Blake, Millard A., Jr.

English

North Carolina Central University (NCCU), School of Law: History and Scholarship Digital Archive

North Carolina Central Law ReviewVolume 1Issue 1 Spring 1969 Article 144-1-1969Racial Discrimination in the Creation of CharitableTrustMillard A. Blake Jr.Follow this and additional works at: https://archives.law.nccu.edu/ncclrPart of the Civil Rights and Discrimination Commons, and the Estates and Trusts CommonsThis Note is brought to you for free and open access by History and Scholarship Digital Archives. It has been accepted for inclusion in North CarolinaCentral Law Review by an authorized editor of History and Scholarship Digital Archives. For more information, please contact jbeeker@nccu.edu.Recommended CitationBlake, Millard A. Jr. (1969) "Racial Discrimination in the Creation of Charitable Trust," North Carolina Central Law Review: Vol. 1 : Iss.1 , Article 14.Available at: https://archives.law.nccu.edu/ncclr/vol1/iss1/14CHARITABLE TRUSTS 101issues, but instead is a determination whether there are issues to be tried.Certainly, the remedy is not available to adjudicate cases by a short-cutmethod, and it cannot be employed unless the court perceives clearly andhas no doubt that a trial in the familiar sense of the word would be un-availing, and that a directed verdict for the movant would result if atrial were had. Yet, when there is nothing in fact to be adjudicated theapplicable procedure to be employed by counsel and accepted by the courtis a motion for summary judgment.Racial Discrimination in the Creation of Charitable TrustOne of the most important and current issues concerning the lawof trusts is racial discrimination in the creation of a charitable trust.The problem is more acute if the court upholds the validity of a trustwhich is created for the purpose of racial discrimination.On May 20, 1968, one case involving this problem finally came to anend, when the United States Supreme Court opened the doors of GirardCollege, located in the city of Philadelphia, Commonwealth of Pennsyl-vania, to qualified orphan boys of all races. By denying certiorari tothe United States Court of Appeals, Third Circuit, the United StatesSupreme Court has ended a fourteen year battle in the federal courtsinvolving racial discrimination in the admittance of Negroes to GirardCollege.'This problem, to be understood thoroughly, must be studied throughits various stages. It first came to light in 1844 in the case of Vidal v.Girard's Ex'rs.2 The facts are stated below:Stephen Girard created a trust for the establishment of Girard Col-lege, in the city of Philadelphia, Commonwealth of Pennsylvania. Thetrust stated that the money should be used by the City of Philadelphia forthe purpose of erecting and operating a school for poor, white maleorphans. The next of kin objected to the trust for two reasons: First,because of the exclusion of all ecclesiatics, missionaries, and ministers ofany sect, from holding or exercising any station or duty in the college.Second, because it limits the instruction to be given the scholars therebyexcluding, by implication, all instruction in the Christian religion.3 The1 Brown v. Commonwealth of Pennsylvania, 392 F.2d 120 (1968).' Vidal et al. v. Girard's Executors, 12 Howard 126 (1844).'Id., p. 128.1Blake: Racial Discrimination in the Creation of Charitable TrustPublished by History and Scholarship Digital Archives, 2017102 NORTH CAROLINA COLLEGE LAW JOURNALCircuit Court of Pennsylvania held for the executors of Girard's Estateand dismissed the bill, stating, in effect, there was nothing in the deviseestablishing the college or in the regulations and restrictions containedtherein which were inconsistent with the Christian religion, or opposed toany known policy of the State of Pennsylvania.4The rule which is stated above stood firm until the Civil Rights Cases,'when the United States Supreme Court decided that the FourteenthAmendment applied only to discrimination by the states and not to dis-crimination by individuals. The Civil Rights Cases determined the testwhether "state action" is involved. The Girard College Case emergesagain on the appellate level in 1957. Petitioners were denied admissionto the school on the basis of race, pursuant to Stephen Girard's will.The will named the City of Philadelphia as trustee; subsequently, a Boardof Directors of the City Trusts was established to administer the trustand the college. The United States Supreme Court held that the City ofPhiladelphia could not discriminate against