The Faculty lawsuit has been moving forward steadily, though quietly. I’ve taken the baton from Peter Townsend in coordinating communication, and thought that we’re way past due in providing an update on the various pieces of the legal puzzle that have been unfolding during the past few months.

a) Some may know that Eric Bates, one of the ACCC negotiators, was deposed June 26th.  Due to the confidentiality agreements between the ACCC and the University in their negotiations, the text of the deposition has not yet been released.  University attorneys are still reviewing the text of the deposition, and it should be released soon.  We’ll post it as soon as it’s made available.

b) The Greene County judge has not yet ruled on the University’s motion to dismiss the Faculty lawsuit.  There is no legal deadline for him to do so, and his ruling could come tomorrow or months from now.

c) We’re moving ahead with depositions, and have scheduled two Trustees to be deposed in early September.  Other Trustees and the Chancellor are in the cue.

d) Faculty counsel sent a request to University counsel for electronic documents on July 11.  Most importantly, the request asked the University to produce all e-mails to and from the Chancellor starting in January of ‘07.  We have received a written response, and should be receiving the documents shortly.  At that point we will have to review what has been released, to examine critical absences, and may have to seek the court’s help in compelling production of relevant electronic documents, including, if necessary, forensic retrieval.

On behalf of the faculty I’d like to thank all of you who have supported us in this legal action.  The process is long and painstaking, and of course very expensive, but I’m convinced that the lawsuit (a) has been a primary force in keeping the Board and University at the negotiating table, and (b) has played a very important role in excavating the Board and University processes that led to the closure of the College.  I hope you will continue to show your generosity in this effort to get at the truth and to bring about an autonomous, viable and thriving Antioch College.  Contributions for the Faculty Legal Fund can be directed to the College Revival Fund folks.

For the Faculty,

Bob Devine

IN THE COURT OF COMMON PLEAS OF GREENE COUNTY, OHIO

PETER TOWNSEND, et al.
Plaintiffs,
v.
ANTIOCH UNIVERSITY,
Defendant.

Case No. 2008 CV 0300
Judge Wolaver

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT

I. INTRODUCTION
The Court should deny Defendant Antioch University’s Motion to Dismiss because Plaintiffs, the tenured faculty members of Antioch College (the “College Faculty”), are not seeking specific performance of the provisions of a personal services contract and they are not asking the Court to step into Defendant’s shoes and make decisions regarding the operation of the College. Rather, the College Faculty seeks specific performance of Defendant’s contractual obligation to implement less drastic measures than closing the College in order to alleviate the College’s financial problems. Specifically, Section IV A 56 of the College’s Faculty Personnel Policies and Procedures (“the Contract”) permits Defendant to declare financial exigency and close the College only when “an imminent financial crisis exists which threatens the survival of the College and cannot be alleviated by less drastic means.” (emphasis added).

Contrary to Defendant’s assertions, the College Faculty is not seeking an order requiring Defendant to continue employing them as faculty members. In fact, the College Faculty recognizes that in order to keep the College open, less drastic means may include a reduction in faculty. Nor is the College Faculty asking the Court to step into Defendant’s shoes and make decisions regarding the direction and supervision of the College. Rather, the College Faculty seeks an order requiring Defendant to adhere to its contractual obligations to implement less drastic means that closing the College, such as accepting a $14,500,000 proposal from the Antioch College Continuation Corporation (“the AC3”), which has a plan to keep Antioch College open and operating.
II. LAW AND ARGUMENT
A. Standard of Review

A motion to dismiss under Rules12(b)(1) and (6) should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. State ex rel. Delmonte v. Village of Woodmere, 2004 Ohio App. LEXIS 2086, at *5 (Cuyahoga County May 6, 2004). All well-pleaded allegations must be taken as true and be construed most favorably toward the non-movant. Id. A court should not grant a motion to dismiss based on disbelief of a complaint’s factual allegations. Nat’l Check Bureau v. Buerger, 2006 Ohio App. LEXIS 6576, at *5-6 (Lorain County Dec. 18, 2006). In fact, in ruling on a motion to dismiss, “the trial court should not dismiss the complaint because it doubts the plaintiff will win on the merits. . . . Whether the plaintiff can prevail is a matter properly determined by the proof and not the pleadings. . . . Therefore, the ruling must test only the sufficiency of the complaint.” Id.; see also Houck v. Ridgecrest Memory Gardens, Inc., 2004 Ohio App. LEXIS 4562, at *5-6 (Knox County Sept. 15, 2004); see also Zeigler v. Bove, 1998 Ohio App. LEXIS 6473, at *3-4 (Richland County Dec. 23, 1998).
Thus, while Defendant’s motion to dismiss is rife with unsupported factual statements and allegations, the Court is limited to considering only the sufficiency of the allegations contained in the College Faculty’s complaint. Defendant may not rely on allegations or evidence outside of the complaint. Zeigler, 1998 Ohio App. LEXIS 6473 at *3. A court is without authority to dismiss a complaint unless it can be demonstrated beyond a doubt that the plaintiff can prove no set of facts that would entitle it to relief. Houck, 2004 Ohio App. LEXIS 4562 at *5-6.
B. The Remedy of Specific Performance Is Appropriate and Available to the College Faculty as a Matter of Law Because Legal Remedies Are Inadequate to Remedy Defendant’s Contractual Breaches.

