Board of Directors Meeting Minutes, October 8, 2006, Dallas, Texas

Attending: Board Members John Bucher, Brian Hawkins, Rebecca King, Lucinda Lea, Marilyn McMillan, Jeffrey Noyes, Margaret Plympton, Robyn Render, David Smallen, George Strawn, and Ellen Waite-Franzen.

Absent: Jerry Campbell and John Hitt

Also present: Future Board Members Tracy Mitrano and Scott Siddall; and staff members Carole Barone, Denny Farnsworth, Cynthia Golden, Richard Katz, Mark Luker, Michelle McIrvin, and Diana Oblinger.

The meeting was called to order by Chair Robyn Render at 1:00 p.m.

Motion: That the minutes from the August 10, 2006 Board Meeting be approved.
Motion made by: Ellen Waite-Franzen
Seconded by: David Smallen
Passed by unanimous vote

Reports

President's Report

  • Introduced Michelle McIrvin, the new Director of Finance and Administration.
  • Introduced Scott Siddall and Tracy Mitrano, newly elected Board members whose terms will begin on January 1, 2007.
  • Reported that the conference attendance will exceed 6,600.

Highlights of Senior Fellow Carole Barone's Report

  • Render mentioned that this would be Barone's last meeting due to her upcoming retirement and thanked her for her service. The Board responded by a round of applause and a hearty thank you, and Barone in turn thanked the group for her association with EDUCAUSE.

Highlights of Vice President Cynthia Golden's Report

  • Golden reported that work on the 2008 conference is underway; E2008 will be chaired by Darrel Huish, a community college representative.

Highlights of Vice President Richard Katz's Report

  • The Digital Content Forum has been scheduled for March 5 and 6, 2007 in Denver.
  • The ECAR symposium will be held Dec. 6–8, 2006.
  • Katz will speak in New Mexico at the invitation of the Governor, keynoting the New Mexico Summit on Higher Education.

Highlights of Vice President Mark Luker's Report

  • The new Network Policy Council is very active and helped to write the definitive letter of advice on CALEA.
  • The issue of peer-to-peer file sharing is drawing increased attention in Congress. We have advised our members that a recent GAO survey on the topic is requesting information that will be identifiable by institution.
  • October is National Cybersecurity Month.

Highlights of Vice President Diana Oblinger's Report

  • ELI is reviewing its product mix to ensure resources are used to best advantage.
  • ELI authored material has consistently accounted for approximately one third of the most requested items from the EDUCAUSE Web site.
  • The Learning Spaces e-book was officially released September 29th. Prior to its release there had been over 10,000 unique visitors to the site. CDs of the e-book will be distributed at the conference.
  • Podcasting remains popular; six of the top ten on the EDUCAUSE connect site are ELI products.
  • A new product that takes the 7 Things You Should Know About… series a step farther is under development. It integrates case studies with implementation issues and common questions. Intended release of the pilot is January 2007.

Finance

Financial Report

Hawkins presented the September financials and explained that the noted differences since the last financial report at the August Board meeting were due to conference expenses that were booked in September. He further noted that the EDUCAUSE membership was up over 5% since this time last year.

Investment Report

In addition to the material in the Board book, the FISN portfolio grew by $110,000 in September.

Approval of EDUCAUSE 2007 Budget

Motion: Moved that the revised budget, showing a surplus of $3,380 for 2007, be approved.
Motion made by: Peggy Plympton
Seconded by: Marilyn McMillan
Passed by unanimous vote

Program Plan

Approval of the 2007 Program Plan as reviewed and amended.

The Board reviewed the five major initiatives of the Program Plan.

  • Renewing and rethinking campus IT services – led by Katz
  • Determining what IT costs – led by Katz
  • Improving student retention and graduation through analytics – led by Oblinger
  • Managing cyberinfrastructure strategically – led by Luker
  • IT workforce development – led by Golden

Motion: Moved that the 2007 Program Plan, as discussed, be approved.
Motion made by: Jeff Noyes
Seconded by: Marilyn McMillan
Passed by unanimous vote

Discussions

Discussion of a proposed bylaw amendment

There are many reasons why the President should be an officer of the Board. A few examples of the day to day activities which require the signature of a Board officer are establishing accounts with various taxing jurisdictions for employment purposes; the signing of tax and information returns, and other governmental reports; and the ability to sign contracts when the signature of a corporate officer is required. For these reasons, the following bylaw recommendation is proposed.

ARTICLE VII – OFFICERS

Section 1. Officers. The Officers of the corporation shall be the Chair, Vice Chair, Secretary, and Treasurer of the Board of Directors; and President of the association. The Board of Directors may in its sole discretion designate additional Officers. All officers—except the President—must be selected from among the Directors. The Chair and Vice Chair must be Member Directors.

