Monday, July 30, 2007

In Defense of Democracy

For a while now, I've been ignoring the brewing controversy over the Board of Trustees' decision to review the trustee election process. Since 1891, the Board of Trustees has been split between trustees nominated by alumni, and trustees elected by the board ("charter trustees"). The review process is seeking to determine whether this balance should be continued. The board's Governance Committee has undertaken this review, seeking to determine "what is in the best interests of the college." My decision to ignore this issue so far comes from my unease. I'm a liberal guy, so I'm reluctant to take generally conservative stances when it comes to Dartmouth politics, but I find the maneuvering by the board to be worrisome. It seems clear that this is Alumni Constitution plan B - another way to stop the threat of conservative alumni. But in truth, the proposal to change the composition of the board is wholly undemocratic.

The governance committee noted that trustees elections were "increasingly contentious," but isn't that the point of democracy? Contentious elections bring increased scrutiny on trustee candidates and hold them accountable to the public. Consider the contrast with the so-called charter trustee elections: charter trustee are selected quietly by the board and remain largely anonymous. Nobody knows who they are, what they stand for, how they're going to lead Dartmouth. But I can tell you all about Stephen Smith, and that's good. By exploring issues and candidates with a critical eye, democratic trustee elections bring transparency.

The Board of Trustees is placing present concerns over long term pragmatism. Over time, Dartmouth's alumni will be increasingly liberal, and many of today's concerns will become irrelevant. The 1891 agreement to split the board between alumni-elected trustees and board-elected trustees ensures that the board ultimately follows the will of the alumni. Some would say that the views of the alumni don't really matter, but that certainly cannot be the case. Without alumni control, Dartmouth would be running in a vacuum of its own self-perpetuating leadership. It would be like a Supreme Court that could choose its own successors. Who knows what direction its would take over many generations. An even split of trustees creates a system where the board remains firmly grounded to alumni control, but also more stable through its ability to counterbalance alumni decisions through its own choices. Without a large number of alumni trustees, Dartmouth would be like a corporate board operating without shareholders. The 1891 agreement ensures that we are the shareholders.

Edit: Several comments have raised concerns about my use of the word "shareholder." Of course, I do not think that alumni literally own Dartmouth, but I think it is an apt metaphor given the current power of alumni to nominate half of the board. One comment suggested that "stakeholder" would be more appropriate, but of course alumni are stakeholders - this is their alma mater.

25 comments:

Carey Heckman '76 said...

Dear David,

I very much appreciate your love and devotion to Dartmouth that causes you to spend so much time thinking about her and then having the courage to write about her in public. But it is precisely because I respect your best intentions for the College that I urge you to research your assumptions and re-think your position on trustee election, or else your poor foundation risks making you the poster child for why alumni should not have a direct voice in Dartmouth's affairs.

Your most fundamental error is believing alumni are Dartmouth's shareholders, that alumni control, or should control, Dartmouth. It is true that in the last hundred years or so, the shareholder metaphor has been used from time to time, primarily to spur alumni into contributing money. But as a lawyer and someone who taught at a law school for a number of years, let me assure you that the notion of alumni as shareholders or alumni controlling the College has zero basis in law or history.

The sovereign -- King George III and his successor, the State of New Hampshire -- created the Dartmouth College corporation to serve a public interest, specifically the education of English youth and others. The charter provides for a board of trustees to make sure the corporation serves that interest to the best of its ability. The charter and New Hampshire law impose various responsibilities and duties on the trustees to make sure they perform their duties diligently, honestly, and consistent with the public interest. A corporation without shareholders? Absolutely true. If the trustees fall short of their obligations, it is the Attorney General of the State of New Hampshire who takes action in court on behalf of the people of the State of New Hampshire to correct the situation.

Alumni have no more legal status in keeping the College on any straight and narrow than you have legal status to tell Saudia Arabia how much oil to pump even though you doubtless have purchased quite a bit of Saudia Arabian crude product in your life. Having had the privilege of attending Dartmouth does not give you a right to govern her.

The 1891 resolution of the board of trustees allowing the alumni to nominate some of the board members resulted from the College's desperate need for money and alumni refusal to do so unless the College were better managed. Perhaps ironically, the board of trustees of 1891 was extremely conservative. Alumni of the time wanted to see Dartmouth change must faster so it would be better suited to the fast changing times.

