Saturday, September 1, 2007

The Wall Street Journal Chimes In, Talks with Rodgers

The Wall Street Journal published two articles about the Board of Trustees' governance review today, an editorial in support of the 1891 agreement and a profile of trustee T.J. Rodgers by Joseph Rago '05.

Rago's interview with Rodgers is a quite illuminating glimpse into the trustee's mind. Rago describes Rodgers as being ultimately independent-minded, not the conservative that he is often depicted to be. Rodgers recasts the trustee struggle away from the typical partisan model: "This is not a conservative-liberal conflict. This is a libertarian-totalitarian conflict." Rodgers reflects on accusations that the current process is divisive: "If 'divisive' means there are issues and we debate the issues and move forward according to a consensus, then divisive equals democracy, and democracy is good. The alternative, which I fear is what the administration and [Board of Trustees Chairman] Ed Haldeman are after right now, is a politburo - one-party rule."

Rodgers gets to the heart of the debate. Divisiveness is often necessary in politics and governance, because debate and conflict is often necessary in the search for solutions and consensus. The Board of Trustees is not around to merely rubber-stamp the administration's goals and select a new president every decade. The Board should be actively thinking about the college - and making decisions, and the alumni should be thinking about the Board - and electing some of its members. Divisiveness is exactly what Tim Andreadis '07 was accused of when he was elected Student Body President last year. Although I have issues with his administration - I resigned from it - divisiveness was never the problem. Instead, he changed the way students think about Dartmouth, made them consider new issues, and we are ultimately for the better. And the same is true about the petition trustees. They have challenged the views of students, alumni, and administrators, pushing us to think harder about the issues at hand, and we are also better for it. This is what democracy is all about. So let the elections continue.

34 comments:

Anonymous said...

Moving to a bigger paper has improved Rago's writing only somewhat... Saying that "It is one of a few schools in the U.S. that allow alumni to elect leaders directly" [sic] is false, of course.

The accompanying editorial has some gall to mention the Dartmouth College case on the same page where it attacks the trustees' charter authority, doesn't it?

Puzzled said...

Rogers is out of his element if he thinks that the board of trustees is "totalitarian" in exercising the duties delegated to it by its charter of incorporation. Doesn't his own corporation have a board? Is it "totalitarian" for refusing to let customers elect members, and wouldn't that be illegal anyway?

John Bruce said...

Major investors, of course, can demand board seats, as Kirk Kirkorian has recently done with a couple of companies. A competent board will certainly pay attention if customers are reacting adversely to what the company does. Customers don't need seats on the board; the company's management is supposed to keep track of price and quality, and if they don't, the board has to replace them.

What we do have here, after a day's reflection on the Rodgers interview, is a leadership meltdown. Rodgers's going public in this way is unprecedented. The Board of Trustees would probably have to throw him off, but this would also be highly controversial. What Wright and the Board majority have done is back themselves into a real kettle of soup -- the only corresponding situations I can think of are the Parkhurst takeover under McLaughlin, which essentially ended his Presidency, or the various Dartmouth Review set-tos that Freedman got into, which did a great deal to undermine his own credibility.

This interview is in many ways a challenge and embarrassment to the powers that be equivalent to those others. That the Board worked its way into it and couldn't find a way to keep Rodgers in the reservation shows that someone is going to have to step in.

Any bets on Hank Paulson making some calls? If I were handicapping, I'd say this could be brought back under control with (a) Rodgers resigning; (b) Haldeman resigning; (c) Wright announcing his retirement; (d) action on the governance recommendations delayed indefinitely.

Pay them now or pay them later. It will be more expensive later.

Anonymous said...

Wright is attempting a coup d'├ętat here and finally Rodgers has called him on it. Time for Wright to "retire" gracefully, before the calls for him to do so get too loud.

The most interesting remark from Rodgers concerns the Board being "ceremonial." Clearly there has been no competent oversight for many years, and finally it is the alumni who are yelling that the emperor has no clothes.

Anonymous said...

How is Wright attempting a coup? Are you aware that four "outsider" candidates have become insiders in recent years? Isn't Wright surviving a coup?

Anonymous said...

John, thank you for admitting that people do not deserve seats on a corporate board simply because they are customers. Heaven knows T.J. would reject out of hand the idea that his customers had a "right" to elect anyone to the Cypress board. Now would you stop saying that Dartmouth's former customers have a "right" to elect alumni to its board?

