Alumni Sue College Trustees

by Steven Menashi

Last May, seven Dartmouth graduates filed a class-action lawsuit against the College Trustees in the Grafton County Superior Court, on behalf of all Dartmouth's alumni.

“The class consists of all alumni,” reads the complaint, meaning “every living person who has ever matriculated at Dartmouth College as a full-time student in pursuit of a degree or at the Dartmouth Medical School, the Thayer School of Engineering or the Amos Tuck School of Business Administration, as a member of a class whose normal Commencement date has occurred.” The suit seeks injunctive relief against the College, preventing Dartmouth “from implementing by the expenditure of funds and otherwise a decision to eliminate single-sex fraternities and sororities from the campus of Dartmouth College and replacing them with a new social and residential system.”

The petitioners are entitled to such relief, they argue, because the College engaged in a fraudulent solicitation of funds from alumni in its “Will to Excel” fundraising campaign, initiated in 1992. In the campaign, the Board of Trustees sought over $500 million in contributions from alumni. The complaint explains that the Trustees represented to alumni that the purpose of the campaign was fivefold: to provide increased financial aid to students, to limit increases in tuition costs, to construct Berry Library and other new teaching and research facilities, to improve computer equipment for the faculty, and to improve the curriculum and Dartmouth's athletic programs. The Trustees never informed alumni that the money raised from them—hundreds of millions of dollars—would be employed toward the elimination of fraternities and sororities and their replacement with a new social system.

The Trustees knew during the campaign that they would be making a decision to drastically alter the social and residential system at the College, according to the complaint, but did not inform Dartmouth's alumni of the intended changes until the capital campaign was completed. Had they so informed alumni during the campaign, alumni contributions to the campaign would have been significantly lower.

“The Trustees' failure to disclose during the Will to Excel Campaign its intention with respect to the elimination of single-sex fraternities and sororities and the expending of tens of millions of dollars on changing the social and residential life of the College was a breach of the Trustees' fiduciary duty to the alumni,” charge the petitioners. “The Trustees' representations during the Will to Excel Campaign as to the uses to which the funds raised from alumni would be put were misleading in that the misrepresentations intentionally or negligently failed to additionally advise that such funds also would be used for the controversial elimination of single-sex fraternities and sororities and their replacement with a new social and residential system.” The Trustees' conduct in the campaign, then, “constituted an unfair or deceptive” trade practice.

The alumni are asking the court to enjoin the Trustees from using the money raised in the Will to Excel Campaign, or taking other action, to eliminate or replace fraternities and sororities on campus as part of the social and residential system “unless the Trustees raise all funds for such action only after full and complete disclosure of the Trustees' specific plans for such action.” The suit may therefore prevent the construction of new dormitories or “Common Houses,” since these are intended to replace Greek houses, as well as the implementation of the stricter regulations that the College's Committee on the Student Life Initiative explained would lead to the elimination of some fraternities and sororities.

The College has filed several motions to dismiss the case on technical grounds. A ruling from the judge is expected soon. The case could be brought to trial before the end of the year.

In addition to three counts concerning the improper solicitation of funds in the Will to Excel Campaign, the alumni complaint also includes three counts regarding the constitution of the Board of Trustees and the conduct of Trustee elections.

The petitioners believe that the alumni's voting rights in elections to the Board, secured by a contract between the alumni and the College, have been illegitimately undermined by recent actions of the Trustees.

Alumni first demanded representation on the Board of Trustees in the late nineteenth century. At the same time, the College required additional funds. In 1881 President Bartlett needed money to continue his Presidential Scholars program and the Trustees began soliciting donations from the alumni. The alumni, however, refused to contribute to the College until they received representation on the Board. The alumni, in 1890, elected five delegates to negotiate with the Trustees in order to establish some method for alumni representation on the Board. The negotiations led to the adoption—on June 23, 1891—of an agreement between the Trustees and the alumni by which half the elected Trustees would be nominated by the alumni. The agreement is a binding contract between the Trustees established by the College charter and the alumni.

