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Dartblog Begs to Report

It may have escaped your attention that Dartblog maintains a many layered network of yeasty, hyperactive pencil-mustached spies who nightly file reports on everything happening in fair Hanover. This includes such things as hirings, firings, flagrancies, misdeeds, drunken emails betraying confidences, and parking tickets. Mostly I judge the airing of these reports imprudent; a small subset of the data permits a daily blog that beats student journos to every major story, and in this tidy little victory I am satisfied. But the latest is that some strategic employees of Dartmouth College have sensed in the silence of this page apathy—or perhaps pessimism—about the latest Dartmouth governance battle. 23398777.jpgThis is not so. My disposition is bubbly and expectant. Though it pains me in a superficial way to see Dartmouth under suit, I also know that that is the best and the only way to keep the College moving forward rather than backward. And I think the lawsuit’s prospects as rosy as the autumn leaves.

Therefore, let me offer some thoughts on The Association of Alumni of Dartmouth College v. Trustees of Dartmouth College. If you have not already read up on the matter, do read the Motion and the Petition, won’t you? These two documents represent the meat of the Association’s legal argument—which is that the Trustees’ unilateral decision to dilute democracy at Dartmouth represents the abrogation of an 1891 Agreement justiciable in court. Neither Dartmouth’s in house counsel, Robert Donin, nor the lawyers at New York-based Sullivan & Cromwell, whom Dartmouth has also engaged in the matter, has released any of their written defenses, if any exist.

As I understand it—and let me disclaim that I am not and hope never to be a lawyer—the case against the Trustees exists in four parts. (Mark that at no stage will you find claims of monetary damages or any such thing; the express and narrow purpose of the entire package of legal proceedings is to undo the great damage inflicted on Dartmouth when the Trustees, displeased with recent election results, decided to dilute democracy.)

First, the Association has filed for an injunction. A judge is slated to hold hearings on this question in mid November. If the judge elects to grant the injunction, all that will happen is that the Board will be legally prevented from enacting what has been called its “Board-packing” plan—that is, its plan to double the unelected half of the Board while keeping the elected half the same paltry size. The Board will be prevented from enacting this plan until some settlement is made or until a final judicial decision is rendered.

Whether the injunction is granted or not, we come next to the lawsuit proper. The first step is that the Trustees will move for dismissal of the complaint. If the Trustees win the injunction phase, they will have a tremendous backwind here, because having won the injunction phase essentially means that a judge found the Association’s case to be one unlikely to succeed at trial. If on the other hand the Trustees lose the injunction fight, they are very likely also to lose their motion to dismiss the case outright.

Once we are past the dismissal phase, the lawsuit becomes really real, so to speak. The collection of evidence begins. The Trustees will move for summary judgment, in which they request that a judge issue a ruling on the basis of written briefs, without any public trials and—this is most important—without the public airing of the discovery. Discovery is the evidence—emails, contracts, budgetary documents, &c.—that begins being collected after the motion for dismissal fails. This evidence figures into the summary judgment phase, but since summary judgment does not include a trial, the evidence does not become public. From what I am hearing, this is of paramount concern to the Trustees and to the College administration.

If the judge refuses to grant summary judgment, then trial begins, and does not stop until a verdict is rendered or a settlement reached. In this particular case, a settlement seems unlikely, since the plaintiffs are asking only for the reversal of a Board dictum rather than damages or any other sort of negotiable thing. In other words, this is a binary situation; either the Trustees reverse their action or they do not. So settlement in this final stage seems unlikely.

* * * *

But it is important to keep in mind that, at any stage of the proceedings, the Trustees and the Administration could simply throw up their hands and concede. If the Association’s case is very strong, this may prove an attractive option; it is obviously more attractive for the Administration and the Trustees to undo their Board-packing plan all on their own rather than have a permanent decision entered against them, foreclosing the possibility of future illiberal trickery.

So how might this play out? Recall that we are still in the very first stage. In two weeks or thereabouts, a judge will consider whether to enjoin the Trustees from appointing any new members. If the Association case—that the Trustees bound themselves to democratic equity back in 1891—is strong, then a judge will look on the motion for injunctive relief favorably, making it much more difficult for the Administration and the Trustees to win their subsequent request for outright dismissal of the complaint. Because of this possibility, the Administration and Trustees could therefore voluntarily submit to the Association’s suggested injunction, and promise not to appoint any further Trustees—without allowing the judge to force the matter. The Administration and the Trustees will choose this route if they believe that the Association’s case is quite strong. However, as the Administration’s website now bellows, “[the Administration] believes that the suit is without merit, and its attorneys are preparing responses to the Petition and Motion for Preliminary Injunction,” so complying with an unissued injunction would bespeak a remarkable weakening of this position.

Similarly, the Administration and Trustees could fold at other points as well, informing the judge that they have decided to undo their “governance reorganization” and that therefore the Association’s complaint is moot and ready to be dismissed. This could occur prior to a dismissal ruling, a summary judgment ruling, or a ruling at trial. I would judge it most likely that the Administration will choose to fold before summary judgment is rendered, simply because dismissal is not a precedent-setting event—and so the Administration will happily take its chances there—and because the trial itself would involve the publication of discovery, which I do not believe the Administration would accept under any circumstances.

* * * *

Alright, gentle readers, that is the state of play as I see it. There likely will be no news until the second week of November, when hearings take place on the question of the injunction. But there you have my thoughts on the matter. A lawsuit against the Trustees is a grim thing, but, as so many have come to realize, a temporarily necessary thing.

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