College files response to Zwyicki '88 brief

by Ann Baum | 10/7/09 10:00pm

The College defended its recent governance decisions in its response to a brief filed by former Dartmouth Trustee Todd Zywicki '88 in support of the ongoing lawsuit against the College. In its Sept. 30 brief, the College asserts that Zywicki's arguments do not address the main issues of the case, but warranted a response so that "silence is not construed as acquiescence."

Zywicki's brief followed the College's motion for summary judgement, which was effectively a move to dismiss the case.

The current lawsuit is the second legal challenge to the Board of Trustees' September 2007 decision to increase its size by adding additional Board-appointed members. The alumni plaintiffs 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.

Dartmouth argued in its response that Zywicki did not address the legal concerns raised in Dartmouth's motion. Instead, the College argues, Zwyicki provided a "one-sided and, in some instances, inaccurate" discussion of Dartmouth's governance policies.

"We could not let such an inaccurate and unfair characterization of the Board of Trustees stand without a response," Bob Donin, the College's general counsel, said in an interview with The Dartmouth.

The College's brief addressed Zywicki's criticisms of the process by which he was denied reelection to a second term on the College's Board, a process that has historically been routine.

Zywicki argued that his April removal from the Board reflected "unhealthy groupthink" and "mounting disdain for student and alumni input."

The College contended, however, that a controversial speech that Zywicki gave in 2007 violated his fiduciary duties as a trustee. In the speech, Zywicki called former College President James Freedman "truly evil."

Zywicki's supporters, however, argue that he was unnecessarily punished twice once after the speech, when the Board reprimanded him, and a second time through the Board's decision not to reelect him.

The College also defended the 2007 decision to expand the Board, arguing that the move was in accord with and justified by the findings of the trustees' Governance Committee, which released a report that fall. Zywicki had argued in his brief that the decision was intended to appease alumni and donors.

Harvey Silverglate, Zywicki's counsel, said he believes Zywicki's brief addresses the core issues of the case and will affect the judge's decision. Silverglate described the College's response to the amicus brief as "mean-spirited and petty."

"I found [the College's response] unwilling to confront the real issues of proper governance of Dartmouth," he said. "It was an ad hominem attack on a very loyal and devoted and talented former trustee, and I have to say I was not surprised by it."

Zywicki said in an interview with The Dartmouth that the College did not respond to the "centerpiece" of his argument. He said the judge will rule in favor of the alumni if he applies the law correctly.

"I've been teaching [contract law] for 10 years, and this is the strongest third-party beneficiary case I've ever seen," he said.

Zywicki said he does not expect the judge to grant the College's motion for summary judgement because the facts of the case are contested. These facts, he said, will have to be decided at trial.