The Dartmouth Association of Alumni made the latest filing in its ongoing lawsuit against the College in Grafton County Superior Court on Friday. The filing, a response to the College's Oct. 26 request that the court dismiss the suit, highlights the tradition of all alumni who are elected to the board as nominees actually being appointed, among other factors, as evidence of the board's alleged contractual obligation to have a consistent structure of alumni representation. "Reviewing our lawyers' response to the College's motion to dismiss confirms my confidence in the strength of our case," Frank Gado '58, a member of the Association executive committee who voted in favor the suit, said in an e-mail. "The Executive Committee, with only three of its eleven members voting in opposition, initiated this lawsuit with grave regret after every effort at another solution was rejected by the Board."
The Association originally filed the suit against the College on Oct. 3, following a September Board of Trustees resolution that added eight trustees to be selected by the board, rather than by alumni. This action ended the century-long parity between alumni-elected and "charter" trustees. It has prompted protest from some alumni who believe that the proportion of alumni-elected representatives should not be diminished. In filing suit, the Association hopes to enforce parity by barring the College from making the specified changes to board structure.
The central issue of the suit is whether an 1891 board resolution -- which at the time created a balance between these two groups on the board -- legally binds the board to parity.
In its brief filed Friday, the Association argued that the court should consider the resolution in conjunction with other oral and written agreements made at the time, rather than by itself.
"The Association has never contended that the resolution itself is a contract," the brief says. "To the contrary, the Association contends that the parties' oral agreement, the trustees' 1891 board resolution, the Association's reciprocal resolution the next day adopting the parties' 'agreement,' and the parties' return performances together are evidence of a legally enforceable contractual relationship."
Despite this, the College has argued that the resolution is not a contract because the Association, as an unincorporated organization, does not have the authority to enter into a legal agreement. In addition, the College has said that the resolution is not binding because the trustees "lack the power to delegate to a third party the fiduciary responsibility to select trustees."
The College argues that the Association does not technically have the authority to select new trustees, as that responsibility rests with the board. As a result, those individuals who win alumni elections for the board still need to be approved by it.
"In 1891, after many years of debate, the trustees concluded that the interest of Dartmouth would be best served at that time my permitting alumni to nominate a 'suitable' person for each of the five trusteeships, then one-half of the elected members of the board," the College's Oct. 26 motion states.
The Association attempts to refute this claim by citing one of several suits brought by William Tell '56 against the College in the 1990s.
"In the Merrimack County case, the College argued that it was legally obligated to seat the Association's choices for alumni trustee to one-half of the board seats: 'Seven of the [fourteen] elected members of the Board are nominated by the alumni of the College. The nominees' names are then transmitted to the Board and the Board then must act to elect, or seat, the alumni's nominees,'" the Association's opposition to the motion to dismiss says.
In countering these claims, the Association asserts that the board has been ignoring its duties if it is the only body that has the authority to select new trustees because half of the trustees have been selected through an Association-mediated electoral process.
"Indeed, under the College's reasoning, even its present plan -- which delegates to the alumni the power to appoint one-third of the trustees -- constitutes a breach of the trustees' fiduciary duties," the Association states in its response. "Such reasoning cannot be credited."
The Association also cites several past cases as precedent for unincorporated organizations entering into legal contracts, a response to the College's claim that such organizations do not have a right to do so.
Bob Donin, Dartmouth general counsel, said that the College will respond to the Association's Friday filing when its files its next brief on Dec. 6.
"The Association's brief contains nothing to justify freezing Dartmouth's governance in the nineteenth century, while other colleges are strengthening their systems for today's competitive environment," he said in an e-mail.
