College files motion to dismiss alumni lawsuit
By William Schpero, The Dartmouth Staff
Published on Friday, October 26, 2007
Web Update, last updated on Oct 26 | 12:08 pm
As the legal salvos continue to fly, College lawyers filed a motion today to dismiss the Association of Alumni suit that seeks to bar Dartmouth from adding eight new members to the Board of Trustees.
The College's legal response follows an Oct. 3 filing by the Association requesting a preliminary injunction barring the board from adding the new members and a separate request seeking a long-term enforcement of alumni representation and parity on the board between the number of alumni-elected and board-selected trustees.
"I feel that the over 8,300 alumni who voted for me are horrified by the idea that the Alumni Association is suing the College," said David Spalding '76, vice-president for alumni relations at Dartmouth and a member of the Association executive committee, in a past interview with The Dartmouth. "I think that the Association is continuing to make policy arguments; they are not making legal arguments, and those policy arguments are not going to be decided by the courts."
Spalding was one of three Association leaders who voted against the suit.
Although the board had originally suggested that it might appoint the new trustees at its November meeting, it appears now that it will wait at least until after the new year. The College argues in its response today that the Association's preliminary injunction is irrelevant as the court should have time to decide the merits of the case before the College moves forward with the board addition. The board now plans not to appoint any new trustees before February.
The central debate the court must decide is whether the board is bound to parity. In the Oct. 3 filings, the Association argued that the College entered into a contractual agreement to do so in 1891.
"Resolved, that the graduates of the College, the Thayer 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," a resolution of the 1891 board states.
The resolution does not explicitly mention parity with respect to the number of alumni-elected trustees and charter trustees, although the addition of five alumni-elected trustees at the time of the resolution gave the board as many alumni trustees as charter trustees. The 1891 creation of this balance, and its century-long perpetuation, has prompted some current alumni to contend that the College is bound to that balance.
"The Board seems to be taking the position that it alone should determine what is best for Dartmouth," said Frank Gado '58, a member of the Association executive committee who voted for the lawsuit. "We are saying that the alumni are part of Dartmouth College and we have as alumni a right and an obligation to have input."
The College, with its response today, asserts that the Board is not bound to any resolution on the number of alumni-elected trustees or the method of their election and is given complete discretion on such matters by the College charter.
"Contrary to the Association's contention, the Board's 1891 resolution was simply that -- a Board resolution and not a legally binding contract," the College's motion to dismiss states. "The Board thus remained free to modify or rescind it by adopting a superceding resolution in the exercise of its fiduciary duty."
In the motion, the College contends that the 1891 resolution is not a legal contract because it does not meet the legal criteria for such an agreement. More principally, the College dismisses the contractual argument by maintaining that the Association, as an unincorporated organization, could not enter into a legal contract in 1891.