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History lessons at Dartmouth
This spring, Dartmouth alumni elected University of Virginia law professor Stephen Smith to the board of trustees, and in response, longstanding debates about who should be running the College are flaring up again. As Smith noted in an op-ed last month, "Before the ink was dry on the press release announcing my election to the Board of Trustees last month, we were let in on a secret: a Board committee from which petition trustees have been excluded is exploring alternative methods of selecting Trustees--a euphemism, really, for stripping Dartmouth alumni of their longstanding right to elect half of the Board."
One of those "alternative methods" involves challenging Dartmouth's "1891 Agreement." Consisting of several Board resolutions adopted in 1891, the agreement granted alumni the right to elect half the College's trustees. George Mason University law professor Todd Zywicki, a Dartmouth trustee who ran as a petition candidate in 2005, explains the idea in a piece appearing in the Dartmouth student newspaper, The Dartmouth. "In recent communications to alumni," Zywicki notes, "Chairman of the Board Ed Haldeman questioned the validity of this longstanding agreement":
"If you read the resolution," [Haldeman] claims, it "didn't promise parity," does not "contain the word or concept of parity in it" and merely permitted "the alumni to nominate the next five trustees for the Board to then elect." Haldeman adds that there "seems to be a great deal of confusion about the 1891 'agreement.'"
It is Chairman Haldeman's expression of doubts about the Agreement that has created confusion-- confusion about the Board's intentions and its commitment to honoring Dartmouth's longstanding and beneficial partnership between its alumni, the Board, and the administration.
Mr. Haldeman challenges us to read the 1891 resolution for ourselves. I have--and I am not only a lawyer but a professor who has taught contract law for over a decade. 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.
Zywicki goes on to explain how the 1891 Agreement emerged from decades of tension between Dartmouth and its alumni--the College wanted alumni money, but alumni were unhappy with management of the college and wanted a say in how their donations were spent. A compromise was reached in which Dartmouth agreed to allow alumni to elect half the members of the board. At the time, Dartmouth had ten trustees, so alumni gained control of five seats. And over the years, as Dartmouth gradually expanded its board, it faithfully took care to ensure that for each new appointed trustee, another was elected by alumni--thus ensuring that alumni retained control of half the non ex officio seats, and thus staying true to the 1891 Agreement.
Now Haldeman is apparently arguing that the 1891 Agreement only promised alumni the right to elect five people to the board--and that therefore alumni today should only control five of the eighteen trustee seats. In so doing, Zywicki argues, Haldeman betrays both the spirit and the substance of the 1891 Agreement:
This partnership between alumni and the Board has governed the College for nearly half of its very existence--indeed it has defined modern Dartmouth itself. As a result of its unique tradition of former students representing current and future students, Dartmouth has remained distinct among its peers in maintaining undergraduate, liberal arts education as its first priority. 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. To change this tradition would be to change Dartmouth itself.
Standard principles of contract interpretation--context, history, language, tradition, intent and practice--all indicate that the 1891 Agreement means exactly what everyone has understood it to mean for 116 years: It promises the alumni body the right to elect half of the Board of Trustees. Let us honor that promise.
Zywicki thus brings a crucial dose of historical truth to a matter that has far-ranging implications -- not only for Dartmouth's governance but for the principle of independent oversight generally.
Posted by acta online on August 07, 2007 at August 7, 2007 02:50 PM
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Why would it occur to ACTA that these partisan hacks, these campaigners (Zywicki and Smith), are providing either the truth about the present or an historical account that is at all accurate? "Zywicki thus brings a crucial dose of historical truth"? Come on, the guy's advocating a particular position -- and his argument is a real stretch, to boot.
Here's the most important, most cited, and only publicly available resolution to which Zywicki refers. You tell me how you or he can possibly read "the five Trusteeships" to mean "the number of Trusteeships equal to this other group not nominated by alumni" (if you even agree that this resolution was meant to be a binding agreement and that it would be legal for the trustees to give away their oversight role and abrogate their charter responsibilities by authorizing third parties to elect board members):
1. Resolved; That the graduates of the College, the Thayer School, and the Chandler School of at least five years standing, may nominate a suitable person for election to each of the five Trusteeships next becoming vacant on the Board of Trustees of the College (excepting those held by the Governor and President) and may so nominate for the election of his successors in such Trusteeship.
2. And Resolved; That whenever any such vacancy shall occur in such Trusteeship or the succession thereto, the Trustees will take no action to fill the same until the expiration of three months after notice to the Secretary of the Alumni of the occurrence of such vacancy unless a nomination therefore shall be sooner presented by the Alumni to said Trustees.
3. And Resolved; That this plan of nomination shall be taken and held to supersede the plan heretofore adopted in 1876.
It's a good thing you threw "apparently" into the statement about Haldeman. He's not arguing anything close to what you attribute to him. At most, his few public comments suggest that he is arguing that the 1891 agreement does not promise parity. That's why Zywicki is making such a stretch to argue that "five" means "parity." If Haldeman is saying that the 1891 agreement does not promise "parity," he is so obviously right that it's not worth discussing. Unless you're a partisan hack.
Posted by: Anonymous at August 8, 2007 09:42 AM
Who is Anonymous? And why are you "anonymous?" I am not accustomed to paying any attention to someone who refuses to identify himself. What are you hiding?
Posted by: Jim Meredith, Dartmouth '52 at August 12, 2007 10:25 AM
Jim, anonymous people are hiding their identities. It's all possible on this new Interweb thing. You needn't pay them any mind. At least you know they are not trying to convince you of something on the strength of their names alone, right?
You should read former Trustee Stith-Cabranes' assessment of the kooky Zywicki/Smith idea that there is some kind of contract here if you have no faith in anonymous writers.
Posted by: Anonymous at August 28, 2007 11:01 PM
So does ACTA think that good governance is exemplified by a trustee's anonymous coordination or funding of a PAC that runs a website and a series of attack ads against his own board? Professor Smith has suggested that he is behind savedartmouth.org, and both he and Professor Zywicki were listed as its contact people.
Posted by: Anonymous at September 4, 2007 08:40 AM