Your side (Zywicki and Smith, mainly) still has yet to put out a legal argument. I guess we can infer that they don't have one. They are putting so much energy into mailings, ads, and websites because they know the battle can only be won through propaganda, not a test of legal rights.

John Bruce said...

I think what we've had at Dartmouth since about 1980 is equivalent to what happened at Princeton at various times in the 20th century. J.P.Morgan and other major donors got Yale and Harvard to implement a "quad plan" which directly imitated Oxford and Cambridge and was meant to allow promising lower-class students to be mainstreamed with the upper class, all to the object of expanding the managerial pool.

Woodrow Wilson, no friend of the working man or the middle class, was going to implement the quad plan at Princeton, but he was forestalled by student and alumni pressure. There were also periodic revolts among the students regarding the elitism of the eating clubs, which were usually fought to a draw but with Princeton having to amend its tendency to officially endorse the hierarchy, and indeed to make sure there were eating clubs enough for all students.

I think the anti-Board sentiment at Dartmouth, with the petition Trustees elected since John Steel in 1980, is actually in the Princeton tradition. If we're to judge from active alumni voting trends, the Board loyalists are in a minority.

I do think the Board loyalists are in a flurry for certain definite reasons -- if there's enough of an egalitarian trend, someone will eventually raise questions about admissions, for instance, which will hurt the preppies and legacies.

Oxon. said...

It was administrators, not donors, who brought about the college/house plans at Yale and Harvard, each initially with funds from Harkness, not Morgan. The "quads" were ostensibly inspired by Oxbridge, although they have been shown to be indirect imitations at best. And their purpose was not the mainstreaming of lower-class students, although that was probably a beneficial side-effect, if it was mentioned at all. Their purpose was to improve the education of all undergraduates, especially the awkward if brilliant ones, by bringing them into daily contact with older men who would be mentor figures, the "masters" of the houses and the "tutors" who were to be attached to them.

Although the heads of Yale and Harvard were nothing more than men of their time, the idea that they would undertake an educational reform for the direct purpose "of expanding the managerial pool" of the U.S. is ridiculous.

Your observations about Princeton seem to be at odds. The anti-quad movement there was precisely a pro-club movement: the quads would have killed the eating club, it was thought.

How is any of this relevant to Dartmouth, with or without its distracting suggestions of motivations based in social class rather than educational goals or even mere financial expediency? It is not, unless you are talking about the "cluster" system in the dormitories, or the East Wheelock Cluster, which somewhat imitates the "residential college" as implemented elsewhere along the Harvard-Yale model. You've lost me with the idea that there is some connection between quad proposals and "Board loyalists" at Dartmouth. How are they connected?

We can't draw the kind of conclusions about alumni approval of the Board you want to draw from the past 116 years of voting until we know when the current petition option was implemented. If, as some have suggested, it was put into place after the Steel controversy, then the past 27 years have seen only four petition races. If there were a contest every year (is there? are there multiple contests some years?) then "voters" have approved of the Board 85% of the time. Not bad. Who are these "Board loyalists" of whom you write, and how do they differ in your mind from Dartmouth loyalists or the Trustees themselves? Would you call Trustee Todd Zywicki a "Board loyalist" because of his promise to be loyal to the Board?

Your idea that those people who support Dartmouth, who think the charter trumps the 1891 agreement (whom you call "Board loyalists"), are motivated by a concern that their children won't get a boost as legatees is absurd. It's just a stupid idea that seems like the product of a fevered mind. Where do you come up with this stuff, and why would you want to? What do you get out of discerning the "true" motivation of anyone in this controversy (and why does that motivation inevitably revolve around your class anxieties)?

John Bruce said...

oxon, you can find more of my fevered imaginings here, with a quote from Ferdinand Lundberg referring to the Yale quad system as "essentially undemocratic" due to their luxurious appointments. (I was incorrect in citing Morgan and cite the donors correctly there.)

If you look at photos of the Princeton eating clubs, for that matter, they come off as much more like estates in Lake Forest than fraternity houses in Hanover. In other posts I discuss their undemocratic qualities. However, the rejection of the quad system at Princeton was something separate from club-related sentiment, about which Princeton appears always to have been ambivalent.

The portrayals of the quad system at Oxford by Evelyn Waugh strike me as having the ring of truth; Samuel Johnson got fed up, too. I wonder if you're just as much full of your own background (are you a toff?) as some of the Board loyalists here, in fact.

