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A Message from Trustee Todd Zywicki ‘88

Editor’s Note: The below just arrived in my inbox from Trustee Todd Zywicki and I reprint it in full. He is below responding to several people who, on blogs and in the student newspaper, criticized a speech he gave two months ago at the Pope Center for Higher Education. (The entire transcript is reproduced at the end of this post.) I was one of several recipients.

The critics largely ignored the substance of what Mr. Zywicki said, choosing instead to focus on his unfortunate rhetorical flourish of calling James Freedman, a former president of Dartmouth, “evil.” Evil Freedman of course was not, and, as I know Todd Zywicki, I am quite certain that he is straight on what makes evil and what does not; it is clear that he was being dramatic for the entertainment of the audience. Anyone who tells the tale of Dartmouth’s good-governance revolution, as I have many times, feels the very same temptation.

What is important is that Mr. Zywicki goes on to describe precisely Mr. Freedman’s failings, chief among which was a resolute distaste for expression, journalism, and speech with which he personally disagreed. This manifested itself, in the most extreme instances, in prosecution and suspension—in one famous instance for a fabulous crime called “vexatious oral exchange”—of students whose writings and activism he did not like. Evil? Not quite. Condemnable? Of course.

Todd Zywicki’s note follows. – JOE MALCHOW.

UPDATE: John J. Miller comments here.

*   *   *   *

To The Dartmouth Community:

Last month I addressed a conference sponsored by the Pope Center for Higher Education Policy on the topic of “Building Excellence into American Higher Education.” In reviewing the oral transcript I recognize that my extemporaneous remarks were in some instances more controversial than I intended, especially when taken out of context, and I want to review them in this letter.

It is important to remember that these remarks were delivered on the heels of the Board’s decision in September to abolish Dartmouth’s 116-year tradition of parity between elected and appointed trustees. My strong words reflect the deep frustration and sense of betrayal that I and many other alumni felt—and continue to feel—about that decision and the heavy-handed procedures used to impose it. Moreover, my remarks were part of a day-long academic program in which provocative and informal language proved the order of the day. I was not aware that the program was being recorded or would be broadcast. Had I known that my comments would be read outside of the give-and-take academic context in which they were spoken, I would have taken greater care to speak in a more reserved manner and to avoid subsequent misunderstanding. Still, many of the comments that have generated controversy plainly referred not to Dartmouth, but higher education in general, thus some of misunderstandings and misuse of out-of-context quotations are simply inexplicable. Presented with an opportunity to edit or clarify my remarks prior to general publication there are three specific passages that I would have changed or would have explained myself more carefully.

First, I adopted by implicit reference Dartmouth Emeritus Professor Jeffrey Hart’s prior characterization of former Dartmouth President James Freedman as an “evil man.” Professor Hart’s appellation was based on several troubling events that occurred during President Freedman’s tenure. Most notably, President Freedman used baseless and inflammatory charges of anti-Semitism and racism to try to discredit a student newspaper that had lampooned him and to stir up hatred against his critics for political gain. The paper was cleared of any such taint by Jewish organizations, including the Anti-Defamation League of B’nai B’rith after extensive investigation, and the New Hampshire Human Rights Commission found no evidence of categorical discrimination. All of this is described in William F. Buckley’s book “In Search of Anti-Semitism,” published columns by Professor Hart (available here and here), and journalist John Leo writing recently on the “Minding the Campus” website (available here). Supporters of President Freedman’s policies may excuse this behavior as a means to further his end of implementing his vision for Dartmouth. I disagree. And I regret that it is necessary for me to revisit these painful events, but it is necessary to explain the foundation of my remarks on this score. Nonetheless, I recognize that referring to him as an “evil man” was an overstatement for which I apologize, especially to President Freedman’s family and others close to him.

Second, in identifying the difficulties facing any efforts to reform the university (and here I was not referring to Dartmouth but to higher education in general), I stated that those who control universities today do not believe in God or country but in the institution of the university itself and the values found therein. That anti-American sentiment and hostility toward people of faith is present in some corners of the modern academy is evident. My intent here, however, was not to enter into a debate about patriotism or religion but to analogize the overzealousness of the beliefs of some members of the academy today with the intensity of feelings sometimes brought by others to their faith or to their love of country, and the unhealthy intolerance such sentiments imbue in “true believers” of any stripe. Thus, I did not mean for that passage to be taken literally, but I realize that they could be misunderstood when read out of context.

