IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

PETER TOWNSEND, et al.
Plaintiffs-Appellants
v.
ANTIOCH UNIVERSITY
Defendant-Appellee

OPINION
C.A. CASE NO. 2008 CA 103
T.C. NO. 2008 CV 0300
(Civil appeal from Common Pleas Court)

Rendered on the 29th day of May, 2009.

W. EVAN PRICE II, Atty. Reg. No. 0056134 and MICHAEL R. GOODSTEIN, Atty. Reg. No. 0080476 and SABRINA HAURIN, Atty. Reg. No. 0079321, One Columbus, 10 West Broad Street, 21st Floor, Columbus, Ohio 43215
Attorneys for Plaintiffs-Appellants

KATHLEEN M. TRAFFORD, Atty. Reg. No. 0021753 and KENDALL V. SHAW, Atty. Reg. No. 0076556, 41 South High Street, Columbus, Ohio 43215
Attorney for Defendant-Appellee

WILLIAM R. GROVES, Atty. Reg. No. 0009440, One S. Limestone Street, Suite 800, Springfield, Ohio 45502
Attorney for Defendant-Appellee

WOLFF, J. (by assignment)

The appellants, a group of tenured Antioch College professors, appeal from the trial court’s judgment entry dismissing their amended complaint against appellee Antioch University pursuant to Civ.R. 12(B)(1) and Civ.R. 12(B)(6).

The appellants advance three assignments of error. First, they contend the trial court erred in finding, as a matter of law, that the relief they sought required judicial intervention in the management and operation of Antioch College. Second, they claim the trial court erred in finding, as a matter of law, that a “Faculty Personnel Policies and Procedures” manual constituted a personal-service contract. Third, they assert that the trial court erred in finding, as a matter of law, that they had an adequate remedy in the form of money damages for the breach of contract alleged in their amended complaint.

The record reflects that the appellants filed their initial complaint on March 10,2008. The filing was in response to the Antioch University Board of Trustees’ June 2007 declaration of a “financial exigency” and announcement that Antioch College would suspend its operations effective July 1,2008 with an aspirational goal of reopening in four years. The appellants filed an amended complaint for specific performance and permanent injunctive relief on April 11, 2008.

The amended complaint, which was the subject of the trial court’s ruling, alleged that Antioch College is owned and operated by Antioch University, an Ohio non-profit corporation. The appellants alleged that their rights as tenured professors were governed by a manual entitled, “Faculty Personnel Policies and Procedures,” a copy of which was attached to the amended complaint. The appellants alleged that this manual constituted a contract between them and Antioch University. They further alleged that the decision by Antioch University’s Board of Trustees to declare a financial exigency and to suspend the operation of Antioch College violated the contract. In particular, the appellants cited language in the manual that defined a “financial exigency” as “a situation where an imminent financial crisis exists which threatens the survival of the College and cannot be alleviated by less drastic means.” The appellants alleged that less drastic means existed to address a financial crisis at Antioch College, including raising additional funds or negotiating a sale of the school to a group of alumni investors. The appellants further alleged that Antioch University had “spurned” all available less drastic options and, in so doing, had breached the Faculty Personnel Policies and Procedures manual. As a result, they prayed for “a permanent injunction requiring Defendant University to specifically perform the Faculty Personnel Policies and Procedures by implementing the least drastic means required to alleviate financial problems at Antioch College.”

Antioch University subsequently moved to dismiss the amended complaint pursuant to Civ.R. 12(B)(1) and Civ.R. 12(B)(6). It argued, among other things, that specific performance could not be used to enforce an employment agreement between a private college and its faculty. Antioch University later filed a supplement to its motion, seeking dismissal on the basis of mootness. On November 26, 2008, the trial court dismissed the amended complaint under Civ.R. 12(B)(1) and Civ.R. 12(B)(6) without addressing the mootness issue. In support of its ruling, the trial court determined that it lacked jurisdiction to intervene in the management and operation of Antioch College, that it would not decree specific performance of a personal-service contract, and that injunctive relief was unavailable because the appellants had an adequate remedy in the form of money damages. This timely appeal followed.

Before turning to the appellants’ assignments of error, we pause to address three issues raised by Antioch University on appeal that were not addressed by the trial court below:

(1) the appellants’ standing to pursue their lawsuit,
(2) the potential mootness of this action, and
(3) whether the amended complaint failed to state a claim because it relied on allegedly “less drastic means” that arose only after Antioch University’s declaration of a financial exigency.

