In Defense of a Dutiful Trustee

On November 26, The Dartmouth published a column called In Violation of a Trustee’s Duty, by Bill Montgomery of the Dartmouth Class of 1952. The article called for Todd Zywicki’s punishment or forced resignation as a member of the Dartmouth Board of Trustees because of remarks made by Zywicki while speaking at the 2007 Pope Center Conference.

Since we at the Pope Center are not privy to all of the insider information at Dartmouth, we cannot comment about all of the charges against Zywicki by Mr. Montgomery. However, we expect that the charges we know nothing about are no more substantial than the charges for which we do have knowledge, and those are completely without merit.

According to Montgomery, Zywicki’s “most egregious statement” called former Dartmouth president James O. Freedman “a truly evil man.” As Zywicki explained in a powerful defense, this was not his own phrase but a quotation that he failed to attribute to Jeffrey Hart. Zywicki also apologized for its use as too excessive. Still, as John Leo pointed out on Minding the Campus, Freedman was indeed a vindictive individual whose blanket condemnation of the Dartmouth Review staff as racists and his active attempts to silence that publication far exceed the antagonism present in Zywicki’s comments.

Montgomery also said that the following statement by Zywicki was untrue: “they basically couldn’t win at the ballot box, so they removed the ballot box.” Rather than being a “falsehood,” as Montgomery labeled it, the statement instead is a fair characterization of the actions of the Dartmouth trustees. When anti-establishment petition candidates started to gain in number and influence, the Board attempted to dilute that influence by increasing the number of unelected trustees. These are the facts cited in the Dartmouth College Alumni Association’s lawsuit against the Board. That the trustees quit their attempt to alter the composition of the Board once the suit was filed offers further evidence that Zywicki was not engaging in a “falsehood” but was instead speaking the truth.

Montgomery’s main argument for punitive actions against Zywicki suggests that Todd’s right to free speech ended when he became a Dartmouth trustee: “if he was only speaking for himself, he could speak as he pleased…when he became a member of the Dartmouth board, Zywicki accepted the obligation to follow board guidelines for conduct as clearly spelled out in the Statement on Governance and Trustee Responsibilities.”

Montgomery then produces the section of the Statement on Governance that he feels is “relevant,” and assumes that anybody reading this section will see that Zywicki’s transgression is immediately self-evident. He offers no further explanation other than “it is very clear that Trustee Zywicki, by speaking in a derogatory manner with specific examples, is in violation of his Dartmouth trustee responsibility and the board must hold him accountable or abandon their mission statement.” Yet a close reading, line by line, of the text Mr. Montgomery finds so pertinent reveals no such violation on Zywicki’s part:

“Act in the best overall interest of Dartmouth;”

Zywicki is acting in the best interests of Dartmouth as he sees them. This includes exposing an attempt to make the governance of Dartmouth subject to control by a self-perpetuating majority on the Board of Trustees whose leadership appears to be rejecting Dartmouth’s traditions for the sake of reputation and “progressive” politics. If his interpretation of “best interests” differs from the majority, but is not intentionally malicious, that is within his rights as a trustee. The Board cannot mandate a unanimity of opinions among its members.

“[R]epresent Dartmouth positively in words and deeds, particularly and proactively to Dartmouth constituents;”

Zywicki does not in fact speak negatively of Dartmouth, the institution, during his entire Pope Center speech, but instead attacks its governance by the administration, faculty and trustees, present and prior. When he speaks of Dartmouth the institution, this is what he has to say: “I think Dartmouth today, despite my qualms, still has the premier undergraduate experience of any school in the country.” That does not sound like a negative comment; indeed, it clearly demonstrates that Zywicki has nothing but the deepest allegiance to and regard for his alma mater.

“[S]erve Dartmouth as a whole, rather than the interests of any constituency;”

If Zywicki appears to be speaking for a constituency, then it is a large constituency that has seen its interests ignored and cast aside by the Board majority. And that constituency elected him to the Board. The case could easily be made that it is the Board that has long favored a constituency at the expense of the whole. There is obviously a deep rift at Dartmouth, between those who wish the school to remain a traditional liberal arts college with free inquiry of ideas and those who favor the transition to a major research institution and a politically correct environment. Given the depth and breadth of this rift, it would be almost impossible to represent the whole of Dartmouth, and the establishment has no rightful claim to the “whole” in all matters.

“[S]peak for the Board only when authorized to do so by the Board Chair or President; adhere to the highest standards of personal and professional behavior so as to reflect favorably on Dartmouth.”

Zywicki was not in any official capacity and was not speaking for the Board, nor did he claim to be – he was speaking for himself. To claim that he needs the Board’s permission to speak for himself at events is tantamount to limiting his ability to engage in free academic inquiry. As for Zywicki’s personal and professional behavior, he is a respected law professor with no criminal history.

Zywicki’s real offense is that he dared challenge the established powers at Dartmouth, who have long rubber-stamped the demands of the the “progressive” faculty and administrations. He did so not for any sort of gain, but out of love for the school and because he wishes to prevent its decline and the loss of its unique place in American higher education. The Dartmouth Board of Trustees could use more members “in violation of trustee’s duty” just like Zywicki.

Editor’s note: Jay Schalin, is a writer at Pope Center for Higher Education Policy. He wrote the initial article about Zywicki and his fellow panelists at the 2007 Pope Center Conference.