Third, I described the current climate on university campuses (again, I plainly was not referring to Dartmouth but higher education in general) as resembling the Spanish Inquisition in its imposition and enforcement of a rigid new intellectual orthodoxy. This comparison was an obvious exaggeration. But intellectual orthodoxies, whether ancient or modern, are inimical to the educational process. This orthodoxy is both real, as former Harvard President Lawrence Summers learned, and dangerous, as the Duke lacrosse team learned. Leading commentators have expressed concerns similar to mine, such as former Yale Law School Dean Anthony Kronman (in his new book Education’s End: Why Our Colleges and Universities Have Given Up on the Meaning of Life), former Harvard Dean Harry Lewis, who has contended that universities today provide, to use Lewis’s words, “education without a soul,” and Professor KC Johnson and journalist Stuart Taylor in their recent expose of the Duke lacrosse scandal. The threat goes to the very heart of the educational process, yet university leaders nationwide generally have turned a blind eye to it.

Dogmatic limitations on freedom of speech and inquiry stifle the educational process, regardless of whether those limitations emanate from the right or the left. During the Cold War, Dartmouth’s legendary President Ernest Martin Hopkins refused to censor Communist speakers and ideas from Dartmouth’s campus, even when those views offended major donors and other constituencies. The defense of free speech and inquiry was a primary purpose of seeking to become a Trustee and is the primary touchstone for my actions as Trustee. I will continue to work to strengthen academic freedom at Dartmouth and will, in the future, try to do so mindful of my responsibility as a representative of the College.

I appreciate the opportunity to address any concerns that may have been created by my remarks. If some of my language was strong, it was the product of upset and concern that many share about the current situation at Dartmouth. I hope that my misstatements will not overshadow the need for serious discussion of the issues I have raised, issues far more important than whether some of the comparisons and characterizations I made were too strong. As stewards of America’s institutions of higher learning, college and university trustees have a unique obligation to confront the most pressing issues of higher education today, even—or perhaps especially—when those issues are highly controversial. It is only by the full and open discussion of views that we can address the challenges that confront higher education generally and Dartmouth specifically. I look forward to working with all my fellow trustees to achieve the best possible Dartmouth.


Todd J. Zywicki ‘88


A transcript of the full speech is reproduced below for those who want to assess my words for themselves in their proper context. As is evident, I spoke from notes, not a prepared text. This address was not intended to be reproduced in written form. I have added punctuation where necessary, but have otherwise preserved the original transcript.

Speech given at the John William Pope Center in Raleigh, NC on October 27, 2007 on the topic “Trustees in the 21st Century. I’m going to talk about two things today which is basically my experience at Dartmouth and secondly what lessons that leads me to think about reforming higher education. And I’m certainly in a funny position to some extent like some other members of the panel my vocation is as a professor but my avocation is as a trustee which I think of as meaning I know all the tricks of the professors when I sit on the board, but I kind of switch hats. I’m going to spend a couple of minutes on the background of the Dartmouth situation and an update on it and then talk about sort of the more general questions.

How did I end up on the board of trustees? On of my colleagues in the economics department when he heard I’d gotten elected to the board of trustees said, “I didn’t realize you were independently wealthy. Then I had to explain to him the off way in which I got elected. That basically what happened was Dartmouth over the past 25 years, In the 1980s we had a fellow named David McLaughlin was president of the College. He had come from the private sector as a corporate officer. He got fired by the faculty because he brought back ROTC, primarily. They then brought in this fellow, truly evil man, James Freedman, who basically, simply put, his agenda was to turn Dartmouth into Harvard. Freedmanism basically had four planks:

1. That Dartmouth should be a university rather than a college.

2. Political correctness in all forms — speech codes, censorship, and the whole multicultural apparatus.

3. Comprehensive social engineering of student life and replacement of the Greek system for instance.

4. And a de-emphasis on Dartmouth’s traditional values of educating well rounded leaders in favor of creative loners.

He basically spent ten years trying to bring that about and that has been sort of the guiding light for Dartmouth since that time.

Let me tell you a little bit about the Dartmouth board.

