Preparations for a legal battle over the Dartmouth Board of Trustees' right to diminish alumni representation on the Board are in advanced stages, as lawyers on both sides are primed and ready for at least one near-certain lawsuit that will ensue if the Board votes to change its structure at its meeting this weekend.
The Association of Alumni's executive committee has issued the College a request to preserve documents related to the Board's decision for purposes of discovery and has retained Washington-based law firm Williams & Connolly, according the Association Second Vice President Frank Gado '58.
The Board currently consists of as many alumni-elected trustees as Board-selected charter trustees. The Board this weekend will announce the results of its governance committee's review of the Board's structure, which may decrease the ratio of alumni trustees to charter trustees.
Both leaders of the Association of Alumni and some current trustees have raised questions about the Board's right to make such a change unilaterally. They say that a resolution passed by the Board in 1891 that made five charter seats into alumni-elected seats, thus creating the half-and-half Board that still exists today, may bind the Board to maintain parity in the future.
Alumni Trustee Todd Zywicki '88 wrote an op-ed published in The Dartmouth in August that implied the "1891 Agreement" was a binding agreement between alumni and the College that guaranteed the alumni a certain fraction of the Board in exchange for donations to the College.
"[The 1891 Agreement] promises the alumni body the right to elect half of the Board of Trustees," Zywicki wrote, citing his experience as a professor of contract law.
Zywicki denoted the parity that has existed since 1891 as a "right" of the alumni, based on the "context, history, language, tradition, intent and practice" of what he refers to as the "1891 Agreement."
But Zywicki's interpretation isn't without its critics. Kate Stith-Cabranes '73, a professor at Yale Law School and a former trustee of the college from 1989 to 2000, said that electing trustees was an interest of some alumni, but not a legal right of the alumni.
In an essay published by The Dartmouth Independent in late August, Stith-Cabranes argues that the Association of Alumni, as an unincorporated organization, was not legally able to enter into a contract and that the alumni did not feel an additional obligation after the resolution's passage to donate money to the College.
Zywicki responded to Stith-Cabranes on Sept. 3 in a post on The Volokh Conspiracy, a blog to which he regularly contributes. In his response, Zywicki contends that he had neither contended that the "1891 Agreement" was legally enforceable nor made any legal arguments in his August op-ed.
Instead, he wrote that he had stated his personal opinion that the resolution was in fact an agreement between the Board and alumni and that the Board should honor it. He wrote that as a trustee he is "constrained from expressing any legal opinion" on the matter.
Zywicki did, however, present his critique of Stith-Cabranes's legal opinion.
"Although I am constrained from expressing my opinion publicly as to whether the 1891 Agreement is a 'contract,' Professor Stith-Cabranes manifestly has failed to demonstrate that it is not a contract," he wrote.
When reached by The Dartmouth, Zywicki said he was unavailable for comment.
The College has also sought legal advice on the issue. Board Chairman Ed Haldeman '70 said that that Board would not take any action "unless they had incredibly strong legal counsel telling them that it was okay to do so."
Haldeman added that he believed the Board did have the right to take such action unilaterally.
"The Board wouldn't do it casually," he said.
Staff Reporter Katy O'Donnell contributed reporting to this article.
