Letters to the Editor
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September 10, 2007
Democracy goes down swinging
To the Editor:
When an election doesn't turn out in the way that you had hoped, appropriate recourse does not consist of ridding the system of elections. Al Gore did not lead a coalition supporting benevolent dictatorship after the 2000 loss, perhaps to the chagrin of those now insisting that Dartmouth needs to absolve alumni of voting privileges. For those who have ignored the entire debate on college governance, you are missing out on an amazing case study of power and politics. It is all the animosity, bickering, and pettiness of a typical Student Assembly showdown, with the key difference being that the results actually matter.
Some campus publications are insisting that the recent spring trustee elections were a veritable "insult" because the winning candidate, Stephen Smith, was not favored by a majority of current students. The Dartmouth Independent called the democratic election a "hostile takeover" and supposedly violated its self-imposed (and self-important) "absolute neutrality," when it published an editorial opinion in support of Professor Kate Stith-Cabranes analysis of the now infamous 1891 resolution. The Board of Trustees is the governing body of the College and stops the buck on questions of financial, administrative and educational significance. In addition to the 16 open positions on the Board of Trustees, two ex officio seats are reserved for the College president and the New Hampshire governor. The recently contested 1891 resolution gave Dartmouth alumni the right to elect half of the members of the Board of Trustees, or eight trustees. The other eight seats have traditionally been held by major financial donors and other people that President James Wright calls "assets."
The referenced article discusses the minutia requirements of a contractual agreement and deftly makes the case that the 1891 resolution does not qualify, in other words: it can be revoked, replaced, and forgotten. There is nothing specifically wrong with her argument, which blazes on the heels of Professor's Todd Zywicki's insistence to the contrary. But among the exciting novelty of seeing two lawyers disagree, it seems that everyone is asking the wrong question. The bigger issue upon which both arguments hinge their importance is masked by details of contractual law: Can the 1891 resolution be overturned is less important than the elephant in the room: Should the 1891 resolution be overturned?
Since the election of the school's first petition candidate T.J. Rodgers '70 in 2004, three others have enthusiastically won the alumni vote, though not the formal alumni association's nomination. They have sent out e-mails, set up websites, and raised the amount of signatures needed to run. All of them have been vocally critical of the current administration and are painted as either "Lone Pine" revolutionaries or in the words of former trustee Peter Fahey '68, the "radical minority cabal" that will bring about a "downward death spiral" for the institution. The idea that these elections represent a "minority" victory has been asserted throughout the discourse. Though none of the candidates received more than 50% of any given election votes, they did receive more support than the other candidates. In the last election, 18,186 alumni voted using the approval method, which allows you to vote for as many candidates as you want without ranking your preference among them; of the 32,941 votes cast in May, Stephen Smith received 9,984 of them. Perhaps instant-run off voting would have produced another result, but the election is far and away conclusive. Though technically correct, the charge of a "minority" win could indict most of the alumni elections, petition or not.
This June, the Board approved a governance review that will investigate the methods by which the trustees are currently elected. The conveniently well-timed concern to insure "Dartmouth's tradition of excellence" is a veiled expression of the administration's real concern: democracy has gotten out of hand. Recommendations from the 5-person subcommittee will undoubtedly include counterproposals to the 1891 resolution or other mechanisms by which petition candidates can be curbed. One of the official reasons behind the review is the scandal of electioneering in which candidates are purportedly spending thousands of dollars studying polls, writing out their platforms, and winning over their fellow alumni. This is somehow an example of a disgraceful low, in which dedication is translated into money that is not directly bankrolled into another Wenda Gu art installation. No wonder the administration and college executives are worried. The election is as open to conservative and liberals as it is to those who support or oppose the administration; let them run, campaign, and let the decision be settled in the ballot. However, it seems that you are allowed to love the school, but not enough to campaign during an election; instead, these feelings should be appropriately channeled in the form of a large check and the size of your talent and generous heart will then be considered for an opening among the chartered seats.
If you have been following closely, you may have already noticed the glaring inconsistencies among so-called "liberal" or "independent" publications. On one hand student-writers want their opinions to be reflected by board members, but at the same time, they support changes that might invalidate their future ability to participate in the appointment of those same trustees. On one hand young pundits flail valiantly against the determining influence of money in election outcomes, but in the same breath they support the reversal of the only democratic inroad through the Board of Trustees, in favor of a system in which all 16 seats could become the equivalent of graft or token sweetener for the highest bidder.