The appellants argue that these issues are not properly before us because Antioch University never challenged their standing below, only belatedly raised the issue of mootness in supplemental motion the trial court did not address, and did not seek dismissal based on the absence of “less drastic means” before the declaration of a financial exigency. The appellants also point out that Antioch University failed to submit any evidence in the trial court to support its mootness claim.

Upon review, we need not dwell on whether Antioch University properly preserved its standing arqurnent.(1) As tenured faculty members who lost their jobs when Antioch University suspended its operation of Antioch College in alleged breach of a contract, the appellants plainly have a personal stake in the outcome of the dispute. Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 75. Therefore, they have standing. We also reject Antioch University’s argument that the amended complaint did not state a claim because it failed to allege the existence of some “less drastic means” before the trustees declared a financial exigency. Antioch University contends it is irrelevant whether any less drastic means surfaced after the trustees’ declaration. We note, however, that Antioch University did not seek dismissal on this basis below. In any event, the amended complaint asserted that “less drastic means existed and exist to address the alleged financial crisis at Antioch College.” (Emphasis added). Although the amended complaint identified two potential alternatives that arose after the school’s announced closing, the implication of the amended complaint is that Antioch University could have pursued those alternatives before the trustees declared a financial exigency.

As for mootness, Antioch University raised this issue below in a supplemental filing, which the trial court did not address. In any event, mootness is an issue that may be raised at any time. “No actual controversy exists where a case has been rendered moot by an outside event,” and a moot appeal is subject to dismissal. Tschantz v. Ferguson (1991), 57 Ohio St.3d 131, 133. We note too that an appellate court may consider evidence outside the record in order to dismiss an appeal as moot. Pewitt v. Lorain Correctional Inst., 64 Ohio St.3d 470, 1992-0hio-91 (dismissing a habeas petition as moot even though “the fact that appellant was released from confinement did not appear in the record or in any other cited source”). Acting sua sponte, an appellate court also may take judicial notice of facts generally known within its territorial jurisdiction or facts capable of accurate and ready determination by resort to sources whose accuracy reasonably cannot be questioned. Evid.R. 201(8), (C), and (F); see, also, City of Englewood v. Village of Clayton (Feb. 21, 1997), Montgomery App. No. 16219 (taking judicial notice of a fact “widely reported in the news media”). Therefore, contrary to the appellants’ argument, Antioch University’s failure to submit evidence on the issue of mootness does not preclude us from considering the issue on appeal.

The appellants’ April 11, 2008 amended complaint requested “a permanent injunction requiring Defendant University to specifically perform the Faculty Personnel Policies and Procedures by implementing the least drastic means required to alleviate financial problems at Antioch College.” This prayer for relief sought to require Antioch University’s Board of Trustees do something other than suspending operations at Antioch College and terminating the appellants’ employment. We take judicial notice, however, that Antioch College closed in the summer of 2008.(2) Thus, insofar as the appellants sought a prohibitory injunction to prevent Antioch University from suspending its operation of Antioch College and terminating their employment, the issue raised in their amended complaint is now moot. Antioch College is closed, and the appellants’ employment has been terminated.

It is certainly possible, however, to read the amended complaint as seeking a mandatory injunction, which is “an extraordinary remedy that compels the defendant to restore a party’s rights through an affirmative action.” State ex reI. Gen. Motors Corp. v. Ohio Indus. Comm., 117 Ohio St.3d 480, 482, 2008-0hio-1593. “The distinction between these two categories of injunctive relief can best be summed up as follows: a prohibitory injunction is used to prevent a future injury, but a mandatory injunction is used to remedy past injuries.” Id. at 482-483. If we read the amended complaint as seeking a mandatory injunction to compel Antioch University to reopen Antioch College and to rehire the appellants as tenured professors while taking some less drastic action to solve the financial crisis, then their lawsuit is not moot.