In the 1980s, a number of elections to alumni Trustee seats were contested, where the “official” nominee of the Alumni Council was challenged by a petition candidate, a person whose candidacy was supported by a petition of 250 alumni. The advent of contested elections alarmed the Board of Trustees, because alumni Trustee elections became referenda on their policies. Most notable was the close Trustee race in 1989 between Robert Danziger '56, who had already served one term as a College Trustee, and Wilcomb Washburn '48, a challenge candidate. Washburn had collected the required alumni signatures, and campaigned against Danziger on the basis of Danziger's voting record as a Trustee.

That year, the Trustees established a “Committee on Board Organization,” which was charged with reviewing the election procedure for Trustees. The Committee recommended that the Trustees be empowered to reseat an alumni Trustee at the end of his first or second term without the Trustee having to be renominated or reelected by the alumni. Even before the creation of the CBO, the petitioners charge, the Trustees had considered the proposal as early as 1987, and were determined to push it through—in violation of the 1891 agreement between them and the alumni.

“Through false representations and failure to disclose the provisions of the 1891 agreement to all alumni, through control and undue influence over the Alumni Association and its officers, and without providing the alumni the opportunity to obtain their own independent legal counsel, the Trustees pushed certain amendments to the Alumni Association's constitution through a formality of adoption by the Association at a supposedly adjourned annual meeting of the Association held on September 15, 1990,” reads the complaint. “These amendments purported to empower the Trustees to reseat an alumni Trustee at the expiration of that Trustee's first or second five-year term without the Trustee having to be renominated by the alumni. In fact, the Trustees were seeking to amend the 1891 agreement between the Trustees and the alumni, particularly as to the alumni's right to vote for a new alumni Trustee after expiration of each alumni Trustee's five-year term.

“However, the Trustees failed to advise the Association or the alumni of the fact that the Trustees were seeking to abrogate a contractual right held by the alumni.”

Less than one percent of the membership of the Alumni Association attended the September 15, 1990 Association meeting. No ballot was sent to all alumni to vote on the changes in their voting rights “as would be fairly required by the 1891 agreement and its previous history of modification,” holds the complaint.

The petitioners allege that the Board of Trustees succeeded in eliminating essentially one-half of the voting rights of alumni in Trustee elections—and violated their fiduciary obligation to act in the alumni's interests and to inform them of their rights under the 1891 agreement. Of relevance to their lawsuit, though, is that five alumni Trustees now sit on the Board who were reseated to a second five-year term without an election by the alumni. These Trustees, who are allegedly serving on the Board inappropriately, participated in the decision regarding fraternities and sororities.

What's more, the alumni Trustees are required to take a confidentiality oath that prevents them from discussing any issues that the Board is considering, except where such a discussion is explicitly sanctioned by the Board. The oath also prevents Trustees from expressing dissent or dissatisfaction with any decision of the Board. The effect of the oath was to prevent the alumni Trustees from consulting with the alumni regarding prior to the decision on the Residential and Social and Life Initiative—a violation, say the petitioners of the 1891 agreement, which was intended to make the alumni-elected Trustees continuously accountable to the alumni.

The lawsuit asks that the College be required to inform alumni of their rights under the 1891 contract, to provide resources to the alumni for the conduct of elections independent of the Trustees' employees, and to allow alumni-elected Trustees to sit on the Board without prohibiting communication between them and the alumni.

The procedure for alumni election of Trustees was also the subject of a 1995 lawsuit, which made the same claims, but was dismissed for lack of jurisdiction and never evaluated on the merits. The petitioners are Matt Brzica '93, Paul Canada '50, Robert Fuller '80, James Godsman '62, William Hutchinson '76, Jack Maloney '87, and William Tell '56 “for themselves and as representatives of the class of persons consisting of all present and future alumni of Dartmouth College.”