Commonwealth of Pennsylvania v. Brown Appellants' Brief

    In the

Ittitefr 0tat£is (tort uf Kppmh
For the T hird Circuit

No. 16,721

C O M M O N W E A L T H  O F P E N N S Y L V A N IA , A T T O R N E Y  
G E N E R A L  O F  T H E  C O M M O N W E A L T H  O F P E N N S Y L ­
V A N IA , C IT Y  O F  P H IL A D E L P H IA  and A L A N  L E V I 
B O N D , by his mother, M RS. R U B Y  BO N D , C H A R LE S W IL ­
L IA M  H IC K S and T H E O D O R E  L E W IS  H IC K S, by their 
mother, M RS. M A R IE  H IC K S, JA M E S SCRUGGS and 
H E N R Y  SCRUGGS, by their mother, M RS. A R D E L L A  
SCRUGGS, T Y R O N E  K A R L  W H IT E  and T E R R Y  SH E R ­
W O O D  W H IT E , by their mother, M RS. C H A R L O T T E  L. 
W H IT E , on behalf of themselves and all others similarly situated

v .

R E V E L L E  W . B R O W N , JO H N  A. D IE M A N D , D R. G ILSO N  
C O L B Y  EN G EL, FRE D  F O X , W A L T E R  S. F R A N K L IN , 
W A L T E R  B. GIBBO N S, E SQ U IR E, H U B E R T  J. H O R A N , 
TR., E SQ U IR E , DR. L O U IS  P. H O Y E R , F R E D E R IC K  H. 
L E V IS , D A V ID  F. M A X W E L L , E SQ U IR E , M RS. M IN A  F. 
O L IV E R , R O L A N D  R O D R O C K  R A N D A L L  and H A R R Y  G. 
SCH AD , Trustees of the Estate of Stephen Girard,

Appellants

A ppeal from a Decree of the U nited States D istrict Court 
for the Eastern D istrict of Pennsylvania

APPELLANTS’ BRIEF

O f Counsel:
Gaffney and Gaffney 

2124 Philadelphia National 
Bank Building 

Philadelphia, Pa. 19107 
Morgan, Lewis & Bockius 

2107 The Fidelity Building 
Philadelphia, Pa. 19109

Arthur L ittleton 
John Russell, Jr.
Ernest R. V on Starck 
R ichard P. Brown, Jr.

Attorneys for Appellants 
2107 The Fidelity Building 
Philadelphia, Pa. 19109

J A M E S  M . N A B R ilT , Ml



TABLE OF CONTENTS

S t a t e m e n t  of Q u e s t io n  I n v o l v e d ............................. vi
S t a t e m e n t  of t h e  Ca s e ...................................................... 1

A. Nature o f the P roceedings...................................  1
B. Background History o f Girard C ollege .............  1
C. Prior Related L itiga tion ........................................ 2
D. The Present L itiga tion .......................................... 5
E. Description o f Girard College and Its Operation 7

A r g u m e n t

T h e  D e f e n d a n t s  H ave  N ot V io lated  t h e
E q u a l  P r o te c tio n  C l a u se  of t h e  F o u r t e e n t h
A m e n d m e n t  b y  D e n y in g  A d m is s io n  to I n d i­
v id u a l s  B eca u se  of T h e ir  C o l o r ........................... 9
A. No Individual Has a Right to Share Under the

Girard W ill Unless He is Included Within the 
Limited Class of Beneficiaries............................... 9

B. The Plaintiffs Have Not Been Denied Any Con­
stitutional Right Since the State Is Not Signifi­
cantly Involved in Girard C ollege ........................  11

C. The Lower Court’s Reliance Upon Evans v.
Newton Is M isplaced..............................................  16

D. The Relationship Between the Orphans’ Court
and the Girard Estate Since the Appointment of 
Private Trustees Does Not Constitute Signifi­
cant State Involvement .......................................... 20

E. There Are No Other Relationships Between the
Girard Trust and the State Which Separately or 
Together Constitute Significant State Involve­
ment ........................................................................... 23

F. All o f the Insignificant and Customary Contacts
Between the State and the Girard Trust Cannot 
Be Combined to Total Significant State Involve­
ment ............................................................................. 26

G. Girard College Is Not “ Municipal in Nature”  . . 30

PAGE



11

H. The Lower Court Correctly Held That the A p­
pointment o f Private Trustees Did Not Consti­

PAGE

tute State A c t io n ..................................................... 34

C o n c l u s io n  ......................................................................... 40

TABLE OF AUTHORITIES

Cases  :

Barrows v. Jackson, 346 U. S. 249 (1953) . . .  15, 34, 39
Bell v. Maryland, 378 U. S. 226 (1964) .................. 40
Brown v. Board of Education, 347 U. S. 483

( 1 9 5 4 ) ..............................................................2, 12,32,37
Brown v. Board of Education, 349 U. S. 294

( 1 9 5 4 ) ...........................................................................  36
Brown v. Hummell, 6 Pa. 86 ( 1 8 4 7 ) ........................  9
Burton v. Wilmington Parking Authority, 365 U. S.

715 (1961) ............................................ 13, 14, 16,17, 27
Cascade Natural Gas Corp. v. El Paso Natural Gas

Co., 386 U. S. 129 (1967) .....................................  37
Cauffman v. Long, 82 Pa. 72 (1 8 7 6 ) ........................  9
City of Philadelphia v. Girard’s Heirs, 45 Pa. 9

(1863) ......................................................................... 2
Civil Rights Cases, 109 U. S. 3 ( 1 8 8 3 ) .................... 11
Commonwealth v. Brown, 373 F. 2d 771 (3d Cir.

1967) ....................................................................... 6 ,15 ,30
Commonwealth v. Brown, 260 F. Supp. 323 (E . D.

Pa. 1966) ......................................................................6,15
Cooper v. Aaron, 358 U. S. 1 (1958) ......................  32

Dorsey v. Stuyvesant Town Corp. et al., 299 N. Y.
512, 87 N. E. 2d 541 (1949) .................................  14

Dulles’s Estate, 218 Pa. 162, 67 Atl. 49 (1907) . . .  10
Eaton v. Grubbs, 329 F. 2d 710 (4th Cir. 1964) . . .  29
Erie R. R. Co. v. Tompkins, 304 U. S. 64 (1 9 3 8 ) . . .  39
Everson v Board of Education, 330 U. S. 1 (1946) 31



Ill

Ervine’s Appeal, 16 Pa. 256 (1 8 5 1 ) ..........................  9
Evans v. Newton, 382 U. S. 296 (1966) . . 13, 14, 16, 17,

18, 19, 27, 28 ,31,32, 34,40 
Ex parte Virginia 100 U. S. 339 ( 1 8 8 0 ) .................. 12
Florida ex rel. Hawkins v. Board of Control 347

U. S. 971 ( 1 9 5 4 ) ..............................................  37
Florida ex rel. Hawkins v. Board of Control 350 

U. S. 413 (1956) .......................................................  37
Girard College Trusteeship, 391 Pa. 434, 138 A .2d

844 (1958) ........................................................... 4, 10,38
Girard Estate, 4 Pa. D.&C.2d 671, 708 (Orphans’

Ct. Phila. County 1956) ..........................................3, 22
Girard Estate, 7 Pa. Fiduc. Rep. 555 (Orphans’ Ct.

Phila. County 1 9 5 7 ) .........................................  4
Girard v. Philadelphia, 74 U. S. (7  W all.) 1 (1868) 2
Girard Will Case, 386 Pa. 548, 127 A. 2d 287

(1956) .................................................................3 ,9 ,2 1 ,3 8
Griswold v. Connecticut, 381 U. S. 479 (1965) . . .  30
Hampton v. Jacksonville, 304 F. 2d 320 (5th Cir.

1962) .............................................................................  13
Harrison’s Estate, 322 Pa. 532, 185 Atl. 766 (1936) 10
Henry Estate, 413 Pa. 478, 198 A .2d 585 (1964) . . 10
Johnson Will, 370 Pa. 125, 87 A .2d 188 (1952) . . .  10
Jones v. Alfred H. Mayer Co., 255 F. Supp. 115 (E .

PAGE

D. Mo. 1966) ...........................................................  40
Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 

(4th Cir. 1 9 4 5 ) ...........................................................  14
Lombard v. Louisiana, 373 U. S. 267 ( 1 9 6 3 ) ......... 13
Marsh v. Alabama, 326 U. S. 501 (1946) . . . .  14, 19, 34 
McCabe v. Atchinson, Topeka & Sante Fe Ry., 235

U. S. 151 (1914) .......................................................  13
McCown v. Fraser, 327 Pa. 561. 192 Atl. 674

(1937) ......................................................................... 1°
McLaughlin v. Florida, 379 U. S. 184 (1964) . . . .  12



IV

Pennsylvania v. Board of Directors of City Trusts,
353 U. S. 230 (1957) ................................... 3 ,9 , 12, 35

Pennsylvania v. Board of Directors of City Trusts,
357'U. S. 570 (1958) .............................................. 5 ,10

Philadelphia v. Fox, 64 Pa. 169 (1 8 7 0 ) ....................  2
Pierce v. Society of Sisters, 268 U. S. 510 (1925) 30
Public Utilities Comm’n v. Pollack, 343 U. S. 451 

( 1 9 5 2 ) ...........................................................................  34
Reitman v. Mulkey, 387 U. S. 369 (1967) .............  13
Shelley v. Kraemer, 334 U. S. 1 (1948) . . .  15, 34, 39, 40 
Simkins v. Moses H. Cone Memorial Hospital, 211

F. Supp. 628 (D . C. N. C , 1962) ........................  28
Simkins v. Moses H. Cone Memorial Hospital, 323

F. 2d 959 (4th Cir. 1 9 6 3 ) ..................................... 14, 28
Smith v. Holiday Inns of America, Inc., 336 F. 2d

630 (6th Cir. 1964) ................................................ 14, 29
Sweatt v. Painter, 339 U. S. 629 ( 1 9 5 0 ) .................. 36
Sweet Briar Institute v. Button, (C . A. No. 66-C-

10-L W . D. Va., July 14, 1967) .......................... 15, 39
Sweet Briar Institute v. Button, 35 U.S.L. W k .

3419 (M ay 29, 1967) . ....... ...................................  39
Terry v. Adams, 345 U. S. 461 ( 1 9 5 3 ) .................... 14
Trustees of Dartmouth College v. Woodward, 17 

U. S. (4  Wheat.) 518 (1819) .................................  31
United States v. Guest, 383 U. S. 745 (1966) . . . .  11
Vidal v. Girard’s Executors, 43 U. S. (2  H ow .)