A potential problem arises, however, if we treat the amended complaint as seeking a mandatory injunction. The Ohio Supreme Court has recognized that a prohibitory injunction is an adequate remedy in the ordinary course of law. State ex rei. Evans v. Blackwell, 111 Ohio St.3d 1,9, 2006-0hio-4334; State ex rei. United Auto. Aerospace & Agricultural Implement Workers ofAm. v. Ohio Bureau of Workers’ Camp., 108 Ohio St.3d 432, 441, 2006-0hio-1327. A mandatory injunction, on the other hand, is an extraordinary remedy. Evans, 111 Ohio St.3d at 9, citing State ex rei. Fenske v. McGovern (1984), 11 Ohio St.3d 129, paragraph one of the syllabus. As such, it is not available where an alternative adequate remedy in the ordinary course of law exists. Buzzard v. Pub. Emp. Retirement Sys. of Ohio (May 9,2000), 139 Ohio App.3d 632,638.

In the present case, the amended complaint alleges that in June 2007 Antioch University’s Board of Trustees declared a state of financial exigency and announced plans to suspend its operation of Antioch College effective July 1,2008. The appellants did not file the present action for permanent injunctive relief until March 10, 2008. Nor did their amended complaint include a request for preliminary injunctive relief. If they had acted more expeditiously(3),” and if their substantive arguments were proven to be meritorious, they might have obtained a prohibitory injunction stopping Antioch University from closing Antioch College and terminating their employment before operations were suspended. The availability of such a remedy in the ordinary course of law seemingly would preclude the appellants’ resort to an extraordinary remedy such as a mandatory injunction seeking to

undo that which had been done. In any event, neither party has briefed this specific issue, which is not without some difficulty and which requires some speculation on our part. As a result, we will proceed on the basis that the appellants’ amended complaint is not moot and will address the merits of their arguments. 8ecause the trial court dismissed the amended complaint pursuant to Civ.R. 12(8)(1) and Civ.R. 12(8)(6), we turn first to the standards governing dismissal under those rules.

“Appellate review of a trial court’s decision to dismiss a case pursuant to Civ.R. 12(8)(1) and (8)(6) is de novo.” Crestmont Cleveland Partnership v. Ohio Dept. of Health (2000), 139 Ohio App.3d 928, 936 (citations omitted). De novo review means “that we apply the same standards as the trial court.” GNFH, Inc. v. W Am. Ins. Co., 172 Ohio App.3d 127, 133, 2007-0hio-2722, at~16. “To dismiss a complaint underCiv. R. 12(8)(1), we must determine whether a plaintiff has alleged any cause of action that the court has authority to decide. * * * Dismissal of a claim pursuant to Civ. R. 12(8)(6) is appropriate only where 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. * * * ” Crestmont, 139 Ohio App.3d at 936 (citations omitted).

As a means of analysis, we turn first to the appellants’ second assignment of error. There they claim the trial court erred in finding that they were seeking specific performance of a personal-service contract. In other words, the appellants challenge the trial court’s determination, based on its reading of the amended complaint, that they were trying to compel Antioch University to reemploy them. The trial court held that they were not entitled to specific performance of a contract for personal services.

On appeal, the appellants do not dispute that the Faculty Personnel Policies and Procedures manual constituted their contract with Antioch University. Indeed, their amended complaint expressly makes such an allegation. The appellants also concede that “Ohio courts do not typically grant specific performance of the provisions of a contract for personal services.” Their sole argument is that the amended complaint did not seek an order requiring Antioch University to reemploy them. Rather, the appellants contend they merely sought an order requiring Antioch University “to specifically perform its contractual obligation to seek alternative means to alleviate the College’s financial problems, rather than resorting to the most drastic means of closing the College[.]” The appellants posit that any less drastic means could include their loss of employment. Therefore, they insist that the amended complaint did not seek specific performance of a contract for personal services.

Upon review, we find the appellants’ argument to be without merit. The relevant language in the Faculty Personnel Policies and Procedures manual is found in a section captioned, “Termination or Reduction of Faculty.” It provides that “[a]fter tenure, reappointment will be automatic unless there is: * * * ‘necessary and justifiable budget curtailment[.]‘” Paragraph 55 defines “necessary and justifiable budget curtailment” as “a state of financial exigency declared by the Board of Trustees * * * when it has been determined by exercising sound business judgment that conditions exist which can be alleviated only by significantly reducing faculty * * * salary expenditures and expenses at Antioch Collegefora prolonged and indefinite period oftime.” In turn, paragraph 56 defines “financial exigency” as “a situation where an imminent financial crisis exists which threatens the survival of the College and cannot be alleviated by less drastic means.”