The 1891 resolution and its subsequent permissive interpretations definitely do *not* provide for alumni control of the board, as you wrote. The majority of the board is always in the hands of the Charter Trustees plus the president plus the governor of the State of New Hamsphire. It was never the intention of those adopting the 1891 resolution to cause the board to "follow the will of the alumni." I am completely confident no one of that time thought that was remotely a good idea.

It is not hard to imagine the danger of alumni will controlling the College.

Most alumni do not care. Even the constitution vote, with all its hype, publicity, passion, and significance, attracted less than 40% of alumni to vote. Many alumni voted against the new constitution as a protest to the intrusion into their daily lives by the constitution campaigning. They wanted to be left alone.

Worse, few alumni have the experience, information, or interst to know enough to make good decisions for Dartmouth. Few alumni know much of anything about what is involved with hiring, evaluating, retaining, or promoting college faculty today. Few alumni know much of anything about the significantly more complex student population landscape today and what it takes to attract, retain, or serve the student body that makes Dartmouth a credible top ten school. Few alumni understand how college athletics have changed so dramatically in the past 20 years, such as the elimination of junior varsity and freshman teams, the intensity of athletic recruiting, the extent to which some recruited athletes are accepted despite their lack of the grades or standardized test scores demanded of other students, the year-around time obligations imposed on college athletes, the special academic and personal behavior problems of recruited athletes in some sports, the financial cost of college athletics, and most tragic of all in my opinion, the extent to which the athletic opportunities for over 75% of the Dartmouth student body have been nearly extinguished so that varsity teams can pursue national championships in violation of at least the spirit of the Ivy Charter.

If you want an example of alumni influence on College operations run amuck, you need go no further than the reversal of the swim team elimination. Swimming and diving make no sense for Dartmouth. For at least fifteen years, the swim teams have been the worst or among the worst in the Ivy League. The team is so much slower than its Ivy competitors that not only does it lose nearly every Ivy meet, very few Dartmouth swimmers even qualify for the finals in the EISL championship. Dartmouth cannot afford to accept the large number of recruited athletes required to stock a successful swim team. Dartmouth also lacks the facilities or coaches that a successful team would need. On top of all that, swimming and diving serve no purpose for Dartmouth. It earns no glory for the College. Swim meets are the least spectator entertaining events in all athletics. Swimming and diving consumes large quantities of pool time, preventing its availability for more productive uses.

The administration and trustees made an intelligent decision to prune swimming and diving so that resources (recruiting, facilities, and third, money) could stop being wasted and instead could be redirected where they could do good. An organization survives only if it constantly assesses what is working and what is not and then makes rational changes as a result. A variety of things were once part of Dartmouth -- an agricultural school, an eye institute, a varsity boxing team, among others -- that were trimmed away because they no longer made sense.

Nevertheless, ill-informed alumni and helicopter swimming and diving parents launched a public campaign that embarrassed the College rather than worried itself with facts. I remain sad that the College failed to stand by its initially wise decision. But you have to wonder how it could make sense to operate a college or university based on public opinion. Indeed, a crucial virtue of a private school like Dartmouth is its insulation from politics, the capacity to do the right thing, not necessarily the presently popular thing.

The Founders of the United States fully appreciated the dangers of pure democracy. It scared the heck out of them, as it would anyone who has read and understood Plato, Aristotle, and others, or has a decent grounding in political history, or lives in California.

What makes democracy even more ludicrous for the Dartmouth board of trustees, in my humble opinion, is that it makes no sense because the voters have no way of knowing how any trustee has voted or argued and has no way of holding a trustee accountable for voting or arguing any particular position. Democracy under these conditions is nothing but a cruel joke.

You could argue for greater transparency, such as public trustee meetings and recorded votes. But be careful what you wish for. Do you really want a board that pays more attention to its public ratings than to what is best for Dartmouth College? Do you really want the trustees divided into political factions, posturing and posing for their popularity instead of working together for Dartmouth best interests? Do you really want a board of trustees populated by people who run for office rather than by people who can serve Dartmouth best?

I believe what we really want for the board are more closely analogous to good judges than congressmen or state legislators: wise, experienced individuals who are mostly protected from political pressures but instead have the integrity and character to decide for the overall, long term good. We should not elect trustees any more than we should elect Supreme Court Justices. We could elect those who select trustees (and hold those electors accountable for selecting good people), but I for one would not want to chase away the many high quality individuals who have better things to do with their time, money, and dignity than submit themselves to a bare knuckles, commercialized political campaign.