Negroes. A different viewcomes into existence when the lower court (Orphan's Court) in the Cityof Philadelphia removed the city as trustee and replaced it with a privatetrustee.' By allowing this action to stand and denying certiorari thecourt has allowed racial discrimination to remain undisturbed in theGirard Trust.Evans v. NewtonThe next important case which comes to light concerning racialdiscrimination in a charitable trust is Evans v. Newton which involvesthe desegregation of a park.7 The facts are as follows:In 1911 a tract of land was willed in trust to the Mayor and CityCouncil of Macon, Georgia, as a park for white people, to be controlledby a white Board of Managers. When the city desegregated the park themanagers brought suit in the state court against the city and the trusteesof residuary beneficiaries. In the bill of complaint they asked the cityto remove the trustee and replace him with private trustees to enforce theracial limitations which were imposed by the trust. The city statedthat it could no longer enforce segregation and asked to resign as trusteeafter intervention of a Negro citizen who claimed that the racial limita-'Ibid.Civil Rights Cases, 109 U.S. 3 (1883).6 Pennsylvania et al. v. Board of Directors of Philadelphia, 353 U.S. 230 (1956)." Evans v. Newton, 382 U.S. 296 (1966).2North Carolina Central Law Review, Vol. 1 [2017], Iss. 1, Art. 14https://archives.law.nccu.edu/ncclr/vol1/iss1/14CHARITABLE TRUSTS 103tions violated federal law.' Another argument was that the charitabledevise was no longer capable of being executed in the manner providedby the testator, and therefore the court should effectuate his generalcharitable intent to establish a public park by refusing to appoint newtrustees.9 One of the heirs of the testator intervened stating that theproperty should revert to him if new trustees were not appointed. TheGeorgia Court accepted the resignation of the trustees and appointed newones. The United States Supreme Court granted certiorari and reversedthe decision of the Georgia Supreme Court.'"Mr. Justice Douglas, in stating the opinion of the court, brought outthe fact that the park, even with private trustees, was still within thepublic sector, and discrimination based on race was therefore prohibitedby the Fourteenth Amendment of the Constitution of the United States."He continued, asserting that this decision was based on two things:"First, that due to continuous care of the park by the City over theyears, it had acquired status as a public facility which would not bedispelled by the mere change of trustees;secondly, that the service rendered by even a private park of thischaracter was municipal in nature.'2State ActionIn the above case the Cy Pres Doctrine could have been applied. Thishas been done in several charitable trusts in the State of Georgia. Thedefinition of this doctrine is:Where a settlor with a general charitable intent gives property in trustfor a specific purpose and it becomes impossible or impracticable orillegal to carry out the particular purpose, the trust will not fail, butthe court will direct the disposition of the property to some relatedcharitable purpose, in order to carry out as nearly as possible thegeneral charitable intent of the settlor.1"The problem involving racially discriminatory charitable trusts mightbe solved in each state's trust laws. A charitable trust will be enforcedwhen it benefits a large or indefinite group of people. But a restriction8Id., p. 297.'Ibid.'0 Ibid."Id., p. 298."Id., p. 299."Bogert, Trusts, Cy Pres Doctrine, § 147 (3rd ed. Hornbook, 1952).3Blake: Racial Discrimination in the Creation of Charitable TrustPublished by History and Scholarship Digital Archives, 2017104 NORTH CAROLINA COLLEGE LAW JOURNALwhich is created in a charitable trust could be declared void and the trustitself could be still declared valid. 4 It is most important that each statetake steps to avoid racial restriction in charitable trusts. If the clausein the trust cannot be held void, there is a possibility that the whole chari-table trust might be declared invalid.In expanding this concept of state action, it has become more andmore apparent that the state courts would not tolerate racially restrictivecovenants on the sale of houses as incorporated by some city officials.' 