127 (1844) ................................................................... 2,41
Wetzel v. Edwards, 340 Pa. 121, 16 A .2d 441

(1940) ......................................................................... 10
Wiltsach Estate, 1 D.&C. 2d 197 (Orphans’ Ct.

Phila. County 1954) ............................................  21
Wimbish v. Pinellas County, 342 F.2d 804 (5th Cir. 

1965) ...........................................................................

PAGE

13



V

C o n s t it u t io n  of t h e  U n it e d  S t a t e s :

Fourteenth Amendment, Section I ............................. 11

S t a t u t e s  :

Act o f June 30, 1869, P. L. 1276 (53 P. S.
§§ 16365-16370) .......................................................  2

Administrative Code
Section 2302 (71 P. S. § 592) ........................  25
Section 2303 (71 P. S. § 593) ......................... 25

Fiduciaries Act of April 18, 1949, P. L. 512, §§ 921,
981 (20 P. S. §§ 320.921, 3 2 0 .9 8 1 )........................  21

Pennsylvania Public Accommodations Act o f 1939, 
Pennsylvania Penal Code o f June 24, 1939, P . L.
872, § 654 (18 P. S. § 4654) .................................  1, 30

Private Academic Schools Act o f June 25, 1947,
P. L. 951 (24 P. S. §§ 2731 et seq.) .................... 24

Public School Code o f 1949 (24 P. S. §§1-101 
et seq.)

Section 1327 (24 P. S. § 13-1327) .................  25
Section 1332 (24 P. S. § 13-1332) .................  25
Section 1333 (24 P. S. § 13-1333) .................  25
Section 1511 (24 P. S. § 15-1511) .................  25
Section 1605 (24 P. S. § 16-1605) .................  25

28 U. S. C. § 1331 .........................................................  5
§ 1343 ................................................ .. • • • 5

PAGE



STATEMENT OF QUESTION INVOLVED

Did the District Court err in holding that defendants 
violated the Equal Protection Clause of the Fourteenth 
Amendment by denying individuals admission to Girard 
College because o f their color?



STATEMENT OF THE CASE

A. Nature of the Proceedings.

This is an appeal by the Trustees o f the Estate of 
Stephen Girard, deceased, defendants in the court below, 
from a Decree (R . 870a) entered July 5, 1967 by the United 
States District Court for the Eastern District of Pennsyl­
vania, per the Honorable Joseph S. Lord, III, permanently 
enjoining the defendants from denying admission to Girard 
College to any poor male orphans who would otherwise be 
qualified on the sole ground that they are not white. The 
District Court based the injunction on its present conclusion 
that the denial o f admission on the ground o f color is 
“ unconstitutional state action”  (R . 851a). In a prior appeal 
to this Court, an injunction by Judge Lord entered solely 
on the ground that Girard College is a place o f public accom­
modation under § 654 o f the Pennsylvania Penal Code of 
June 24, 1939, P. L. 872, 18 P. S. § 4654 (commonly called 
the Pennsylvania Public Accommodations A ct), was 
vacated for the reason that the Pennsylvania courts had 
already held that the Act is not applicable to Girard College. 
Commonwealth v. Brown, 373 F. 2d 771 (3d Cir. 1967).*

B. Background History of Girard College.

Stephen Girard died December 26, 1831 (R . 8a). By his 
Will dated February 16, 1830 and two codicils (R . 33a-67a) 
dated December 25, 1830 and June 20, 1831 he left his re­
siduary estate to the City o f Philadelphia, its successors and 
assigns, in trust to construct a “ college”  (the codicil of 
June 20, 1831 referred to it as an “ Orphan Establishment” ) 
for the purpose o f providing “ for such a number o f poor 
male white orphan children, as can be trained in one insti­
tution, a better education as well as a more comfortable 
maintenance than they usually receive from the application 
o f public funds.”  (W ill, Clause X X ; R. 44a). He further 
directed (W ill, Clause X X I ; R. 45a) that as many “ poor 
white male orphans, between the ages o f six and ten years,”  
as the income should be adequate to maintain, should be

*For convenience this opinion and dissenting opinion have been 
reproduced in the Appendix, starting at p. 524a.



2

admitted to the institution, preference being given first to 
orphans born in Philadelphia; secondly, to those born else­
where in Pennsylvania; thirdly, to those born in New York 
City, and lastly, to those born in New Orleans (R . 53a).

The institution opened in 1848 (R . 10a). Later, pur­
suant to the Act o f June 30, 1869, P. L. 1276, 53 P. S. 
§§16365-16370, the administration o f the college was trans­
ferred, together with that o f other charitable trusts for 
which the City was Trustee, from the City to a Board of 
Directors o f City Trusts created by the Commonwealth.

Although Girard’s will was subjected to other unsuccess­
ful attacks,1 his testamentary direction restricting admis­
sion to Girard College to poor white male orphans was fol­
lowed without challenge for more than a hundred years. 
However, in 1954, not long after the decision o f the Su­
preme Court o f the United States in Brown v. Board of 
Education, 347 U. S. 483 (1954), proceedings were com­
menced in the Orphans’ Court o f Philadelphia County to 
attack the validity o f the exclusion o f nonwhite male orphans 
from admission to the institution. Because o f the close rela­
tion between those proceedings and the present litigation 
a review o f the earlier proceedings is essential to an under­
standing o f this case.

C. Prior Related Litigation.
On September 30, 1954 six Negro boys whose applica­

tions had been rejected because the applicants were not 
white, filed a Petition for Citation in the Orphans’ Court of 
Philadelphia County2 to the Board of Directors o f City 
Trusts to show cause why they should not be admitted to 
Girard College without discrimination as to race or color. 
They were subsequently joined by the City and the Com­

1Cases involving the W ill of Stephen Girard include Vidal v. 
Girard’s Executors, 43 U. S. (2 H ow .) 127 (1 8 4 4 ) ; Girard v. Phil­
adelphia, 74 U. S. (7 W all.) 1 (1 8 6 8 ); City of Philadelphia v. 
Girard’s Heirs, 45 Pa. 9 (1 8 6 3 ); Philadelphia v. Fox, 64 Pa. 169 
(1870).

2Estate of Stephen Girard, docketed at No. 10, July Term, 1885.



3

monwealth. A fter answer and trial, all the petitions were 
dismissed, Girard Estate, 4 Pa. D. & C. 2d 671 (1955), 
and exceptions were later dismissed by the Orphans’ Court 
en banc on January 6, 1956. 4 Pa. D. & C. 2d 708.

On appeal to the Pennsylvania Supreme Court the 
Decree of the Orphans’ Court was affirmed. Girard Will 
Case, 386 Pa. 548, 127 A. 2d 287 (1956). The Pennsyl­
vania Supreme Cort held that in acting as a Trustee under 
Girard’s Will the City was not exercising a governmental 
function, but merely acting as a fiduciary, and therefore the 
denial o f admission to the applicants on the ground of their 
color was not prohibited “ state action”  under the Four­
teenth Amendment. The court also stated that if it should 
be held that the City, because of an inhibition imposed upon 
it by the Fourteenth Amendment, could not carry out 
Girard’s requirement that the poor male orphans be white, 
then the proper remedy would be for the Orphans’ Court 
to appoint another Trustee who could do so, since Girard’s 
dominant purpose was the creation of an orphan establish­
ment for poor male white orphans. 386 Pa. at 566, 127 
A. 2d at 295.

The Commonwealth, the City and the applicants ap­
pealed to the United States Supreme Court. That Court, 
without oral argument, dismissed the appeal for want of 
jurisdiction, but treating the appeal papers as a petition for 
writ o f certiorari, reversed on the ground that the Board 
o f Directors o f City Trusts was an agency o f the Common­
wealth and that, even though the Board was acting as a 
Trustee, its refusal to admit the applicants because they 
were Negroes was discrimination by the State and there­
fore forbidden by the Fourteenth Amendment. It re­
manded the cause to the Pennsylvania Supreme Court for 
further proceedings not inconsistent with the Opinion. 
Pennsylvania v. Board of Directors of City Trusts, 353 
U. S. 230 (1957). Pursuant to that mandate, the Pennsyl­
vania Supreme Court vacated the decrees o f the Orphans’ 
Court and remanded the cause to that Court for further



4

proceedings not inconsistent with the Opinion of the United 
States Supreme Court as set forth in its said mandate.”
7 Pa. Fiduc. Rep. 554 (Sup. Ct. 1957).

The Orphans’ Court thereupon entered a decree “ in 
obedience to the mandate o f the United States Supreme 
Court . . . and the order o f the Supreme Court o f Penn­
sylvania” , first, dismissing the petitions for admission and 
removing the Board as Trustee o f the Girard Estate, 
Girard Estate, 7 Pa. Fiduc. Rep. 555, 558-59 (1957), and, 
second, substituting thirteen private citizens as Trustees, 
7 Pa. Fiduc. Rep. 606 (1957).

Again there was an appeal to the Pennsylvania Su­
preme Court, which affirmed on the ground that the Or­
phans’ Court, had properly construed the mandate o f the 
United States Supreme Court. Girard College Trusteeship, 
391 Pa. 434, 138 A . 2d 844 (1958). It was there held 
that the constitutional inability o f the Board to apply the 
testator’s criterion o f color affected the Trustee and not 
the Trust. The court further found that since the United 
States Supreme Court had not held that there was any 
constitutional barrier to the removal o f the Board as 
Trustee, it was the duty o f the Orphans’ Court to proceed 
as it had, in order that the orphan establishment could be 
administered in accordance with Girard’s specific directions.

The Pennsylvania Supreme Court expressly rejected the 
argument that, aside from the participation o f the Board 
o f Directors o f City Trusts, the establishment had taken on 
such a “ public character”  that it must be administered in 
accordance with the restrictions o f the Fourteenth Amend­
ment (391 Pa. at 443, 445-447, 138 A. 2d at 848-849). The 
court also held that the action o f the Orphans’ Court in 
substituting Trustees capable of administering the orphan­
age in accordance with Girard’s directions did not con­
stitute “ state action”  which denied the applicants equal pro­
tection o f the law, since the applicants who did not come 
within the designated beneficiary class had no constitution­



5

ally guaranteed right to share in this private charity’s bene­
fits. 391 Pa. at 334-456, 138 A.2d at 851-854.