Once again, I really do appreciate your time, effort, and devotion. I hope you will take a second look at all this and come to a different conclusion.

Carey Heckman '76 said...

Oops, one more thing.

I did not mean to suggest that I condone what seems to have been far too much laziness or complaceny on the part of the Dartmouth board of trustees over much of the past 50 years or more. I believe too many of those who have been selected have viewed being on the board as an honor or reward, not a responsibility with obligations. Too many trustees appear to have been too willing to take a passive role, to get along by going along, failing to ask hard questions when hard questions needed to be asked.

Then again, the exact same things could be said of far too many public corporation boards over the past 50 or so years or more, the ones with those shareholders that you suggest would keep a board honest and engaged.

We definitely need to find the right balance between a board that keeps the administration on its toes and provides valuable help to Dartmouth but nevertheless does not micromanage, attempting to operate the College (as opposed to setting and enforcing policy) instead of leaving that to those hired to manage.

That balance is all the more important because the growing difficulty of finding, attracting, and keeping top management talent. No one should want Dartmouth to get a reputation as an impossible place to work because the board is gridlocked by political infighting or routinely engages in micromanagement. What quality person would want to be a president or vice president or dean or athletic director of a school with that kind of board of trustees?

Carey Heckman '76 said...

Oops, one more thing.

I did not mean to suggest that I condone what seems to have been far too much laziness or complaceny on the part of the Dartmouth board of trustees over much of the past 50 years or more. I believe too many of those who have been selected have viewed being on the board as an honor or reward, not a responsibility with obligations. Too many trustees appear to have been too willing to take a passive role, to get along by going along, failing to ask hard questions when hard questions needed to be asked.

Then again, the exact same things could be said of far too many public corporation boards over the past 50 or so years or more, the ones with those shareholders that you suggest would keep a board honest and engaged.

We definitely need to find the right balance between a board that keeps the administration on its toes and provides valuable help to Dartmouth but nevertheless does not micromanage, attempting to operate the College (as opposed to setting and enforcing policy) instead of leaving that to those hired to manage.

That balance is all the more important because the growing difficulty of finding, attracting, and keeping top management talent. No one should want Dartmouth to get a reputation as an impossible place to work because the board is gridlocked by political infighting or routinely engages in micromanagement. What quality person would want to be a president or vice president or dean or athletic director of a school with that kind of board of trustees?

Anonymous said...

David, you must have studied the difference between metaphor and literal description while at Dartmouth.

Calling someone a "shareholder" makes a nice metaphor. We know what corporate shareholders do, so in some contexts (a family might have "shareholders," for example, or a team), your metaphor helps explain a relationship.

You create a problem by trying to talk about "shareholders" in the context of the Board of Trustees, however. The Board of Trustees are a corporation. They are not like a corporation, they are a corporation, with a corporate charter from the state and a system of state regulations to obey, just like other nonprofit corporations.

This corporation does not have any "shareholders," and it is misleading to pretend that it does. You picked the wrong metaphor, and it makes you look ignorant.

At least use a word like "stakeholder," which does not suggest that you are under the impression that students and alumni own Dartmouth.

David Nachman said...

Professor Heckman--

Thanks for the general support.

My description of "shareholders" was merely a metaphor, but I think it suggests the current role of alumni, in practice.

While attending Dartmouth may not give me the fundamental right to govern Dartmouth, if not alumni, then who? I cannot understand why a self-perpetuating board would be ideal, even if in a legal sense they are the sole guardians of the college.

Of course there are dangers with pure democracy. That's why we don't have direct democracy, either at this college or in this country. The alumni may not be knowledgeable about faculty recruitment, student diversity, or athletics, but that does not mean that they cannot make informed decisions about trustee selection. There seems to be a general implication that recent alumni trustees have been less qualified than other trustees, but this doesn't seem to be the case. They merely have different political views.

You note that "we should not elect trustees any more than we should elect Supreme Court Justices." But at least we have input into Supreme Court justice choice, by electing the president. The Supreme Court also reveals the dangers of an important political body removed from democracy. Because of the Bush administration, the Supreme Court will likely have a conservative majority for many years to come, even as the United States is currently headed towards liberal dominance. The danger of an insular board is that it often is prone to the whims of circumstance. Inbred, it will take its own course, unchecked by elections.