Read in context, paragraph 56’s reference to “less drastic means” plainly refers to a solution less drastic than terminating or reducing faculty to decrease salary expenses pursuant to a declared financial exigency. But any money-saving approach less drastic than terminating or reducing tenured faculty necessarily would require retaining those employees. Therefore, insofar as the appellants seek an injunction requiring Antioch University to use “less drastic means” to alleviate the financial crisis at Antioch College, they necessarily seek specific performance of a contract for personal services. In short, they are attempting to compel Antioch University to rehire them and to solve its financial problems in some other way.

To avoid this inescapable conclusion, the appellants assert that the Faculty Personnel Policies and Procedures manual requires Antioch University to alleviate its financial crisis by using less drastic means than suspending the operation of Antioch College. As noted above, they propose that any such means might require their termination. But this argument misinterprets the pertinent language. The manual requires Antioch University, when possible, to remedy a financial exigency by less drastic means than terminating the appellants’ employment. Again, such a means by definition would require retaining the appellants. Otherwise, it would not be less drastic than terminating them. Thus, we find no error in the trial court’s conclusion that the amended complaint sought specific performance of a personal-service contract.

The appellants admit that, in the absent of a statute entitling a former employee to reinstatement, Ohio courts do not decree specific performance of such contracts. See Masetta v. National Bronze & Aluminum Foundry Co. (1953), 159 Ohio St. 306, paragraph two of the syllabus (“A court of equity will not, by means of mandatory injunction, decree specific performance of a labor contract existing between an employer and its employees so as to require the employer to continue any such employee in its service orto rehire suchemployee i[f] discharged.”); Sokolowsky v. Antioch College (June 11,1975), Greene App. No. 863; Felch v. Findlay College (1963), 119 Ohio App. 357. Because the appellants essentially sought an injunction requiring Antioch University to rehire them-i.e., specific performance of a personal-service contract-the trial court did not err in dismissing their complaint for failure to state a claim upon which relief could be granted.(4) The second assignment of error is overruled.

In their third assignment of error, the appellants contend the trial court erred in finding that they have an adequate remedy in the form of money damages. The appellants assert that money damages are insufficient to compensate them for the loss of their tenured positions as a result of Antioch University’s alleged breach of the Faculty Personnel Policies and Procedures manual. In support, they argue that Antioch 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.” They also insist, without elaboration, that their tenured positions had an intrinsic value beyond the salary they received.

Upon review, we are unpersuaded by the appellants’ argument. We addressed the same situation in Sokolowsky, holding that a tenured Antioch College faculty member could not obtain a permanent injunction seeking specific performance of his employment contract. We reached this conclusion for several reasons, including the fact that money damages constituted an adequate remedy if the faculty member proved a breach of contract. We see no reason to depart from this portion of Sokolowsky, which the appellants’ third assignment of error fails even to address.

Finally, we are unpersuaded by the appellants’ reliance on Sashti, Inc. v. Glunt Indus., Inc. (N.D. Ohio 2001), 140 F.Supp.2d 813, and Ohio Dominican College v. Krone (1990), 54 Ohio App.3d 29, to support their argument. Sashti involved a contract for the sale of special goods that no other vendor could provide. The court held that the plaintiff stated a claim for specific performance because the goods were unique and because a statute provided for specific performance. Sashti is distinguishable because no similar statute provides for specific performance in the present case and because a tenured Antioch professor’s loss of employment is compensable with money damages.

Sokolowsky, supra; see, also, Cooke v. Dodge (N.Y. Sup. 1937), 164 Misc. 78, 81, 299 N.Y.S. 257, 261 (dismissing a tenured teacher’s complaint for injunctive relief for failure to state a claim where, “even if it be assumed that the plaintiff has a valid agreement and a valid tenure of office and is subsequently and unlawfully discharged or prevented from performing it, he has an adequate remedy at law for the recovery of his damages”), modified on other grounds and affirmed, as modified, Cooke v. Dodge (N.Y.A.D. 1938), 254 A.D. 808, 4 N.Y.S.2d 768.