Oxon. said...

John, are you waffling?

Of course the Yale college system (it is not a "quad system") is "undemocratic" in the broadest sense. How is any private university "democratic"? What point are you trying to make in saying that Yale was luxurious and elitist? Do you think that's a revelation to anyone?

The eating clubs are definitely more luxurious and "elitist" or "exclusive" than Hanover frats. You could call them "undemocratic" if that means something to you. Princeton's rejection of what you call the "quad system" was definitely related to the interest of many alumni in preserving the eating clubs. If by "ambivalent" you mean "divided by fierce opinions on both sides," then Princeton has been "ambivalent" about clubs.

There is no "quad system" at Oxford. Waugh and Johnson refer to confederations of independent colleges that traditionally adopt quadrangular building footprints. The organizational approximations of Oxford in this country (which I think you are trying to talk about) might be the Claremont Colleges. The Yale and Harvard colleges and houses, on the other hand, might imitate the quad form to one degree or another but are only nominally independent: they are divisions within their respective universities and not separately-endowed, separately-chartered, independent and competing colleges.

Again, how does this have any relevance to Dartmouth? Are you familiar at all with the "cluster" system or the East Wheelock Cluster? Those topics are the ones you seem to be trying to utter.

Oxon. said...

John, are you waffling?

Of course the Yale college system (it is not a "quad system") is "undemocratic" in the broadest sense. How is any private university "democratic"? What point are you trying to make in saying that Yale was luxurious and elitist? Do you think that's a revelation to anyone?

The eating clubs are definitely more luxurious and "elitist" or "exclusive" than Hanover frats. You could call them "undemocratic" if that means something to you. Princeton's rejection of what you call the "quad system" was definitely related to the interest of many alumni in preserving the eating clubs. If by "ambivalent" you mean "divided by fierce opinions on both sides," then Princeton has been "ambivalent" about clubs.

There is no "quad system" at Oxford. Waugh and Johnson refer to confederations of independent colleges that traditionally adopt quadrangular building footprints. The organizational approximations of Oxford in this country (which I think you are trying to talk about) might be the Claremont Colleges. The Yale and Harvard colleges and houses, on the other hand, might imitate the quad form to one degree or another but are only nominally independent: they are divisions within their respective universities and not separately-endowed, separately-chartered, independent and competing colleges.

Again, please tell us how your observations on the elitism of other schools' "quads" is relevant to Dartmouth, especially when you seem ignorant of the "cluster" system or the E.W. cluster at Dartmouth.

John Bruce said...

oxon, you've neglected to take up the opportunity I offered to educate us on the meaning of the word toff -- though my position would be that you're unintentionally doing just that.

The Ivy League has been, and continues to be, elitist. Take C. Wright Mills's remarks in The Power Elite: I]n the upper social classes it does not mean much merely to have a degree from an Ivy League college. That is assumed; the point is not Harvard, but which Harvard? By Harvard one means Porcellian, Fly, or A.D.; by Yale one means Zeta Psi or Fence or Delta Kappa Epsilon; by Princeton, Cottage, Tiger, Cap & Gown, or Ivy. It is the prestige of the properly certified secondary education followed by a proper club in a proper Ivy League college that is the standard admission ticket[.] Dartmouth has C&G, Sphinx, and Dragon.

My point in the larger project I'm working on is that quads, eating clubs, or secret societies are each a reflection of a continuing elitism -- reflected not necessarily in the institution as a whole, but in a core group of snobs who are almost exclusively represented in places like the Dartmouth Board of Trustees.

More here. My suspicion, oxon, is that you've come over here to get more mileage out of a plummy accent than you could get among your peers back home. But kissing the asses of the US academic elite must get old.

Oxon. said...

"over here"? Do you mean to this blog, or to the US? I'm an American, if that's what you're talking about.

Are you sure the Ivy League is elitist? That would be shocking news, if you could somehow prove it. Why don't you set yourself to that task, and when you've wanked up some thoughts, share them with us?

And if you somehow come upon an awareness of the place of the Ivy League in American culture, or of Dartmouth's place and reputation in America or among alumni, you will realize that Dartmouth simply is not among the Big Three and is not known well enough to be a part of their reputation regarding the elite or elitists. The world has impressions of Dartmouth as a whole and perhaps of frats there (Animal House), but it is totally ignorant of the clubs you are talking about. People are interested in Skull & Bones, but not the Sphinx. They don't know anything about it. It doesn't even have a reputation within Dartmouth for being some kind of exclusive route to leadership.