Motion: Moved that the bylaw amendment be approved.
Motion made by: Ellen Waite-Franzen
Seconded by: John Bucher
Passed by unanimous vote

Discussion of the EDUCAUSE position regarding patents

After much discussion, the Board members attending unanimously approved writing a letter to Michael Chasen of Blackboard while at the conference and hand-delivering it to him, in order to convey the sense of urgency that the higher education community has expressed. The text of the letter is incorporated into these minutes as Attachment A, and the Board members voted for its approval unanimously via e-mail on October 8 and 9, 2006. The letter was hand delivered on Monday, October 9, 2006.

Discussion of a new appointed Board member

Render recommended Kathleen Santora of NACUA. Her appointment would address the issues of collaboration and increasing legal intersections.

Motion: That Kathleen Santora be asked to accept an appointment to the EDUCAUSE Board for four years, beginning January 1, 2007.
Motion made by: Lucinda Lea
Seconded by: Marilyn McMillan
Passed by unanimous vote

Election of Board officers for 2007

John Bucher was elected Board Chair.
David Smallen was elected Vice Chair.
Becky King was elected Secretary.
Tracy Mitrano was elected Treasurer.

Approval of Required Banking Resolutions

EDUCAUSE BANKING RESOLUTIONS, effective January 1, 2007

Wells Fargo Bank of Boulder, CO, Checking; Wells Fargo Brokerage Services, Money Market, Federal Securities, Repurchase Agreements, and Certificate Accounts–Signature Resolution

"RESOLVED, That John E. Bucher, Chair; or Tracy M. Mitrano, Treasurer; or Brian L. Hawkins, President; or Richard N. Katz, Vice President; or Mark A. Luker, Vice President; or Denton K. Farnsworth, Director, Administrative Services; or Susan A. O'Rourke, Office Manager; of this organization; be and are hereby authorized to withdraw funds of this organization from said Wells Fargo Bank of Boulder checking, money market, federal securities, repurchase agreements, and certificate accounts by transfer to other EDUCAUSE bank accounts and upon checks of this organization, signed as provided herein with signatures duly certified to said bank by the Director, Administrative Services of this organization, and said bank is hereby authorized to honor and pay any and all checks so signed, including those drawn to the individual order of any officer or any other person authorized to sign the same. G. R. Derback and Dawn M. Smith of Great West Life Flexible Benefit Administration are hereby authorized to withdraw funds of this organization from said Wells Fargo Bank of Boulder checking account upon checks of this organization, signed as provided herein with signatures duly certified to said bank by the Director, Administrative Services of this organization, and said bank is hereby authorized to honor and pay any and all checks so signed. Any check exceeding ten thousand dollars ($10,000) requires two authorized signatures."

Wells Fargo Bank of Boulder, CO, Safe Deposit Box–Access Resolution

"RESOLVED, That a safe deposit box at Wells Fargo Bank of Boulder be leased in the name of EDUCAUSE from said institution under the terms of the printed lease forms prescribed by said institution, that such lease agreement on behalf of EDUCAUSE shall be executed on its behalf by any of the following officers of this company: John E. Bucher, Chair; or Tracy M. Mitrano, Treasurer; or Brian L. Hawkins, President; or Richard N. Katz, Vice President; or Denton K. Farnsworth, Director, Administrative Services. RESOLVED FURTHER, That any of the above persons will have the right of access to such box and will have the right to remove from and /or add to contents thereof and have full absolute control of the same, and that this company hereby waives any liability of said institution arising out of the exercise by any said named persons of the powers herein granted. RESOLVED FURTHER, that neither cash nor other negotiable assets will be stored in the Safe Deposit Box."

Motion: Moved that the banking resolutions be approved.
Motion made by: Marilyn McMillan
Seconded by: Lucinda Lea
Passed by unanimous vote

New Business

There was no other new business
At this time, the Board moved into executive session.

Attachments

Attachment A

October 9, 2006

Mr. Michael Chasen
Chief Executive Officer
Blackboard, Inc.
1899 L Street, 11th Floor
Washington, DC 20036

Dear Mr. Chasen,

I am writing you on behalf of the higher education IT community, the EDUCAUSE Board of Directors, and our executive team to express in writing what we have conveyed in prior conversations. Our community is deeply concerned by Blackboard's patent and its recent law suit claiming patent infringement against Desire2Learn. Our community feels these actions go beyond competition to challenging the core values and interests of higher education.