As for Krone, it involved a tenured college professor who was terminated from Ohio Dominican College. After finding that her termination was in breach of contract, and without any discussion of the right to specific performance of a personal-service contract, the Tenth District ordered the trial court “to institute appellant’s reinstatement or, in the alternative, to determine the amount of damages.” Krone, 54 Ohio App.3d at 35. In the end, the professor was awarded money damages to compensate her for the breach of contract. See Ohio Dominican College v. Krone (Jan. 23, 1992), Franklin App. No. 90AP-
1164. We see no reason why the appellants cannot be compensated similarly if Antioch University terminated their employment in breach of contract. (5) The final paragraph of their amended complaint alleges the existence of irreparable harm and the absence of an adequate remedy at law. But the appellants have not identified, and we cannot envision, a set of facts supporting this legal conclusion. Accordingly, the third assignment of error is overruled.

(5) in reaching this conclusion, we note the absence of any allegation by the appellants that Antioch University, as a whole, is in a dire financial situation. The appellants’ complaint alleges that Antioch University operates five educational facilities other than Antioch College in Ohio, New Hampshire, California, and Washington. The complaint alleges the declaration of a financial exigency only at Antioch College.

We turn next to the appellants’ first assignment of error. There they contend the trial court erred in finding that the relief they sought required judicial intervention in the management and operation of Antioch College.

This assignment of error concerns the trial court’s determination that it lacked subject-matter jurisdiction to compel Antioch University’s Board of Trustees to implement a less drastic means to alleviate the financial problems at Antioch College. The trial court reasoned that granting the requested injunctive relief would require it to substitute its judgement for that of the trustees regarding the best course of action for the school. The trial court also opined that it lacked the authority, hence the jurisdiction, to interfere in theschool’s on-going management and operation. In support, it cited the Faculty Personnel
Policies and Procedures manual, case law addressing the business-judgment rule, and our prior ruling in Sokolowsky. The appellants argue, however, that they merely asked the trial court to determine whether Antioch University had breached its contractual obligation to use a less drastic means to solve the financial exigency. They insist that the trial court had subject-matter jurisdiction to do so.

Upon review, we conclude that the trial court improperly dismissed the appellants’ complaint under Civ.R. 12(8)(1). For present purposes, the parties have agreed that the Faculty Personnel Policies and Procedures manual constitutes a contract between them. As set forth above, that contract obligated Antioch University, when possible, to remedy a financial exigency by less drastic means than terminating the appellants’ employment. The amended complaint alleged that Antioch University breached this contractual obligation by spurning less drastic means of resolving the financial crisis.

In short, the amended complaint presented a routine breach-of-contract claim with a request for specific performance and injunctive relief. The trial court undoubtedly had subject-matter jurisdiction over this type of action. Vinson v. Diamond Triumph Auto Glass, Inc. 149 Ohio App.3d 605,607, 2002-0hio-5596 (“When a litigant files a Civ.R. 12 motion to dismiss for lack of subject-matter jurisdiction, the trial court must determine whether the
complaint contains allegations of a cause of action that the trial court has authority to decide.”). A common pleas court has subject-matter jurisdiction to hear and decide complaints for injunctive relief. Nasal v. Burge, Miami App. No. 08-CA-40, 2009-0hio-1775,,-r13. In addition, it is axiomatic that a common pleas court has the power to hear a breach of- contract action between private parties. “Being courts of general jurisdiction, the common pleas courts have subject-matter jurisdiction in all civil and criminal actions on claims for relief that arise in the county in which the court sits, except for those actions in which subject-matter jurisdiction is conferred by statute on another court exclusively.” Acclaim Sys., Inc. v. Lohutko, Montgomery App. No. 22569, 2009-0hio-1405, ~9. Therefore, the trial court had the authority, or subject-matter jurisdiction, to hear and decide the appellants’ amended complaint.

We are not persuaded otherwise by the trial court’s citation to the Faculty Personnel Policies and Procedures manual, case law addressing the business-judgment rule, and our prior ruling in Sokolowsky. The manual authorized Antioch University’s Board of Trustees to exercise “sound business judgment” to determine whether a reduction in faculty was necessary to alleviate a financial crisis. Nowhere, however, does the manual state that the trustees’ judgment is unreviewable. Similarly, the business-judgment rule merely creates a rebuttable presumption that corporate directors act in good faith and in the best interest their company when making business decisions. It does not preclude judicial review of those decisions. Gries Sports Ent. v. Cleveland Football Co. (1986),26 Ohio St.3d 15, 20.