I also find that among people in favor of reform, trustees are often treated as some sort of mythical creature - wise, all-knowing, demigods. As you pointed out in your second post, in reality, trustees are often passive and complacent. They are composed almost entirely of business leaders and lawyers - not educators or collegiate experts. In comparison, I have little doubt that the current number of conservative trustees on the board will ultimately benefit the college, by putting the college administration under increased scrutiny. Trustee elections, particularly contentious ones, shake things up, increasing interest and awareness of the board's activities. I really do not think that 40% turnout is particularly low. After all, many Dartmouth alumni are decades removed from college. If anything, I think that over the past decade, alumni have demonstrated that they do care about what's going on and want to play an active role.

Even if alumni make bad choices in trustees, the continuance of alumni trustees ensures that those mistakes are correctable. Without elections, if the board makes a bad choice, the future composition of the board will forever be affected. Yes, democracy is dangerous, but the absence of democracy is often catastrophic - a modern paradox. If Dartmouth has done fine for the last century, why change things now? Why react to current short-term conditions when the future is unknowable?

Anonymous said...

"if not alumni, then who?"

The Trustees.

"I cannot understand why a self-perpetuating board would be ideal."

No one is necessarily saying the self-perpetuating board is ideal, only that it is. This might be hard to stomach, but we can't do anything about it.

We could discuss, as Cary Heckman has, why it is proper and pragmatic that we can't change the structure of the board. But whether or not you are convinced that it is proper, we will still be unable to change it.

David Nachman said...

Anonymous 2:10 -

I'm not suggesting that the structure of the board be changed, only that the unofficial agreement to let alumni nominate half of the board is upheld.

Anonymous said...

If the comments on this site generally reflect alumni sentiment, there are two camps. Those who believe alumni should have any say in Dartmouth's future -- other than "I am not giving money to students because I disagree with the current administration" -- want to keep electing some trustees directly even if it politicizes the College's administration. Those who want alumni to chose between deferring to the opinions of the President and a few alumni leaders, on the one hand, and walking away disgruntled on the other, want the trustees to rein in electioneering and appoint all the trustees themselves.

These views are both valid. However, we already voted on this issue, when we voted on the alumni constitution. I cannot believe that the board-within-the-board is so assured of its correctness that it will discard the results of the well-informed (by hundreds of thousands of our dollars being puked back at us by mail) alumni electorate. I've had my intelligence insulted a lot of times, but seldom so flagrantly as when David Spalding told my elected representatives they couldn't communicate with their constituency.

I'm sure the people Dartmouth has collectively selected to shepherd it can figure out how to reduce the negative aspects of campaigning without rescinding the vote. If not, why don't you resign and let me try?

Carey Heckman '76 said...

I would not say that the self-perpetuating board model is ideal -- what political structure is ideal, after all? -- but it is certainly the most prevalent structure for nonprofits in the Anglo-American world. Many Dartmouth student organizations use a self-perpetuating board as well.

I can imagine at least three reasons why a self-perpetuating board makes sense.

First, the existing board members should know the most about the talents, experience, and availability required for a productive member of the Dartmouth Board of Trustees.

Second, selection by the existing board members should minimize, if not eliminate, the bad consequences of a general political process, such as selection of the person who only looks the best or creates the best oversimplifications or spends the most money or is willing to debase himself the most.

Third, selection by the existing board members means that new members join the board to serve the overall best interests of the College instead of owing a special debt and acting as if they have some representative obligations to a narrower faction.

At any rate, anonymous is correct. The self-perpetuating board is in the charter. I may be mistaken, but I believe the Dartmouth College Case instructs that the New Hampshire legisture can amend the charter only with the approval of the board. Don't hold your breath for that to happen.

However, I have nothing against keeping the present system of having some of the trustees nominated by the alumni. My objection is to using a democratic political process for a nonpolitical position.

I propose in the alternative that we adopt a republican (lower case "r") approach of alumni electing the nominating committee, on a staggered term basis, which in turn would select the alumni trustee nominees. I would have no objection to then having alumni cast an all-media approve-disapprove vote of the nominating committee's nominee. This would essentially track the system used to elect state judges in some states.

