Professor Stith-Cabranes prepares the field for battle
Kate Stith-Cabranes is the Lafayette S. Foster Professor at Yale Law School. She served as a Dartmouth trustee from 1989-2000. Professor Stith-Cabranes and I were Dartmouth classmates, she being among the hardy group of 33 in our class who were the first women to graduate from Dartmouth. I met Professor Stith-Cabranes when she flew out to Minneapolis to represent Yale Law School earlier this year at the swearing-in of Minnesota United States Attorney Rachel Paulose. Beyond her professional accomplishments, she is a fine person.
Unsatisfied with recent elections in which a revised alumni constitution was resoundingly rejected and in which four petition trustees were elected, the Dartmouth board now threatens to reduce the traditional role played by Dartmouth alumni in electing half the board. In "Reading Dartmouth's 1891 agreement," we featured the argument made by petition trustee and law professor Todd Zywicki to the effect that this traditional role emanated from contract. Professor Stith-Cabranes respectfully disagrees. She has sent us an op-ed length column taking on Professor Zywicki's argument:
Let us consider an “urban legend” that has recently emerged at Dartmouth: That the 1891 resolution adopted by the Board of Trustees of Dartmouth College, providing for alumni nomination of a number of Trustees, is a “contract” or “agreement” to which the Trustees are bound in perpetuity.Professor Stith-Cabranes has also published a fuller analysis of the 1891 Resolution here. We look forward to Professor Zywicki's rejoinder.The 1891 resolution was just that – a resolution of the Board, and the Board remains free to enact a superseding resolution whenever it decides to do so. Indeed, not only does the Board have the authority to alter the process for selection of Trustees, it has the obligation to do so if it concludes, in the exercise of its fiduciary responsibilities, that the current process is not serving the interests of the College. Like the trustees of other charitable organizations, the Trustees of Dartmouth College have plenary authority to establish mechanisms of governance as long as these mechanisms are consistent with its Charter and with state and federal law.
An August 3, 2007 column in The Dartmouth by my fellow law-professor Todd Zywicki (a present Trustee) refers to the 1891 resolution as an “agreement,” a “deal,” and a “partnership.” If Professor Zywicki means to suggest that this resolution was a contractual undertaking, he is mistaken.
The historical record does not support the notion that either the Trustees or the Association of Alumni thought they were entering into such an arrangement in 1891, much less a contract that would be permanently binding on the Trustees. Nothing in that record, including the reports to the Association of Alumni by its Alumni Trustee Committee, suggests that the alumni in 1891 assumed an obligation to infuse the College with additional “financial support” or yet more loyalty, at that moment or in the future. In all the correspondence and discussions leading to the 1891 resolution that I have reviewed, there is no reference to a contract of any kind and nothing from which one could infer that the “parties” intended to enter into a reciprocally binding legal arrangement.
Even if alumni leaders in 1891 had explicitly assured continued financial support (from themselves? from all current alumni? from future alumni?), such a promise would be too indefinite to constitute legally binding consideration for an enforceable contract. No contract can exist unless a court has the ability to determine whether a party is in breach and, if so, the amount of damages. Nothing in the 1891 resolution, in the proceedings of the Association of Alumni, or in Richardson’s history provides any basis for a metric by which a court could determine the quantum of “generous financial support” (Professor Zywicki’s term, not appearing, in any form, in the historical record of the 1891 resolution) that was allegedly promised by the alumni.
It is equally far-fetched to claim that the Board is bound by the 1891 resolution in perpetuity because “the alumni” (which alumni? all of them? some of them?) have relied on these arrangements in one way or another. It would be well-nigh impossible for any graduate of the College to claim, much less prove, that financial contributions to Dartmouth were made in the expectation that alumni would in perpetuity nominate half of the members of the Board of Trustees. But even if such a claim could be asserted with a straight face, no court on that basis would enjoin the Trustees, in the exercise of their fiduciary responsibilities, from superseding their own resolution (as amended in 1961 and 2003) – any more than a court in 1972 would have enjoined the Trustees from admitting women to the College on the basis that a contributor to the College “relied” on its historic commitment to single-sex education.
As Leon Burr Richardson’s History of Dartmouth College makes clear, the 1891 resolution was a political response to diffuse political tensions that existed at the time – in particular, the conviction on the part of leaders of the Association of Alumni that the College Trustees (all of whom were serving life terms) were too conservative and parochial in their theology and educational policies; that there were too many New Hampshire residents on the Board; and that the College was in need of fresh ideas, fresh blood, and new resources. The Trustees who voted for the 1891 resolution were likewise animated not by contractual promises or personal benefit, but by what they thought best for Dartmouth– including, to be sure, better relations with the alumni and the prospect of greater alumni contributions to the College. They were right, at least for a time. As Richardson, writing in 1932, concluded (p. 660):
The members of the board who, in the lapse of forty years, have been elected by the graduates have invariably proved themselves to be worthy of the honor . . . . [E]lectioneering has been almost absent and alumni bitterness and dissension entirely so.