5The applicable test is explained below:This test nullifies and makes void all state legislation, and state actionof every kind, which impairs the privileges and immunities of citizensof the United States, or which injures them in life, liberty or propertywithout due process of law, or which denies to any of them the equalprotection of the law.' 6The only time this test was applied was in the Wilmington ParkingAuthority.'" In this case a restaurant located in a publicly owned off-street parking building in Wilmington, Delaware, refused to serve ap-pellant food or drink solely because he was a Negro. The parking build-ing was owned and operated by the Wilmington Parking Authority,an agency of the State of Delaware, and it was built with public fundsfor a public purpose. The appellant claimed that by refusing to servehim, the Parking Authority abridged his rights under the equal protectionclause of the Fourteenth Amendment of the Constitution of the UnitedStates.'" The Supreme Court of Delaware held that the appellant wasnot entitled to relief because the restaurant's action was not state actionwithin the meaning of the Fourteenth Amendment. The United StatesSupreme Court granted certiorari. Mr. Justice Clark in reversing thedecision of the court of Delaware stated:By its inaction the Authority and through it the state, has not onlymade itself a party to the refusal of service, but has elected to place itspower, property and prestige behind the admitted discrimination.' 9Williams, "The Twilight of State Action," 41 TEXAS LAW REVIEW 347(1963)." Large, "Racial Discrimination: Trust and Estates: Racially DiscriminatoryCharitable Trust and "State Action" under the Fourteenth Amendment: Evansv. Newton, 382 U.S. 296 (1966); 51 CORNELL LAW QUARTERLY 862 (1965)." Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).17 Ibid.'a Ibid.19 Ibid.4North Carolina Central Law Review, Vol. 1 [2017], Iss. 1, Art. 14https://archives.law.nccu.edu/ncclr/vol1/iss1/14CHARITABLE TRUSTS 105Mr. Justice Clark implied that the state itself violated the FourteenthAmendment because there was no state enforcement against the discrim-ination of the appellant. The state court had refused declaratory and in-junctive relief to the victim of discrimination in an action against thestate authority as seen in the facts. If there had been state enforcement,there might have been a remedy available at common law.In summary, this article contains the landmark United States SupremeCourt's decisions to date involving charitable trusts created for the pur-pose of racial discrimination. The confusion and discrimination surround-ing the Girard Case has been further clouded by the 1958 decision of theUnited States Supreme Court in which the court denied certiorari andallowed the lower court to change trustees of Girard College from publicto private.In March 1968 the trustees of Girard College once again appearedin court to keep the school segregated. It had been ten years since thecollege had appealed to the courts to uphold the validity of the trust.The appeal to the United States Court of Appeals, Third Circuit,set the stage for a constitutional showdown on two major issues. First,are wills such as Girard's will ironclad? Second, are schools in the grayarea between the public and private spheres subject to the equal protectionguarantee by the Constitution ?2oThe Court of Appeals, Third Circuit, in its opinion delivered byMr. Justice McLaughlin held that in granting judicial enforcement ofthe restrictive agreements in the cases connected with Girard, the statehas denied petitioners the equal protection of the laws. Thus, the actionof Philadelphia's Orphans' Court in its substitution of Girard trusteeswas adjudged unconstitutional state action. 2In May 1968, the United States Supreme Court affirmed the decisionof the United States Court of Appeals and denied certiorari to the trusteesof Girard College. 2The questions and issues concerning discrimination in charitable trustshave been before the courts more than 125 years. It is now hoped thatthese points have finally been laid to rest.o Brown v. Commonwealth of Pennsylvania, 392 F.2d 120 (1968).21 Ibid.22391 U.S. 921 (1968).5Blake: Racial Discrimination in the Creation of Charitable TrustPublished by History and Scholarship Digital Archives, 20176North Carolina Central Law Review, Vol. 1 [2017], Iss. 1, Art. 14https://archives.law.nccu.edu/ncclr/vol1/iss1/14

Racial Discrimination in the Creation of Charitable Trust

https://archives.law.nccu.edu/cgi/viewcontent.cgi?article=1013&context=ncclr

Racial Discrimination in the Creation of Charitable Trust

Abstract

Similar works

Full text

Available Versions

North Carolina Central University (NCCU), School of Law: History and Scholarship Digital Archive