Zywicki ’88 files brief in alum. suit
By Anya Perret, The Dartmouth Staff
Published on Tuesday, September 15, 2009
Former Dartmouth Trustee Todd Zywicki ’88 has submitted a brief in support of the ongoing alumni lawsuit against the College, just five months after the outspoken alumnus was denied reelection to a second term on the College’s board – a process which has historically been routine.
The current lawsuit is the second legal challenge to the Board’s September 2007 decision to increase its size by adding additional Board-appointed members. The plaintiffs in the case argue that the decision violates an 1891 Board resolution that they believe legally requires parity between the number of Board-selected and alumni-elected trustees.
Zywicki’s amicus brief, submitted Sept. 4, argues that the court ought to deny the College’s motion for summary judgment, which would allow the case to be decided without a trial.
In the brief, Zywicki argues that his April removal from the Board reflects a trend of “unhealthy groupthink” and “mounting disdain for student and alumni input.” He also argues for the importance of alumni-elected trustees like him, highlighting his work with Trustee T.J. Rodgers ‘70 on issues like faculty hiring and fundraising. His brief also contends that the 1891 resolution is legally binding.
Zywicki, in an interview with The Dartmouth on Monday, said that after reviewing the motion for summary judgment submitted by the College, he felt his perspective as a Board member and a legal scholar could help the plaintiffs’ case.
“I understand that the main issues in this current case are res judicata and whether the alumni plaintiffs have third party standing, and I think the plaintiffs and their attorney address those issues in a very compelling manner,” Zywicki said. “I decided to prepare [an amicus brief] because I thought I had a unique perspective on why enforcing the contract is good for Dartmouth and why breaching it has destroyed a model of good nonprofit governance and replaced it with a bad one.”
Zywicki said that he did not consult with the plaintiffs or their attorney while preparing his brief.
The lead attorney on Zywicki’s brief, Harvey Silverglate, is the chairman of the board and co-founder of the Foundation for Individual Rights in Education, a non-profit organization concerned with individual rights at American colleges and universities, according to its web site.
Silverglate said in an interview on Monday that he was compelled to contribute to the brief because he believes that the College is being run by an “administrative class” that limits free speech and academic freedom.
“The 1891 agreement allowed Dartmouth alumni to elect trustees who didn’t parrot the administration’s values,” he said. “This made Dartmouth a model of good governance. Now, Dartmouth is in danger of not maintaining the past level of excellence unless alumni take their ability to exert meaningful input and influence.”
FIRE has been critical of Dartmouth in the past: The organization originally awarded Dartmouth a “red light” rating on free speech, which was subsequently upgraded to “green light” in 2005 after the College’s policies on the matter were clarified.
FIRE has also been outspoken in its support for the effort to maintain parity on the Board of Trustees.
When reached for comment on Monday, Adam Kissel, director of FIRE’s Individual Rights Defense Program, said that the organization had not yet had time to consider whether it would comment on the case or the amicus brief.
The College can file an objection to the amicus brief before the judge decides whether it will be admitted as evidence.
Bob Donin, the College’s general counsel, said he was still considering whether to file an objection when reached by The Dartmouth on Monday.