My proposal would politicize the nominating committee and depoliticize the trustees themselves. Our trustees would not have to become political hacks or mortgage their homes and could be selected based on the needs of the board for specific expertise. I agree with you wholeheartedly about the oversupply of lawyers on the present board, but I have to hasten to point out that it was the petition candidates who supplied the latest two of the oversupply. On the other hand, at least four of the present trustees could claim to be educators.

I don't think any well-informed person would question that some of the recent petition candidates lack the stature, experience, involvement with Dartmouth, or maturity historically associated with a quality Dartmouth trustee.

But far more important, the present system provides no assurance that future election winners will have the necessary qualifications. *That's* one of the biggest problems. The grave risk is that the trustee position will degrade, if it has not done so already, into a mere political trophy.

Another biggest problem, at least in my humble opinion, is that the present system misleads those who win the election into thinking they have some kind of electoral and representative mandate to pursue. That misimpression launches us towards a board that bickers and blusters. Our College needs much, much better than that.

Anonymous said...

A commenter wrote that "there are two camps. Those who ... want to keep electing some trustees directly [and those who] want the trustees to rein in electioneering and appoint all the trustees themselves."

That's incorrect. There are two camps, but they do not represent what appear to be equally valid opinions. They represent ignorance versus information. One camp believes that alumni elect trustees, and the other knows that they don't.

The fact that some alumni believe that they can elect members of the board of trustees does not mean that they can. Ignorance, myth, and confusion, however well-meaning or intensely felt, do not create a right to elect trustees.

David Nachman said...

Anonymous 9:23--

Just because alumni do not technically elect trustees but rather "nominates" them, does not mean that they do not elect them, de facto. The Queen of the United Kingdom can choose whoever she wants for prime minister; the President Pro Tempore of the Senate does not need to be the oldest member of the majority, etc. For many governing organizations, convention dictates, and just because it is unwritten does not mean it can be ignored.

Carey Heckman '76 said...

It can be ignored -- well, changed -- if the custom stops working. Customs that cease to make sense (freshman beenies, running the gauntlet, the Indian symbol, keg jumping, Tubestock, Winter Carnival queens, among others) should die. We have a word for people who keep doing something they know does not work: insane.

Within my lifetime, the all-important committee chairs in the US Congress achieved their position by custom solely through seniority. Those from safe districts or states and a willingness to keep running for reelection would inexorably get selected committee chair and remain the chair so long as they remained in Congress. It made no difference whether they were a drunk, a pedophile, corrupt, nentally deranged, or too far for comfort from being the sharpest tool in the shed.

Seniority became noticeably dysfunctional in the 1950s and 1960s when southerners seniored themselves into most of the committee chairs and used their power to block civil rights legislation, among other things.

The rules changed because it became clear seniority no longer worked as the sole way to decide who would chair a committee. Today, while seniority creates a presumption of promotion, it no longer guarantees it. Numerous examples exist of more senior members getting passed over by their leadership or caucus.

We alumni can preserve the tradition of being able to nominate trustees and having the board elect them without hesitation, but only if we have a system that delivers appropriately qualified nominees. Sadly, at present we do not.

The board of trustees would be derelict in its duty of due care not to take action to protect the board from mediocrity and disruption. Roman Hruskas claim that even mediocre people desreve a representative on the US Supreme Court (referring to G. Harold Carswell) should have no place when talking about our board of trustees.

However, I am sure the board would prefer that we alumni show the wisdom and maturity to solve this problem outselves instead of forcing the board to intervene. Alas, we are almost out of time.

Anonymous said...

"Just because alumni do not technically elect trustees but rather 'nominates' them, does not mean that they do not elect them, de facto."

Yes, it does.

The alumni do not elect trustees, technically or de facto. The trustees were given and continue to retain the duty and the discretion to elect trustees. Just because they accept the nominees of the alumni once or a hundred times does not mean that they have given up their discretion or their right to be the only ones who ever elect trustees.

Your only justification for the idea that "convention dictates" is the mere idea that a convention exists. The one obviously does not follow from the other, however. McDonalds, by convention, serves you every time you go in, and your employer, by convention, declines to fire you every day at work. But those conventions on their own can never become rights to be served or remain employed.

Just because the trustees always have exercised their discretion in a certain way is no justification for forcing them to continue to do so. It will not create any legal right, and beyond that, it does not make sense: We would not want that justification used against us in any other sphere, would we? So why do we try to get it to work here, against the trustees?

Anonymous said...

