Ewing v. Augusta City Council Printed Record

    UNITED STATES COURT OF APPEALS
F oe t h e  T h ird  C ir c u it

No. 16721

COMMONWEALTH OF PENNSYLVANIA, ATTORNEY 
GENERAL OF THE COMMONWEALTH OF PENN­
SYLVANIA, CITY OF PHILADELPHIA and  ALAN 
LEVI BOND, b y  h is  m o t h e r , MRS. RUBY BOND, 
CHARLES WILLIAM HICKS and  THEODORE 
LEWIS HICKS, BY THEIR MOTHER, MRS. MARIE 
HICKS, JAMES SCRUGGS and  HENRY SCRUGGS, 
BY t h e ir  m o t h e r , MRS. ARDELLA SCRUGGS, 
TYRONE KARL WHITE and  TERRY SHERWOOD 
WHITE, by  t h e ir  m o t h e r , MRS. CHARLOTTE L. 
WHITE, ON be h alf  of th em selves  and  a l l  others

SIMILARLY SITUATED

V.

REVELLE W. BROWN, JOHN A. DIEMAND, DR. GIL­
SON COLBY ENGEL, FRED FOX, WALTER S. 
FRANKLIN, WALTER B. GIBBONS, ESQUIRE, 
HUBERT J. HORAN, JR., ESQUIRE, DR. LOUIS 
P. HOYER, FREDERICK H. LEVIS, DAVID F. 
MAXWELL, ESQUIRE, MRS. MINA F. OLIVER, 
ROLAND RODROCK RANDALL and  HARRY G. 
SCHAD, T rustees of t h e  E state  of S t e p h e n  G irard ,

Appellants

A ppea l  F rom  t h e  U nited  S tates D istrict  C ourt for t h e  
E astern  D istrict  of P e n n sy lv an ia

Argued November 28, 1967
Before S ta le y , Chief Judge, and M cL a u g h lin , K alodner , 

S eitz  and V an D u s e n , Circuit Judges

OPINION OF THE COURT
(Filed March 7, 1968)



2

By M cL a u g h l in , Circuit Judge.

The problem here arises from the will of Stephen 
Girard, a Philadelphia, Pennsylvania resident who died in 
1831. In his will, dated 1830, he laid down his fundamental 
thesis that he had “ been for a long time impressed with the 
importance of educating the poor, and of placing them by 
the early cultivation of their minds and the development 
of their moral principles, above the many temptations, to 
which, through poverty and ignorance they are exposed; 
* * Continuing, he said “ * * * I am particularly de­
sirous to provide for such a number of poor male white or­
phan children, as can be trained in one institution, a better 
education as well as a more comfortable maintenance than 
they usually receive from the application of public funds.”  
He coupled this with his statement of heartfelt interest in 
the welfare of Philadelphia and his desire to improve it in 
its Delaware River neighborhood for the benefit of the health 
of its citizens and so that the eastern part of the city would 
correspond better with the interior. So inter alia he left the 
valuable residue and remainder of his real and personal 
property to “ The Mayor, Aldermen and citizens of Phila­
delphia, their successors and assigns in trust to and for the 
several uses intents and purposes hereinafter mentioned 
and declared * * The will went into considerable par­
ticulars regarding the Girard Philadelphia and Kentucky 
property. Concerning a personal estate bequest of two 
million dollars for the College the will outlined at length 
where it would be located and in great detail the exact con­
struction of the College and outbuildings, etc. The will also 
gave five hundred thousand dollars to Philadelphia for 
various public improvements. The Commonwealth of Penn­
sylvania was bequeathed three hundred thousand dollars 
for internal improvement by canal navigation. This last 
bequest was conditioned upon the Commonwealth passing 
certain laws helpful to the testator’s contemplated improve­
ment of Philadelphia and for the desired objectives of



3

Girard College. All the suggested assisting legislation was 
enacted by the Commonwealth in due course.