Even if the Faculty Personnel Policies and Procedures manual and the business-judgment rule did insulate the Antioch University Board of Trustees’ decision from attack, those sources would not deprive the trial court of subject-matter jurisdiction. At most, they would provide Antioch University with a defense to the breach-of-contract action and request for injunctive relief. This appears to have been the situation in Sokolowsky, supra. In that case, we affirmed the trial court’s dismissal of a tenured faculty member’s complaint for injunctive relief on several grounds. In so doing, we reasoned:

“The record here shows that because Antioch was facing a financial crisis, its Trustees decided to decrease the expenses incident to the employment of faculty and to reorganize its academic program.

“It is not within the province of the Courts to enter upon the business of trying to direct and supervise the operation of private colleges. Because it would be too burdensome to the Courts to supervise the operation of Antioch College in accordance with reduced revenues, because Appellant has an adequate remedy at law by way of damages and because there is no mutuality of obligation or remedy between the parties hereto, we see no error in the action of the Common Pleas Court in refusing to enjoin Antioch from discharging the Appellant.”

Our ruling in Sokolowsky does not specify whether the trial court’s dismissal was pursuant to Civ.R. 12(B)(1), but it does not appearto have been. (6) We noted the trial court’s holding “that the remedy of specific performance is not available to enforce the provisions of a continuing employment contract between a private college and a tenured member of its faculty.” Thus, the trial court in Sokolowsky does not appear to have questioned its jurisdiction. It simply concluded that the faculty member had not demonstrated entitlement to the requested relief.

In any event, the trial court’s concerns in the present case about the propriety of interfering in Antioch’s management and operations did not deprive it of subject-matter jurisdiction. Those concerns constituted only a potential reason to deny the appellants’ request for specific performance. “Cases have been numerous in which a decree [for specific performance] has been refused on the ground that the performance required is one of long duration and its enforcement would involve long continued supervision by the court.” Corbin on Contracts (Interim Ed.), vol. 12, section 117, p. 318. But “[i]t is perfectly clear that difficulty of supervision does not deprive the court of jurisdiction[.]” Id. at 326. Rather, “it is a matter to be weighed with a wise discretion as the court exercises its judicial power.” Id. Therefore, the trial court erred in dismissing the appellants’ amended complaint pursuant to Civ.R. 12(B)(1) based on a perceived need for it to interfere in Antioch College’s on-going management and operation if injunctive relief and specific performance were ordered.’ The appellants’ first assignment of error nevertheless is overruled because the error is harmless, as based on our analysis of the appellants’ second and third assignments of error, we conclude that the trial court properly dismissed the amended complaint underCiv.R. 12(B)(6). Accordingly, the judgment ofthe Greene County Common Pleas Court is affirmed.

On May 12, 2009, the Court of Appeals of Ohio, Second Appellate District, heard an appeal on behalf of the members of the former faculty of Antioch College regarding reinstatement of their recently dismissed lawsuit against Antioch University.

In 2007 members of the former faculty of Antioch College filed a lawsuit alleging that Antioch University violated the Antioch “College Faculty Personnel Policies”. According to this contractual document, the University is mandated to seek “less drastic means” to closure through “consultation” with the College’s Administrative Council, AdCil. Specifically, the University is required to work with AdCil to development “a plan and timetable for abating financial emergency” or closure. The faculty lawsuit alleges that Antioch University officers refused to meet with AdCil to develop this plan or explore less drastic means.

A ruling on the appeal is expected sometime within the next 12 weeks.

For background information see The College Faculty website

The former faculty of Antioch College recently appealed a November decision from the Greene County Common Pleas Court to dismiss the faculty lawsuit against Antioch University. The appeal, filed several weeks ago, will take about eight or nine months to work its way through the court system, according to Attorney Evan Price of Columbus, who represents the faculty.

On Nov. 26 Judge Stephen Wolaver of the Common Pleas Court dismissed the faculty lawsuit, which alleges that the university trustees breached their contractural responsibilities to faculty by declaring a state of financial exigency and suspending operations when less drastic measures were available, and also by making this decision without consulting faculty. These actions violated contractual obligations as stated in the Faculty Personnel Policies and Procedures, the lawsuit said.