It is probably not the Dartmouth College Case but the state common law of corporations, as applied to the original terms of Dartmouth's Charter (written before the invention of the modern corporation's apparent ability to amend its own charter from the start) that required the trustees to get the legislature to amend their charter every time they wanted to change it. For example, the legislature had to amend the charter in 1961 when the trustees wanted to expand the size of the board.

Now that the legislature amended the charter (in 2003) to give the trustees a right to amend the charter themselves, the trustees are free to amend it so that the alumni have the right to elect Alumni Trustees directly.

The fact that the board could finally grant this right, of course, suggests that they never have (and never have been able to) in the past.

Carey Heckman '76 said...

Not to digress on a quibble, but the Supreme Court ruled in the Dartmouth College Case that the New Hampshire legislature could not modify the Dartmouth charter without violating the Contract Clause of the US Constitution. What the New Hampshire legislature could not do directly it certainly could not do through its corporations statute.

I can see how a New Hampshire statute could provide that future changes desired in pre-existing charters would require legislative approval. But my point was that, because of the Dartmouth College Case, the New Hampshire legislature could not unilaterally change the charter's terms unless the trustees first voted in favor of the proposed amendment.

When I was an undergraduate, I had to get the renewal application for WDCR's license signed by the College on behalf of the station owners, the board of trustees. Those working in the office of the Secretary of the College neatly crossed out the boilerplate printed words in the application form describing the Trustees of Dartmouth College as a corporation "under" the laws of the State of New Hampshire and replaced the
"under" with "before." It was excellent to see the Dartmouth College Case alive and well in Hanover, New Hampshire.

Tom Paine said...

My compliments to Carey Heckman for a detailed, judicious discussion of the question. He is right in many particulars, sometimes right in his facts but wrong in his logic, and occasionally wrong in his facts.

A full scale answer would take far more time (and space) than I can afford at this point, but one or two statements should meet with quick rebuttal.

"The 1891 resolution and its subsequent permissive interpretations definitely do *not* provide for alumni control of the board, as you wrote. The majority of the board is always in the hands of the Charter Trustees plus the president plus the governor of the State of New Hamsphire. It was never the intention of those adopting the 1891 resolution to cause the board to "follow the will of the alumni." I am completely confident no one of that time thought that was remotely a good idea."

No, not alumni control, but parity between the successors of the original, or Charter trustees and those chosen by alumni. (The latter, by the way, were "elected." Their "nomination" was a fiction maintained so that the charter would not be imperilled. Mr Ross finally acceded to the device under the theory that the trustees had the power to accept the nominee, as the agreement required them to do. Pettifoggery, but it satisfied Ross.

No one thought following the will of the alumni a good idea? Not so. The Boston association actually proposed that ALL trustees be elected by the alumni for a ten year term. As realists, however, they were willing to accept half a loaf. WHich is what they proposed.

Do alumni, ipso facto, have an inherent legal right to govern a college? No, but neither does anyone else. And I would argue that alumni has as much claim on attaining a de jure right to govern a college as any other class.

Heckman objects to the shareholder analogy, and it IS, in some respects, inappropriate. Let me, rather, propose a different analogy: that of a church and its priests, and bishops. he Catholic church believes the clergy should be separated from the political power of the laity, but the Protestants do not. Which is the superior system? I wouldn't presume to say, but recent history shows us the dangers in a self-perpetuating hierarchy.

Colleges and universities are subject to the same problems. Especially since the development of a professional administrative class, the chief consideration of the administrator is not school loyalty but advancement by leaping for ever higher rungs up adjacent ladders.

Are faculty in the best position to decide for the good of the school? Not that I have seen in any faculty I have been a part of. Back in Ronald Coleman's time, maybe, but not today. Primary identification is with the career and the profession.

Ah, yes. The trustees! Who give MONEY to the institution--an act which does not exactly attest wisdom or percipience or erudition. Oh, you say,money is not the prime consideration? It is that the accumulation of wealth is the proof of superior intelligence? Really?

The alumni are the "church" of the college. If they are insufficiently cognizant of what is going on (as I agree our alumni are) then, damnit, foster debate and education (instead of the penchant for secrecy and managed information flow that Dartmouth demonstrates).

My eyelids are getting heavy.

Good dreams to all.

Anonymous said...

Frank, you admit that alumni trustee "'nomination' was a fiction maintained so that the charter would not be imperiled." I am glad that you recognize that giving alumni an election right in so many words would violate the charter.