Specific performance of contracts is a matter resting in the discretion of the trial court and is “controlled by principles of equity, on full consideration of the circumstances of each particular case.” Sandusky Props. v. Aveni, 15 Ohio St. 3d 273, 274 (1984) (quoting Spengler v. Sonnenberg, 88 Ohio St. 192, 203 (1913)); see also Holstein v. Crescent Cmtys., Inc., 2003 Ohio App. LEXIS 4298, at *7-8 (Franklin County Sept. 9, 2003) (specific performance is a principle of equity and is controlled by considerations of justice and fair dealing). “[I]t is the duty of a court deciding whether to grant equitable relief such as specific performance ‘to adapt its practice and course of proceeding as far as possible to the existing state of society . . . and not, from too strict an adherence to forms and rules established under very difficult circumstances, decline to administer justice, and to enforce rights for which there is no other remedy.’” State ex rel. Wright v. Weyandt, 50 Ohio St. 2d 194, 198 (1977).
Courts grant specific performance of a contract when legal remedies are inadequate. See, e.g., Gleason v. Gleason, 64 Ohio App. 3d 667, 672 (Scioto County 1991). Damages are inadequate if:
the subject matter of the contract is of such special nature or of such a peculiar value that damages would not be a just and reasonable substitute for or representative of that subject matter in the hands of the party entitled to its benefit, or where, because of some special and practical features or incidents of the contract inhering in the subject matter, in its terms, or in the relation of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with any degree of certainty, so that no real compensation can be obtained by means of an action at law, in other words, where damages are impracticable.

84 Oh. Jur. Specific Performance § 8 (LexisNexis 2007).
For example, in Sashti, Inc. v. Glunt Indus., Inc., 140 F. Supp. 2d 813, 814-815 (N.D. Ohio 2001), the plaintiff sued the defendant, alleging breach of contract and seeking specific performance of a contract to supply automated heavy machinery. The defendant moved to dismiss the plaintiff’s specific performance claim for failure to state a claim upon which relief can be granted. Id. at 815. The court determined that the factual allegations contained in the plaintiff’s complaint were sufficient to establish a claim for specific performance because the plaintiff sufficiently demonstrated that legal remedies were inadequate. Id. at 817. Specifically, the plaintiff indicated that the goods which were the subject of the contract between itself and the defendant were of a special design, that no other vendor would be able to provide suitable substitute goods, and that the damages it suffered were unique and would be difficult to determine with reasonable particularity because the plaintiff would likely incur continuing damage to its ability to conduct future business as a result of the defendant’s breach. Id.
As in Sashti, legal remedies are currently inadequate to compensate the College Faculty if the College closes. Antioch College, founded in 1852, is the flagship institution of the six campus Antioch University system. (Amended Compl. at ¶¶ 1-4.) The College has been a leader in higher education in Ohio and its continued existence is vitally important to not only its faculty, but also to the students, alumni, and the Yellow Springs community. (Id.) In fact, the AC3 is ready, willing, and able to continue operating the College with a tenured faculty and has committed $14,500,000 towards that effort. (Id. at ¶¶ 18-22.) An order requiring Defendant to perform its contractual obligations to implement less drastic means to alleviate the College’s financial problems is, therefore, the only remedy for Defendant’s contractual breach.
C. The College Faculty Is Seeking the Specific Performance of a Contractual Obligation and Is Not Asking the Court to Step into Defendant’s Shoes and Decide How Best to Operate the College.