The Commonwealth, the City and the applicants once 
more appealed to the United States Supreme Court. That 
Court, again without oral argument, dismissed the appeal 
and, treating the appeal as a petition for certiorari, denied 
certiorari without opinion. Pennsylvania v. Board of Di­
rectors of City Trusts, 357 U. S. 570, rehearing denied, 
358 U. S. 858 (1958).

D. The Present Litigation.
On December 16, 1965, the Commonwealth o f Penn­

sylvania, its Attorney General, the City of Philadelphia, 
and seven poor male orphans between the ages o f six and ten 
whose applications for admission to Girard College had 
been rejected because they are not white, filed this Complaint 
to enjoin the defendants from further refusing to admit 
the minor plaintiffs and other applicants to Girard College 
solely because o f their race. The minor plaintiffs sued on 
behalf of themselves and all others similarly situated 
(R . 6a). The jurisdiction of the District Court was as­
serted under 28 U. S. C. §§1331 and 1343(3), and 42 
U. S. C. §§ 1981 and 1983 (R . 4a).

The Complaint contains three counts, which may be 
summarized as follows:

I. The first count is based on the theory that the 
denial o f admission to the minor plaintiffs because they 
are not white, and therefore not within the designated 
beneficiary class, is a violation o f their constitutional 
right to equal protection of the laws (R . 11a).

II. The second count asks for the application o f the 
doctrine o f cy pres on the theory that Stephen Girard’s 
dominant purpose in establishing the orphan establish­
ment was to benefit the City o f Philadelphia, that the 
City now has a great need for facilities for the educa­
tion and training o f Negro children, and that Girard’s



6

basic purpose can only be achieved by the admission of 
Negro applicants (R . 22a).

III. The third count is based on the theory that 
exclusion from the orphan establishment on the basis 
o f race is contrary to the Pennsylvania Public Accom­
modations Act, supra, and the public policy o f the 
United States and the Commonwealth o f Pennsylvania 
(R . 27a).

On January 4, 1966 defendants filed a motion to dis­
miss the Complaint on the grounds that (1 ) the District 
Court lacked jurisdiction over the subject mater, (2 ) the 
issues were res judicata by reason o f the prior related pro­
ceedings, (3 )  the Complaint failed to state a claim upon 
which relief could be granted, and (4 ) the Commonwealth, 
the Attorney General and the City o f Philadelphia lacked 
the requisite standing or capacity to bring the action (R . 
126a).

On September 2, 1966 the District Court filed its 
Opinion and Order (R . 132a) (a ) denying the motion as 
to Counts I and II, but without prejudice to the defendants’ 
rights to renew the motion at the appropriate time; (b ) 
granting the motion as to Count III on the ground o f res 
judicata insofar as the Commonwealth o f Pennsylvania, 
the Attorney General o f Pennsylvania and the City of 
Philadelphia are parties-plaintiff; and (c )  denying the mo­
tion as to Count III insofar as the seven minors are parties- 
plaintiff. Commonwealth v. Brown, 260 F. Supp. 323 (E . D. 
Pa. 1966) (R . 132a et seq.). In his Opinion of September 
2, 1966, Judge Lord held, inter alia, that the Pennsylvania 
Public Accommodations Act applied to Girard College as­
suming the truth o f the averments in the Complaint.

On September 21, 1966 defendants filed their answer 
(R . 197a) to the Complaint, denying all o f the principal 
allegations but acknowledging that the minor plaintiffs had 
been refused admission to Girard College solely on the 
ground that they are not white (R . 197a-221a).



7

After filing the Answer to the Complaint, and on plain­
tiffs’ insistence, hearings were held on Count III only. On 
November 2, 1966 Judge Lord entered an opinion and final 
injunction under that Count. On February 28, 1967, how­
ever, this Court vacated that order on the ground that the 
Pennsylvania Courts had already held that the Pennsylvania 
Public Accommodations Act does not apply to Girard Col­
lege and remanded the case to the District Court (R . 524a). 
Commonwealth v. Brown, 373 F. 2d 771 (3d Cir. 1967).

The District Court then held hearings on Count I in 
April, 1967, and on July 5, 1967 it ordered that the action 
be maintained as one for a class consisting of “ all poor male 
orphans who would be eligible for admission to Girard Col­
lege except for the fact they are not ‘white’ ”  and perma­
nently enjoined the defendants from denying admission to 
any members o f that class on the ground they are not white 
provided they are otherwise qualified for admission (R . 
870a). It is from this order that the appeal is taken.

E. Description of Girard College and Its Operation.
Girard College is located in North Central Philadelphia 

on a tract of ground approximately 43 acres in extent, which 
at the time o f Girard’s death was a farm outside the then 
city limits. There are about 25 buildings on the campus and 
the whole is surrounded by a stone wall 10 feet in height, 
as prescribed in the Will of Stephen Girard. There are only 
two gates in this wall, one being a service gate for deliveries 
only and the other being a main gate at which a watchman 
is constantly stationed. The public is not permitted in and 
the children are not permitted out except by special per­
mission (R . 479a; Ex. D1 an aerial photograph).

No orphan boy is admitted into the institution until 
after the mother or guardian has made a formal written 
application and the boy has been examined by the resident 
doctor, the institution’s psychologist, and tested for both 
intelligence and achievement. The mother, if any, is also 
interviewed by the institution’s field representatives, or



8

social workers. The Admissions Committee makes its rec­
ommendation as to each applicant to the President of the 
College who in turn makes his recommendation to the Trus­
tees. Only the Trustees can approve final admission. From 
25% to 30% of the applicants are rejected for psychologi­
cal, intellectual or educational reasons (R . 479a).

Upon introduction into the institution the mother or 
guardian o f the orphan executes a document under which 
the legal custody and control o f the orphan is transferred 
to the Trustees so long as the orphan remains in attendance 
at the institution. Ordinarily the boys go to their homes for 
holidays, but if the boy’s home has not been approved by 
the institution, he remains there continuously (R . 480a).

The institution provides elementary school and second­
ary school teaching on the premises (R . 246a). Admissions 
are accepted throughout the year up to March 31st (R . 
254a).

The number of children attending the College is con­
trolled by the amount o f income available from Girard’s 
residuary estate, as Girard directed (R . 52a, 55a). It now 
costs about $3,000 per year to maintain and educate each 
child (R . 318a), so that the present enrollment is about 720 
(R . 404a), whereas in 1933 when costs were much less the 
enrollment was as high at 1739 (E x. P -38).

The College is supported entirely by the income from the 
trust. It has never received funds from any governmental 
unit.

The thirteen Trustees are divided into appropriate com­
mittees which meet monthly, and the Trustees as a whole 
also meet monthly. Their duties have been described as 
being more onerous than those of a corporate director 
(R . 673a). No governmental official, city, state or federal, 
participates with the trustees, or even advises the trustees, 
in the administrations o f the trust (R . 761-762, 794).



9

ARGUMENT

THE DEFENDANTS HAVE NOT VIOLATED THE EQUAL 
PROTECTION CLAUSE OF THE FOURTEENTH AMEND­
MENT BY DENYING ADMISSION TO INDIVIDUALS BE­
CAUSE OF THEIR COLOR.

A. No Individual Has a Right to Share Under the 
Girard W ill Unless He Is Included Within the 
Limited Class of Beneficiaries.

In Pennsylvania a testator has the right to dispose of 
his property as he see fit, including the right to select the 
beneficiaries of his charity in accordance with his own 
personal desires. Moreover, a testator’s right to dispose of 
his estate as he sees fit “ is a property right entitled to the 
full protection o f our laws.”  Harrison’s Estate, 322 Pa. 532, 
534, 185 Atl. 766, 767 (1936) (refusing to terminate a 
spendthrift trust with charitable remainder).

Speaking for the Court in Girard Will Case, 386 Pa. 
548, 556, 127 A .2d 287, 290 (1956), rev? d and remanded on 
other grounds sub nom. Pennsylvania v. Board of Directors 
of City Trusts, 353 U. S. 230 (1957), Chief Justice Stern 
stated:

“ Subject, o f course, to compliance with all ap­
plicable laws, it is one o f our most fundamental legal 
principles that an individual has the right to dispose 
of his own property by gift or will as he sees fit; 
indeed this right is so much protected that a testa­
tor’s directions may be enforced though contrary to 
the general views o f society, (see, for example, 
Higbee Will, 365 Pa. 381, 75 A. 2d 599), and how­
ever arbitrary, unwise, intolerant discriminatory, or 
ignoble his exercise of that right may be. He is en­
titled to his idiosyncracies and even to his preju­
dices.”

T o the same effect are the following cases cited and 
quoted by Chief Justice Stern in Girard Will Case, supra: 
Brown v. Hummed, 6 Pa. 86 (1 8 47 ); Ervine’s Appeal, 
16 Pa. 256 (1 8 51 ); Cauffman v. Long, 82 Pa. 72 (1876) ;



1 0

Dulles’s Estate, 218 Pa. 162, 67 Atl. 49 (1907 ); McCown 
v. Fraser, 327 Pa. 561, 192 Atl. 674 (1 9 37 ); Wetzel v. 
Edwards, 340 Pa. 121, 16 A. 2d 441 (1940) ; Johnson Will, 
370 Pa. 125, 87 A . 2d 188 (1 9 52 ); Henry Estate, 413 Pa. 
478, 483, 198 A. 2d 585 (1964). See also Girard College 
Trusteeship, 391 Pa. 434, 138 A . 2d 844, appeal dismissed 
and cert, denied sub nom., Pennsylvania v. Board of Di­
rectors of City Trusts, 357 U. S. 570 (1958).

Pursuant to the foregoing right to dispose of his prop­
erty and select the objects of his charitable bounty as he 
saw fit, Stephen Girard expressly provided in his W ill that 
the persons to be admitted to the orphan establishment 
should be “ poor white male orphans” between the ages 
o f six and ten years. Will, Clause X X I (3 )  (R . 52a). This 
followed an earlier declaration in the Will that he was 
“ particularly desirous to provide for such a number o f 
poor male white orphan 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.”  Will, Clause X X  (R . 44a).

Stephen Girard did not exclude anyone from  the Col­
lege. Pie merely did not include everyone. Thus, he did 
not see fit to designate as a beneficiary of his great charity 
anyone over the age of ten years, any female, anyone who 
is not poor, anyone who is not white, or anyone with a 
living father no matter how poor.