Read the full article at http://www.ysnews.com/stories/2009/01/010809_antioch.html

]]> http://collegefaculty.org/news/postname%/feed/ 0 http://collegefaculty.org/news/postname%/ http://collegefaculty.org/news/postname%/#comments Mon, 15 Dec 2008 15:45:16 +0000 admin http://collegefaculty.org/?p=63 The day before thanksgiving Judge Wolover dismissed the faculty lawsuit, arguing essentially that he has no authority to rule on our case.  His frame of reference was that the Court could not question a business decision (even if it was a bad one), and that the complaint was in the nature of personal services contract issues, and the faculty had other remedies available to them (suing for damages due to breach of contract).  Tuesday December 1, the faculty legal group conferred by phone with Evan Price, our attorney and voted unanimously to move forward immediately with an appeal.  Evan reports that because the judge ruled on a matter of law, not on the facts of our case, that an appeal will be (legally speaking) straightforward.  It will involve a relatively short  brief, and a response to the other side’s brief.  The appeal will move quickly through the appeal court process (20-day intervals for filing, responding, responding to response, and a time certain for the Appellate court) and we could have a decision by April.  Evan thinks we have a good chance of winning our appeal, in which case the complaint would be sent back to Judge Wolover for continuation.

The appeals court consists of a three judge panel, from among the five listed below.  We are in the Ohio 2nd Court, see below.

Ohio Second Court of Appeals:
Appellate Judges:
James A. Brogan
Mike Fain
William H. Wolff, Jr.
Mary E. Donovan
Thomas J. Grady

Clark County Courthouse
101 N. Limestone Street
Springfield, Ohio 45502

Ph.: 937.328.2653
Fax: 937.328.2652

Online resources:
District 2 Opinions
Weekly Docket
Local Rules
found at:

www.sconet.state.oh.us/District_Courts/Districts/dc02.asp

See attached documents for more information:

• faculty-lawsuit-appeal-doc-1
• faculty-lawsuit-appeal-doc-2

• Eric Bates Deposition – June 26, 2008 PDF
• Amy Chappell – September 5, 2008 PDF
• Neils Lyster – September 5, 2008 PDF

November 6, 2008

Dr. Tullisse A. Murdock
Chancellor
Antioch University
150 E. South College Street
Yellow Springs, Ohio 45387

Mr. Arthur J. Zucker
Chair, Board of Trustees
Antioch University
2012 Prescott Place
Raleigh, North Carolina 27615

Dear Chancellor Murdock and Chair Zucker:

In response to our letter of October 1 concerning our forthcoming governance investigation of Antioch University and the closing of Antioch College, Chancellor Murdock’s October 31 letter states that, owing to pending litigation, the “proposed investigation by AAUP would concern the same issues which are now being adjudicated. For that reason, and upon the advice of our legal counsel, we are not able to participate in any ‘investigation’ by AAUP.

With respect to our decision to authorize an ad hoc committee’s investigation of the college’s closing and related matters, we think it important that you understand our basic aims. The Association has, since its founding in 1915, sought to secure an understanding of sound academic standards in accredited American institutions ofhigher learning. It has issued statements of policy embodying these standards, frequently in cooperation with other leading organizations in the academic community. The 1966 Statement on Government of Colleges and Universities forms the basis of our interest in the issues regarding the faculty role in institutional governance posed by the Antioch case.

The AAUP decides whether to proceed with an investigation on a case by case basis; when it is necessary to investigate and report on institutional actions, the AAUP appoints an ad hoc committee that has not prejudged the matter. The committee issues findings on whether the institution’s actions appear to constitute significant departures from the AAUP’s recommended standards. In the Antioch case, we expect that information already available to the committee will be supplemented by the investigating committee’s written and oral communications with numerous individuals in Ohio and elsewhere. To the extent you believe the investigating committee has received an inaccurate representation of the developments at Antioch College or Antioch University, we invite you to supply any additional information.

Our Association has never maintained that the administration of a college or university is under any official obligation to participate in an investigation; indeed, on a number of occasions we have completed an investigation without an administration’s participation. It has been our experience, however, that administrations are in most instances cooperative. In addition, we have investigated many cases that have simultaneously been in litigation, and we have generally been sllccessful in avoiding the detrimental intrusion of one upon the other. We do not bclieve we would be meeting our responsibility to defend academic principles and procedures if we were to delay our investigation until litigation has concluded. Thus we believe that we are acting soundly in pursuing our own interest in the issues relating to academic principles and procedures instead of waiting until other approaches have run their course.