Contrary to Defendant’s assertions otherwise, the College Faculty is not asking the Court to step into Defendant’s shoes and supervise the operation of the College. Rather, the College Faculty is merely seeking the specific performance of a contract into which Defendant freely entered, the terms of which require Defendant to take less drastic means to alleviate the College’s financial problems.
In fact, this case is no different from the multitude of cases in which Ohio courts have ordered corporations to specifically perform contracts that the Board of Directors have entered into on behalf of the corporation. See Oglebay Norton Co. v. Armco, Inc., 52 Ohio St. 3d 232 (1990) (ordering specific performance of a long-term shipping contract obligating the defendant corporation to maintain adequate shipping capacity and to negotiate with the plaintiff company during each annual shipping season through the year 2010); Nelson v. Suburban Nursing & Mobile Homes, Inc., 1993 Ohio App. LEXIS 4323 (Montgomery County Sept. 2, 1993) (ordering specific performance of a sales contract obligating the defendant corporation to sell beds to the plaintiff); Mr. Mark Corp. v. Rush, Inc., 11 Ohio App. 3d 167 (Cuyahoga County 1983) (ordering specific performance of a Purchase Agreement obligating the defendant corporation to sell its restaurant to the plaintiff). Nowhere in these cases is it suggested that an order requiring the corporation to specifically perform its contractual obligations constitutes a usurpation of the corporation’s board of directors’ decision making abilities regarding how the corporation should be run. Rather, the courts have simply obligated the corporations to adhere to the contracts to which they are parties.
Nonetheless, it is true that in determining whether Defendant breached the Contract, the Court must inevitably address the issue of what actually constitutes less drastic means for alleviating the College’s financial problems. This issue, however, is a factual dispute and is not a judicial usurpation of Defendant’s duties to supervise the operation of the College.
D. The College Faculty Is Not Seeking Specific Performance of a Contract for Personal Services.

As noted in Defendant’s motion, courts do not typically grant specific performance of the provisions of a contract for personal services. Holstein, 2003 Ohio App. LEXIS 4298 at *8; see also 84 Oh. Jur. Specific Performance § 73. The College Faculty is not, however, requesting specific performance of a personal services contract because the College Faculty is not seeking continued employment at the College. Rather, as set forth in their first amended complaint, the College Faculty seeks a permanent injunction “requiring Defendant University to specifically perform the Faculty Personnel Policies and Procedures by implementing the least drastic means required to alleviate the financial problems at Antioch College.” (Amended Compl. ¶ 10.) (emphasis added.)
The cases cited by Defendant for the proposition that the remedy of specific performance is not available to enforce the provisions of a continuing employment contract between a private college and a member of its faculty are distinguishable based on the form of relief requested in those cases. Specifically, in each of the cases, the plaintiff(s) sought an order requiring the defendant to continue employing the plaintiff(s). See Masetta v. Nat’l Bronze & Aluminum Foundry Co., 159 Ohio St. 306, 310 (1953) (seeking an order directing defendant to re-employ plaintiffs) ; Sokolowsky v. Antioch College, 1975 Ohio App. LEXIS 5951, at *1 (Greene County June 1, 1975) (plaintiffs sought permanent injunction requiring college to retain them as tenured faculty members); Felch v. Findlay College, 119 Ohio App. 357, 357-358 (Hancock County 1963) (plaintiff sought order continuing his employment as a college faculty member).
Here, unlike the plaintiff(s) in Masetta, Sokolowsky, and Felch, the College Faculty is not asking the Court to order Defendant to continue employing them as faculty members. Rather, the College Faculty seeks an order requiring Defendant to adhere to its contractual obligation to implement less drastic means than closing the College. (Amended Compl. ¶ 10.) Indeed, the College Faculty recognizes that the less drastic measures sought may include a reduction in faculty.
The College Faculty is also not seeking the Court’s continued oversight in monitoring the Defendant’s implementation of less drastic means or to step into Defendant’s shoes and decide how the College is best operated. Rather, as in Sashti, a legal remedy is currently unavailable to the College Faculty, and as such, an order requiring Defendant to specifically perform its contractual obligations to seek alternative means to alleviate the College’s financial problems, rather than resorting to the most drastic means of closing the College, is necessary and appropriate. Therefore, because the College Faculty is not seeking specific performance of the provisions of a personal services contract, the Court should deny Defendant’s motion to dismiss.
E. The First Amended Complaint Is Not Based “Solely On Events That Post Date The Declaration Of Financial Exigency.”