No one who for any reason is outside the large, but 
nonetheless limited, class of beneficiaries has any right to 
attend Girard College. As Chief Justice Jones stated in 
Girard College Trusteeship, supra, 391 Pa. at 455, 138 
A. 2d at 853: “ What keeps such a charity, so created and 
restricted, from constituting a violation o f  the ‘equal pro­
tection’ clause o f the Fourteenth Amendment is that no one 
who does not come within the settlor’s definition o f benefi­
ciary has a constitutionally protected right (or any right 
for that matter) to share in the charity’s benefits.”



11

B. The Plaintiffs Have Not Been Denied Any Consti­
tutional Right Since the State Is Not Significantly 
Involved In Girard College.

In an effort to cure the patent defect in their claim that 
nonwhite male orphans have a right to be admitted to Girard 
College, plaintiffs’ counsel have striven to make it appear 
that “ state action” , not the testator or his Will, is presently 
responsible for the denial o f their admission.

The lower court has rejected many of the arguments 
advanced in support o f this contention, but, on the basis of 
its own concept o f state involvement, has concluded that 
“ racial exclusion at Girard College is so afflicted with State 
action, in its widened concept, that it cannot constitutionally 
endure.”  (R . 869a). In so doing it has extended the state 
action concept beyond any point heretofore judicially 
reached and, indeed, beyond the realm of logical reality.

To appreciate the extreme nature o f the lower court’s 
decision it is necessary to consider the presently existing 
judicial perimeters o f the equal protection clause of the 
Fourteenth Amendment.

That clause provides, “ Nor shall any State . . . deny 
to any person within its jurisdiction the equal protection of 
the laws.”  Read literally, it prohibits only discrimination by 
States, not individuals. This was early decided in the Civil 
Rights Cases, 109 U. S. 3, 11 (1883) where Mr. Justice 
Bradley, speaking for the majority, said “ It is State action 
o f a particular character that is prohibited. Individual in­
vasion o f individual rights is not the subject-matter o f the 
amendment.”  This distinction was recently affirmed in 
United States v. Guest, 383 U. S. 745 (1966) where it was 
said (p. 755) :

“ The Equal Protection Clause ‘does not . . . add 
any thing to the rights which one citizen has under 
the Constitution against another.’ United States 
v. Cruikshank, 92 U. S. 542, 554-555. As Mr. 
Justice Douglas more recently put it, ‘The Four­
teenth Amendment protects the individual against



1 2

state action, not against wrongs done by individuals.’ 
United States v. Williams, 341 U. S. 70, 92 (dis­
senting opinion). This has been the view o f the 
Court from the beginning. United States v. Cruik- 
shank, supra; United States v. Harris, 106 U. S. 
629; Civil Rights Cases, 109 U. S. 3; Hodges v. 
United States, 203 U. S. 1; United States v. Powell, 
212 U. S. 564. It remains the Court’s view today. 
See, e.g., Evans v. Newton, 382 U. S. 296; United 
States v. Price, post, p. 787.”

It is perfectly clear that neither the state nor any agency 
o f the state, such as a municipality, may directly or actively 
discriminate along racial lines. For example, a state mis­
cegenation law is unconstitutional, McLaughlin v. Florida, 
379 U. S. 184 (1964), segregation in public schools is 
unlawful, Brown v. Board of Education, 347 U. S. 483 
(1954) ; and even in 1880 it was held that a state judge 
who excludes Negroes from jury service does so unconsti­
tutionally, E x parte Virginia, 100 U. S. 339 (1880). The 
first Girard case, Pennsylvania v. Board of Directors of 
City Trusts, supra, is merely another illustration of direct 
municipal participation in discrimination— the only new ele­
ment in the case being that the prohibition applies even when 
the state agency is not acting in its governmental capacity 
but solely as a trustee.

These are the obvious cases of state action. However, 
where the discrimination on its face appears to be private, 
the so-called “ nonobvious”  cases, the perimeters become 
indistinct; and, while it is possible to create categories of 
decisions, it is fruitless to attempt, as has the lower court, 
to distill out of one or all of the many decisions a single 
basic rule which, when applied to a new factual situation, 
will provide the correct answer. The Supreme Court, speak­
ing through Mr. Justice Clark, has denied that such a rule 
can or should be formulated by saying “ . . . to fashion and 
apply a precise formula for recognition of state responsi­
bility under the Equal Protection Clause is an ‘impossible



13

task’ which ‘this Court has never attempted.’ ”  Burton v. 
Wilmington Parking Authority, 365 U. S. 715 (1961).

However, the opinions do disclose that certain specific 
types of governmental involvement will be held to convert 
otherwise private decisions into “ state action” .3 All o f the 
major cases in this field may be placed in one or more of 
the following categories:

1. Cases in which the private discrimination has 
been encouraged or compelled by the state. See McCabe 
v. Atchinson, Topeka & Santa Fe Ry, 235 U. S. 151 
(1914) (a  state law permitted railroads to supply sleep­
ing cars for white passengers o n ly ); Lombard v. 
Louisiana, 373 U. S. 267 (1963) (statements by city 
officials interpreted to mean that the city would not 
permit Negroes to seek desegregated service in restau­
rants) ; the concurring opinion of Mr. Justice White 
in Evans v. Newton, 383 U. S. 296 (1966) (a chari­
table gift of a public park for whites only was possible 
solely because of enabling state legislation), and Reit- 
man v. Mulkey, 387 U. S. 369 (1967) (adoption of a 
constitutional amendment permitting private discrimina­
tion in housing which was said to encourage such dis­
crimination).

2. Cases in which the place of discrimination, such 
as a golf course, has been owned and operated as a 
public facility by a governmental unit and either sold 
or leased to private parties under agreements in which 
the governmental unit retained control over usage. See 
Hampton v. Jacksonville, 304 F. 2d 320 (5th Cir. 1962) ; 
Wimbish v. Pinellas County, 342 F. 2d 804 (5th Cir. 
1965).

3In this field of law distinctions between the facts in cases are of 
the greatest importance. Mr. Justice Clark emphasized this in Burton 
by saying (365 U. S. at 726) : “ Owing to the very largeness of gov­
ernment, a multitude of relationship might appear to some to fall 
within the Amendment’s embrace, but that, it must be remembered, 
can be determined only in the framework of the peculiar facts or cir­
cumstances present.”



14

3. Cases in which the institution involved has re­
ceived and is receiving financial support from govern­
mental sources. See Simkins v. Moses H. Cone Memorial 
Hospital, 323 F. 2d 959 (4th Cir. 1963), cert, denied, 
376 U. S. 938 (1964) (a  private hospital receiving 
massive federal aid under the Hill Burton program ); 
Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 (4th 
Cir. 1945), cert, denied, 326 U. S. 721 (1945) (a free 
library supported almost wholly by municipal fu n d s); 
Evans v. Newton, supra, (a  park which was “ swept, 
manicured, watered, patrolled and maintained by the 
city as a public facility” ).

4. Cases in which a private body is operating what 
is normally a public place or exercising what is normally 
a public function. See Marsh v. Albama, 326 U. S. 501 
(1946) (a “ company-owned”  town similar in all extern­
al respects to any ordinary town) ; Terry v. Adams, 345 
U. S. 461 (1953) (a county political organization which 
conducted its own prim ary); and Evans v. Newton, 
supra (a  public park in the center of a city).

5. Cases in which the governmental unit is involved 
in the establishment through having planned it, financed 
it, retained some control over it, or is profiting from it. 
See Burton v. Wilmington Parking Authority, supra, 
(restaurant in a publicly owned parking garage) and 
Smith v. Holiday Inns of America, Inc., 336 F. 2d 630 
(6th Cir. 1964) (a  motel in a redevelopment complex 
planned and created by a Housing Authority).4

6. Cases in which a state agency has compelled or 
or has threatened to compel discrimination by an un­
willing individual. See Shelley v. Kraemer, 334 U. S. 1

4Compare Dorsey v. Stuyvesant Town Corp. et al., 299 N. Y . 
512, 87 N. E. 2d 541, cert, denied, 339 U. S. 981 (1949) in 
which the court refused to order integration of a huge housing pro­
ject which had been built with private funds by a private developer 
but on land acquired by eminent domain and which was partially tax 
exempt.



15

(1948) and Barrows v. Jackson, 346 U. S. 249 (1953) 
(judicial enforcement of restrictive racial covenants 
against persons who were willing to sell to N egroes); 
and Sweet Briar Institute v. Button (C . A . No. 
66-C-10-L, W. D. Va., July 14, 1967) , threatened en­
forcement by an Attorney General o f a testamentary 
provision limiting attendance at a college to white 
women despite willingness o f the Trustees to ignore 
this limitation in order to obtain federal grants).

It is readily apparent that the present case does not fall 
factually within any o f these classes. There was no legis­
lation which compelled or even encouraged Girard not to 
include nonwhite children in his g ift; the College was con­
ceived and planned solely by Girard; the land on which the 
College is built was never owned by the State and was 
acquired privately by Girard in his lifetime; the funds 
which have been used to build and operate the College have 
been only those derived from the estate left by Girard; 
there is no contingency in Girard’s Will under which the 
State or City could become the owner o f the College; the 
College is not licensed by the State; and there is no element 
o f state compulsion since the defendant trustees are volun­
tarily and conscientiously admitting into Girard College 
only the specific class which Girard intended to benefit. 
Finally, it has never been held that the providing of an 
education to children at private expense is the performance 
o f such a public function that it is “ state action.”

The lower court said in its opinion denying the motion 
to dismiss the Complaint that the constitutional questions 
presented “ are on the frontier o f the Fourteenth Amend­
ment.” 5 This has proven to be an understatement. Only 
by exploring beyond the existing frontier was it possible 
for the lower court to hold Girard’s color limitation in his 
gift to be unconstitutional.

5Commonwealth v. Brown, 260 F. Supp. 323, 332 (E . D. Pa. 
1966).



16

C. The Lower Court’ s Reliance Upon Evans v. Newton
Is Misplaced.

No one should disagree with the lower court’s state­
ment that the specific question involved in this case is 
whether, following the removal o f the City as trustee, “ the 
College could have been and in fact was subsequently dis­
associated from the organs o f state control, direction, and 
supervision. . . (R . 854a). Evans v. Newton makes such
a question peculiarly pertinent since it was held there that 
the appointment o f private trustees in substitution o f the 
City did not “ ipso facto”  dissipate the momentum the park 
had acquired as a public facility, and that “ if the munici­
pality remains entwined in the management or control o f 
the park it remains subject to the restraints o f the Four­
teenth Amendment.”  It was concluded that “ the mere sub­
stitution o f trustees”  did not instantly transfer the park 
from the public to the private sector.