We have recently worked out dates for the committee’s visit to the Yellow Springs area: Monday, December 15 and Tuesday, December 16. We have in mind additional Antioch visits elsewhere. We hope that you will reconsider your administration’s decision all cooperating and will provide the investigating committee with your perspective on the issues of concern to us. Whether or not you meet with the committee, a report of the investigation and an invitation to respond will be sent to you and other concerned parties upon approval by the Association’s standing Committee on College and University Governance. Your corrections and comments will be taken into account in our preparation ofthe final text for publication.

In the days and weeks ahead, we shall, of course, be sensitive to any new developments that could affect how we proceed.

Anita Levy. Ph.D.
Associate Secretary

cc: Dr. David Caruso, President, Antioch University New England
Dr. Neal King, President, Antioch University Los Angeles
Dr. Cassandra Manuelito-Kerkvliet, President, Antioch University Seattle
Dr. Michael Mulnix, President, Antioch University Santa Barbara
Dr. Zaki J. Sharif, Interim President, Antioch University McGregor
Dr. Laurien Alexandre, Director, PhD in Leadership & Change Program Antioch University
Antioch AAUP Membership
Adhoc Committee

October 1, 2008

Dr. Tullisse A. Murdock
Chancellor
Antioch University
150 E. South College Street
Yellow Springs, Ohio 45387

Mr. Arthur J. Zucker
Chair, Board of Trustees
Antioch University
2012 Prescott Pl
Raleigh, North Carolina 27615

Dear Chancellor Murdock and Chair Zucker:

Thank you for your letter of last March 21 responding to ours of March 14 (copies enclosed for your convenience). We were tempted to respond at the time, but thought it best to await further developments in the negotiations which were then moving rapidly. Now, with issues remaining unresolved but with a less turbulent situation in the new academic year underway, members of our staff, with the general secretary participating, have once again turned our attention to Antioch. We have come to the view that the closing of Antioch College, whether it proves to be temporary or permanent, is an event the AAUP needs to address. We have agreed that our focus should be upon the governance issues raised by the university’s closing of a core component of the institution and, indeed, its founding college. Among additional issues to be considered are the governance implications for the continuing institution, namely, whether, without the college, Antioch University will operate in accordance with basic principles of academic governance as enunciated in the enclosed Statement on Government of Colleges and Universities. As to Antioch College itself, we shall likely want to address the prospects of whether and in what form Antioch College will resume, and indeed, whether there was a realistic alternative to closing it when that was done.

In situations such as Antioch’s that present developments of basic concern to the academic community, our experience has indicated that it is desirable, in fairness to the institutional administration, to the affected faculty members, and to the institution as a whole, to establish an ad hoc committee composed of persons who have had no previous involvement with the particular matter, to conduct its own full inquiry and prepare a report. The general secretary has accordingly authorized the appointment of such a committee, charging it with reporting to the Association’s standing Committee on College and University Governance.

The following persons have accordingly been appointed to serve as the ad hoc committee charged with investigating the case of Antioch University and the closing of Antioch College:

Professor Diane C. Zannoni, chair
Department of Economics
Trinity College, Connecticut

Professor Ronald G. Ehrenberg
Department of Industrial and Labor Relations and Economics
Cornell University

Professor Rudy Fichtenbaum
Department of Economics
Wright State University

Professor Duane Storti
Department of Mechanical Engineering
University of Washington – Seattle

We shall welcome your cooperation and shall be back in touch with you when we have dates to propose for a committee visit.

Sincerely,

Anita Levy, Ph.D.
Associate Secretary

Enclosures
cc: Dr. David Caruso, President, Antioch University New England
Dr. Barbara Gellman-Danley, President, Antioch University McGregor
Dr. Neal King, President, Antioch University Los Angeles
Dr. Cassandra Manuelito-Kerkvliet, President, Antioch University Seattle
Dr. Michael Mulnix, President, Antioch University Santa Barbara
Dr. Laurien Alexandre, Director, PhD in Leadership & Change Program Antioch University
Antioch AAUP Membership
Ad hoc Committee

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.