Mr. Girard stated specifically in his will:
“ In relation to the organization of the college and 

its appendages, I leave, necessarily, many details to the 
Mayor, Aldermen and citizens of Philadelphia and their 
successors; and I do so, with the more confidence, as, 
from the nature of my bequests and the benefit to re­
sult from them, I trust that my fellow citizens of Phila­
delphia, will observe and evince especial care and 
anxiety in selecting members of their City Councils, 
and other agents * * V ’
He provided that the College accounts be kept sepa­

rately so that they could be examined by a committee of the 
Pennsylvania legislature and that an account of same be 
rendered annually to said legislature together with a report 
of the state of the College. Philadelphia accepted the be­
quests and by ordinance set up a plan to administer the 
College by a Trusts Board. In 1833 a building committee 
of the City Council was appointed, a president of the Col­
lege was chosen under an ordinance created for that pur­
pose and the cornerstone of the main building laid. Con­
struction was concluded in 1847 and the College opened the 
first of the following year. Down to 1869 the City Council 
operated the College directly, first by way of the trustees 
until 1851 when the latter offices were abolished, and the 
Council again took over direct management. In 1869 the 
Commonwealth enacted a law which gave Philadelphia a 
local Board of Trusts to take over the control of Girard 
College. From that date the Board of City Trusts remained 
in charge of the College until 1958. Broadly summing up 
the Commonwealth and City’s intimate association with 
Girard College the District Court, with full justification in 
the record, found as fact that:

“ Beginning in 1831 and continuing to date, the 
Commonwealth of Pennsylvania and the City of Phi la-



4

delphia, by the enactment of statutes and ordinances, 
by the use and supervision of public officials, appointed 
by legislative and judicial bodies, by rendering services 
and providing tax exemptions, perpetual existence and 
exemption from tort liability, have given aid, assistance, 
direction and involvement to the construction, mainte­
nance, operation and policies of Girard College.”
It is important to note in this sequence that Philadel­

phia has made a consistently brilliant showing through the 
years in its management of the funds and real property 
from the Girard estate for the College. The money bequest 
amounted to six million dollars. This was increased to 
ninety million dollars plus by 1959. The various estate 
properties given the City for the College were not allocated 
any book value by the estate. These have insurable value 
at this time of $42,000,000.

In 1954 two applicants requested admission to the Col­
lege. They were fully qualified but were refused because 
they were Negroes. They brought their cause to the United 
States Supreme Court which held in that suit, titled Penn­
sylvania, et al. v. Board of Directors of the City of Phila­
delphia, 353 U.S. 230, 231 (1958):

“ The Board which operates Girard College is an 
agency of the State of Pennsylvania. Therefore, even 
though the Board was acting as a trustee, its refusal 
to admit Foust and Felder to the college because they 
were Negroes was discrimination by the State. Such 
discrimination is forbidden by the Fourteenth Amend­
ment. Brown v. Board of Education, 347 U.S. 483. 
Accordingly, the judgment of the Supreme Court of 
Pennsylvania is reversed and the cause is remanded 
for further proceedings not inconsistent with this 
opinion. ’ ’

The Supreme Court of Pennsylvania on remand took 
none of the plainly indicated proceedings called for by 
the United States Supreme Court. It simply remanded 
the litigation to the Orphans’ Court of Philadelphia



5

County.1 That court, without notice or opportunity for 
the plaintiffs to do anything and with no request from the 
City or other source whatsoever, on its own initiative ousted 
Philadelphia as trustee and installed in place of the City 
Board, persons of its own choosing. There is disagree­
ment between the parties with respect to the method used 
for the selection of the new trustees. But it is conceded by 
appellants regarding prior notification by the Orphans’ 
Court to its choices that, “ Certainly no court would ap­
point an individual to a position of such responsibility with­
out first affording him an opportunity to refuse.”  The 
record does show clearly that one of the court trustees tes­
tified that he was telephoned by one of the Orphans’ Court 
judges prior to the appointments order being filed and told 
that the court had appointed its own trustees of which 
he was one. It is also in the record that the new trustees, 
as stated by one of them, were sworn in by at least one of 
the Orphans’ Court judges and that included in their oath 
was “ * * * that we would undertake to manage the will 
of Stephen Girard in accordance with the way it was writ­
ten.”  The said trustee, referring to that part of the oath, 
further mentioned ‘ ‘ That is what we all assumed anyhow. ’ ’ 
We think the foregoing factual narrative demonstrates 
that the Orphans’ Court of Philadelphia County has been 
substantially involved with the supervision of the Girard 
Estate.