Contrary to Defendant’s claims, Plaintiff’s claims are not based on less drastic means that did not even arise until after the declaration of financial exigency. Instead, the offers of financial support received by Defendant after the declaration of financial exigency evidence why the Defendant’s breach in failing to explore less drastic means in conjunction with the faculty was so egregious. By contrast, there is no evidence that Defendant even tried to explore these possibilities or that they could not have been identified before June 7, 2007. Indeed, Defendant’s conduct in repeatedly spurning these opportunities over the last eleven months – including first accepting and then rejecting a proposal to donate $14,500,000 to Defendant – evidence Defendant’s determination to close the College regardless of financial considerations. Thus, Defendant’s argument tries to confuse the evidence that will be offered to support the College Faculty’s claims – much of which did arise after the declaration of financial exigency – with the claim that less drastic means existed on June 7, 2007 but were ignored by the Defendant in breach of its obligations under the College Faculty’s Contract.
III. CONCLUSION
In sum, this case is a standard breach of contract case. The College Faculty has properly alleged all of the elements necessary to sustain a breach of contract action against Defendant. A contract exists between Defendant and the College Faculty obligating Defendant, when declaring financial exigency at the College, to do so only when an imminent financial crisis exists that cannot be alleviated by less drastic means. Defendant has breached the Contract by taking steps to close the College when other, less drastic means exist, such as accepting the $14,500,000 proposal from the AC3, additional alumni fundraising efforts, and/or cost cutting. As a result of Defendant’s breach, the College Faculty has been damaged in a way that cannot be remedied by traditional damages and has thus requested the Court to issue a permanent injunction ordering Defendant to adhere to its contractual obligations by exploring and implementing the least drastic means available to remedy the financial problems. Contrary to Defendant’s assertions otherwise, it is entirely the province of the Court to interpret contracts when a dispute arises and to enforce contracts in the event of a breach. The Court should, therefore, deny Defendant’s motion to dismiss because the Court has jurisdiction over this action and the College Faculty has properly alleged a claim against Defendant for breach of contract.

Respectfully submitted,

__________________________
W. Evan Price II (0056134)
Michael R. Goodstein (0080476)
Sabrina Haurin (0079321)
Bailey Cavalieri LLC
One Columbus
10 West Broad Street, 21st Floor
Columbus, Ohio 43215-3422
Telephone: (614) 221-3155
Telefax: (614) 221-0479
evan.price@baileycavalieri.com
michael.goodstein@baileycavalieri.com
sabrina.haurin@baileycavalieri.com
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I certify that Plaintiff’s foregoing Memorandum in Opposition to Defendant’s Motion to Dismiss Plaintiffs’ First Amended Complaint was served on Defendant by sending a copy of it to Defendant’s attorneys, Kathleen M. Trafford and Kendall S. Verrett, Porter Wright Morris & Arthur LLP, 41 South High Street, Columbus, Ohio 43215, and David A. Weaver and William R. Groves, Martin Browne Hull & Harper P.L.L., One South Limestone Street, Suite 800, Springfield, Ohio 45501, by first class United States mail, postage prepaid, this ___ day of May, 2008.

__________________________
W. Evan Price II (0056134)

#557364v1
11413-03779

Antioch College Faculty member Jean Gregorek, was invited to speak by the graduating class of 2008. Jean gave this wonderful speech gave this speech at the Commencement ceremonies on April 26, 2008 in Kelly Hall in the Main Building (Antioch Hall) of Antioch College, Yellow Springs, Ohio

Special thanks for Steve Bognar for providing this video for distribution to the Antioch community.

The text of this speech is included below:

.

Commencement Thoughts April 2008

Jean Gregorek
Associate Professor of Literature, Antioch College

I’m very happy to be here to represent the faculty of Antioch College. It’s been an excruciatingly difficult year. Soon after we received the shocking news last June that the Board of Trustees of Antioch University had decided to suspend the educational program of the College, faculty, staff, and alumni began to organize. We have fought to convince the Board to reverse their decision, to establish the existence of other viable options, and, if no reversal is possible, to separate the College from the University governance structure. Our hope has been, and remains, that this plucky little institution can be picked up, dusted off, maybe given a bit of physical therapy, and put back on its feet. There have been many setbacks, and this year we have lived with the constant anxiety of the threat of imminent termination in what was designated as a dying institution. Yet despite the grimness of our situation, we have never felt alone. It has been our good fortune to have many wonderful partners and allies in this struggle. Indeed, the greatest rewards of this otherwise awful year have come from collaborating with our talented, energetic alumni, and our friends and neighbors in the Yellow Springs community. We have discovered how many lovely people care deeply about this historic institution and its success. If the fate of the College depends upon the resourcefulness and ingenuity of Antiochians and their friends, then we are truly in good hands.

So I would like to take a minute to recognize and say a heartfelt thanks to some of those who have given amazing amounts of time and dedication and in many cases, money, to the cause of Antioch College.

