Honoring the 1891 Agreement
By Todd Zywicki, Guest columnist and a trustee of the College
Published on Friday, August 3, 2007
Since 1891, Dartmouth's alumni have elected half of the Board of Trustees, a right memorialized in several Board resolutions adopted at the time and traditionally referred to as the "1891 Agreement." In recent communications to alumni, however, Chairman of the Board Ed Haldeman questioned the validity of this longstanding agreement. "If you read the resolution," he 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.
The 1891 Agreement was finally reached after decades of agitation by the alumni who were infuriated by poor College leadership and hidebound trustees. Dartmouth needed money; alumni refused to provide it without alumni representation on the Board. One proposal was for alumni to elect all ten trustees (excluding the two ex officio seats reserved in the Dartmouth charter for the College president and New Hampshire governor), but alumni accepted a compromise guaranteeing them the right to elect half.
A revolutionary deal was struck. Three incumbent trustees immediately resigned and were replaced by alumni-elected trustees. The following year the alumni elected two more, giving the alumni half of the non-ex officio seats. In return, the alumni provided the generous financial support and loyalty for the College for which they remain renowned today. And the College has flourished.
When interpreting the meaning of an agreement context matters. And context reveals that the concept of parity is embedded in the Agreement. In 1819, the U.S. Supreme Court famously held that Dartmouth's charter was a contract between private parties that could not be modified by the state legislature. As a result, nineteenth-century legal opinion feared that it would have been unlawful for the College to enlarge the Board beyond the size of "twelve and no more" (including ex officio trustees) stated in the original Charter, thus effectively capping the number of appointed trustees at 10 in perpetuity.
Consequently, it would have been redundant to elaborate that "five" trustees was then and always would be equivalent to "half" of the Board. In fact, concern that an amendment to the charter would be unlawful also explains why the Agreement was never formalized in the charter itself but remained a separate agreement between the board and the Association of Alumni. Mr. Haldeman's assertion that the Agreement only guaranteed the right to elect the "next five trustees" is also incorrect. It is contradicted by the express language of the Agreement, which provides for the "election of [the] successors" of the original alumni trustees -- irrefutable proof that the right memorialized in the Agreement was to continue in the future.
Eventually the College was permitted to expand the size of the Board from twelve to its current size of eighteen. Each expansion added one new elected trustee for every additional appointed trustee, thereby repeatedly ratifying and reaffirming the promise of parity in the 1891 Agreement.
Other possible stratagems would contradict the intent of the 1891 Agreement. Consider the so-called "Harvard Plan": a two-tiered board, with a tiny unelected Executive Committee that exercised all the power and a larger, elected but figurehead "alumni committee." In fact, during the nineteenth century Dartmouth alumni repeatedly rejected a similar proposal in favor of the stronger role for alumni embodied in the 1891 Agreement. This history demonstrates the inconsistency between a Harvard-style scheme and the bargain that was finally sealed.
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.