Legacy Of Stephen Girard


Justice Douglas, for the majority, said the park had a “public character” that required it to “be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law.” He said the park had acquired a “momentum” as a public facility that was “certainly not dissipated ipso facto by the appointment of ‘private’ trustees.” He also thought it fair to “assume” that the Georgia courts would not have approved of the appointment of successor trustees if the courts had not thought that private trustees would have been able, legally, to keep blacks out of the park. So, in effect, Justice Douglas and the majority of the Supreme Court held that state action was being used to enforce racial discrimination, which is prohibited by the Fourteenth Amendment.

Seven black male Philadelphia half-orphans, represented by their mothers, by William T. Coleman, Jr., and by a galaxy of lawyers representing the commonwealth of Pennsylvania and the city of Philadelphia, now used the Evans case as their primary tool in a suit brought against the thirteen private trustees of the Girard estate. The trustees were as brilliantly represented by counsel, and others of the Philadelphia bar joined the case as friends of the court. The battle was fought out not in a Pennsylvania court, but in the Federal District Court having jurisdiction in Philadelphia.

Briefly, the appointment of private trustees to administer the Girard estate was attacked as being nothing but a device to keep black orphans out of Girard College. Other points were raised, but this was the crucial one: state action was being employed to ensure racial discrimination.

District Judge Joseph S. Lord III agreed. He said that Girard himself “entwined the State” in the administration of the college; that this “entanglement persisted for over a century and a quarter”; that this entanglement “was overtly removed by the unilateral action of a State agency, the Orphans Court, which thereupon uniquely swore in the successors, binding them under State oath to carry out the founder’s discriminatory policies—and then officially thanked them for doing so”; that the state legislature periodically received reports from Girard College, “implicit in which is the perpetuation of discrimination”; that the state of Pennsylvania had oversight over the quality of education offered in the college, and that the school therefore had a public character and a public function.

So, Judge Lord said, “we … find it logically and legally impossible to escape the conclusion that racial exclusion at Girard College is so afflicted with State action, in its widened concept, that it cannot constitutionally endure. Since the strictures of the Fourteenth Amendment apply to the administration of the institution, it may no longer deny admission to applicants simply because they are not ‘white.’ ”

The struggle was not yet over; in 1968 the private trustees appealed Judge Lord’s decision to the United States Court of Appeals, Third Circuit—but only to be sharply turned down. Judge Gerald McLaughlin wrote the majority opinion, and while his colleagues agreed with it, one of them observed that “This appeal is being decided on the basis of the present decisions of the United States Supreme Court in a field where the ‘federal role’ is more ‘pervasive’ and ‘intense’ today than it was several years ago.” The private trustees appealed the Court of Appeals ruling, but the Supreme Court of the United States refused to review the case, and the long struggle was at an end.

Black orphans are now admitted to Girard College, no matter that Stephen Girard did not include black orphans among those to whom he wished to offer bed, board, clothing, and education. The question of whether girls may be admitted to Girard’s bounty has not yet been raised. In time, it may turn out that the entire bequest to Girard College will fail for the want of any sort of orphans, for the institution is now operating well below its capacity. In 1973 the college admission’s policy was changed further to admit motherless as well as fatherless boys, and just last August a common pleas judge ruled that the school might also admit “functional orphans”—boys whose living parents were unable or unwilling to care for them. These days, a college official said, public welfare funds enable a mother to raise her children at home, and institutional life is not popular among today’s children or their parents.

However this may be, the effects of the final ruling in the Girard will case are still disturbing to many lawyers who see a connection between “the present decisions” of the United States Supreme Court and the “federal role” in civic life. A more generous view might be that the law is always responsive to society; that the law is really nothing more than whatever a majority wishes it to be at any particular time; if the laws are not changed by acts of the legislature, they may be changed by a judicial view of their meaning. As the principal victor in the Girard case, William T. Coleman, Jr., is fond of saying, “Just tell me the argument; don’t tell me the evidence, because you can always find evidence to support your argument.”