–The brave and resolute Antioch Continuation Corporation (ACCC)
–The hundreds of fabulous, infinitely creative alumni of Antioch College, determined not to give up no matter what— including the Alumni Board and the College Revival Fund, alumni chapters across the country, and the amazing techies who’ve set up websites and wikis, Antiochians.org. and the Antioch College Action Network

–Those renegade investigative journalists at The Antioch Papers
–The American Association of University Professors
–The loyal members of U.E. Local 767—supportive partners in struggle, many of whom have worked at the college for 15 or 20 or 30 years
–The non-union administrative staff who continue to be a joy to work with on a daily basis and who have done so much to keep up our morale
–The heroic faculty and staff of the Olive Kettering Library whose professionalism and dedication have managed keeping the library open and operating in extremely straitened circumstances
–This year’s amazing Antioch College Community Government—truly an example of grace and resilience under pressure
–Hundreds of concerned citizens of the Village of Yellow Springs who have donated their time to organizing, fundraising, publicizing our cause, letter-writing, petition circulating, sign-painting, demonstrating, planning for future directions of the College and so much more. This protracted struggle has forged much closer bonds between the community of Yellow Springs and the community of Antioch College, and we look forward to building upon these partnerships in the coming years.

–And last but not least, those we are honoring today—the students of Antioch College. You can drive us crazy—you can be incredibly aggravating–but you can also be incredibly inspiring. You kept us going. You kept your sense of humor. You kept on believing in the quality of an Antioch education. You gave me, for one, a reason to get up in the morning when things looked bleakest. Teaching this year was a genuine pleasure, and I would like to offer a special ‘thank you’ to the students in my classes for that. I know I speak for all of us when I say that the faculty has really appreciated the Antioch student body during this difficult time.

So why did we—all of these people–choose to challenge the Board of Trustees’ seemingly final, inalterable decision? Why, instead of packing up our books and papers like reasonable academics, and not looking back, did we decide this was a fight worth committing to? What exactly is at stake here? What’s so important about Antioch College?

I only have a few minutes, so I’ll try to be as direct as possible.

The Village of Yellow Springs has long sought to preserve green belts and green spaces against suburban sprawl. We know that parks and wild spaces, whether maintained privately or publicly, are absolutely vital ecologically. They are important for aesthetic reasons as well, sources of a variety of pleasures and a necessary sense of stability, continuity, and rootedness. However, parks serve no direct economic function—they often generate no revenue whatsoever and the land on which they sit would usually be worth more if it were parceled up and ‘developed.’ Such developments serve the financial interests of a few well-placed individuals at the expense of sustaining public or communal space. A loss of access to the landscape affects the well-being of an entire community. If one lives in a world of strip malls and parking lots one can eventually forget that green spaces were ever there, that they were so beautiful and so important for feeding the body and the soul. Sadly, one can become adapted to an environment of billboards, and not even consciously miss the view of the woods and fields any more.

Liberal arts colleges, I propose, can be thought of in much the same way as parks and wild places. These educational ‘green spaces’ enable a kind of ‘greening’ of the mind. Like literal green spaces, they are not profit-producing business enterprises but make vital–although hard to quantify–contributions to American life and communities nonetheless. Here are institutions which set aside four years for non-instrumentalized lines of inquiry—for silence, reflection, musings, experiment, practice, the gaining of knowledge, the trying out of ideas and art forms, the bumping up against Otherness and Other points of view, and always, for Questioning.

But, as in the parallel case of literal green spaces, one can all too easily become accustomed to the disappearance of liberal arts colleges. This loss of educational ‘green space’ is being justified by claims of the inherent inefficiency or impracticality of all that time, all those resources given over to disruptive questioning and purposeless meditations on the nature of truth, beauty, justice and self-discovery. We can no longer afford such luxuries, our opponents say. Thus educational green spaces are being paved over in the name of a lamentable but supposedly inevitable ‘progress.’

Yet the ethos we promote at Antioch College and colleges like it is far from purposeless. Aside from the (I would argue) considerable value of disinterested inquiry per se, we also serve a larger purpose—we foster the ideal of stepping up and doing things because they need doing, not because someone will necessarily pay you to do them (although if they do, all the better—I’m certainly not against this!). The ‘green spaces’ of the liberal arts encourage the idea of that each individual should spend his or her brief time on this planet meaningfully and responsibly. The world will almost never think that it needs a new song, a new play, a new theorem, a new analysis, a new philosophy—but that doesn’t mean that this need is not in fact desperate. As the theorist of revolution Franz Fanon (then age 25) commented wryly in his introduction to Black Skin, White Masks, perhaps the most influential book to date on the social and psychological disorders produced in both white and black people as a result of anti-black racism: “Why write this book? No one has asked me for it. Especially those to whom it is directed.”

But the world did need that book.
And the world needs your books, your songs, your ideas.