The Philadelphia City Trustees took no appeal from 
their ouster. The children plaintiffs did. The Pennsyl­
vania Supreme Court found that the Orphans ’ Court action

1 As rightly found by the District Court:
“ In 1959, after the decision of the United States Supreme Court in 

Pennsylvania v. Board of Directors, 353 U.S. 230 (1957), the Legislature 
of Pennsylvania enacted a statute granting the Orphans’ Court the power 
and the duty to appoint substitute trustees for the property of minors, 
when a previous trustee which was a political subdivision is removed ‘in 
the public interest,’ and authorized a substitute trustee to invest such 
property of minors committed to their custody. The Act also contained 
other enabling legislation, without which the present defendants would 
be unable to carry out their duties. Act of November 19, 1959, P.L. 1526 
(Exh. P-51 (1 0 )) . The Legislature Journal of the Senate of the Com­
monwealth of Pennsylvania shows that this statute was passed specifically 
as enabling legislation in aid of Girard College (Exh. P-51 (1 0 ) ) .”



6

was not inconsistent with the mandate of the United States 
Supreme Court or the Fourteenth Amendment or the 
Girard will. Application for certiorari was denied by the 
United States Supreme Court, 357 U.S. 570 (1958).

The present litigation was instituted in the United 
States District Court for the Eastern District of Penn­
sylvania. The trial judge originally passed solely upon 
the question of whether Girard College was within the 
jurisdiction of the Pennsylvania Public Accommodations 
Act of June 11, 1935, P.L. 297, as amended by the Act of 
June 24, 1939, P.L. 872. The Court held it was within 
Sections (a) and (c) of the Act and not within the proviso 
of Section (d). This Court reversed that finding and re­
turned the suit to the District Court for trial on the merits 
of Count 1 of the complaint which charges that “ The refu­
sal of the trustees of Girard College to admit applicants 
without regard to race violates the Constitution of the 
United States of America and applicable Federal statutes.”

Appellants argue that they have not violated the equal 
protection clause of the Fourteenth Amendment by deny­
ing admission to individuals because of their color. In 
support of this they cite some Pennsylvania decisions in­
cluding the State Supreme Court Girard College opinion 
on the remand of the United States Supreme Court to that 
State Court “ for further proceedings not inconsistent with 
this opinion.”  What the State Court did was turn the 
matter over to its Orphans’ Court which eliminated the 
City as trustee and installed its own group, sworn to up­
hold the literal language of the Girard will, a move.effec­
tively continuing the very segregation which had been con­
demned by the United States Supreme Court. True, the 
latter had denied the application for certiorari. Times 
without number that Court has plainly ruled that there is 
no inference permissible from its denial of application 
for certiorari, favorable or unfavorable to either side of a 
litigation. Certainly in the whole muddy situation flowing 
from the State excision of the City Board, thereby taking



7

away the linchpin of the Girard will, the then existing state 
litigation picture did not bring into the necessary sharp 
focus, the set piece maneuver which had completely circum­
vented the Supreme Court’s directive. We, however, as 
above seen, do have all of that amazing effort to maintain 
Girard’s discriminatory status before us in its true perspec­
tive.

Even in the above short resume of the conception, 
creation and functioning of Girard College, the close, in­
dispensable relationship between the College, the City of 
Philadelphia and the Commonwealth of Pennsylvania in­
tended by Mr. Girard, meticulously set out in his will and 
faithfully followed for one hundred and twenty-seven years 
is self evident.2 The ironic result of the removal of the 
City Trustees is that Pennsylvania’s involvement with 
Girard College is far more powerful than was provided 
for by Mr. Girard. The Commonwealth’s Orphans’ Court, 
through its assumed power of appointment and reappoint­
ment of the Trustees, is significantly concerned with the 
current administration of the college.

