Save Antioch College - The Portal

The 2007 Reunion resolution called upon the Alumni Board to negotiate with the University for an independent College, and that’s been Plan A ever since.   Who knew? – here it is, still alive, a year later.

Alums have been asking all year, “but what if we can’t close a deal with the University?  What’s your Plan B?”   We’ve been working on Plan B since last fall, but it is in the nature of Plans B that they remain in the background, until the time comes to bring them to the foreground – which would be now.

The most obvious Plan B in a situation like this is litigation.  At Reunion 2007 there was a break-out group on legal strategies, and many alums wanted to sue the University right away – but most of the lawyers did not.  Lawyers know better than anyone that litigation is always a last resort:  it is costly, nasty, and anything but short.  However you calculate the costs of this past year of negotiations that have yet to bear fruit, one thing we gained is this:  no one will ever be able to say we didn’t do everything possible, and more, to avoid litigating.

One lawsuit was filed suit last August.  Members of te faculty sued the University for breach of its contractual obligations, which are spelled out in detail in the Faculty Policy and Procedures Manual, to consult with the faculty before declaring “financial exigency,” and to pursue “less drastic alternatives” to closing the College and dismissing tenured faculty.  That suit was voluntarily dismissed in October as a gesture of good will to move the negotiations forward, with the proviso that it could be re-filed at any time – which it has been, but I’ll come back to that in a minute….

At about the same time, a team of lawyer-alums began investigating other potential claims against the University.  One alum persuaded her very fancy Wall Street firm, Debevoise + Plimpton, to take the Alum Ass’n on as a pro bono client.  As of a few weeks ago, the time-value of their efforts alone was $350,000, and the work goes on.  My firm, Morrison & Foerster, has made it’s 800 conference line available for easily 10 hours of calls per week, for telephonic Alumni Board meetings, committee meetings, and conferences – this has invaluable in keeping us connected.  Others alum lawyers donated their time as individuals, including identifying, interviewing and retaining paid counsel.  And the work goes on.

The big-ticket item in complex litigation is factual investigation .   If you have spent any time at all on theantiochpapers.org, you know that we have a rockem, sockem investigative team.  They have put in hundreds of hours analyzing docs and meeting with lawyers to bring them up to speed.   Their latest effort was an intensive one, and for they first time they asked us for payment, still donating half their time.  We paid them a pittance – little more than token recognition of a contribution worth thousands and thousands of dollars.  We are thrilled to have them on our team.

So what has all of this effort produced?  There are six kinds of claims that we are supporting.  The central action is a “derivative” suit on behalf the Antioch University Corporation itself, for injuries inflicted on it by its Administration and Board, such as damage to Antioch’s reputation, its ability to recruit qualified students, faculty, and administrators, and the destruction of the U’s most valuable asset – Antioch College – by forcing it into closure.   The people with standing to bring this action are sitting Trustees.  And if the Trustees say no to the offer from the Alumni Ass’n that they have solicited – if they say no again, we will be looking to some of those Trustees to start this action.

Other lawsuits in preparation are claims by donors who contributed to the Antioch College, to either the Annual Fund or the Capital Campaign, at a time when University personnel knew that the College would be closed and failed to disclose that fact to donors; claims by students who were   promised, and awarded scholarships for a four-year Antioch education; and claims on behalf of donors of restricted funds that may have been misappropriated.

In addition, one of our alum lawyers – who does not practice in Ohio – unearthed an arcane Ohio statute …   5 of citizens of Green County may petition the the Attorney General to investigate breaches of fiduciary duty by the University Trustees, including their duties of care, proper accounting, and loyalty.

Our retained counsel have done their duty, and warned that these claims will be difficult to prevail on.  Trustees enjoy a presumption that they have acted in good faith; they are entitled to exercise business judgment, and they are entitled to make mistakes.  We will have to prove by clear and convincing evidence that they breached their fiduciary duties to the University – not just  the College.  Disclaimer – I am not licensed to practice in Ohio, I am not allowed to practice law for anyone other than my firm’s clients, and I am not acting as a lawyer in this case.  I am a coordinator and a potential plaintiff.  But I did teach civil procedure for 11 years, and my own personal view is that these claims will survive motions to dismiss on the pleadings.  Which means that we will get discovery.  And we may well discover other potential claims when we do.

The faculty lawsuit has already cleared that hurdle, and discovery is underway.  It’s basically a breach of contract claim.  The faculty’s contract – pol and proc manual – sets out very specific things Trustees were required to do before declaring financial exigency.  And they did none of them.  The contract also states that they may terminate tenured faculty only if the financial emergency “cannot be alleviated by less drastic means.”  Speaking as a lay person, it seems to me that the Trustees have been presented with three of four very viable alternatives to terminating our faculty and closing the College.

The other thing to say about litigation is that well over 90% of civil lawsuits settle.  So, in my personal opinion, we will get our College back.  The University now agrees with us that an independent College is in the best interests of both the College, and we will achieve that goal – it’s a question of how long it will take, and how much money will be diverted from the task of bringing Antioch College back to life as a thriving, residential undergraduate institution, restored to its proper place in the pantheon of American higher education, and graduating generations of students dedicated to winning victories for humanity.

And that’s where Nonstop comes in.  Nonstop Antioch is the political movement.  First Amendment.   The educational enterprise is not called Nonstop Antioch , b/c the university owns the trademark to use that name   has been named The Nonstop Liberal Arts Institute.

I’ve been privileged to spend much of this academic year on campus, and it has been a roller coaster.  There have been some very low moments.  The lowest was probably in January.   That was when the University administration announced, in the middle of a meeting at which the AC3’s initial proposal was to be presented to the Board, that the College would close on June 30 even if negotiations with the AC3 were successful.  It was a very, very dark moment on this campus.  The administration considered itself ethically obligated to kill off any ray of hope – which they called “false hope” – and for a short while it did.

But then people started realizing we’d hit bottom.  They’d done the worst thing they could do.  And that meant we were free.  The realization that a faculty and community that has been living under what Hassan Nejad calls “colonial occupation” for years – the realization that the faculty is now free to create the curriculum that they think Antioch College should be offering — has unleashed an enormous sense of liberation and creative energy.  You’ll be hearing more about that from the faculty.

Ellen Borgersen
Alumni Board Vice-President, CRF Acting President