This ethos of doing what needs to be done goes by many names: learning, curiosity, discovery, invention, scholarship, scientific findings, art, cultural production, volunteerism, giving back, community service, public spiritedness, contributing to the common good, and more. What this array of activities have in common is that their significance and worth cannot be measured in monetary terms. Often their impact is hard to discern in the short term. Often they are not registered as immediately useful or commodifiable and are therefore not seen by our society as deserving of monetary compensation. I might suggest that we refer to these various non-instrumentalized activities and enterprises as ‘work,’ as in life-work, mission, calling, or using one’s unique talents or genius. We could also designate them, if we were feeling grandiose, as ways to win victories for humanity.

I have to admit that I love our motto (but then, I am a Victorianist by training). I love its loftiness and confidence, its nineteenth-century assumptions that a better world is indeed possible, that we can agree on what a victory for all humankind would be, that we will recognize these victories when we encounter them. (Of course, victories for humanity in 1850 unfortunately included the forced assimilation of indigenous peoples in the name of Civilization…oops…) Nevertheless, despite the oversights in our history, the larger goal remains admirable. I love being part of an educational institution that dares to have a motto like “be ashamed to die until you have won a victory for humanity.” A place with such aspirations is worth saving for its motto alone.

I know I don’t have to convince this audience that the world needs Antioch, and more places like Antioch. The problem, of course, is that most of the world does not know it needs us. Our true value has perhaps become harder, given the cluttered landscape, for others to see. But it’s clear that Antioch has been one of the most fruitful and fertile green spaces of American higher education for the past 156 years—a place where students are encouraged to learn their true work. A place where flickers of dissent, of questioning, of commitment to democracy and justice, and what this year has abundantly proved, of hope, have endured. Perhaps our greatest accomplishment lies in the fact that hope persists in being kindled and rekindled here, even during the stormiest and most uncertain of times.

In the prescient words of Horace Mann, “Education is our political safety. Outside of this ark, all is deluge.” The following poem is about this idea, and about places like Antioch. At least I’m claiming it is. I love this short poem for its list of underacknowledged, seemingly superfluous, but in fact absolutely essential, values and habits of mind. The poem suggests that it is these often overlooked qualities and values that most need treasuring and preserving. I would argue that it is these overlooked qualities and values that help us characterize what education really means. So I’ll leave you with this poem, by the reclusive Polish poet Wislawa Szymborska, the 1996 winner of the Nobel Prize in Literature.

Into the Ark
(translated from the Polish)

An endless rain is just beginning.
Into the ark, for where else can you go,
you poems for a single voice,
private exultations,
unnecessary talents,
surplus curiosity,
short-range sorrows and fears,
eagerness to see things from all six sides.

Rivers are swelling and bursting their banks.
Into the ark, all you chiaroscuros and half-tones,
you details, ornaments, and whims,
silly exceptions,
forgotten signs, countless shades of the color gray,
play for play’s sake,
and tears of mirth.

As far as the eye can see, there’s water and hazy horizon.
Into the ark, plans for a distant future,
joy in difference,
admiration for the better man,
choice not narrowed down to one of two,
outworn scruples,
time to think it over,
and the belief that all this
will still come in handy someday.

For the sake of the children
that we still are,
fairy tales have happy endings.
That’s the only finale that will do here, too.
The rain will stop,
the waves will subside,
the clouds will part
in the cleared-up sky,
and they’ll be once more
what clouds overhead ought to be:
lofty and rather lighthearted
in their likeness to things
drying in the sun—
isles of bliss,
lambs,
cauliflowers.

Perhaps, lest I sound like an apologist for Antioch University, I should remind you that I am the lead plaintiff in the faculty lawsuit. I am an advocate for fighting the University in every legal way in order to preserve Antioch College as we all have known it.

Some of you know how strident I have been in trying to persuade all who would listen that no one should consider keeping even a pencil labeled “Antioch College” or “Antioch anything” if the University prevails and the College closes. Much less steal anything the University genuinely values.

Based on how nicely Toni, Andrzej, Lynda Sirk, and Mary Lou LaPierre have dealt with Antioch College this year, if the University prevails I expect to have a search warrant executed to search my apartment for any college “treasure”. If I were stupid enough to have stolen (kept) College (University) property, I probably deserve the legal consequences I am sure Toni and Andrej would gleefully impose on me.

On the ACAN and Organizers discussion group there has been open discussion about some of y’all “liberating” the university property that is more valued by the University than any other asset in Yellow Springs.

You all know that the University legally owns all Yellow Springs assets, and yet many of you have openly plotted to remove Antiochiana and “put it in Bob Devine’s basement, stash it in Wisconsin, or give it to Wright State”. Antiochiana is not yours to put, stash, or give. If the University prevails I advise you to not remove a single paper from Antiochiana. The University will not take removal of Antiochiana assets lightly.

