ruling to the New Hampshire Supreme Court. Read a copy of their brief here.

In January of this year, the same judge who had ruled emphatically against the trustees’ motion to dismiss the original case, stating unequivocally that there was “ample” evidence that the 1891 Agreement was indeed a contract, now ruled in favor of the trustees’ motion for summary judgment in the new suit filed by the seven alumni plaintiffs. It is important to understand, however, that this new ruling rested, not on the merits of the case, but on whether the alumni had standing. Believing the judge erred in his view, these courageous Dartmouth alumni decided to file an appeal in the New Hampshire Supreme Court. Speaking through their attorney, Eugene M. Van Loan III, the plaintiffs made the following statement:

“Our decision to appeal is one which we have made with great reluctance. We would have much preferred if the executive committee of the Association had honored its pledge to restore parity through negotiation. However, if there have been negotiations on the subject, they must be taking place in secret because we have seen no public announcements about them and, in any case, they obviously have not borne fruit.

The Board of Trustees says the 1891 Agreement was not a contract; they claim it was a mere gratuity. If they are right, they are right. But we should be permitted to test this in court. Instead, we are being denied that opportunity because the Association’s executive committee, in league with the Administration, pulled a fast one. By withdrawing the prior lawsuit “with prejudice” the executive committee was not negotiating; it was capitulating. We didn’t agree to that and neither did our fellow alumni.

We believe we have a right to parity under the 1891 Agreement. But we did not bring this lawsuit just to vindicate some abstract legal right. We believe in parity for its own sake. It is part of what has made Dartmouth College the superb educational institution that it is.

We absolutely do not want to harm our beloved alma mater. But the harm has already been done – by the abrogation of parity.”

“Parity”, Dartmouth’s unique form of governance, stems from an agreement between the College and its alumni in 1891, after more than two decades of contention. The alumni pledged to extricate the College from its financial straits only if the board would agree to a number of trustees elected by the alumni equal to the number appointed by the entire board. By all accounts, implementation of this pact has been – until recently – a roaring success, making the College the envy of the Ivy League and beyond.

Only this current lawsuit has the means of restoring the parity that the College’s trustees have wrested from alumni.

As you all know, on November 18, 2008, faced with the specter of a Dartmouth Board of Trustees that continues to reject parity and an Association of Alumni executive committee that has sought to extinguish the 117 year right of parity by giving up its own lawsuit “with prejudice”, a representative group of individual Dartmouth alumni filed suit in the Grafton County Superior Court to enforce the 1891 Agreement, to restore parity, and to ensure the preservation of the unique governance model that has placed the College in the forefront of American educational institutions.

On February 2, 2009, the Trustees responded to the alumni plaintiffs' petition.

On July 18, 2009 the Trustees filed a "Motion for Summary Judgment" seeking to short-circuit judicial review of the validity of the 1891 Agreement. The Trustees motion claims that individual alumni have no standing to enforce the 1891 Agreement and, in any case, that the Association's withdrawal of the earlier suit "with prejudice" bars any new suit.

Prior to that, there was a period for discovery. (More about this later.)

On Friday, September 2, 2009, the group of seven alumni plaintiffs filed their Objection to the Trustees' Motion for Summary Judgment. The alumni group’s request that the judge deny the Trustees’ motion counters the contention that the matter has been laid to rest by the court. In their court filing, the alumni argue that the June 2008 dismissal by the Association of the previous lawsuit “with prejudice” was “a product of collusion and bad faith.”

The plaintiffs claim that the "with prejudice" filing was done in secret and without the authority of the body of alumni. Outlining the “collusion and bad faith” involved in ending the earlier lawsuit, the alumni argue that the College “virtually commandeered the entire process. For it was the College that selected the Association’s new counsel; it was the College that managed the process; and it was the College that even dictated the terms of the stipulation.”

This court filing is the latest salvo in a two-year battle between Dartmouth alumni and their Alma Mater. In September 2007, Dartmouth Trustees unilaterally decided to “pack” the college’s board and guarantee that alumni-selected Trustees would permanently be in the minority.

On Friday, September 04, 2009, the plaintiffs were joined in their efforts to enforce the 1891 agreement and to secure a restoration of parity by Professor Todd Zywicki. Through counsel, Professor Zywicki filed a motion to permit the filing of an amicus brief, supporting the alumni plaintiffs. Professor Zywicki had previously served on the Board of Trustees as an Alumni Trustee,. However, earlier this year in what his fellow Alumni Trustee T.J. Rodgers has described as a "kangaroo court proceeding", Professor Zywicki was denied a second term on the Board.

The amicus brief describes the contributions that Alumni Trustees have made to Dartmouth and the importance of having them serve on the Board. It also recites in detail the College's efforts to silence the Alumni Trustees' voice, including but not limited to its breach of the 1891 Agreement. Harvey Silverglate, author of several books on academic freedom, is the lead lawyer on the team which prepared the amicus brief.

As we await this resolution, I call your attention to some potentially explosive items revealed—most reluctantly—by the Administration during the discovery process. Chief among these is Exhibit Y in court documents: notes purported to recount a conversation between David Spalding, Secretary of the Association of Alumni, and John Mathias, its president, in the days immediately following the new Executive Committee’s request for dismissal of the Association’s lawsuit which had been filed in the name of the Association by the previous executive committee in 2007 to preserve the 1891 Agreement and the equal balance on the board of trustees between self-selected and alumni selected trustees.

Exhibit Y stands as clear evidence of gross violation of fiduciary duty by the president and secretary of the Association of Alumni of Dartmouth College. These notes encapsulate their discussion of what they believe has been their success in killing the 1891 Agreement( ‘1891 dead forever’, ‘John[Mathias] theory new to Sullivan + Cromwell’, ‘only basis bec w/dr w/ prejudice’) and plotting further action to make absolutely sure it is dead forever ( ‘So negotiate 1891 agreemt away—to give Bd right to run the College’, ‘But 6 majority-could endorse’).

Read Exhibit Y for yourself by going to: www.HanoverInstitute.org/ExhibitY.pdf

And read as well the very good historical summary of the sellout of our traditional alumni rights by the current Executive Committee. That summary can be found in the Plaintiffs’ Objection and Response to the Defendant’s Motion for Summary Judgment—also reproduced here.

These items offer clear proof that the current Executive Committee (which I had earlier called the Quisling Executive Committee) is guilty of betraying the alumni they were elected to serve. While claiming to be negotiating with the trustees for the interests of alumni, they have in fact colluded with the alumni’s adversaries, not just to withdraw the Association’s lawsuit but to have it dismissed with prejudice, thereby attempting to make any further legal challenge to the board’s abrogation of the 1891 Agreement impossible. It is no accident that in all the glossy brochures, emails and postcards coming from Blunt Hall( the Ministry of Truth) you have never been informed of that “with prejudice” maneuver.

It is the current lawsuit, necessarily filed by individual alumni, not by the Association, that has brought these despicable actions to light; it is the current lawsuit that alone represents the last chance to restore parity. Clearly then, for those who have eyes to see and ears to hear, the current lawsuit could turn out to be very good for Dartmouth College.

Last Updated:  Tuesday January 25, 2011

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