In 1891 a historic compact was reached where the alumni at the time, the college needed money, the alumni refused to give more money unless they had greater accountability and greater control over how the college was spending the money. So a deal was reached. There were at the time 12 members of the board, the governor and the president of the College were ex officio so there were 10 appointed members. They reached a deal and the alumni were given the right to elect half, five members of the board of trustees, five of them would be appointed and in exchange, basically the alumni would go out and solicit funds and give support to the College. The board has been expanded twice since then and each time they preserved the principle of parity. That interacts with a second factor which, so half the board traditionally has been elected by the alumni in contested elections. That intersected with another practice at Dartmouth which is the practice of petition trustees. Basically what happens is the Alumni Council would nominate some people and you could vote for, they would nominate three and you could vote for one of them, or if you didn’t like them you could try to get on the ballot as a petition candidate. In order to get on the ballot as a petition candidate you have to get 500 signatures from alumni. In the past that was, by and large, an insuperable hurdle basically because the College wouldn’t give you a mailing list or anything like that. In 1980 a fellow was elected as a petition trustee; quickly thereafter they changed the rules and basically kept the door shut for the next 25 years until T. J. Rodgers, an unusually determined and brilliant man, got on the ballot as a petition trustee and won in 2004.

The next year there were two seats open and me and Peter Robinson, a fellow at the Hoover Institution, both put our names forward as petition trustees. What they didn’t realize when they created the 500 signature rule was that eventually something would be invented which we would call “the Internet.” And so I announced my candidacy for the Dartmouth board on my blog, The Volokh Conspiracy. I needed 500 signatures; I got that in about a week and a half. When it was all said and done I got about 5,000 alumni to download a petition, sign it, stamp it and send it back to me and then went on to win.

Peter and I both got elected that time around. So that didn’t sit very well. Basically we all ran on the same thing which was we ran on strengthening Dartmouth’s undergraduate education, repealing Dartmouth’s speech code, greater transparency and openness in College governance, and that sort of thing. All of this didn’t sit very well with the powers that be, so the next thing they decided to do was to try to ram through a new alumni constitution, which would change the way in which trustees were elected. They needed a two-thirds majority in order to get that. 38 percent of Dartmouth alumni voted and not only did they fail to get two-thirds, they failed to get a simple majority. So that was fall 2006. Fall 2007, or Spring 2007, another alumni trustee seat was open, alumni trustee being the elected, the other half charter being appointed. So in the spring of 2007, the fellow who ran in spring 2007 was a fellow named Stephen Smith. And they brought out the long knives against Stephen. He’s a friend of mine and classmate from Dartmouth. They said he was opposed to diversity and opposed to research, which was somewhat ironic considering that Stephen is a black man raised in a single parent family in Anacostia in Washington DC. They added the fact that it wouldn’t add diversity to the board notwithstanding that, because that would mean we would have two law professors from Virginia on the board. Secondly, Stephen is a tenured law professor from the University of Virginia. So they decided that he was opposed to diversity and opposed to research. And the response was that he got 55 percent of the vote from the alumni, the largest total that anyone had gotten at that point.

So Democracy having not worked properly, this fall they decided to follow the Hugo Chavez form of democracy and simply impose [a new scheme]. This fall the Board of Trustees adopted a new governance plan to add 8 new seats to the board, breaching the principle of parity that they had promised in 1891, such that now if it goes through they would have 16 appointed trustees and 8 elected. And they said that the alumni should be pleased with that because they had decided not to get rid of all the elected seats. So they reaffirmed the principle of this and then gave instructions on how to run elections going forward. The executive committee of the Association of the Alumni who were elected last Spring in the first time that all alumni could vote by Internet and mail and that sort of thing is also the majority of the executive committee of the alumni association has 7 petition candidates and 5 non petition candidates. They voted to sue the college to enforce the 1891 agreement and asked for a temporary injunction and on Friday the College filed a document that said that they would refrain from adding any new seats, they were originally going to do it at the November meeting, and they said they were going to postpone it until February so the court need not rule on the motion for a preliminary injunction. And I will let you think about whether or not they would be opposed to litigation depending on how confident they were whether they were going to win or not.