On the whole vital Commonwealth and City relation­
ship to Girard College shown we must agree with Judge 
Lord in the District Court, that the facts in Evans v. 
Newton, 382 TJ.S. 296, 301, 302 (1966) are fairly comparable 
to those in this appeal and that the decision of the Supreme 
Court therein governs the issue before us. In Evans a 
tract of land was willed to the Mayor and City Council of 
Macon, Georgia, as a park for white people, to be con­
trolled by a white Board of Managers. The city desegre­
gated the park and the managers thereafter sued the city 
and the trustees of the residuary beneficiaries, asking for 
the city’s removal as trustee and the appointment of private 
trustees to enforce the racial limitations of the will. The

2 So that there will be no possible cause for confusion, we note that the 
general topic of the sanctity of wills is not before us. Our total concern in 
this cause to which our decision is confined is a will in which the testator has 
deliberately and specially involved the State in the designated use of his testa­
mentary property.



8

Court accepted the city’s resignation and appointed three 
new trustees. The State Supreme Court upheld the terms 
of the will and the appointment of the new trustees. The 
United States Supreme Court reversed. Mr. Justice 
Douglas for the Court in the opinion said as to the park in 
issue:

‘ ‘ The momentum it acquired as a public facility is cer­
tainly not dissipated ipso facto by the appointment of 
‘ private’ trustees. So far as this record shows, there 
has been no change in municipal maintenance and con­
cern over this facility. Whether these public character­
istics will in time be dissipated is wholly conjectural. 
If the municipality remains entwined in the manage­
ment or control of the park, it remains subject to the 
restraints of the Fourteenth Amendment * * *.

# # #

“ Under the circumstances of this case, we cannot 
but conclude that the public character of this park re­
quires that it he treated as a public institution subject 
to the command of the Fourteenth Amendment, regard­
less of who now has title a ruler state law. We may 
fairly assume that had the Georgia courts been of the 
view that even in private hands the park may not he 
operated for the public on a segregated basis, the resig­
nation would not have been approved and private 
trustees appointed. We put the matter that way be­
cause on this record we cannot say that the transfer of 
title per se disentangled the park from segregation 
under the municipal regime that long controlled it. ’ ’

We think also that the Supreme Court’s landmark de­
cision in Shelley v. Kraemer, 334 U.S. 1, 20 (1948) surely 
points to the affirmance of the instant judgment in accord­
ance with the justice which must be done in this case. The 
state courts in Shelley had enforced restrictive real estate 
agreements. The Court by Chief Justice Vinson held:



9

“ We hold that in granting judicial enforcement of 
the restrictive agreements in these cases, the States 
have denied petitioners the equal protection of the laws 
and that, therefore, the action of the state courts can­
not stand. We have noted that freedom from discrimi­
nation by the States in the enjoyment of property 
rights was among the basic objectives sought to be 
effectuated by the framers of the Fourteenth Amend­
ment. That such discrimination has occurred in these 
cases is clear. Because of the race or color of these 
petitioners they have been denied rights of ownership 
or occnpancy enjoyed as a matter of course by other 
citizens of different race or color.

* * *
“ The historical context in which the Fourteenth 

Amendment became a part of the Constitution should 
not be forgotten. Whatever else the framers sought 
to achieve, it is clear that the matter of primary con­
cern was the establishment of equality in the enjoyment 
of basic civil and political rights and the preservation 
of those rights from discriminatory action on the part 
of the States based on considerations of race or color.”
See also Barrows v. Jackson, 346 U.S. 249 (1953) and 

Sweet Briar Institute v. Button, 12 Race Rel. L. Rep. 85 
(W.D. Va., 1967), rev’d per curiam, 387 U.S. 423, decision 
on the merits, Civil No. 66-C-10-L (W.D. Va., filed July 14, 
1967). In Sweet Briar the trustees of the Institute sought 
to enjoin enforcement by the state attorney general of a 
racial restriction contained in the will establishing and 
funding the college. On motion of the defendant, the three 
judge Court abstained until such time as the college carried 
its prior case through the state courts. The Supreme Court 
reversed, stressing strongly, Section 202 of the Civil Rights 
Act of 1964, 42 U.S.C. § 200a-l (1964), and ordered the 
District Court to determine the case on the merits. On re­
mand, that Court entered a permanent injunction against



10

enforcement of the racial restriction by the State of Vir­
ginia, holding that:

“ The State cannot require compliance with the testa­
mentary restriction because that would constitute State 
action barred by the Fourteenth Amendment. This 
was the express holding in the Girard Case.”
F.Supp. (W.D. Va., 1967).
Girard’s definitive position in this period of more than 

ever being operated by an agency of the state does not 
simply emanate from the momentum of the Commonwealth 
and City legitimate participation in the establishment of 
Girard and its institutional life from its beginning to the 
present moment. It is in addition, as we hold, the obvious 
net consequence of the displacement of the City Board by 
the Commonwealth’s agent and the filling of the Girard 
Trusteeships with persons selected by the Commonwealth 
and committed to upholding the letter of the will. Those 
radical changes pushed the College right back into its old 
and ugly unconstitutional position. Had the City Trustees 
been left undisturbed it is inconceivable that this bitter dis­
pute before us would not have been long ago lawfully and 
justly terminated. It is inconceivable that those City Trus­
tees would not have with goodwill opened the College to all 
qualified children. Given everything we know of Mr. 
Girard, it is inconceivable that in this changed world he 
would not be quietly happy that his cherished project had 
raised its sights with the times and joyfully recognized that 
all human beings are created equal.

We do not consider the move of the state court in dis­
posing of the City Trustees and installing its own appointees 
to be a non obvious involvement of the State as mentioned 
in the test outlined in Burton v. Wilmington Parking Au­
thority, 365 U.S. 715, 722 (1961). The action in this in­
stance and its motivation are to put it mildly, conspicuous. 
And what happened to Girard does “  * * # significantly en­
courage and involve the State in private discriminations.”  
Reitman v. Mulkey, 387 U.S. 369, 381 (1967). As the Court



11

there said by Mr. Justice White, “ We have been presented 
with no persuasive considerations indicating that this judg­
ment should be overturned. ’ ’

The judgment of the District Court will be affirmed.

K alodnek , Circuit Judge, concurring in the result.
I  would affirm the Decree of the District Court on the 

ground that the removal in 1957 of the Board of Directors of 
City Trusts as trustee of the Stephen Girard Estate by the 
Orphans ’ Court, and its appointment of substituted indivi­
dual trustees, for the avowed purpose of carrying out the 
racial exclusionary clause of Girard’s Will, contravened the 
Fourteenth Amendment of the United States under the doc­
trine of Shelley v. Kraemer, 334 U.S. 1 (1948) and its 
progeny.1

The Fourteenth Amendment is contravened under the 
Shelley doctrine, where there is “ active intervention of the 
state courts, supported by the full panoply of state power ’ ’ 2 
in the furtherance of enforcement of restrictions denying 
citizens their civil rights because of their race, color or 
creed.

In the instant case, the Orphans’ Court had two alter­
native courses of action following the ruling of the Supreme 
Court of the United States in Pennsylvania v. Board of 
Directors of City Trusts, 353 U.S. 230 (1957), that the 
Board’s denial of admission to Girard College of negro male 
orphans pursuant to the racial exclusionary clause of 
Stephen Girard’s Will constituted state action in violation 
of the Fourteenth Amendment.__________________________

1 Barrows v. Jackson, 346 U.S. 249 (1953).
2 Shelley v. Kraemer, 334 U.S. 1 at page 19. A t page 14 of Shelley the 

Court said:
“That the action of state courts and judicial officers in their official 
capacities is to be regarded as action of the State within the meaning of 
the Fourteenth Amendment, is a proposition which has long been estab­
lished by decisions of this Court. . . .  In E x Parte Virginia, 100 U.S. 339, 
347 (1880), the Court observed: ‘A  State acts by its legislative, its execu­
tive, or. its judicial authorities. It can act in no other way.’ ”



12

The Orphans ’ Court could have pursued the alternative 
of directing the Board of Directors of City Trusts to admit 
negro orphans to Girard College. Instead, it sua sponte 
pursued the alternative course of removing the Board and 
appointing individual private trustees in its stead so as to 
permit continuance of the discriminatory admission policy 
dictated by Girard’s Will.3

That the alternative action taken by the Orphans ’ Court 
was for the avowed purpose of giving effect to the racial 
exclusionary clause of Girard’s Will is explicitly spelled out 
in the Orphans’ Court opinion accompanying its Decree of 
September 11, 1957 which removed the Board of Directors 
of City Trusts as trustee of the Girard Estate, “ effective 
upon the appointment of a substituted trustee by this 
court.”  4

In this opinion, Girard’s Estate, 7 Pa. Fiduc. Rep. 555, 
(1957), the Orphans’ Court said at pages 557-558:

“ The Supreme Court of the United States has 
ruled, as a matter of federal constitutional law, that 
the Board of Directors of City Trusts of the City of 
Philadelphia is an agency of the State of Pennsylvania 
and consequently forbidden by the Fourteenth Amend­
ment from operating, even as a trustee of private funds, 
an establishment which excludes all but “ poor white 
male orphans.”