In attempting to answer this inquiry, however, the 
lower court “ distilled” from Evans a certain “ underlying 
principle” , despite Mr. Justice Clark’s warning in Burton 
that the Supreme Court neither has nor wishes to have any 
yardstick o f universal application. Even more strangely, 
there seems to be absolutely no basis, either in the facts of 
Evans or in the reasons advanced in the majority opinion, 
for this particular distillation. The principle o f universal 
application discerned by the lower court was stated as fol­
lows (R . 859a) :

“ The purpose of that inquiry is to ascertain 
whether the institution (here Girard College) is 
presently associated with the State in a manner 
which tends to suggest to the community that the 
institution’s policy o f racial discrimination is either 
practiced by or approved by public authority. This, 
we think, is the essence o f Evans v. Newton.”  (E m ­
phasis supplied.)

There is nothing in Evans, or in any other case decided 
by the Supreme Court, which would lead one to believe that 
cases involving the Equal Protection Clause are decided on



17

the basis o f appearance rather than substance. In Evans 
the park was a park actually maintained by the municipality 
and in fact open to all members o f the public. In Burton, 
the other case relied upon by the lower court to buttress its 
conclusion, the only part o f the entire public garage com­
plex owned by the Parking Authority which was not open 
to Negroes was the restaurant; the lease rentals the Author­
ity received from the restaurant were essential to the financ­
ing o f the public parking facilities; and the discriminatory 
policy o f the restaurant which added to its revenues made 
these rentals possible. State involvement was factual, not 
merely such as to “ suggest to the community”  that the 
racial discrimination was approved by public authority. 
Indeed, the concept o f community viewpoint does not 
appear in either opinion.

However, it would be to the advantage of the defend­
ants to adopt this test which the lower court has read into 
Evans. Since the removal of the City as Trustee (the 
critical time adopted by the lower court) the public could 
not possibly have been misled into believing that Girard’s 
wishes with respect to color were “ either practiced by or 
approved by public authority” . It was well publicized that 
the City and the State actively sought to break Girard’s 
W ill in the prior litigation and that it was as a result o f 
that litigation that private trustees were appointed. It has 
been a matter o f the widest public knowledge that since 
that time the City and the Governor have endeavored to 
persuade the private trustees to ignore Girard’s directions, 
and o f course, it is a matter of record that the Common­
wealth and the City instituted the present litigation.

Moreover, the very appearance o f the College, con­
sisting as it does o f handsome buildings and large playing 
field completely surrounded by a high stone wall, would 
never suggest to the community that the institution is 
public. Indeed, it is a matter of national knowledge that 
Girard College is one o f the oldest and finest private 
charities of its kind.



18

Thus, by the very test posited by the lower court, the 
policy o f Girard College as expressed in the W ill o f Stephen 
Girard is not subject to the prohibition o f the Fourteenth 
Amendment. But this is not really the test, as the lower 
court impliedly admits, since it never pursues the inquiry 
to its obvious answer.

Although the only fact in common between Evans and 
the present case is that in each private trustees had been 
substituted for a municipality because a municipality could 
not constitutionally carry out the testator’s intent to benefit 
only members o f the white race, the lower court nonetheless 
said that the Evans decision is controlling in this case 
(R . 852a). The factual differences are much greater than 
the one point o f similarity.

In Evans the majority based its decision on two grounds. 
The first was that the City had for years maintained the 
park as a part o f its public park system— “ it was swept, 
manicured, watered, patrolled and maintained by the city 
as a public facility for whites only” — and the court would 
not assume that the mere appointment o f new trustees would 
change that situation. As the court said: “ The momentum 
it acquired as a public facility is certainly not dissipated 
ipso facto by the appointment o f ‘private’ trustees. So far 
as this record shows, there has been no change in municipal 
maintenance and concern over this facility” . 382 U. S. at 
301.6

The record in this case is totally different. Girard Col­
lege was never maintained as a part o f the public school 
system. No city funds have ever been used to operate 
Girard College. There can be no doubt that Girard College 
is divorced from its former city relationship. No State or 
City officer or appointee has participated in the operation

6It is inherent in the Evans opinion that a long history of state 
participation through municipal trustees, and even through municipal 
maintenance, does not constitute present state involvement. If this 
were not so, there would have been no need for the Court to have 
considered the nature of the park and the future role of the city.



19

o f the College since the removal o f the City as trustee almost 
ten years ago (R . 761a-762a, 794a, 783a). Not a penny 
o f City or State money has been used for its support (R . 
847a, 869a). None o f its property is now or ever was owned 
by the City or State. No State or City legislation fosters, 
protects or directs it. As a private school and as an orphan­
age its relationships with the City and State are only those 
applicable to every unlicensed private or parochial school 
and all other charitable child care agencies. The separation 
was and is complete.

The second ground for decision, which Justice Harlan 
in his dissent says “ ultimately emerges as the real holding” 
is that a park such as Baconsfield is in the “ public sector” 
or “public domain” and, like the company town in Marsh 
v. Alabama, 326 U. S. SOI (1946), must be operated under 
constitutional restrictions. The court was careful to say that 
it was not equating private schools with parks; and it is 
obvious that the court would never liken Girard College to 
Baconsfield Park. The United States Brief in Evans shows 
that the park is approximately 100 acres in extent, that it 
is located in the center of Macon, that it is open on all 
sides, that public streets and one major highway pass 
through it, and that it may be visited freely by all members 
of the public except Negroes.7 With that one exception, 
it is to all intents and purposes an ordinary public park 
maintained by the municipality just as all its other public 
grounds. Girard College, on the other hand, is surrounded 
by a high stone wall, only about two-thirds of the applicants 
are approved for admission; members of the public are not 
even permitted on the campus without special permission, 
and, in short, it is totally dissimilar to a public school or 
any other public facility. Girard directed that it should be 
private and it not only is, but it looks it.

7 Similarly in Marsh the company town was described as a “ sub­
urb”  of Mobile, Alabama, consisting “ of residential building, streets, 
a system of sewers, a sewage disposal plant and a ‘business block’ on 
which business places are situated.” 362 U. S. at 502.



2 0

There is no reason to believe that the Supreme Court 
would see any similarity between an open city park avail­
able to all except Negroes and Girard College, the gates of 
which have been closed to the public from its very inception.

D. The Relationship Between The Orphans’ Court and 
The Girard Estate Since The Appointment of Private 
Trustees Does Not Constitute Significant State Invol­
vement.

While the lower court held that the substitution of pri­
vate trustees for the city agency did not involve constitu­
tional implications (see infra, pp. 35-41) and that “ some­
thing more”  is required, it found that additional something 
in the suggestion o f “ a very special interest” , or “ the im­
plied approval” , or “ the appearance o f continuing interest”  
of the Orphans’ Court “ in a trust which is, on its face, dis­
tinguishable from most other trusts only in its racial exclu­
sivity” . (R . 862a). This finding is immediately followed by 
a disavowal of any suggestion that the Orphans’ Court “has 
consciously and purposefully promoted or sponsored the 
discriminatory design at Girard College” ; but this dis­
avowal, if given full credit, negates the legal effect of the 
finding, since if there has been no such purpose, there would 
seem to be no logical basis for holding that there is uncon­
stitutional state action. If mere involvement with a govern­
mental unit, without governmental purpose, property or 
profit, is sufficient to constitute “ state action” , the asserted 
right o f individual choice becomes a hollow pretense.

Moreover, the actions o f the Orphans’ Court which are 
said to create the appearance of “ implied approval of de­
fendants’ discriminatory conduct”  do not do so. There is 
nothing unusual in the conduct of the Orphans’ Court to 
one who understands the practice of that court and the 
extraordinary responsibilities imposed upon the trustees.

The lower court thinks that because the private trustees 
are required to file an account with the Orphans’ Court



2 1

every three years and may be removed “ at will” , that court 
has shown an abnormal interest in the trust which can be 
explained only by reason of the fact that Girard limited 
his gift to white beneficiaries.8 This is not so. The City 
and its agent, the Board o f City Trusts, were perpetual and 
immortal trustees9 so that no need for an accounting would 
ever arise except in the event of some unusual circumstance 
such as a charge o f mismanagement. On the other hand a 
private trustee, or any one o f several private co-trustees, 
in order to be discharged of liability, must file an account. 
To accomplish the same purpose after the death o f a trustee, 
his executor or administrator must do likewise. Fiduciaries 
Act o f 1949, Sections 921, 981 (20 P. S. §§ 320.921, 
320.981). In view o f the fact that there are thirteen 
trustees, all appointed in their maturity, deaths and 
resignations were to be expected with some frequency, 
so it could have been anticipated that a triennial ac­
counting would not only be desirable but essential10 The 
period also coincides, as it should, with the period o f ap­
pointment which, contrary to the lower court’s finding, is 
not “ at will” but also for a term of three years. (7  Pa. 
Fiduc. Rep. 606). Although the Orphans’ Court has not 
explained the reason for this particular period, it can be 
surmised that it was based on the judgment o f the court 
that it would be better for the administration o f the trust,

8There is no support in this record for the lower court’s assump­
tion that the Orhpans’ Court does not treat other large charitable 
trusts having multiple appointed trustees in a similar manner. Mr. 
John Diemand’s testimony that as a trustee of a small estate of a 
deceased friend he does not account every three years, was not sworn 
in, and has received no certificate of appointment hardly proves the 
court’s point (R . 658a-659a).

9The City was selected as trustee because its existence is perpetual. 
See Girard Will Case, 386 Pa. 548, 569, 127 Atl. 2d. 287, 296 (1956). 
The death or resignation of a member of a city board acting as a 
trustee does not require an accounting. Wiltsach Estate, 1 D. & C. 
2d. 197 (Orphans’ Ct. Phila. County 1954).

10The latest triennial account approved by the Orphans’ Court, 
merely supplemented by a “ bring-down” , will always be available for 
the prompt discharge of a trustee or his estate.



2 2

which involves far more onerous duties than does a corpo­
rate directorship (R . 673a-674a), if the appointments were 
for a limited period rather than for life. There is no justi­
fication whatsoever for drawing an inference that the O r­
phans’ Court limited the term to make certain that its 
appointees would be under the court’s control.