Scott Sanders “The Boss of Antiochiana” is a University employee specifically because the University values the collection so much they have not dared to have the collection overseen by a College employee. If you go to University Web sites, you can see that Antioch University wraps itself in the heritage and values of Antioch College.

If you have never done this, I very highly suggest you take a trip across Antioch University and see how much they value our heritage. In fact, they consider it “their heritage” because they were created by Antioch College. To facilitate your trip across the University, I am providing clicks below:

Antioch Seattle
www.antiochsea.edu/about/tradition.html

Antioch LA and Santa Barbara are almost identical
www.antiochla.edu/about-antioch/history-of-antioch/index.html
www.antiochsb.edu/general-category/history-of-antioch-university.html

Antioch McGregor
www.mcgregor.edu/about/index.html

Antioch New England
www.antiochne.edu/aboutane/history.cfm
www.antiochne.edu/aboutane/whyiloveane.cfm

If you have taken the Web trip by clicking above, you can see how much Antioch University values Antiochiana, and how seriously they would view attempts to remove any portion of the Antiochiana collection.

Should you still doubt how valuable Antioch University considers Antiochiana and the Antioch name, let me quote the first paragraph from the letter Antioch University lawyers sent faculty warning those of us teaching next year for Non-Stop ——- not to use the name “Antioch”. The same introductory paragraph was used in the letter demanding that the faculty of Antioch College stop using the name “The Faculty of Antioch College Legal Fund”.

Porter Wright Morris & Arthur LLP

“This firm represents Antioch University (”Antioch”). As you know, Antioch is a well-established and well-respected business that has developed a reputation based upon its educational services. Antioch has been using its well-known trademarks and trade name ANTIOCH, ANTIOCH COLLEGE, and other marks and names containing the ANTIOCH mark, as well as the distinctive “A” DESIGN mark, in connection with providing educational services for many years. In connection with its business, Antioch has expended and continues to expend substantial sums in promoting its distinctive campuses. As a result of these efforts, the mark ANTIOCH has developed a high degree of distinctiveness and is widely recognized by consumers as being associated with services having their origin with Antioch.”

How ironic and flat out stupid that a University leadership that claims to embrace the heritage of Antioch College, and appears to value the name Antioch so much, has done so much damage to the name ANTIOCH and ANTIOCH COLLEGE over the past 10 months.

How shameful that the Board of Trustees to whom the name ANTIOCH and ANTIOCH COLLEGE is entrusted have allowed the name to be so damaged. This is one more example of the Board’s appalling lack of fiduciary responsibility.

Peter Townsend
Faculty of Antioch College

In order to follow the faculty lawsuit, you kind of need a blow-by-blow.

When we re-filed the suit, we included a motion for a preliminary injunction which would prevent AU from selling anything while the suit was in process. The suit includes a permanent injunction, to be imposed if we win the suit.

The judge decided to have an evidentiary hearing (on April 1) to help him rule on the preliminary injunction.

On Wednesday, 26 March AU deposed Bob Devine. Bob did a great job! Nothing was brought out that we don’t already know about.

On Wednesday, ACCC presented a motion to not be deposed (in Xenia, OH). Our lawyer moved they should be deposed.

On Thursday, 27 March we deposed Paula Trichler (BOT member and friend of the College). On Thursday, 27 March the judge allowed ACCC to avoid the deposition. I haven’t had time to read Paula’s deposition, but I have been told that not much was learned that we don’t already know about.

Without the ACCC deposition we decided we couldn’t go forward, so on Friday, 28 March we withdrew our motion for a preliminary injunction, leaving in place our suit for a permanent injunction. That eliminated the evidentiary hearing on April 1.

On Monday, March 31, the judge ruled that we have 14 days to file an amended suit without the preliminary injunction, and AU has 14 days to file a response. So that’s where things stand right now with the faculty lawsuit.

Why did ACCC ask not to be deposed? Maybe because they knew the GROUND WAS ABOUT TO SHAKE! Lawsuits need clarity in order to suceed, and April 1 would have been a terrible time for us to be in court, because so much shaking was going on.

On Friday, 28 March, at 12 noon, a press release from ACCC came out stating that ACCC was stopping negotiations to buy the College, but would do a deal of $10 million for 10 seats on the BOT.

On Friday 28 March at 3:04 PM Lynda Sirk sent out a 3 page press release announcing that AU was not suprised that negotiations were not successful, that AU had negotiated in GREAT GOOD FAITH, but ACCC was just not up to the task, that the College was a broken pile of junk, and that AU would fix things in 2012, just as AU had told the world when they announced the closing in June. Don’t worry, the good AU angel has everything under control. Sirk’s press release included lots of details, and totally broke the confidentiality agreement, which means ACCC can now give details of negotiations.