# # #

“ The Supreme Court of Pennsylvania, which is the 
final arbiter of our state law, has unequivocally stated 
that if, for any reason, the Board of Directors of City 
Trusts of the City of Philadelphia cannot continue to

3 The Orphans’ Court in pursuing this alternative course acted in con­
formity with the holding of the Supreme Court of Pennsylvania, in Girard Will 
Case, 386 Pa. 548, 566 (1956) that should the Supreme Court of the United 
States hold, as it later did, that the Board of Directors of City Trusts could 
not carry out the exclusionary policy of Girard’s Will, that the Orphans’ Court 
could then appoint another trustee who could do so.

4 The Orphans’ Court Decree of October 4, 1957, substituting thirteen 
private citizens as Trustees of the Stephen Girard Estate, is reported at 7 Pa. 
Fiduc. Rep. 606.



13

administer the trust in. accordance with testator’s direc­
tions, it becomes the duty of this court to remove it as 
trustee and to appoint a substituted trustee which can 
lawfully administer the trust in the manner prescribed 
by the testator.

*  #  *

“ In order to harmonize the opinions of the United 
States Supreme Court and the Supreme Court of Penn­
sylvania, we hold: (1) that the primary purpose of the 
testator to benefit “ poor white male orphans,”  only, 
must prevail; and (2) that the disqualification of the 
Board as trustee of this estate by the United States 
Supreme Court requires us to remove it from the ad­
ministration of the trust and to appoint a substituted 
trustee, not so disqualified.”  (emphasis supplied)

The Supreme Court of the United States has recently 
ruled that in examining the constitutionality of a state act 
the reviewing court (1) must consider the act “ in terms of 
its ‘ immediate objective’, its ‘ ultimate effect’ and its ‘ his­
torical context and the conditions existing prior to its en­
actment’ ” ,5 6 and, (2) must “ assess the potential impact of 
official action in determining whether the State has signi­
ficantly involved itself with invidious discriminations” .6

The stated rule is, of course, applicable to the action 
of a state court.

Applying the principles above stated to the instant 
case, I am of the opinion that the Orphans ’ Court ‘ ‘ signifi­
cantly involved itself with invidious discriminations”  when 
it removed the Board of Directors of City Trusts and ap­
pointed individual trustees of the Estate of Stephen Girard 
for the express purpose of effectuating the racial exclu­
sionary clause in Girard’s Will, and thereby brought itself 
within the ambit of the Shelley doctrine.

As the Shelley case said at page 18:

5 Reitman v. Mulkey, 387 U.S. 369 (1967) at page 373.
6 Id. at page 380.



14

“ . . . it has never been suggested that state court 
action is immunized from the operation of those pro­
visions [14th Amendment] simply because the action is 
that of the judicial branch of the state government.”
For the reasons stated I would confine the scope of our 

affirmance of the District Court’s Decree to the ground as­
signed at the outset of this concurring opinion.

Van Dusekt, Circuit Jridge, concurring:

I concur in the result reached by the majority opinion, 
but respectfully dissent from much of the language used.