Again the lower court looks with suspicion on the fact 
that the Trustees who were substituted for the Board 
o f City Trusts were formally sworn in before the Orphans’ 
Court and several years later presented with certificates 
o f appointment. There is no evidence that other trustees 
have not been sworn in or presented with such certificates; 
but, assuming this procedure was unusual, so is the stature 
and historical significance o f the Girard Trust. The 
Orphans’ Court has said that Girard’s W ill “ has become 
a legend in Pennsylvania and the United States” , Girard 
Estate, 4 D. & C. 2d 671 (1955). The trustees who have 
been selected from the leaders o f the community and who 
give freely o f their time and energy, are deserving of 
recognition even if it consists only o f a brief ceremony 
and a simple certificate.

Finally the lower court’s reliance upon the fact that 
members o f the Orphans’ Court visited the College two 
times during ten years as evidence of constitutionally 
significant governmental involvement shows the extremes 
to which that court has gone. On each o f these occasions the 
members had been invited by the Trustees, the visits in­
volved nothing more than a brief physical inspection, and 
no member o f the court even stayed for the regular meeting 
o f the trustees which followed immediately thereafter (R . 
444a, 793a, 794a).

No member of the Orphans’ Court has ever involved 
himself in the administration o f the College (R . 674a). 
The docket entries o f that Court show that the only matters 
upon which it has taken action since the appointment of 
private trustees in 1959 have been petitions for the sale of 
properties, petitions for rental of properties for more than



23

five years and petitions for the approval o f accounts (E x . 
D - l l ) .  Aside from this limited information, that Court 
knows no more about the trust and the college, than do 
members of the public.

Under these circumstances the relationship o f the Or­
phans’ Court to the trust is such that the Court is not 
involved in, nor even appears to be involved in, the execu­
tion o f Girard’s admission policy. The only differences 
between the administration o f this trust and any other are 
the natural ones arising from the amount o f dollars in­
volved, the number o f necessary trustees, and the onerous 
nature o f the trustees’ duties which they perform without 
compensation. To hold that the natural role o f the Orphans’ 
Court under these circumstances has created unconstitu­
tional state action is either to manufacture a fiction or to 
create a rule of law that would make all trusts, or at least 
all large charitable trusts, subject to the Fourteenth 
Amendment.

E. There Are No Other Relationships Between the
Girard Trust and the State Which Separately or
Together Constitute Significant State Involvement.

Although the lower court has placed its finding that the 
College is “a governmentally sanctioned center o f racial 
bias” primarily on the relationship o f the Orphans’ Court 
since the substitution o f private trustee, it has also found 
that there are “ further grounds for inferring a proscribed 
involvement in the disciminatory design” (R . 863a). Each 
o f these, however, is either too insignificant to involve the 
state or so broad that it involves the state dangerously in 
private education and even religion.

The first such additional ground is the fact that the legis­
lature of the Commonwealth receives an annual report on 
the investment and applications o f Girard’s residuary estate 
and the condition o f the College. The making o f this re­
port by the City trustee was required by Girard in his Will 
(R . 64a). No legislation o f the Commonwealth or City



24

calls for this report. Nor is there any evidence that the 
legislature has ever taken action with respect to any of 
these reports, or that any representative o f the legislature 
has even visted the College (R . 453a, 761a, 794a).

Inasmuch as Girard and not the Commonwealth re­
quired these annual statements it can hardly be said, let 
alone “ fairly”  said, that the state has thereby involved itself 
in the administration o f the College. The lower court has 
rejected this point, however, on the ground that the trustee­
ship of the City was also o f Girard’s making and that the 
first Girard College case demonstrates that the source of the 
involvement is immaterial. This ignores the nature o f the 
involvement. When the City was acting as Trustee, it was 
directly participating in the execution o f the policy and 
therefore the source o f its authority was unimportant. In 
merely receiving the reports, however, its role is completety 
passive. It is neither logical nor realistic to say that there 
has been “ state action”  when in fact there has been no 
action and no duty to act.

The lower court has also found support for its conclu­
sion in “ the general supervision o f the State Department 
of Public Instruction, the State Department of Welfare, 
and other agencies concerned with the education and welfare 
of the young”  (R . 864a). Since there are no agencies 
concerned with the education and welfare o f the young 
other than the two named, we need consider only them.

Private schools in Pennsylvania are of two types. There 
is the private school which is licensed under the Act of 
June 25, 1947, P. L. 951 (24 P. S. § 2731 et seq.) and 
which is subject to inspection by the State Board of Private 
Academic Schools. Its license can be revoked for many 
reasons. The private schools which are exempt from this 
Act, notably schools which are accredited by recognized 
accrediting associations and schools operated by bona fide 
religious institutions, make up the second class. Girard is 
a member o f this latter group since it has been accredited 
by the Middle Atlantic States Association o f Secondary



25

Schools and Colleges (R . 273a).11 The only statutory re­
quirements directed at these unlicensed private and religious 
schools are that they should teach certain rudimentary sub­
jects and the history o f the United States and Pennsylvania. 
Public School Code of 1949, Sections 1511 and 1605 (24 
P. S. §§ 15-1511, 16-1605). The Department o f Public 
Instruction has no power even to compel compliance with 
the minimum curriculum standards. Instead, the directives 
all run to the child or the parent. Public School Code, 
Sections 1327, 1332, 1333 (24 P. S. §§ 13-1327, 13-1332, 
13-1333). Under these circumstances, it can no more be 
said that the state is involved through the Department o f 
Public Instruction in the selection of children to attend 
Girard than it can be said to be involved in the selection 
policies o f parochial or other religious schools.

The same final conclusion must be reached as to the 
Department of Public Welfare, although it does have cer­
tain powers of inspection and supervision at Girard. Under 
Sections 2302 and 2303 of the Administrative Code (71 
P. S. §§ 592, 593) that Department is given supervisory 
power over all institutions which receive and care for 
children, persons of unsound mind, expectant mothers, in­
digent adults, the blind, and other handicapped persons. 
The concern o f the Department, however, is the welfare of 
the inmates and not their qualifications for admission on 
the basis of race, creed or color. T o say otherwise, would 
be to draw within the orbit o f the Fourteenth Amendment 
all such charitable institutions.

The lower court also refers to “ tax exemptions and 
other special concessions from public agencies” ; but again 
these are common to almost all charities and the implica­
tions of creating such a broad rule o f law are obvious.

These implications were equally apparent to the lower 
court. To avoid them, it was said that “ standing alone”  the 
supervision and special benefits do not involve state action,

11This is a non-governmental association supported entirely by 
contributions from schools which are members (R . 320a).



2 6

but they do so in this case when combined with the history 
o f direct state operation and “ the not wholly unambiguous 
manner in which that control was sought to be terminated.” 
(R . 865a). It is strange indeed that having found that 
the substitution of private trustees was merely in perform­
ance of the Orphans’ Court’s traditional administrative 
duties and “ standing alone” does not involve constitutional 
implications (R . 856a), the lower court then finds the sub­
stitution becomes “ not wholly unambiguous”  when joined 
with other state relationships, which also “ standing alone” 
do not constitute state action, and then concludes that the 
chemical reaction between all of these inert elements has 
created an unconstitutional mixture.

In the next section we will deal with the invalidity of 
the lower court’s technique o f adding together a number of 
state relationships, each o f which is acknowledged to be 
insignificant, to obtain a total which, contrary to the 
principles of both arithmetic and logic, that court chooses 
to call significant. For the present it should be sufficient to 
say that not even all of these relationships taken together 
tend “ to suggest to the community that the institution’s poli­
cy o f racial discrimination is either practiced by or approved 
by public authority” , the very test established by the lower 
court. Even the most uninformed member o f the community 
must be aware of the fact that public authority, while 
performing the duties and according the privileges which it 
owes by law to every private charitable institution for 
children, officially disapproves of Girard’s personal selection.

F. All of the Insignificant or Customary Contacts Be­
tween the State and the Girard Trust Cannot Be
Combined to Total Significant State Involvement.

The lower court’s opinion suggests that sheer quantity 
o f instances o f State involvement, no matter how trivial or 
peripheral each may be, can establish “ state action” . The 
conclusion that the State is so involved in the individual’s



27

choice that the Constitutional prohibition has been violated 
should not and cannot be based on a foundation o f straws, 
no matter how many there may be. On the contrary, that con­
clusion can only be reached if the State has so encouraged, 
compelled or participated in the discrimination, or has pro­
vided such support for the establishment, or has such a 
property interest in the establishment that it can be said 
fairly that the State has a significant measure o f respon­
sibility for the discrimination.

The nature of the state involvement— and not the mere 
volume— determines “ state action.”  This is what was meant 
in Burton by the much-quoted expression, “ sifting facts and 
weighing circumstances” — all o f the contacts between the 
establishment and the state must be examined, that is 
“ sifted,”  and those that are found to be unusual are 
“ weighed” to determine if the state is involved “ to some 
significant extent” (365 U. S. 722). In that case, the sift­
ing of many facts disclosed that the governmental authority 
owned the public parking structure and leased a portion 
as a restaurant in order to obtain additional necessary 
revenues to service its bonds, “ the restaurant constituted a 
physically and financially integral and, indeed, indispensable 
part o f the State’s plan to operate its project as a self- 
sustaining unit” , the building is maintained by State funds, 
and “ the profits earned by discrimination . . .  are indispens­
able elements in the financial success o f a governmental 
agency.”  (365 U. S. at 723-724).

In Evans Solicitor General Marshall argued that 
there were many elements o f involvement between the 
State and the park, that there is “ no need to decide 
in this case whether any single one of them would, 
if present in sufficient strength, require a finding that the 
State is responsible for racial discrimination” , and that “ The 
totality o f circumstances showing the State’s close partici­
pation” compels the conclusion that the new trustees could 
not constitutionally exclude anyone from the park on the



28

ground o f color (United States Brief, p. 11).12 There is 
no echo o f this argument in Mr. Justice Douglas’ majority 
opinion. Instead he relied upon the significant facts that 
the park had been maintained by public funds, that there 
was no evidence that it would not be so maintained in the 
future, and that a park like Baconsfield is in the public sec­
tor. Mr. Justice White, in concurring, relied solely upon his 
conclusion that the state had encouraged the establishment 
o f segregated parks by making them legally possible. The 
totality argument was in fact rejected.

