Dartmouth College: Parity Imperilled

Hanover, New Hampshire has lately begun its own legal education: attorneys, state representatives, and judges have all come out on various sides, and to various degrees, for and against a lawsuit filed by Dartmouth College’s Association of Alumni against the College itself, alleging that recent plans by its Board of Trustees are in violation of a century-old legal compact between school and alumni which guarantees alumni the right to elect half the school’s Trustees.

A little background:

1891 meant tough times for Dartmouth College: financially in shambles, it turned to its famously loyal alumni for support. Men came forward from across the country to help rebuild the school and were given the right to elect half of Dartmouth’s Trustees in recompense.  The arrangement, known as parity, held strong for over 100 years. For every seat available for election, College administrators regularly proposed a slate of hand-picked rubber stamp candidates, culled from the loyal ranks of administrative sycophany; men and women who never outgrew their need for the teacher’s gold star.  These slates often competed with alumni-nominated “petition” candidates, drawn from the democratic masses.

Three straight petition candidates won Board seats in the last several years. Administrators attempted to force a new alumni governance constitution down their constituency’s collective throat and were defeated at the ballot box; a fourth petition candidate (Professor Stephen Smith, of UVA Law) rolled to victory, solidifying a minority voice on the Board (ironically termed, since it represented the majority of alumni, as evidenced by its democratic majority in elections, in its vocal support of athletics, Greek houses, classical liberal arts courses, and an emphasis on undergraduate teaching). 

Predictably, Dartmouth administrators reacted poorly and current Board members sought, by a shaky majority, to enlarge the Board. The new seats would be filled with selected, rather than elected, Trustees.  Basis for the selection of the would-be Trustees was murky; these new candidates would be picked and seated, ensuring that petition candidates would never be able to overcome a 2-1 voting deficit on the Board. Alumni attacked the move as back-dealing, underhanded, anti-democratic and, above all, in direct and illegal violation of the 1891 contractual guarantee of parity.

Today:

Dartmouth’s Association of Alumni, an independent body with the power to take action on behalf of its members (all living alumni – membership is automatic with graduation) recently filed suit against the College itself, alleging the board-packing is illegal in that it constitutes a breach of contract. Their argument: the College offered parity in exchange for financing. Alumni delivered financing, the College delivered parity… and now seeks to retract it, following over 100 years of precedent and good faith dealings. 

New Hampshire civil courts have already dismissed a College motion to throw the suit out; a local judge found the suit sufficiently with merit and legal precedent to continue.

Both sides have engaged expensive lawyers: the College has chosen to outsource the matter, bypassing in-house counsel Robert Donin in favor of  Richard Pepperman II, a former clerk to Chief Justice William Rehnquist and currently a partner in the New York office of litigation powerhouse Sullivan & Cromwell.

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2 Responses to Dartmouth College: Parity Imperilled

  1. alumnus says:

    Now that you’ve attended law school for a while, do you still think the plaintiff actually believed any court would grant it specific performance of an illegal parol contract from 1891, especially when the only written evidence describes nothing more than permission (not a right) to nominate (not elect) a specific number (not proportion) of alumni? One thing you’ll learn in your ethics class is that a lawyer can argue a position he does not believe in, and even one he does not expect will win. What would make you think that this lawsuit was anything but an attempt to prompt a settlement, and that the plaintiff ever thought it had a chance?

    Any comment now that the democratic vote of alumni has shown an overwhelming disfavor for the lawsuit and caused its dismissal?

    • Andrew Eastman says:

      I’m sorry for the tardiness of the reply; I’ve been away and am just now diving back in. No, I don’t believe any court would order performance of the 1891 agreement, although I believe it is a valid contract, because the issue is too archaic, and really only interesting to Dartmouth alumni. I believe filing this suit was one side’s “nuclear option,” just as expanding the Board with charter members was the other side’s. I do believe that the permission (not right, I agree) to nominate (not elect, I agree) a plurality of trustees, having been acted on agreeably for over 100 years, can be enforced as a matter of equity. Certainly there’s been reliance. But first-year law school smarminess aside, I believe plurality is essential to the College. I wouldn’t disagree that a larger Board would improve its own performance; but why not trust us to elect that Board ourselves? Aren’t we smart enough?

      To the legal argument, again: they use an example in Contracts I, which I’m sure will show my inexperience but which I also believe is applicable: if my neighbor lets me walk across his yard for 50 years, and then on the 51st year tells me I’m not allowed to anymore, after I’ve relied on that right for 50 years, I have grounds for action.

      As for the majority of alumni voting to end the lawsuit, I agree that most alumni disfavor it, and I don’t blame them. But I don’t believe a vote to end a public, nasty law suit is the same as a vote of confidence in what our trustees have done, or approval of their methods.

      Again, I’m sorry for the late reply, and thank you for your time and comments.

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