Probably 25 or 30 percent of Dartmouth seniors are in the groups you are talking about. (You neglected to mention several of them that counted some women Trustees as members.) Considering that the groups at least pretend to seek student leaders or outstanding individuals, it should not surprise you that their membership is overrepresented on the Board, if it is.

The reason that your interpretation is original is that it is wrong: while the general elitism of the Ivy League or Dartmouth or Porcellian might be obvious and not worth making into one of your "projects," the idea that there is a "core group of snobs" in the societies running Dartmouth is silly -- there is no "right" or "real" Dartmouth in the sense that such a thing is reputed to exist at Harvard.

Point of advice: drop the "quads" idea from your "project." Plenty of schools (Trin. Coll. in Conn., Chicago, Wash. U. in St. Louis) adopted quads or Gothic architecture or sought the Oxbridge mystique before Princeton did. They are not part of the Ivy League and cannot be presumed to be run by your "core group of snobs."

Anonymous said...

Wasn't the Supercluster the pet project of Dean Lee Pelton anyway? He's not in the core group of snobs.

John Bruce said...

oxon, I don't understand. You seem to want to limit the Ivy League or the number of elite schools to three. But Dartmouth is certainly counted among a top group that would be larger than three, even if it dropped to 11 on occasion.

People are interested in Skull and Bones, but that doesn't mean that Ivy or Cap & Gown or C & G or whatever aren't worth discussing. In fact, the point of elite strategy on the whole is to be low-key -- the folks who gave up their Newport estates a century ago were adopting just that strategy. This doesn't say the elite doesn't exist. However, they'd prefer not to be noticed. John Kerry is a man of the people; GW Bush is an oil patch Texan, not a Bonesman. This is interesting.

When people speak of "leaders" in connection with tapping, I'm skeptical, to tell the truth. I would say that the prospective members of the senior societies are well known almost before they arrive in Hanover as first-year students. This is going to come from family connections, prep school contacts, informal recommendations, and so forth.

I think this is all discussed in standard sociological sources. I can see how some folks might prefer it not be discussed, or that those who raise such subjects be characterized as paranoid. But it's worth at least repeating what ought to be generally recognized.

Anonymous said...

John, you don't seem to be familiar with the concept of "the Big Three." Of course Dartmouth is in an elite group, even a group that is smaller than the Ivy League (the excision of Cornell comes to mind, har har). But Dartmouth as a matter of fact is not in the group of Harvard, Princeton, and Yale.

"that doesn't mean that Ivy or Cap & Gown or C & G or whatever aren't worth discussing." Of course not. But you can't say that C&G has some kind of national cultural resonance the way some of the clubs at the Big Three do. The Sphinx just doesn't have the profile in the U.S. that it seems you are looking for.

"the point of elite strategy on the whole is to be low-key." That's an interesting thesis that might better be explored at places whose clubs actually had national prominence to give up, not Dartmouth.

I'm sure prospective tappees are not known before they arrive at Dartmouth, but I was careful to say that the clubs only ostensibly take student leaders. Of course their members aren't objectively all the brightest stars at Dartmouth. But they at least claim to take those people, and often they do, so you can't take anything from the clubs' possible overrepresentation on the board.

If this is all standard stuff, which I agree it is, then why are you (without apparently having any qualifications other than a Google search box) bothering to create a "project" about it?

And do you agree that Zywicki et al. are now loyalist insiders by definition? You'll need to come up with a new term for them if you disagree.

John Bruce said...

I still don't understand your point. Probably only 2 or 3 percent of the population, if that, could identify Skull and Bones alone. Why does this make it somehow wrong to discuss C&G, especially in a context of Dartmouth?

By the same token, you're convinced there's a top 3 -- but a list of elite schools supported by major philanthropy, which is of greater sociological interest, includes not just Dartmouth but Duke, Chicago, Johns Hopkins, and others. Probably the most sociologically interesting events of the past two years took place at Duke, though (as a book review in the Wall Street Journal says today) the "elite culture" exists elsewhere besides Duke, and probably at Dartmouth as well as the Big 3. You seem to want to be drawing some set of criteria baed on "national profile" that makes Dartmouth uninteresting, but of course we're discussing this with a predominantly Dartmouth audience here. I'm not trying to sell this to The New Yorker.

