Professor Bainbridge...on law, politics, religion, culture & food

That letter did nothing to change my low view of academics. How about a few more specifics other than lacking “a meaningful opportunity to comment as a group” on the move? It appears that all involves are petty, whiny babies. 

If you don’t want to move, don’t move, get a different job.

It’s not about the move, it’s about the ABA-rules-violating governance.

It is also about the Board of Governors violating their duty of care, loyality and obedience.

No one could possibly argue successfully that closing Ave Maria School of Law and transfering its assets to a new entity in Florida (given the risky unproven nature of the development there, and its isolation from the closest center of legal society) could at this point be in the best interests of the Law School given a reasonable person standard.  The Board of Governors has so boldly violated the Duty of Care, it is surreal.

A number of AMSOL Board Members (including the Dean) have positions and entanglments with the Ave Maria University project, a project that is failing to meet its growth and sales targets, and that is in “crisis” according to Fr. Fessio (recently fired and rehired and exiled to Europe). The decision to wrap-up AMSoL, MI and transfer its assets to a new entity in Floridia is objectively in the best interests of the Ave Maria University/Town developers. There are clear conflicts of interest and violation of the Duty of Loyality. Again, using a reasonable person standard, the Board of Governors acted in a way that was completely disloyal to Ave Maria School of Law.

AMSoL’s mission incorporates the Catholic Church’s teaching in Ex Corde Ecclesiae about how a Catholic 3rd level educational institution ought to be ordered. Again and again, the Board of Governors and Dean have operated in ways which objectively violate these principles. The most extreme example is the total refusal of the BoG to meet with the Faculty after a vote of no confidence in Dean Dobranski. The actions of the board and administration under the heavy hand of Mr. Monaghan reveal an ethos and vision counter to the written ethos and mission of Ave Maria School of Law. The Board have been disobedient in their duty to the mission of the school.

The issue is not the move to Floridia, the issue is the deep systemic problems in governance. A move to Florida would only intensify the problems already existing. No one who has looked at this closly could surmise that the problem is with an entitled academic class who are acting like upity employees. Such a comment shows a lack of understanding of the events and of the people concerned.

The legal community that formed Ave Maria School of Law and asked Mr. Monaghan for backing is a community of extraordinary talent, virtue and high character. They are the people who pledged their own personal wealth to start this project, and their careers were put on the line.

The issue is the violation of ABA standards, legal standards of board duties, and the governance of the law school.

When you set up a law school under the absolute control and ownership of a single wealthy individual, I suppose there’s an inevitable risk that that individual is one day going to decide to pick up his marbles and go play elsewhere.  The faculty are concerned about the reputation and continuing existence of the law school.  The owner isn’t.  The owner’s going to win that fight.

Cornellian,

There are some who believe Tom Monaghan “owns” AMSL, but the IRS, the State of Michigan, and the ABA do not believe that.  In fact the Board and Administration chose not to set up the school as a proprietary law school, but rather as an independent 501(c)(3) law school with a governing board under the laws of Michigan and ABA guidelines.  Perhaps the Board and Administration were less than truthful when they made such representations. If so, they should be held to account to those who risked their careers by trusting those representations.

Forsooth is correct, AMSoL was never conceived as a proprietary law school.

Rather, the explicit representations made to the ABA (upon which full accredidation was given) detailed the plan to be fully independent of funds from Ave Maria Foundation (aka Tom Monaghan) by 2009.

The Law School was on track to accomplishing that goal and was performing well above the expectations of the original business plan (in terms of student profile, recruitment, Bar results, clerkships, etc). This changed when Mr. Monaghan decided to act as if he was the proprietor of the Law School and the Dean of some memmbers of the Board of Governors allowed it. Other members were forcibly removed from the Board until there was enough votes to say “Yes” to Tom Monaghan.

If the governance of the law school can be corrected, the law school can still be financially independent of the Ave Maria Foundation (Tom Monaghan) by 2009 - but it would require that Monaghan fulfill his stated promises for funding until then.

Many people don’t know that the Founding Faculty pledged their own widow’s mite to start this project and sought only the short/medium term start-up capital from Monaghan.

Mr. Monaghan has a failing speculative real estate venture in south west Florida which needs propping up with live bodies. That is why he needs AMSoL down there.

To reduce this down to “What you don’t have is a right to vote on what your employer does” is to be in gross error at several levels.  First, the Law School administration has been violating ABA standards of accreditation for years.  Are law faculty to simply stand idle while this happens?  Second, academic communities are just that - communities.  They’re not top-down managed firms.  Many of the faculty who signed the statement were *founders* of the school who poured their own money and careers into the community’s formation.  Finally, while some might find the statement unconvincing, try taking *any* law school faculty in the country and crafting a document that *everyone* can put his name to; you might as well herd cats.  Bravo to AMSL’s faculty for valuing their institution and profession enough to push back against a nutbar billionaire and his lemmings.