Specifically, I disagree with the implication from the 
statements that the state courts in 1957 installed their own 
group of trustees “ sworn to uphold the literal language 
of the Girard will”  (and similar phrases). Such charac­
terizations given to the actions of the Pennsylvania courts 
by the majority opinion seem to me unnecessary to the 
proper decision in this appeal. There is no necessary basis 
in this record to so criticize either the able Pennsylvania 
judges, who have so conscientiously handled the litigation 
arising from the Girard Trust, or the distinguished and 
dedicated trustees, who have contributed unselfishly so 
much to this important charitable enterprise, acting’ under 
the advice of their able counsel, for many years. 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. United States v. Price, 383 
U.S. 787, 806 (1966). Recent decisions of the Supreme 
Court, particularly in light of forceful dissents by Mr. 
Justice Harlan, make clear that the Fourteenth Amend­
ment does not now permit the discriminatory operation of 
a charity like Girard College if the operation of that dis­
crimination receives support from certain types of “ state 
action. ’ ’



15

Of the forms or types of “ state action”  in aid of dis­
crimination that the Supreme Court has held render the 
discrimination unconstitutional, that in Reitman v. Mulkey, 
387 U.S. 369 (1967), seems most clearly apposite to the 
facts of this case.

The decision of the United States Supreme Court in 
1957 (353 U.S. 230) settled the question of whether the 
discrimination at Girard College was then unconstitutional 
state action. The same discrimination exists today and 
this appeal asks whether the unconstitutionality also re­
mains because prohibited state action supports the discrim­
ination. The answer is yes. When the Orphans’ Court, on 
its own motion and without formal hearing, removed the 
Board of Directors of City Trusts and appointed “ private”  
trustees in their place, such affirmative state action con­
stituted the “ encouragement”  of discrimination held to 
violate the Fourteenth Amendment in Reitman v. Mulkey, 
swpra, at 376. The state did not make itself merely neutral. 
Just as the California court did in Reitman v. Mulkey, this 
court can examine the constitutionality of such state action 
“ in terms of its ‘ immediate objective,’ its ‘ ultimate effect’ 
and its ‘historical context and the conditions existing prior 
to its enactment,’ ”  387 U.S. at 373. Cf. Burton v. Wil­
mington Pkg. Auth., 365 U.S. 715, 722 (1961). The record 
of the discrimination at Girard College after the 1957 
United States Supreme Court decision makes it clear that 
the further “ state actions”  of the Pennsylvania courts did 
not “ cure”  the unconstitutionality, but perpetuated it by 
affirmatively encouraging continued discrimination. With 
hindsight it is clear that no reason exists for the deviation 
from Girard’s will to appointing private trustees, except 
for its allowing compliance with the “ white orphans”  pro­
vision. And it is likewise an inescapable conclusion that 
the substitution of trustees in 1957 encouraged compliance 
with the “ white”  provision that has lasted for over 10 
years. The state action that continues today in the Or­
phans’ Court-trustee relationship is the “ encouragement”



16

of discrimination first given by the original appointment 
of the individual trustees.

Even clearer state action of “ encouragement”  is found 
in the statute passed by the Pennsylvania Legislature after 
the Supreme Court of Pennsylvania approved the substitu­
tion of private trustees. The Act of November 19, 1959, 
P.L. 1526, authorized ex post facto the Orphans’ Courts’ 
actions, and further implemented the change-over by fully 
empowering the new private trustees to serve in place of 
the Board of City Trusts as guardians of the boys attend­
ing Girard College and to set up a common trust fund for 
their property. The same Act also repealed several prior 
laws passed to aid Girard College. Such affirmative legis­
lative action, as an attempt to render a state neutral with 
respect to otherwise unconstitutional discrimination, makes 
Reitman v. Mulkey still more apposite.

When Stephen Girard deliberately and pointedly chose 
to involve the State in the “ private”  charitable conduct 
of his school (as was decided at 353 U.S. 230), he ran the 
risk that Philadelphia might not accept the trust, or might 
be unable to administer it, or might be subsequently unable 
to act because the federal constitution was changed (as 
occurred when the Fourteenth Amendment was passed). 
It is in this unique situation of a testator ’s deliberate pro­
vision for a major role for the state in his charitable 
scheme, that the action of the state courts rises to the level 
of unconstitutional state action. The charitable scheme 
chosen by Girard might as easily have become invalid due 
to a change in the rule against perpetuities or some other 
limitation imposed by society on the unlimited rights of 
private property at death. See Commonwealth of Pennsyl­
vania v. Broivn, 260 F. Supp. 323, 357 (E.D. Pa. 1966).

A True Copy:

Teste :

Clerk of the United States Court of Appeals 
lor the Third Circuit.