One of our concerns is that you may not fully appreciate the depth of the consternation this action has caused for key members of our community. Among those who have been most directly involved in the development and evolution of course management systems—customers whom Blackboard has relied upon for ideas and advice—these concerns are most pronounced. Their anger over the law suit is so intense that many are simply not communicating with Blackboard. We have seen this intensity of anger only a few times before. In those cases, the corporations involved were unaware of what was happening outside their official channels. Please do not underestimate this consternation which we believe will impact Blackboard in both the short- and the long-term.

We are sure you are aware of the many blog postings discussing the law suit. Web sites have been established to gather evidence of prior art to refute the patent claims. The expressions we hear range from the vilification of Blackboard, to stories about the cold reception Blackboard is receiving at presentations, to the embarrassment of your employees who are asked to explain this corporate action. Even those members of the community who counsel taking a wait-and-see approach are not necessarily less concerned, just more focused on what they might have to lose by speaking out against the dominant vendor in the CMS market. The fact that these perceptions exist is not likely to lead to greater market share or profitability for Blackboard.

EDUCAUSE is a non-profit association dedicated to serving its 2000 college and university members, as well as its 200 corporate members. We do not endorse products or take the side of one company over another. Our corporate guidelines, established in 1998, are very clear that EDUCAUSE is primarily accountable to its institutional members. In the event of a conflict between corporate and institutional member objectives, we must support our institutional members. Let me clearly state that we are not siding with Desire2Learn at the expense of Blackboard. Our discussions and actions are based solely on the collective interests of our institutional members.

There are two core tenets behind the community concern. One deals with co-creation and ownership; the other deals with innovation. Course management systems were developed by the higher education community, which includes academics, organizations, and corporations. Ideas were freely exchanged, prototypes developed, and refinements continue to be made. The new EDUCAUSE Catalyst Award, given to course management systems this year, celebrates that course management systems "were conceived and developed among faculty in pockets of innovation throughout the world. They originated simultaneously at a number of institutions," as stated in the award announcement. One of the reasons course management systems were singled out for this award is because of the "fluid movement of ideas and initiatives between academia and the commercial sector as individual limited-use efforts evolved into enterprise-wide systems." Our community has participated in the creation of course management systems. A claim that implies this community creation can be patented by one organization is anathema to our culture.

We realize that what one believes is not necessarily legally binding. As a result, EDUCAUSE engaged the services of a highly reputable, independent law firm to review the patent. The preliminary conclusion is that the patent was very broadly defined and was inappropriately approved by the U.S. Patent and Trademark Office. That is certainly the view of the higher education community, many of whom are contributing evidence of prior art.

The other core tenet is to promote innovation. The free exchange of ideas fosters innovation. The open sharing of ideas does not preclude commercialization or profiting from ideas. Innovation is critical to the higher education community and it is critical to corporations. Blackboard has espoused the importance of listening to customers as its source of innovation. This law suit will certainly have a chilling effect on the open sharing of ideas in our community.

We believe that Blackboard should disclaim the rights established under your recently-awarded patent, placing the patent in the public domain and withdrawing the claim of infringement against Desire2Learn. We believe this action would be in the best business interests of Blackboard and in the best interests of higher education. We do not make this request lightly or underestimate the courage it will take to implement. However, we believe it is the right action for your corporation and our community.

As EDUCAUSE members convene this week, this patent and its implications for innovation in education will be discussed more broadly. Now is the time for Blackboard to demonstrate why it is a leader in course management systems and listen to the marketplace that has been a primary source of collaboration and innovation. I, along with members of my executive team, are willing to meet with you at any time.

Sincerely,

Brian L. Hawkins
President
EDUCAUSE

On behalf of the EDUCAUSE Board of Directors

Robyn R. Render, EDUCAUSE Chair of the Board, Vice President for Information Resources and CIO, University of North Carolina, Office of the President
John E. Bucher, EDUCAUSE Vice Chair, Chief Technology Officer, Oberlin College
Ellen J. Waite-Franzen, EDUCAUSE Treasurer, Vice President for Information Technology, Dartmouth College
Jeffrey W. Noyes, Secretary of the EDUCAUSE Board, Director, Student System Consolidation Project, Board of Regents of the University System of Georgia
Rebecca L. King, Director for Information Systems and Services and Interim CIO, Baylor University
Lucinda T. Lea, VP for Information Technology and CIO, Middle Tennessee State University
Marilyn A. McMillan, Associate Provost and Chief Information Technology Officer, New York University
Margaret F. Plympton, Vice President for Finance and Administration, Lehigh University
David L. Smallen, Vice President, Information Technology, Hamilton College
George O. Strawn, CIO, National Science Foundation
Brian L. Hawkins, President, EDUCAUSE