The College's legal woes may come to an end today, as the Grafton County Superior Court is scheduled to hold a hearing on whether the Association of Alumni's lawsuit against Dartmouth should be dismissed. The hearing marks the culmination of a three-month-long struggle between the Association and the Board of Trustees over the trustees' decision to make significant changes to the College's governance structure in June.
The Association initially filed its suit on Oct. 3, seeking an injunction that would stop the Board from moving forward with its plans to add eight new trustees. The College responded 23 days later by filing a motion to dismiss the lawsuit.
At the heart of the debate is whether the College's Board is bound to the current tradition of having an equal number of alumni-elected and Board-selected trustees. The disagreement centers on whether a 1891 Board resolution -- which created parity between these two groups at the time -- is a legally binding contractual agreement.
The resolution does not mention parity with respect to the number of alumni-elected trustees and charter trustees, although the resolution's addition of five alumni-elected trustees at the time gave the Board an equal number of charter and alumni trustees. The Board has maintained that balance ever since, prompting some alumni to contend that the College is bound to such a parity.
The Association argues that the court should consider the resolution in conjunction with other oral and written agreements made in 1891, rather than by itself.
"The Association has never contended that the resolution itself is a contract," one of the Association's briefs states. "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."
The College has argued that the 1891 resolution is not a contract because there is no definitive stipulation of what the alumni must provide in return for the College's actions. Legal contracts require that there be negotiated benefits for all parties involved. The Association's motion maintains that the 1891 document promises alumni will "raise funds" and "take a livelier interest" in College administration in exchange for representation on the board.
The College says that such promises are "amorphous" and "do not constitute valid consideration."
The College also purports that in 1891 Dartmouth did not have the ability to give alumni the right to select trustees and that the Association, as an unincorporated organization, did not have the authority to enter into a legal agreement.
The various alumni constituencies at the College have ended up on both sides of the issue. The Alumni Council filed an amicus brief on behalf of the College on Nov. 8.
Despite promises of Board solidarity, the four trustees elected to the Board by petition also filed an amicus brief, but on behalf of the Association.
The brief differs from past Association filings, as it argues that equal representation for alumni-elected Board members is necessary not simply because of any legal requirement, but also for the betterment of the College.
"As a result of recent elections, positive reforms have been made at Dartmouth," the brief states, in reference to the election of Rodgers, Robinson, Zywicki and Smith. The brief adds later, "By virtue of alumni's equal share in the governance of the College, Dartmouth is in the strongest position in its history."
The four trustees argue that the Board's effort to change Dartmouth's governance system undermines any positive effect that may come from equal alumni representation on the Board of Trustees.
"The Board's decision was not only unlawful but flatly contrary to the best interests of Dartmouth," the brief states.
The lawsuit's legacy, no matter the ultimate decision in the case, may be short-lived.
The long-term effect of any ruling by the courts is complicated by legislation set to come before the New Hampshire House of Representatives this year. The bill, sponsored principally by Rep. Maureen Mooney, R-Merrimack in response to the alumni controversy, seeks to repeal a 2003 law that gave the College the right to amend its charter without the permission of the state.
In repealing this law, Mooney's legislation would allow the state to potentially "check" any changes the College makes to its charter, including those regarding the structure of the Board of Trustees.
It is uncertain whether a judgment on the motion to dismiss will be given today following the arguments. Superior Court Judge Timothy Vaughn, who is presiding over the case, could choose to take the matter "under advisement" and later issue a written opinion on the motion to dismiss the lawsuit.
The Association has yet to decide whether it will appeal the decision in the case of a denial, Frank Gado '58, a member of the Association executive committee, said.
"Looking at our case, it seems highly improbable that it will be dismissed," Gado said, adding later, "[An appeal] depends on what the judge's ruling said."
Dartmouth's general counsel, Robert Donin, discussed his regret that the College has had to devote resources to what he called a "wasteful litigation process" when he spoke to The Dartmouth on Tuesday.
"What's really at stake here is the College's ability to have the kind of governing board that will keep Dartmouth strong and competitive with the finest educational institutions in the country," he said.
