Colonoscopic Thoughts About Dartmouth

[from the CV Spectator of 5/14/2009]

Pardon me for bragging. But it’s graduation season and I am pleased to report that, after rigorous examination and the payment of much money, I have passed with flying colors and am now ready for the future.

That’s right. I had a colonoscopy, upon turning 50.

An excellent nonprofit, Mount Ascutney Hospital, provided this service. I bonded with my doctor and nurses, I will reminisce about the experience for years, and I am grateful to the institution for sending me forth with confidence (since my colon was polyp-free).

But I didn’t leave with the idea that this should entitle me to govern the institution or even elect those who do. Hence my puzzlement with the alumni of Dartmouth College.

Well over a century ago, graduates of Dartmouth bailed out their financially troubled school and extracted the right to elect part of the institution’s board. Some of their descendants have lately been proving what a Faustian bargain this was.

Chief among them is Todd Zywicki.

Kvetching on his blog last month about his fellow trustees’ decision to deny him a second four-year term, Zywicki alleged that he was thrown off the Big Green island “either because of the content of my speech or for some unnamed reason for which I received no notice or opportunity to respond.”

The 2007 speech to which Zywicki alluded is notable for its characterization of the late James Freedman, Dartmouth’s president from 1987 to 1998. Zywicki called Freedman a “truly evil man.”

Now, Zywicki condemns the trustees for being “unwilling to stand up for the right of free speech in an academic forum.” For a law professor at George Mason University, Zywicki sure has a strange notion of the Bill of Rights.

The concepts that Zywicki invoked of “notice” and “opportunity to respond” apply to the Due Process clauses of the Constitution. They limit only the government’s ability to make decisions unilaterally.

Likewise, the First Amendment says the government cannot silence people. Dartmouth is not the government; it is free to discipline trustees who make public statements the College deems embarrassing. It can do so without explaining itself to Zywicki or anyone else.

However, as Zywicki implies, even private schools revere academic freedom. Thus, Zywicki should be free to opine intemperately at George Mason. But as a Dartmouth trustee, his job was to serve as a fiduciary of the institution – in effect, to preserve the academic freedom of others.

As someone who has taught business law, Zywicki is presumably familiar with a central tenet of fiduciary responsibility – the duty of loyalty. For a trustee, that means it’s okay, maybe even desirable, to deliver tirades about the institution in the board room -- but not in public.

In the outside world, Zywicki’s job was to defend Dartmouth. He didn’t do that job, so he got fired.

Zywicki is also a self-proclaimed avatar of Dartmouth’s traditions. So he should not be excused for commentary that ignores a pivotal moment in Dartmouth’s history, and legal history as well.
The U.S. Supreme Court’s Dartmouth College v. Woodward decision in 1819 was the occasion for Daniel Webster to proclaim during his courtroom peroration that Dartmouth is “a small school . . . and yet there are those who love it.”

Webster achieved victory against certain New Hampshire officials, and a faction of Dartmouth’s own leadership. They had, to that point, succeeded in turning Dartmouth College into Dartmouth University – a public institution.

Dartmouth, in effect, fought and won the right to evade the very constitutional limitations that Zywicki now invokes.

“Hang one, warn a thousand” is the moral of Zywicki’s ouster, according to alumni trustee T. J. Rogers in a letter to the student newspaper. Rogers also bragged that “swim team” was the rallying cry that won his own election in 2004.

What pleasure I take in all this, as an alumnus of an ascendant Middlebury College – a rival to Dartmouth whose governance is not hampered by fractious trustee elections featuring candidates driven by athletic preferences or petty politics.

And as for my colonoscopy at Mount Ascutney? Well, all I can say is that it’s a small hospital, and yet there are those who love it. Even if we can’t run for the board of trustees.