This totality concept adopted by the lower court was 
also specifically rejected in Simkins v. Moses H. Cone 
Memorial Hospital, .211 F. Supp. 628 (D . C. N. C., 1962). 
There the District Court reviewed the many points o f con­
tact there were between the government and two hospitals 
which discriminated against Negro patients and physicians. 
That court held that there was no constitutional state in­
volvement, saying, in part (p. 639) :

“ While the plaintiffs argue that each o f the con­
tacts defendant hospitals have with governmental 
agencies is important, and each has a material bear­
ing on the public character o f both hospitals, the 
main thrust o f their argument is that the totality of 
governmental involvement makes the hospitals sub­
ject to the restraints o f the Fourteenth Amendment. 
For this argument they mainly rely upon Burton v. 
Wilmington Parking Authority, 365 U. S. 715, 81 
S. Ct. 856, 6 L. Ed. 2d 45 (1961). But a careful 
reading o f this case does not support plaintiff’s 
argument.”

Although the District Court was reversed by the Court of 
Appeals for the Fourth Circuit (323 F. 2d 959), it did not

12It is interesting to observe that in the same brief the Solicitor 
General also speculated that the Supreme Court’s denial of certiorari 
in the Girard appeal following the appointment of private trustees 
was probably due to the fact that it was not clear then to the Supreme 
Court that the new trustees would discriminate in view of the require­
ments o f the Pennsylvania Public Accommodations Act. That Act 
had never been cited to the United States Supreme Court as the 
Jurisdictional Statement shows (Court Ex. A , Item 9 ).



29

disagree with the conclusion “ that ‘zero [the quantum of 
each separate factor] multiplied by any number would still 
equal zero.’ ”  (323 F. 2d at 966). Instead, it found among 
all those points of contact one significant relationship— the 
hospitals were participating in and receiving funds under 
the federal Hill-Burton program.13 That court said (p. 
967 ):

“ Our concern is with the Hill-Burton program, 
and examination o f its functioning leads to the 
conclusion that we have state action here. Just as 
the Court in the Parking Authority case attached 
major significance to ‘the obvious fact that the 
restaurant is operated as an integral part of a public 
building devoted to a public parking service,’ 365 
U. S. at 724, 81 S. Ct. at 864, 6 L. Ed. 2d 45, we 
find it significant here that the defendant hospitals 
operate as integral parts of comprehensive joint or 
intermeshing state and federal plans or programs 
designed to effect a proper allocation o f available 
medical and hospital resources for the best possible 
promotion and maintenance o f public health.”

In place o f this judicial technique o f sorting out the 
many points o f contact with the government to determine 
if there is any which can fairly be said to involve the 
government to such an extent that it shares responsibility 
for the discrimination, the lower court has intermingled all 
o f the usual minor points of contact to form a heterogenous 
mixture which it terms unconstitutional. But if it had 
followed the proper course, it could not have entered the 
injunction.

13See to the same effect, Eaton v. Grubbs, 329 F. 2d (4th Cir. 
1964). Also see Smith v. Holiday Inns of America, Inc., 336 F. 2d 
630, 634 (6th Cir. 1964) (in a case which involved discrimination 
in a motel which was part of a redevelopment project, the court said: 
“ The single pervasive fact . . .  is that this motel is part and parcel 
of a large, significant and continuing public enterprise— Capitol Hill 
Redevelopment Project.”  (emphasis added)).



30

G. Girard College Is Not “ Municipal In Nature” .
The lower court attempts to buttress its conclusion that 

the state is still constitutionally involved in the administra­
tion of Girard College by seeking to make it fit within the 
framework o f Mr. Justice Douglas’ statement that, “ The 
service rendered even by a private park of this character 
is municipal in nature . . . Like the streets o f the company 
town in Marsh v. Alabama, supra, the elective process of 
Terry v. Adams, supra, and the transit system of Public 
Utilities Comm’nw. Pollack, supra [343 U. S. 451 (1 9 52 )], 
the predominant character and purpose o f this park is 
municipal.”  (382 U. S. at 301-302).14

This Court has already concluded that the Pennsylvania 
Courts have held that Girard College is not a place o f public 
accommodation under the Act o f June 24, 1939, P. L. 
872, § 654 (18 P. S. § 4654) which includes schools but 
which excludes establishments which “ are in their nature 
distinctly private” . Commonwealth v. Brown, 373 F. 2d 
771 (3d Cir. 1967). It seems inconsistent that it should 
now be held that the College is performing a “ public 
function”  and is therefore constitutionally barred from dis­
tinguishing between applicants on the ground of race, creed 
or color.

It has never been held that schooling is such a public 
function that every school is an instrumentality o f the 
state for constitutional purposes. The consequence o f so 
holding would be far-reaching indeed. For example, in 
Pierce v. Society of Sisters, 268 U. S. 510 (1925) (recently 
cited with approval in Griswold v. Connecticut, 381 U. S. 
479, 482 (1965) and in Evans), the Supreme Court in fact 
upheld the constitutional right o f parents to send their chil­
dren to private parochial schools in the face o f a state 
statute requiring all children to attend public schools.

14The critical analysis of this “ public function” theory and its 
precedents by Mr. Justice Harlan in his dissenting opinion, makes 
clear that the theory is not likely to be extended beyond the specific 
facts in Evans. (382 U. S. at 319-321).



31

Furthermore, in Everson v. Board of Education, 330 U. S. 
1 (1946), the Court held that a statute permitting the re­
imbursement to parents o f money expended for bus trans­
portation o f their children to and from schools not operated 
for profit was constitutional. Reimbursement by the state 
of parents who sent their children to parochial schools was 
held not to be “ state action”  establishing a religion because 
the statute was of general application and did not recognize 
any religion. If it were to be held that all schooling is a 
public function, making every school an instrumentality of 
the state for constitutional purposes, the underlying princ­
iples of Pierce and Everson would be destroyed.

If there is anything which is clear from the prior litiga­
tion with respect to Girard College, it is that Girard College 
was and is a private charity. The several opinions o f the 
United States Supreme Court in Trustees of Dartmouth 
College v. Woodward, 17 U. S. (4  Wheat.) 518 (1819), 
established the principle that an educational institution, 
founded and maintained with private funds, is a private 
charity and cannot be expropriated by the State and made 
into a public institution. E.g., id. at 633,634,636 (Marshall, 
C. J . ) ; id. at 660, 665 (Washington, J . ) ; id. at 671-72, 
697-98 (Story, J .). Girard College and the Philadelphia 
public school system now stand, as they have always stood, 
as independent entities with clearly independent sources of 
funds for their respective operation.

The lower court, while disclaiming doing so, would 
subtly merge the private and public segments o f American 
life involving charities and education. Evans clearly recog­
nizes the difference between the tw o:

“ Golf clubs, social centers, luncheon clubs, schools 
such as Tuskegee was at least in origin, and other 
like organizations in the private sector are often 
racially oriented. A  park on the other hand, is more 
like a fire department or a police department that 
traditionally serves the community. Mass recreation 
through the use o f parks is plainly in the public



32

domain. . . (382 U. S. at 301-302). (Emphasis
added.)

The distinction is further supported by the general law of 
charitable trusts as set forth in Justice W hite’s concurring 
opinion, (382 U. S. 302-311). The benefits o f charitable 
trusts for the relief o f poverty, for the advancement of 
education (the Girard College trust is both), and for the 
advancement o f religion may be restricted to a relatively 
small group whereas the benefits o f charitable trusts for 
other purposes beneficial to the community as a whole, such 
as an open park, may not be so restricted.

Education and the care o f orphans are public functions, 
or municipal in nature, only in the sense that they are 
functions which the State may undertake because it vitally 
interests and concerns the State that children shall be edu­
cated and supported. One who undertakes to perform these 
services charitably does not become subject to the strictures 
o f the Fourteenth Amendment unless, as in other activities, 
the State becomes so significantly involved that it is clearly 
identified with the establishment or the discrimination.

The proper rule for the determination o f whether a 
school must be operated in accordance with the Fourteenth 
Amendment was laid down by the United States Supreme' 
Court in Cooper v. Aaron, 358 U. S. 1 (1958) where, in 
explaining its decision in Brown v. Board of Education, 
347 U. S. 483 (1954), the court said (p. 4 ) :

“ That holding was that the Fourteenth Amendment 
forbids States to use their governmental powers 
to bar children on racial grounds from attending 
schools where there is state participation through 
any arrangement, management, funds or property.”  
(Emphasis supplied.)

It will be observed immediately that there is no holding 
or implication that all schooling is a public function or is 
municipal in nature. Instead, the test to be applied to schools 
is the same as that applied to any other establishment,



33

namely, whether there is state participation through ar­
rangement, management, funds or property.

As we have shown heretofore, there has 'been and there 
is no state arrangement, funds or property involved in 
Girard College; and, as this Court well knows, the man­
agement by the state as trustee ceased in 1959.

The only new features which the lower court has added 
in this portion o f its opinion is that the court argues that 
applications are sought and received without limitation 
except as to color, and that on some occasions the College 
has requested public school Principals to submit names of 
worthy boys. The court has completely overlooked the fact 
that unless the public is aware of this charity, the benefits 
which Girard intended might go unused. The Trustees, the 
staff and the alumni rightly feel that it is their responsibility 
to make known the existence o f this free orphan school to 
those responsible for the children who are or might be 
within the class o f designated beneficiaries (R . 383a).

Through the office of the Director o f Admissions and 
the Alumni Society, pamphlets describing the institution 
and answering commonly asked questions are distributed to 
mothers or guardians seeking information, to Principals o f 
public schools and to persons at club meetings where the 
Director o f Admissions or the President o f the College may 
have been asked to appear and explain the functions and 
purposes o f the institution (R . 359a, 377a, 387a).

To say, as the lower court does, that because some of the 
applicants learn o f the College through the Principal o f a 
public school, the College is therefore in the public sector, 
is merely a play on words.

The fact o f the matter is that Girard is more selective 
than most private and parochical schools. The applicants 
are throughly screened for intelligence, achievement and 
stability, and between 25%  and 30% are rejected. There is 
no educational institution or orphanage identified in this 
record in which any such degree o f selectivity is exercised. 
As a matter of fact this court can take judicial notice that



34

many private schools accept applicants regardless o f intel­
ligence or achievement if their parents have the price of 
admission. Indeed, children are accepted in parochial 
schools as (freely as in public schools, preference being 
given for religious faith only.

The effort o f the lower court to draw this private char­
itable institution into the orbit o f the open company town in 
Marsh, the open park in Evans and the open transit system 
in Pollack ignores the basic factual differences and the social 
consciousness which flows from those differences. A  park, 
town or trolley available to all except Negroes is totally 
different from a private school, walled on all sides, into 
which not even a parent is permitted without special per­
mission and which accepts orphan students only after selec­
tive testing. There is nothing public in the concept, opera­
tion or purpose o f Girard College— instead, as Girard di­
rected, it was created to provide for the orphans “ a better 
education as well as a more comfortable maintenance that 
they usually receive from the application o f the public 
funds.”  (R . 44a).