But that’s basically where things stand. Now what has happened since we’ve been there? We’ve definitely made some progress. We’ve gotten the speech code repealed, which was very important. We’ve, I think, really focused on a reemphasis and reinvestment in undergraduate education. We’ve gotten the college to loosen the screws on its social engineering program, which was called the student life initiative at Dartmouth, and allow and respect principles of freedom of association and that sort of thing. A renewed commitment to the athletic program, which is an important part of the Dartmouth experience. And so I think we’ve done a lot, but there is still a lot to be done and obviously it’s going to be more difficult at this point.

So what are the lessons? The lessons are that progress is slow and difficult. My wife has basically told me that if I take another Dartmouth conference call she’s going to leave me. It takes a huge amount of time, a huge amount of energy. If you read the interview with TJ Rodgers in the Wall Street Journal this fall you will see the kind of abuse that one has to deal with in a situation like this. And what we saw in September was that the Empire struck back. They rolled the tanks into Tiananmen Square. And basically they couldn’t win at the ballot box and so they got rid of the ballot box. The entrenched powers are well, well entrenched and very powerful and they are formidable.

And I think that the largest lesson I have drawn from this is that academic reformers have to decide whether or not they are serious or not about the project of reforming higher education. It’s going to be a multigenerational battle; it’s going to take a lot of resources, and a lot of struggle. And I think what you have to understand is that those who control the university today they don’t believe in God and they don’t believe in country. [The] university is their cathedral[ ]. Their entire being, both those who fund it and those who teach within it, are tied up in the universities. It is basically their religion and its supported by those who, the Medicis of the earlier age built academic buildings rather than cathedrals today and they call the shots.

So what does this mean? I draw four lessons that I think are important for people in this room to think about. I try to remain hopeful, but I’m often skeptical about the prospect for reforming higher education, the way things stand today.

The first point that I cannot emphasize enough, we have to reach a point where we have to reach a point where we decide if we are serious about this or not. By which I mean that, we’ve heard of a lot of good things that are going on but they are basically guerilla warfare, they’re basically defensive, they’re basically to try to create a remnant on the campus where there is some light for students. But that in and of itself isn’t going to transform the culture. It’s a defensive culture, its guerilla warfare and so a couple of hundred thousand here or there or a million dollars here or there is certainly going to make a difference to some students, but when you are up against people who are writing 8 or 9 figure checks, they’re the ones who are calling the shots and they’re not asking questions. And we have to decide whether we are going to be all in or not because a little bit of nibbling here or there isn’t going to roll back the tide. It might stop the tide a little bit but it isn’t going to roll it back.

Secondly, it’s sort of left-liberal religion in a second way. Which is, my perception is, that those who bankroll these institutions basically use this to buy indulgences for being rich which is that they are fully embracing and happy to embrace all the multiculturalism and all the other stuff because this is their way of getting forgiveness. Of showing how virtuous they are despite the fact that they make a lot of money. So they have no quibble with the apparatus. Either they don’t care about it because all they care about is the reputation of the institution or they’re kind of happy with it because it allows them to deal with their conscience.

The third way in which it’s a religion and I’ll take a small disagreement, virtually everything our speaker [Dean Harry R. Lewis] said at lunch there is one place I’ll slightly disagree with Dean Lewis is that the establishment within these academies is vicious, they are vicious people, they have their own dogma. If it were the case that there was no morality and there were no values being taught in the academy that would be better than what we have, which is that there is a new dogma. The new dogma is environmentalism and feminism and that is the dogma and they will enforce it viciously. We have the Spanish inquisition and you could ask Larry Summers whether or not the Spanish inquisition lives on academic campuses today. So that’s why the first point is that we are either all in or we’re not. It’s going to be a long and vicious trench warfare, I think, if we are serious about taking the academy back.