Same applies to why I should choose to read, say, C.Wright Mills or Ferdinand Lundberg, an intellectual project. Apparently you feel I'm not qualified to read them. What would qualify me to read them? I think this position is utter snobbery, since you identify yourself as an Oxonian and expect the rest of us, apparently, to do the colonial cringe.

I'm not sure at all how Zywicki comes in here. You're playing word games by calling him an insider.

Anonymous said...

It's not a "word game" to call Zywicki an "insider" -- he's made it to the inner sanctum of the Dartmouth elite, the governing Trustees. He and only 17 others actually get to cast a vote on Dartmouth's direction and on any replacement trustees. Only that small group actually owns Dartmouth and is obligated to uphold duties to it.

You're wrong about Skull & Bones, it is very well known. It was the supposed basis for the two _Skulls_ films and might be invoked in the current book _Secret Society Girl_ (don't know, haven't read it). Forget my point, what's your point? Are you trying to say that the nation perceives Sphinx members to be running the nation or Dartmouth? Are you trying to say that they actually do run Dartmouth? Your claims about there being some elite path through Dartmouth that only the "right" students get onto, starting before they arrive and culminating in a secret society tapping, are wrong.

The Big Three is not my idea, it's a convention.

You're welcome to shift the "elite culture" idea to some broad swath of two dozen schools. Generalizations would seem to work on that category. I just don't think you can come to any useful conclusion about Dartmouth by starting from the premise that it in particular is run by rich snobs. Your ideas about "quads" might lead to a fruitful comparison -- if they are elitist at the Big Three and Dartmouth is also elitist, why doesn't Dartmouth have them? -- but so far your discussions of change at other schools are not at all relevant to Dartmouth.

I have no opinion on whether you should be permitted to read the authors you name. From the quotations you provided by Lundberg, I have a low opinion of his capacity for careful thought or writing. Perhaps the rest of his book is better.

Tim Dreisbach '71 said...

Anon said:
"Your ideas about "quads" might lead to a fruitful comparison -- if they are elitist at the Big Three and Dartmouth is also elitist, why doesn't Dartmouth have them?"

Anon needs a course in logic. France, Spain and Italy all have coastlines. They are located in Europe. Switzerland is also located in Europe.

Therefore Switzerland should have a coastline?

Such illogical thinking forms too much of the "discussions" on Dartmouth alumni governance, yet when one does point out correctly logical implications, they are accused of twisting the truth. If "p implies q", and some one says "not q" they have also implicitly stated "not p". There should be no cause for anger when such is pointed out to them.

John Bruce said...

oxon, who seems to have changed his name to anonymous (perhaps because he exposes himself to too many jibes in his persona as a toff), is still fixated on quads and a big three. However, last I checked, this blog was called Superdartmouth, and we're entitled, it seems clear enough to me, to compare Dartmouth to Harvard, Yale, Princeton, and other elite schools. oxanon keeps looking for some way we can't do this.

One of my points is that Dartmouth is less hierarchical than many of the other elite schools, and part of this is the culture that nominates alumni to the Board of Trustees. The differences are important, not just to Dartmouth alums -- the Wall Street Journal, a national paper, apparently felt there was enough reverberation to publish a lengthy interview on TJ Rodgers this past week, as well as an editorial. The AP has also run a story on the Trustee controversy.
Oxanon would not have them do this, as they aren't the big three. But they aren't Oxford, either. Why talk about anything at all?

This business of Skull and Bones being worth discussing but Dartmouth senior societies not is also silly. Even if 98% of the American population can't wait to hear who's been tapped in People, it's still plenty OK for a Dartmouth alum to discuss Sphinx in a Dartmouth context. Oxanon is kinda strange to say we can only discuss Skull and Bones here.

I'm not sure, actually, if Oxanon is an alum. I think Tim Dreisbach and I might be more comfortable with the quality of the College's product if we could learn he is not.

Tim Dreisbach '71 said...

John: For the record, I am very comfortable with the quality of the College's "product", being my fellow alumni. That is why I believe they are due the respect of being recognized as able to help in stewarding her, and choosing her trustees in independent fashion without handholding by some superior group who "knows better".

