At the Volokh Conspiracy, Todd Zywicki outlines the latest in the Dartmouth alumni suit against Dartmouth College.
The current case, like the previous case, arises from the 1891 Agreement between the Dartmouth Trustees and the alumni of the College, acting through the Association of Alumni, that gave the alumni the right to elect half of the non-ex officio members of the Board of Trustees. At the time, the Board was comprised of 12 members, of which 2 served ex officio (the Governor of New Hampshire and the Dartmouth president). Upon striking the agreement, over the next two years, 5 of the appointed trustees resigned and were replaced with elected trustees. Over time, the size of the board expanded, and by the time I was elected a trustee in 2005 there were 8 elected Alumni Trustees, 8 appointed Charter Trustees, and the Governor and College president as ex officio members. As I have discussed in detail elsewhere, the 1891 Agreement was the culmination of decades of negotiations between the trustees and college administration on one hand and the alumni on the other.
In 2007 after a string of petition trustees were elected to the Board, a majority of trustees voted to impose a board-packing plan, which added 8 new appointed seats to the board, making 16 appointed and 8 elected trustees. I won’t rehash that here, except to point interested readers to my earlier discussions as well as the Court’s excellent opinion which held that the plaintiffs in that case stated valid claims both on contract and promissory estoppel theories. Importantly, the Court also held that the Association of Alumni had standing to sue and capacity to contract in that case, as well as to provide valid consideration, such as administering the Alumni Trustee elections. For purposes of analysis on the current summary judgment motion, I am going to take it as given that the underlying contract claim is valid.
In Spring 2008, however, the alumni leaders who brought the suit had to stand for reelection and were voted out of office. The winning slate of alumni loyal to the trustees and administration dismissed the suit. Their campaign position had been that the alumni should have “negotiated” more with the trustees before bringing suit. As the current plaintiffs note in their most recent brief, it thus came as quite a surprise when the suit was dismissed with prejudice, with the deliberate intent to try to foreclose a future lawsuit if negotiations broke down (it doesn’t actually work, as will be discussed below). After all I’ve seen over the past few years, I thought that I was beyond being shocked by the sort of behavior described in the plaintiffs’ brief, but I confess that this surprised even me. The College has not contested any of the claims in the briefs of the current plaintiffs with respect to the collusive behavior of the AoA leadership in settling the prior case. Read the first 10 pages of so of the plaintiffs’ brief if you want to get a flavor of what happened.
Read on for a fascinating outline of the legal questions involved.