Secondly we need to think about investing in alternative institutions or simultaneously or alternatively. Which is, that is we need to start thinking about creating and supporting alternative institutions. Elite institutions matter, absolutely, that’s where the leaders of society are disproportionately going to be found. But we need to find the shining lights elsewhere and start nurturing these. I will just tell you about George Mason Law School, at George Mason Law School we are a top twenty-five faculty. We have done, you know, there was a profile of us in the National Review a while ago that was very good; but, we are leaders in law and economics. We now have a new compulsory class that first years have to take on the founders Constitution where they have to read Madison and Hamilton before they are allowed to read Brennan and Ginsberg. And we take seriously the principles of a free society in a way in which the rule of law intersects with that. Our faculty are willing to engage on leading issues of the day, the second amendment, affirmative action, those sorts of things. We were the ones who sponsored the brief supporting the military, we wrote the brief supporting the military in the Fair v. Rumsfeld case, which we were then vindicated in eight to nothing in the Supreme Court. All the other law schools were on the other side of that issue. What we lack, though, is resources. You know $10 million or a million dollars is chump change at Dartmouth; that’s a transformative gift to a place like Dartmouth, I’m sorry a place like George Mason Law School or the George Mason Economics department or these other pearls, these other places around the country, these alternative institutions that I think need to be supported. Why? Because if reform is going to come I think it’s going to come from these new institutions, not from those that are already within the elite institutions. People like Michael Munger and Robbie George, these people are sui generis right, you can’t replicate them. If they come along, grab the opportunity and ride it. You have to invest in people and not just programs.

Having said that, the third point is that institutions do matter. Institutions matter a lot, which is what we’ve done is build institutions around the periphery like these centers, which again I think are very, very important and very, very useful. But fundamentally institutions matter. Jesus was great but Peter was just as important. Right? It’s great to have people out doing these things but institutions are where the actions are, institutions is where you draw kids in and educate them with a fundamental curriculum and that sort of thing. People don’t want to invest in overhead, for instance. But you’ve got to start thinking about getting institutions like George Mason Law School or wherever and building those programs and investing in them if it is going to be a multigenerational project of bringing them up to prominence so that they can compete.

The final thing, and I can be brief on this because Candace made the point is that trustees have to take a leadership role in this. When Trustees don’t act, the void gets filled by the permanent constituencies on campus, which are the faculty and the administrators. The trustees are the only ones that can look out for the institutional mission. And I am proud that I can say that in my time that I’ve done at Dartmouth on the board is that we trustees through the alumni who voted for us, have made student education our primary focus. That I see my view as being the voice of students today and in the future and the best representatives of the students are the Dartmouth students of the past who are the alumni. And so I think that trustees perform the key role in preserving that and that’s one of the reasons why I think Dartmouth today despite my qualms still has the premier undergraduate experience of any school in the country. And I believe that is because of this institution of alumni being able to elect half the board and I fear that’s what is going to be the primary casualty of this new governance regime. A final word on that is that I met a president from a prominent university once and he said to me, “Look Todd, you need to understand. When I was president, the way I saw trustees was that they were a constituency to be managed. They’re a constituency to be managed just like the faculty, the alumni, the employees. They didn’t run the school. I ran the school and they were a constituency to be managed.” So long as that is the view of presidents of universities and that sort of thing then I think reform is going to be fleeting.


Question and Answer Session.

Question: I’d just like to ask a question, Todd, could you explain what the speech code was at Dartmouth and why you objected to it?

Answer: Well, it was a pretty standard speech code which was that basically what it is that the incident rose from something involving a fraternity and the president and dean of the College said, infamously, the president said, I can’t believe in this day and age we still live in a world where people think that their “right” to free speech outweighs feelings of others on campus and so they punished this fraternity and basically instituted the new rule which was that your speech will be limited if it hurts, if it might be perceived as hurting the feelings of others on campus. FIRE downgraded the College to ‘red’ speech code rating at that point. Right when Peter and I were going to get elected, when it was clear that we were going to be elected, we found out later the College was able to find out what was going on with the voting during the whole period, they repealed the speech code and now Dartmouth has a ‘green’ rating. We still have a lot of problems with free speech at Dartmouth; now it just is a culture of bullying and intimidation, but it’s not one where you can be kicked out or disciplined formally for offensive speech.

Question: I have a question for Todd. You made a comment about guilt ridden entrepreneurs and I’m reminded of a wonderful scene from Tom Wolfe’s Man in Full in which the scene at the High Museum in Atlanta in which this limited director gave a post-modern lecture about art and post-modernism and the wives nodded their heads and the poor entrepreneurs sat there staring blankly at this ludicrous lecture and, of course, there was a lot of other hidden motives going on in the way Wolfe could portray it so brilliantly. What can be done about the question of guilt and the question of the idea that an entrepreneur isn’t convinced of the moral goodness of what he or she does to the creation of value isn’t something to be lauded? The entrepreneur is a hero and why they internalize this negative self-perception?