So what makes you think that actually giving alumni a de facto election right would be any more legal than merely saying that you are doing so? Shouldn't the granting of an actual right be even less permissible than merely claiming to do so? Wouldn't the substance of your imagined right (which seems to be a true election by alumni) face a greater necessity to comply with the law than the mere words of a resolution?

By acknowledging that the words of election would imperil the charter, are you acknowledging that the act of election, however it is described, would imperil the charter? What makes you think the Attorney General, if she or he were to examine the board's compliance with its charter of incorporation, would ignore the board's actions and believe its verbal fiction, whether that fiction used the word "nominate" to refer to a real election or "elect" to refer to a mere nomination (or some other lesser act permitted by the charter)?

"Do alumni, ipso facto, have an inherent legal right to govern a college? No, but neither does anyone else," you wrote. Except the trustees or board of governors or similar body corporate, naturally. The trustees of Dartmouth, as you know, have the exclusive legal right to govern the college. "Exclusive" means that no one else has it, whether alumni or anyone else.

"And I would argue that alumni has as much claim on attaining a de jure right to govern a college as any other class." Surely students and administrators and professors would all have a superior claim? This line of discussion is pointless, though, since alumni de facto have no right to govern any college generally or this one in particular.

"Recent history shows us the dangers in a self-perpetuating hierarchy." So be it. You should write a letter to the board suggesting they amend the charter. Your persuasive ability is limited to your rhetoric – you and other alumni have no legal right to affect the legitimate decisions of the board of any college.

Anonymous said...

Carey, I think we agree that until 2003, Dartmouth's changes to its own charter required acts of the New Hampshire legislature (as well as the agreement of the board, as the DC Case mandated or clarified). I don't know whether it is a corporation statute or just the common law prohibition against ultra vires acts that requires boards to get this permission where their own charters fail to empower them to make their own amendments.

There is at least one example of a post-Case act passed by the legislature that was ineffective to amend Dartmouth's charter, and that is the 1891 act that would have added five trustees, elected by the alumni for limited terms, to the original twelve members. It was ineffective despite being enacted into law because the board ignored it.

Everyone involved in 1891 seemed to agree that giving alumni a real election right, whether described that way or not, would violate the charter; thus the legislature's making available the amendment. (Of course, the trustees could have asked for an amendment giving an election right for five of the existing seats, too.)

The facts that the trustees knew that an amendment would be required, that they declined to adopt the amendment they were given (or ask for a different one), that they declined to form a legally-binding written agreement granting an election right (which, of course, would not have been permitted by the charter), and that their eventual nonbinding policy resolution (permissible, because it did not actually or purportedly grant any election right) intentionally uses the word "nominate" instead of "elect" all suggest that the already-implausible legal right to elect trustees does not exist.

Tim Dreisbach '71 said...

To Carey Heckman, on your posting several ones back up the list re a self-perpetuating Board. Why not the same approach to a Cabinet of self-selecting ministers to look out for the Country??? Do not many of your same arguments apply?

Carey Heckman '76 said...

Some of the arguments might apply, but the existence of overlapping arguments does not make a self-perpetuating cabinet right for a country nor does it make a self-perpetuating board wrong for Dartmouth.

First, you have to get over your false assumption that Dartmouth is about or is in any way owned by alumni. Dartmouth is not a social compact. Dartmouth is no kind of association of humans out of a state of nature or out of a desire for protection from a cold, brutish, and short life. Dartmouth is not a society, it is a corporate enterprise albeit with a kinder, gentler purpose than the pursuit of the almight dollar or maximum financial return to its investors/shareholders.

When we are talking about Dartmouth, we are talking about a synthetic, an artificial legal entity. Those who created Dartmouth, those who had the power to define its governance, picked a self-perpetuating board of trustees. Yes, they had to satisfy George III and the customs of the time that their structure for this artificial entity met whatever standards existed for an artificial legal fiction to gain the privilege of the sovereign's creation and access to the sovereign's courts, sheriffs, and other agencies for enforcing the privileges granted by the sovereign. Dartmouth's charter, complete with a self-perpetuating board of trustees, accomplished that.

So that's what we have. It requires no moral justification, anymore than Superman has to comply with the natural laws of physics or biology they way natural beings like you or I must 1to exist and survive.