This certainly seems to be much ado about a private organization.  Whoever is in charge, it is not the faculty, who deserve a healthy dose of “shut up and sing.”

If they don’t like the way the place is run, they can leave.  I don’t know who is “morally” right here; maybe the administration members are a bunch of jerks.  But it just doesn’t seem like my business.

Kysa Beringer,

Does it not trouble you that the ABA accreditation process is a barrier to entry into the law school market?

It may well be the case that the ABA’s process is a barrier.  What I am not free to do, however, is explicitly enter into an agreement with my employees, students, and the ABA on a set of standards, and then turn around and ignore those standards because (in my mind) I find them disagreeable. 

In 2003, Tom Monaghan had to pay back over $250,000 to the Department of Education for illegally disbursing federal aid to students on his start-up University campus in Florida.  He has a long history of making agreements, then acting with impunity.  Why? - because he can - by nature of his wealth (and the power that goes with it), and because he leverages the philanthropic “I’m not obligated to help you anytime I stop feeling like it” card.  Realize that his 501C(3) Foundation “gives” to his 501C(3) Law School - he, as Foundation Chairman, gives back to himself for 100% control as School Chairman.  That is a recipe for dysfunction.

I find it so odd that people are angry at the faculty for bringing outrageous abuses of power to the attention of the legal community (as some posters here have done).  Doesn’t it concern the whole legal academic community if it is true that an ABA accredited law school is behaving in the manner described in the faculty’s document?  And the actions of the administration (if true) are surely far from the norm for academic institutions - monitoring emails and computers? Messing with tenure?  And interrogating student research assistants - forcing people out of chairmanships of committees?  That’s outrageous, and the legal community should be concerned to ensure that such behavior isn’t tolerated, if only out of self-interest.

I have no dog in this fight, but I wonder why anyone ever thought this project wasn’t bound to come to grief sooner rather than later.

This is ridiculous.  The faculty are a bunch of whiners.  They shoudl find another place to get a job, just like at any other business in the world.  This idea that academics are a protected class is mind-boggling.

regardless of your opinion of academia, the school has a mission—i.e., to integrate faith and reason (Fides et Ratio) in a genuinely Catholic legal academy (Ex Corde Ecclesiae)—and the Board has a fiduciary duty to see that the mission is carried out, and to act in the best interest of the law school.  Have a look around avewatch.org and tell me they’ve fulfilled that duty.

"Does it not trouble you that the ABA accreditation process is a barrier to entry into the law school market?”

This is ludicrous, Octoroon.  Many law schools operate successfully without ABA accreditation.  Indeed, if Ave Maria had wanted to, it could have chosen to pursue accreditation from its home state of Michigan.  Where’s the barrier to entry?

This is an interesting corporate governance case, as some of the comments said. I don’t blame Mr. Monaghan. He has the right to make any suggestion he likes, and to cut off any money he has not yet promised (and I guess he has the legal right to cut off even money he has promised, since there’s no consideration).

Rather, the problem is the board of directors (whatever its formal name may be). The directors owe a duty to the law school, and only owe gratitude and a certain deference to Monaghan’s intentions at the time of past gifts.

That is all quite apart from whether the law school is run as a respectable academic institution or as a boss-and-workers charity.

My question is this: if the board is violating its fiduciary duty, what is the procedure for punishing them, and the remedy? Does the Attorney-General of Michigan have to sue? What are his political interests here?

I wouldn’t think there would be any IRS implications unless Monaghan has retained actual authority over the law school, as opposed to having chosen directors who like to please him but whom he cannot compel to do what he wants. Or unless his director friends are using the law school move to help Monaghan out financially (and perhaps even if they are using it to help his other charities– an interesting tax question).

I guess he has the legal right to cut off even money he has promised, since there’s no consideration

Promissory estoppel?  The promises of financial support until 2009 were made to the ABA as well as the Board and the students.

My question is this: if the board is violating its fiduciary duty, what is the procedure for punishing them, and the remedy? Does the Attorney-General of Michigan have to sue? What are his political interests here?

My guess:

The ABA, would determine if the BoG has violated its duty and violated ABA standards. It would probably give AMSoL a chance to explain/remedy the situation, but stick would be loss of accreditation (which I understand is not very common). The faculty/alumni/students could probably make a case on the basis of being a 3rd party beneficiary to an obligatory promise which has been broken, and then seek damages.

I’m unaware if a stakeholder has standing to pierce the corporate viel and go after the BoG for breach of fiduciary duty.