There is nothing wrong with financially supporting your alma mater and then having an interest in how that school is run, in fact that is the principle on which alumni participation is anchored. Until now, Dartmouth College has been commendably unique among peer institutions in the nature of its elected Board, the balance between democratic participation of alumni providing an independent check against executive control. This level of investment and post-graduation involvement is what has made the school not simply a four-year study-drink-study hurrah, but a community of which you are a part, for life. After all, it is "a small college...and yet there are those who love it," let us not lose the right to vote our dedication. Not on our watch.
--Tatyana Liskovich
It was all a pack of lies
To the Editor:
Kate Stith-Cabranes bases her argument in "No Contract" in large part on the lack of the parties' ability to contract, and in the lack of a consideration. I'm not an attorney myself, but I've been living with one under a marital arrangement for 20 years, and I had a helpful e-mail from another in the course of discussing Ms. Stith-Cabranes's piece yesterday.
She says, "The law confirms the absence of a "contract" in the 1891 resolution. First, the Association of Alumni is an unincorporated association without capacity to contract. See Shortlidge v. Gutoski, 125 N.H. 510 (1984)." A Google search makes it plain that unincorporated associations are fully able to contract, under state laws and in common law. In fact, an unincorporated association is a form of implied contract. A partnership is also a form of unincorporated association. There are potential problems in belonging to such an unincorporated association, but inability to contract is simply not one of them.
An attorney sent me a PDF of the [Editor's note: Now available online] Shortlidge v. Gutoski, 125 N.H. 510 (1984) case Ms. Stith-Cabranes references. This is short and easy to read, even for a lay person, and it's very puzzling in that the case makes no reference to any supposed inability of unincorporated associations to contract. The case covers the well-known problem of members' liability in an unincorporated association for the association's debts (which of course implies the ability of said association to enter into contracts). This is a separate legal issue and makes no implication as to the ability of unincorporated associations to contract.
The attorney who sent me the PDF said, "I am a lawyer and believe that the term 'See,' as used by the Yale professor, should be interpreted as meaning that the cited case 'clearly supports' the proposition." However, it clearly does not. The citation, as far as I can see, and apparently in the opinion of the attorney who took the trouble to look it up, is misleading and implies a support for her position which does not exist. Since lay people wouldn't have access to the case and many attorneys wouldn't take the trouble, I find this, frankly, mendacious. If the Board loyalists have to resort to this kind of deception to make their case, then their case must be weak indeed.
I'm reminded, in fact, of Ward Churchill [!], who was dismissed from a tenured faculty post for, among other things, citing sources that did not in fact support his claimed position. I'm disappointed that a Dartmouth alumna, a Yale professor, and a former Dartmouth trustee would engage in this sort of scholarly deception. Perhaps Ms. Stith-Cabranes can illuminate the situation here better than she has.
Ms. Stith-Cabranes also wonders where the "consideration" is in the contract, but she seems focused on something concrete, perhaps like a sum of money. I double-checked with my attorney wife, who tells me that an intangible consideration happens all the time. The Board in 1891 got a consideration in having the Association of Alumni stop pestering it and say it was happy. It got a consideration in being told it was doing the right thing. The same would apply to an implied contract between neighbors in mitigating some problem like an overgrown tree. The one has the consideration of seeing the neighbor's complaints stop; the other sees the tree trimmed.
If a lay person sees such problems in an argument advanced by someone like Ms. Stith-Cabranes, finding confirmation in the opinions of attorneys, I'm wondering what sort of legal advice the Board of Trustees is getting in this case. I suppose we'll find out soon enough.
--John Bruce '69
TDI Responds:
In the opinion Professor Stith-Cabranes cited (available now on our website for our readers' all-important pleasure) the following sentence amply supports her proposition that unincorporated associations are not generally capable of entering into contracts in New Hampshire:
Although the defendant may have believed that he was acting solely as an agent for a disclosed principal, the Winchester Taxpayers Association, when entering into the employment contract with the plaintiff, the principal for which he acted was in actuality not a legal entity having the power to contract.
Furthermore Mr. Bruce's contention that Professor Stith-Cabranes does not allow for "intangible" consideration falls flat, since she did not assert that consideration could not be "intangible," only that it had to be definite enough for the parties and courts to know what was promised.
The copy of the opinion bolds the key language (courtesy Professor Stith-Cabranes) relating to the issue of whether the Association of Alumni has capacity to enter into a contract. It also italicizes (at the end of the opinion) the Court's effort, in the interest of fairness, to allow the defendant to join the other (assenting) members of the association to bear part of the liability--this however is unrelated to any problem Mr. Bruce raises.