That said, there are always a few lemons that pass through, and there are certainly ways to improve on the quality. While I myself took a course in logic, it was only in post-graduate years that I studied the history of representative democracies, with readings by their underlying philosophers. It was never a part of the core curriculum.

Do you know that while the Board has a standing committee on physical plant and facilitites, there is no committee or education-experienced Board members charged to follow and recommend Board oversight on academics. Apparently it is felt such a committee would micromanage on the "how" and not merely direct on the "what". I disagree.

Although TJ Rodgers (where this discussion thread began) stated that the governance debate has distracted everyone from insuring that Dartmouth continues to provide the best undergraduate EDUCATION, I wonder if perhaps it brings to light such concerns that otherwise would remain obscure.

Toffer said...

Tim, you are not seriously claiming you've ever read in logic, are you?

Then (to ignore John's bolloxed "quads" tangent for a moment) what logical basis do you have for believing that any group could override an election conducted by the Board of Trustees? Isn't that what you mean by "stewardship"?

Tim Dreisbach '71 said...

Toffer:
No (unless you count Lewis Carroll) and No.

You know who I am. Why not identify who you are?

Leaving this discussion, and will be unable to reply... so have at me.

Toffer said...

Tim:"what logical basis do you have for believing that any group could override an election conducted by the Board of Trustees?"

John Bruce said...

Zywicki made the point in his Volokh response to Stith-C that the people of New Hampshire routinely elect a member of the Board of Trustees, even though the elections are presumably divisive and expensive.

DartBored said...

Toffer: Forget about logical bases. This is precinct politics pure and simple.

Anonymous said...

Toffer puts words into the mouths of others... I can find no place where Dreisbach ever said a group could override an election conducted by the Board.

He spoke of alumni chosing trustees, but that does not imply a right to elect ALL of them, over the Board's objection. Only those who speak of a "takeover" of the Board by an alumni cabal can argue such an override is possible, and they do not.

Anonymous said...

Board loyalists would never state the Board can be overridden, which would undermine the pronouncements of the "takeover" fearmongerers.

It appears that the insurgents have also never stated that the Board can be overridden.

Where did Toffer come up with a concern for such an unsubstantiated claim?

John Bruce said...

I'm not sure how the impression got started that allowing alumni to "nominate" candidates for the Board, which are de facto automatically elected by the Board per the 1891 Agreement, somehow overrides the Board's prerogatives under the Charter. This seems to be the point Toffer keeps trying to make.

However, there are two problems with this. One is that the Board, even if it felt this was an infringement on its prerogatives, let this go for 116 years. The other is that the people of New Hampshire have overridden the Board's prerogatives since 1776 by continuing to elect Governors to the Board, with nary a peep from those who feel this overrides prerogatives.

The real issue is that the process of nominating Board members had been "captured" almost from the inception of the 1891 Agreement. In fact, the coziness of the deal managed to survive the SATs and merit-based admission of ethnics and African-Americans, along with coeducation, until the early 21st century. Notice how Zywicki seems to attract much of the vitriol? He just doesn't sound like he should be a Trustee is my theory. The nomination process has gotten out of control by the "right people".

Toffer said...

In case you're not aware, John Bruce, your side, the anti-Dartmouth Trustees zealots (or anti-Charter whiners) still can't manage to get its story straight. Some of you (including you, possibly) want there to be a right to elect people directly to the board. Alumni vote and the act of naming the winner makes him a trustee.

Others, including Trustee Zywicki in some moments, claim instead that there is no right to direct election or even any kind of election, rather it is a right to nominate, with the board retaining its 1769 power to reject any nominee and substitute its own in his place.

Still others would like to see something in between, although it would still lie closer to the first option, perhaps a retention of the board "election" as a mere formality but with the alumni having the right to force the board to take their nominee -- effectively the result of "direct" election and effectively a handover of the board's charter-specified election duty to an outside third party.

Which one of these, or some other option, would you like to see? Which do you imagine to be embodied in the 1891 agreement?

You're duller than you sound if you think that "nomination" is not an express part of the agreement, whether or not the board is left any choice to reject a nominee. The 1891 resolution and the AoA minutes both describe it as "this plan of nomination" and allow that the alumni "may nominate a suitable person for election" by the board.

You also seem completely baffled by the difference between a gift and a binding promise/contract/agreement. If you give someone a birthday present every year, even if you promise him that you will do so into the future, you still have no legal duty to give him a present this year. He can sue you when you give him nothing, but just because you gave him something every year of his life in the past doesn't mean he has a right to force you to do it again.

