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How Regents Should Reign

fiduciary-duty-memo-top.pngAs Dartmouth alumni proceed through the legal hoops necessary to defuse a Board-packing plan—which put in unhappy desuetude an historic 1891 Agreement between alumni and the College guaranteeing a half-democratically-elected Board of Trustees—it strikes one that a complete rehearsal of the events to date might be in order. Things, after all, have gotten complicated.

Harvey Silverglate is perhaps the national authority on campus First Amendment issues: he co-founded the Foundation for Individual Rights in Education and serves on the Board of the Massachusetts ACLU. Harvey is an exceedingly accomplished lawyer, and in Cambridge holds forth a tidy practice concentrated on civil liberties and academic freedom. When he marks a ballot in November, his is probably the precise mirror of mine, but we find ourselves in total accord on some core principals of good governance. As readers of this page will know, we two have been following events in Hanover closely.

Harvey and I endeavored to write a memorandum on the fiduciary duty of college trustees, its history, and the oddities of its performance at Dartmouth. We are thankful for the robust aid of his brilliant research assistants and paralegals Kyle Smeallie and Maria Romero, both lately of Boston College.

Dartmouth College, the Battle Over Parity, and the Legal Notion of Fiduciary Duty — Harvey A. Silverglate and Joseph Malchow. [PDF]

The memorandum is split into two parts: first, nearly the entire Dartmouth saga is narrated in chronological order, from the election of the first petition trustee through each scheme and flam meant to impair the petition process. Then, crucially, we discuss exactly how the fiduciary duty has been performed at Dartmouth and elsewhere—by the petition trustees and by the majority—and how its incorrect interpretation can lead to disastrous ends. We ground the proper conception of the duty of fiduciaries in history and in law, and then show how the Dartmouth petition “safety valve” has been an exemplary implementation of proper oversight.

If you want a primer on the Dartmouth fracas, or a fuller understanding of how college trusteeship got to where it is, do give it a read.

(Comments are most welcome. Harvey can be reached at has@harveysilverglate.com; I am at jm@joemalchow.com.)

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