Then on Saturday, March 29, Lynda Sirk and Mary Lou LaPierre sent out a press release stating that AU was selling the College to anyone who could come up with $12.2 million. Absolutely amazing! That was covered in SW Ohio Sunday papers and the Seattle Times, and resulted in a great student mock-up of an e-bay page with the college up for sale.

Then on Monday, March 31, AU said the College wasn’t for sale to the general public, just to alumni.

Amidst such turmoil it is really good that we didn’t end up in court on April 1.

My guess is that ACCC knew there was going to be huge changes just before April 1, and that it would be hard for us to put on a good case in the midst of all those changes.

So where are we? Making motions and going through normal court processes. The next thing, in about 6 weeks, will be more depositions.

DEPOSITION OF PAULA TREICHLER - PDF

The text version is an export from the PDF and thus is formatted a little strangely.

DEPOSITION OF ROBERT DEVINE - March 26, 2008 - PDF

DEPOSITION OF ROBERT DEVINE - March 26, 2008 - TXT

Hi Folks,

From the lead plaintif in the faculty court case:

As most people know, the faculty have delayed the April 1 (April Fools) court hearing.  We did the delay because the judge allowed ACCC to not be deposed (questioned), and our case was dependant on the ACCC testimony.  However, given the rapid events of this past few days, it is a good thing we are not going to court in the middle of such rapid changes.  It is hard to tell who’s on first, and in a successful court case, our lawyer has to know who’s on first in order to win.  Stay tuned for developments next week.

Peter

March 21, 2008

Anita Levy, Ph.D.
Associate Secretary
American Association of University Professors
1012 Fourteenth Street, N.W. - Suite 500
Washington, DC 20005-3465

Dear Dr. Levy:

This letter is in response to your March 14,2008, letter to Antioch University. While I appreciate the AAUP’s concern, it’s obvious from the letter that your organization is operating on inaccurate second-hand information without bothering to seek sources that might be better informed, beginning with my office. The sources on which you and your president are relying for information, whom or whatever they may be, are giving you either inaccurate or misleading information, and revealing a very limited knowledge of the University’s financial situation as well as a legal and administrative naivete.

The “Open Letter about Antioch’s Future” that your president posted on the Inside Higher Education web-site on March 18 was similarly lacking in fact and serves only to spread misinformation in an environment already fraught with misleading accounts. It is noteworthy that AAUP, under the direction of an alumnus of Antioch College, has, in its communications, expressed concern for protecting the interests of faculty at only one of Antioch University’s campuses, namely Antioch College. This would suggest that AAUP and Cary Nelson especially would condone putting at risk the well-being and future of the other 200 members of the Antioch University full-time faculty and the University’s more than 4,000 students - all for the sake of the 40 faculty members of the College.

If that is the case, it certainly raises the question of the nature of AAUP’s criteria for identifying the faculty it will recognize and “protect” and those it will not. Such selectivity hardly resonates well when compared to your mission statement. The statement on the AAUP web-site, under the section “Protecting Your Rights,” reads: The AAUP works to protect all members of the profession: full- and part-time teachers; tenured and contingent faculty; graduate students, librarians, and academic professionals; union members and non-union-members .”

The University is in the middle of a complex negotiation that has the potential to be successful for all involved. Both the University Board of Trustees and the Antioch College Continuation Corporation are working to the point of exhaustion to reach an agreement that does not place in harm’s way either the College or the University. The transaction is complex and painstaking, yet the worthwhile goal of both parties is to ensure the future success of the College and the other campuses of the University, their faculty and students. You can be assured that no one is taking this matter lightly-and likewise that, as we continue our efforts to move forward, admonitions from AAUP and uninformed, naive open letters from its president are in no way helpful to the process. On the basis of AAUP’s official statement about protecting “all members of the profession,” I believe that AAUP and Cary Nelson owe an apology to the Antioch University faculty at the five non-residential campuses. As the situation currently stands, AAUP members at those campuses have genuine cause to question the ethics of your organization and the purpose of their membership fees.

Sincerely,
Toni Murdock, Ph.D.
Chancellor
Cc: Arthur J. Zucker, Antioch University Board Chair
Andrzej J. Bloch - Antioch College Interim President
Professor Tom Ayrsman - Antioch College Faculty Senate Steering Committee
Professor Jill Becker - Anrioch College Faculty Senate Steering Committee
Professor Pat Mische - Antioch College Faculty Senate Steering Committee
Professor Paul Davis, President, Ohio Conference AAUP

A version of this letter is available in PDF format as well