Answer: Yeah, I mean I can’t really say much about that where people get their values and that sort of thing. The only thing I meant to stress was, perhaps I was being unduly hard on those folks, which is that certainly people who accomplish things want to give back, starkly a lot of people have given back through the arts or, you know, through their churches to their religions building churches and that sort of thing. What motivates that are a variety of motives and often is guilt regardless of which side it is. All I’m suggesting is that for these folks these are their churches, number one and, number two, that they’ve bought into a world view where they’re not hostile to the kind of things, the assault on capitalism and that sort of thing that go on in there. So where those values come from obviously are partly from their education they received. It’s just extraordinary, environmentalism is the one that’s just mind boggling on campuses today. I mean it really is a religion. I teach kids and when they come out the other end when they get into law school and they’re simply unable to think in any critical or analytical way about that question. It’s just an example and obviously that gets rolled up with antipathy toward capitalism on that particular issue.

Question: Candace, you point out that trustees are afflicted by the common decadence as such and, Todd, you followed up with something that came very close in my mind to a rejection of the notion that ideas have consequences. I know you don’t believe that, but it seems to me that one of the key things that does need to be done is to focus on the education of trustees. We’ve talked about the fact that there have been so many decent books that have been written over the past forty years criticizing the kinds of things that have happened in higher education, and, yet, those books seem to have been thrown over the transom and then directly into the waste basket of ideas rather than having the kind of consequences that many of us had hoped that they would have. I wonder if you might comment, in effect, the strategy of how we can, in fact, make a difference with what is naturally limited funding.

Candace answers the question first.

Answer: I’ll just add two quick thoughts, just to elaborate on what Candace said. Trustees have neither the expertise nor the incentive to really seriously think they can govern the institution today, which is to say they don’t have the expertise and they have no interest in gaining the expertise. You become a trustee because you get good seats at the football game and you get wined and dined and everybody pretends like you’re a genius and all that sort of thing. Read David Brooks chapter on the status income gap in Bobos in Paradise and you get a flavor of this. They also don’t have the incentive to actually govern institutions, which is to say that to actually govern the institution will require them to be will to deal with controversy. People don’t work 90 hours a week on Wall Street to go back to their alma mater and argue. They don’t want to figure out what’s going on inside the classroom and they actually try to bring about reform that would open them up to a lot of controversy that has nothing but downside as far as they’re concerned and especially once the faculty gets their long knives out. Then they can control what goes on; it’s just not worth it to them. That underscores what Candace said is that they really don’t care what goes on inside the classroom, by and large.

The second thing is that the education of trustees is an abomination. I’ve just been stunned, there’s this one group, the Association of Governing Boards, is that who these clowns are? Ah jeez, I mean, they’ve got this group that you automatically become a member of when you’re a trustee and they just send you this garbage, it’s unbelievable. They actually issued a press release that Dartmouth basically adopt a board reform that every sector of American society is becoming more transparent especially when it comes to governing boards. More independent directors, that’s the lesson of Sarbanes-Oxley and everything else. Dartmouth adopts the exact opposite, right, and shuts down transparency, makes boards less independent. The Association of Governing Boards, “Boom!” out the door comes a press release endorsing Dartmouth for its actions, right. I mean these are the kind of characters who send out this propaganda that’s just the most brain dead stuff you’ve ever read that says the job of the trustees is to shut up and write checks; that’s basically what it comes down to, and you wring your hands a little bit and that sort of thing, so (Candace interrupts)

(Candace) And keep in mind, who pays the dues of the AGB? Presidents!

Answer: Right, so basically, your job is to support the president; that’s what the AGB says your job is. Yeah, so the whole thing is a fiasco.

Panelist Velma Montoya answers further…

Answer: Let me just add one footnote to that, which is, when I got elected to the board, I got a lot of friends on the faculty and I was informed very quickly by the members of the board that I shouldn’t be going around meeting outside the proper channels with people on the faculty and meeting with students; that I was too high profile around town because I was seen out meeting with students and faculty and that sort of thing. That my job was to receive what was given to me as the official line and that I was acting inappropriately as a trustee by going out and soliciting information on my own. I, ah, listened to their, ah, to their advice carefully….. and then rejected it.

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