Second, that choice is hardly offensive to human rights or a bad call for Dartmouth's success. We alumni do not own any piece of Dartmouth. To bring us full circle to Brother Nachman's original misconception, we alumni are not shareholders. We like to be involved with Dartmouth, and much of the time that serves Dartmouth's interests, so she lets us, even asks us. But that does not give us any legal or moral entitlement to any share in Dartmouth's governance.

We alumni are Dartmouth's beneficiaries. We have gained a lot from her. Many of us have also given gifts to (not invested in, but given gifts to) Dartmouth, presumably because we like what Dartmouth is doing and trust it will continue doing it well. None of that gives us any entitlement, legal or moral, to any share of being in charge of her.

Dartmouth's fundamental duty is not to her alumni, not to her faculty, not to her students, but to her purpose.

Few if any would argue that democracy makes sense even for a country if the sole criterion were efficient management. But history seems to show that having some kind of broad representation is an efficiency price worth paying so that the population will support the government, especially in time of war or other crisis. Others might contend that some kind of broad representation works for a country precisely because it keeps the government from being *too* efficient, and thus less likely to zoom off the cliff in one radical direction or another.

Some of this might apply (by analogy, not morality) to Dartmouth. In the late 19th century, Dartmouth needed money. It was willing to provide some degree of alumni involvement at the highest level in return for that financial support. It apparently served Dartmouth's purpose at that time to provide alumni with that form of involvement. But that might not be true today. Or it might be as conceptually true, but better suited to a different form of involvement.

The question is not what Dartmouth owes alumni but rather what alumni involvement does Dartmouth determine would serve Dartmouth's purpose and what is Dartmouth willing to do to secure that involvement. It might still require some trustees who were recommended by alumni. I think so. Does it require trustees who represent alumni? I do not think so, provided the board stays on purpose and does not go self-mutilating Antioch.

In short, alumni have no relationship with Dartmouth that morally, legally, or otherwise compels alumni representation on the board of trustees or makes a self-perpetuating board morally, legally, or otherwise repugnant. Your implied proposition that alumni are to Dartmouth as the people of a country are to its government therefore fails logically, and is invalid.

(PS: What seems to be your aversion to Dartmouth's legally self-defining and self-sufficient existence, from what I understand of Dartmouth history, was what angered Lord Dartmouth and caused him to refuse to make any donations to Dartmouth.

Dartmouth's only gifts were to Wheelock's Moor's Charity School. Wheelock named the college for Dartmouth after Wentworth declined the honor. Wheelock decided the naming might pressure Dartmouth into dropping his anger over a chartered corporate form and giving anyway. Wheelock was wrong.)

Anonymous said...

Carey wrote: "In short, alumni have no relationship with Dartmouth that morally, legally, or otherwise compels alumni representation on the board of trustees or makes a self-perpetuating board morally, legally, or otherwise repugnant."

Amen to that. I always find it funny that the backers of so-called "tradition" are the ones trying to abrogate the terms of the charter of 1769. The charter, as amended, obligates the trustees and nobody else to elect twenty trustees.

Why doesn't Professor Zywicki address in his editorial today the question of whether the 1891 agreement, if it really is a contract, would be at all permissible for the Trustees to make?

Would you say that the concerns about the necessity of amending the charter in 1891 suggest that the parties of the time specifically intended that their agreement not be enforceable? They knew, in other words, that if they made it enforceable, it would require a charter amendment, and they knew they were incapable of legally amending the charter on their own.

Anonymous said...

Time has shown that the charter can be legally amended.
So let's end the debate and simply have the trustees put in an amendment that "charterizes" the agreement that has served the college well.

Anonymous said...

"So let's end the debate and simply have the trustees put in an amendment that "charterizes" the agreement that has served the college well."

That idea is worth putting into a letter and sending to the trustees.

Don't be surprised if they decline politely.

Anonymous said...

You are correct to refer to the "power of" alumni to "nominate," since there is obviously no contract that would allow for a direct election.

Anonymous said...

Wow, some people are windy blowhards.
I aged five years trying to get through those comments.

I found your blog because I googled this issue. I'm the liberal sister of a conservative Dartmouth alum who is friendly with SS. He raised the topic at a recent family dinner and I wanted to find out the relatively unbiased scoop. My first reaction was "so what? It's just a a school trustee board" but alas Dartmouth alums take themselves SO seriously. Is there any particular political stance that SS takes that is so threatening to the board?