You also seem unaware of the idea that you generally cannot benefit from a contract when the other party had no authority or capacity to make it. Even if a corporation believes and swears that a contract complies with its charter, if it turns out not to be so and the act of contracting was in fact ultra vires, the other party cannot hold the corporation to the bargain on the basis of the contract alone. Even if the corporation intended to be bound in the beginning.

It sounds like your frustration really comes from your impression of how the Alumni Council puts forth potential nominees. So why are you complaining about the Board? You are a member of one or more organizations that send reps to the AC -- why don't you tell them your thoughts?

John Bruce said...

My point is that the 1891 provisions were probably never very palatable to the Board, and as human nature often operates, it captured the process, with the Alumni Council establishing a pattern of nominating acceptable candidates, whom the Board then had no problem electing. The problem is that times have finally caught up with the whole frammis.

Actually, I've expressed my opinion on the Alumni Council to my class officers, but I'm not sure how well they read or understand English. Every once in a while I get a class newsletter with new pictures of them in it.

It seems to me that Zywicki's position, and mine, and most others, is that the Board has no reason to make any change to the 1891 Agreement. You can interpret it as you wish, but it all seems to involve some sort of change to the Agreement.

I do think Zywicki does a better job than I can explaining agreements, contracts, promises, and so forth in his Volokh piece. Maybe you could go back and re-read it.

It doesn't matter so much, though, whether I have the correct view. This is what puzzles me about a lot of this discussion: what happens will depend on what the Board decides and what the AoA then does.

Toffer said...

John, when the discussion gets above your reading level, you try to slither out of it, don't you?

Your answer to a request for your interpretation of the agreement is nothing more than a squishy comment, "the Board has no reason to make any changes." Who cares, and what does that have to do with the agreement itself?

Which of the three options outlined above do you agree with? Are you capable of understanding them? Feel free to substitute your own interpretation if one of the options does not cover the version of the agreement that exists in your fantasy world.

"Actually, I've expressed my opinion on the Alumni Council to my class officers"
So, being dissatisfied with their answers, you are trying to change the Council's behavior by criticizing the Trustees? Do you think that is likely to work?

John Bruce said...

Why on earth do I need to choose from among your paraphrases of what you think is one or another position?

I accept the 1891 Agreement as written and as interpreted by all parties until mid-2007. How hard is this?

Toffer said...

John said "I'm not sure how the impression got started that allowing alumni to "nominate" candidates for the Board, which are de facto automatically elected by the Board per the 1891 Agreement, somehow overrides the Board's prerogatives under the Charter."

Some people say the Agreement allows the board to refuse a nominee. That version of the Agreement ("the Weak Agreement") could do no harm to the Charter. John's comment above suggests that he believes in this version of the Agreement.

But most people who think the way John does, and sometime John's posts themselves, imagine a version of the Agreement ("the Strong Agreement") that, in one way or another, gives the alumni a legal right to elect trustees, apparently in direct contravention of the Charter's statement that the Board has this right.

Which version does John subscribe to, then? When asked, he is afraid to share his thoughts. Any time he asks "how hard is that?", we know his brain is empty. He won't even say what he wants the Agreement to say. He "accepts" the Agreement as written -- even though consensus on the meaning of the Agreement is so far from existing that the two sides are about to engage in a lawsuit over it.

(And no, the meaning has not been tested until now. The fact that Dartmouth gratuitously elected alumni nominees, as he knows from reading above, does not mean that Dartmouth was bound or felt bound by any agreement: the Board could have been acting in a way that it thought was politic, and the nominees were probably sufficiently qualified or never bad enough to be rejected. Isn't it John's idea that the Board is mostly ceremonial and full of rich incompetents? So why is he surprised that they declined to exercise their right to reject alumni nominees over the years?)

Zywicki's and Stith-Cabranes's recent articles might sum up two interpretations of the Agreement. You are free to choose from one of those, John, or to supply another way to interpret the contrasted written phrases regarding alumni "nomination" and Board "election."

If you choose the Weak Agreement, then you are right, there is no direct conflict with the Charter. The Board can reject any nominee it doesn't like. If you choose the Strong Agreement, as CSDC and the Association have chosen, then you should try to explain how the Board's sale of that legal right to the Association was not in violation of its Charter.