H. The Lower Court Correctly Held That the Appoint­
ment of Private Trustees Did Not Constitute State
Action.

In the dissent in the prior appeal in this case, Judge 
McLaughlin, joined by Judge Smith, took the preliminary 
position that, “ The action by the Orphans’ Court in ap­
pointing private trustees . . . amounted to State discrimina­
tion and the type of invidious State action declared uncon­
stitutional in Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 
92 L. Ed. 1161 (1948), and Barrows v. Jackson, 346 U. S. 
249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953 ).”  (373 F. 2d 
at 793).

The lower court disagreed with this conclusion, held 
that Shelley and Barrows are not applicable, and concluded 
that “ In substituting new individual trustees in place o f the 
City agency, the Orphans’ Court was merely performing



35

its traditional supervisory and administrative functions of 
assuring the effectuation o f the testator's intent as pre­
viously determined by Pennsylvania courts.”  (R . 856a).

In view of the importance of this point due to the tenta­
tive statements of opinion in the prior dissent, made with­
out the benefit o f argument, we shall treat it fully.

The decision by the United States Supreme Court in 
the first Girard case was simply the following (353 U. S. 
at 231 ):

“ The Board which operates Girard College is an 
agency of the State o f 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 Amendment. Brown v. Board of Educa­
tion, 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.”

Nowhere in that opinion is there any statement that the 
Negro applicants must be admitted. This is significant be­
cause in Sweatt v. Painter, 339 U. S. 629 (1950) and 
Brown v. Board of Education, 349 U. S. 294 (1954), the 
two principal preceding school cases, the orders of reversal 
had directed the admission of the Negroes. The absence of 
such direction is even more significant in view of the fact 
that the Pennsylvania Supreme Court had already stated 
that if found to be in error, the proper procedure under 
the law of Pennsylvania would not be the admission of the 
Negro applicants but the substitution of a new trustee. Its 
opinion, which was before the United States Supreme Court 
for review, contained the following unequivocal statement 
(386 Pa. at 566):

“ But finally, even if the Board of Directors of 
City Trusts were deemed to be engaged in ‘State 
action’ in the administration o f the Girard trust, 
petitioners would nevertheless not be entitled to the



36

remedy they seek. If the city, because bound in its 
public or governmental actions by the inhibition im­
posed upon it by the Fourteenth Amendment, cannot 
carry out a provision of Girard’s will in regard to 
the beneficiaries of the charity as prescribed by him, 
the law is clear that the remedy is, not to change 
that provision, which, as an individual, he had a 
perfect right to prescribe, but for the Orphans’ 
Court, which has final jurisdiction over the trust 
which he created, to appoint another trustee.”

If the United States Supreme Court had believed that 
the only way to satisfy the constitutional prohibition was 
the admission o f the Negro applicants and that the sub­
stitution o f a new trustee would not suffice, it is incon­
ceivable that it would not have so worded its opinion in the 
face o f that unambiguous statement o f intention by the 
Pennsylvania Court. To say otherwise is to belittle the 
foresight o f the members of the United States Supreme 
Court.

This conclusion is confirmed by the fact that upon the 
second appeal, after the private trustees had been substi­
tuted and admission o f the applicants denied, the United 
States Supreme Court dismissed the appeal and treating the 
appeal as a petition for certiorari denied it (357 U. S. 570). 
The opinion o f the Pennsylvania Supreme Court which the 
United States Supreme Court declined to review contained 
the following statement (391 Pa. at 4 40 ):

“ Simply stated, the question for decision is whether 
the action o f the Orphans’ Court is inconsistent with 
the opinion o f the Supreme Court o f the United 
States.”

Moreover, the Jurisdictional Statement to the United States 
Supreme Court contained as its principal reason for reversal 
the argument that the court’s mandate had been disre­
garded ( See Court Ex. A , Item 9 ).

While it is true that in the ordinary case denial o f a 
petition for certiorari is not a decision on the merits, there 
is no authority for applying this rule when the issue is



37

whether a prior mandate has been obeyed. On the contrary, 
what precedent exists proves that the United States Su­
preme Court will tolerate no avoidance or misinterpre­
tation o f its orders. In Florida ex rel. Hawkins v. 
Board of Control, 347 U. S. 971 (1954), the court had re­
versed and remanded a law school desegration case “ for 
consideration in the light o f”  the Brown case without 
further explanation. The lower court did not take prompt 
steps to cause the admission o f the Negro applicant, and 
the case was again appealed. Florida ex rel. Hawkins v. 
Board of Control, 350 U. S. 413 (1956). The Supreme 
Court granted certiorari, recalled and vacated its prior man­
date, and in lieu thereof issued an order directing the appli­
cant’s admission without delay if otherwise qualified. This 
is what the Supreme Court would have done in the second 
Girard appeal if it had believed its mandate has been avoided 
by the substitution of private trustees, particularly when the 
State court’s interpretation o f the mandate and the reasons 
therefor were so clearly stated. Again, as recently as this 
February the Court reversed and remanded in the second 
appeal o f an antitrust case on the ground that the action 
o f the lower court in response to its first order “ does the 
opposite o f what our prior opinion and mandate com­
manded.”  Cascade Natural Gas Corp. v. El Paso Natural 
Gas Co., 386 U. S. 129 (1967 ).15 * *

While it is generally true, as Judge McLaughlin has 
stated (373 F. 2d at 793), that it is the duty o f this court 
to ascertain if there has been compliance with a Supreme 
Court mandate, it would appear that the Supreme Court, 
when given the opportunity as it was here, knows full well 
how to protect itself. The fact that it refused review with­
out comment should establish approval.

The argument of plaintiffs’ counsel that the removal 
o f the governmental trustee was a voluntary one and there­

15The Court was so displeased that it even directed the Chief
Judge of the Circuit to assign a different District Judge to conduct
the necessary further hearings.



38

fore constituted direct involvement, is contrary to the 
law of Pennsylvania. The Orphans’ Court merely con­
tinued in the performance of its judicial duties which had 
been initiated originally by the filing of the Petition for 
Citation in 1954, and it did so in accordance with its inter­
pretation o f the Supreme Court mandate. This was most 
certainly a judicial function and, being in response to a 
mandate, it was not voluntary.18 The Decree o f the 
Orphans’ Court makes this clear by the following intro­
duction: “ And now this 11th day o f September 1957, in 
obediance to the mandate o f the United States Supreme 
Court dated June 11, 1957, and the order o f the Supreme 
Court o f Pennsylvania filed June 28, 1957, and in con­
formity with the opinion of the Supreme Court o f Pennsyl­
vania, dated November 12, 1956, it is hereby ordered and 
decreed that.. . . ”  (7  Pa. Fiduc. Rep. at 558). The Pennsyl­
vania Supreme Court affirmed the obligatory nature o f the 
Orphans’ Court function in Girard College Trusteeship, 
as follows (391 Pa. at 4 5 6 ):

“ When the cause was lately remanded to the Or­
phans’ Court pursuant to the Supreme Court’s man­
date, there was no occasion for any further hearing 
in the matter. The record was complete. It was 
the duty o f the Orphans’ Court, just as it is our duty 
now, to proceed in a manner not inconsistent with 
the opinion o f the Supreme Court. And that, we 
think, we are doing.”

By removing the governmental trustee and substituting 
individuals, the Orphans’ Court did merely what it would 
have done in any case in which the incumbent trustee was 
found to be personally incapable of carrying out the 
testator’s intentions. Girard Will Case, 386 Pa. at 566-567.

18The docket of the Orphans’ Court shows that it received the 
mandate from the Pennsylvania Supreme Court on June 28, 1957. 
It did not enter its order removing the governmental trustee until 
September 11, 1957. During that period of almost three months the 
Petitioners took no action whatsoever to obtain an order directing 
admission.



39

This must be accepted by this Court as the law of 
Pennsylvania. Erie R. R. Co. v Tompkins, 304 U. S. 64 
(1938). Accordingly, it cannot be said that the Pennsyl­
vania courts acted to prevent Negroes from entering Girard 
College. They merely applied an existing rule o f general 
application designed to carry out the expressed intent of 
the testator.

As the late Chief Justice Jones of the Pennsylvania 
Supreme Court took great pains to explain, this case is 
different from Shelley v. Kraemer, 334 U. S. 1 (1948) and 
Barrows v. Jackson, 346 U. S. 249 (1953). See 391 Pa. at 
449-454. Those cases involved efforts by third parties based 
on restrictive covenants running with the land to compel 
willing sellers not to sell to willing Negro buyers. In each 
instance the Negro buyer had a constitutional right not to 
be prevented from buying since the seller was willing to 
sell. In this case, however, the Trustees are not willing to 
deviate from the class o f beneficiaries named by Girard, 
and, therefore, the Orphans’ Court was not preventing an 
individual from acquiring something to which he would 
otherwise be entitled.

The principle involved is best demonstrated by the very 
recent decision (not yet reported) of a special three-judge 
district court in Sweet Briar Institute v. Button (C. A. No. 
66-C-10-L, W . D. Va., July 14, 1967). In that case Sweet 
Briar Institute, which had been established by an endow­
ment for the education o f white girls, sought to enjoin 
the State Attorney General from bringing any suit 
in the state courts against the institute to enforce 
the restrictive covenant. The institute wished to admit 
Negro students, and in fact had done so, for certain reasons 
including the availability o f federal funds. The court17 
granted the injunction on the ground that the State through 
the Attorney General could not compel the institute to dis­

17The court had at first abstained but was reversed in this by the 
Supreme Court and directed to proceed. Sweet Briar Institute v. 
Button, 35 U.S.L. W k . 3419, May 29, 1967).



40

criminate. There the party bound by the covenant was 
willing to ignore it, and under those circumstances the 
enforcement o f the covenant by the Attorney General or a 
court would be a discriminatory act by the State.

The rule o f Shelley has not been extended to compel 
sales by unwilling sellers or gifts by unwilling testators. 
Jones v. Alfred H. Mayer Co., 255 F. Supp. 115 (E . D. 
Mo., 1966). See opinion by Justice Black (Justices 
Harlan and White concurring) in Bell v. Maryland, 378 
U. S. 226, 328-332 (1964). It is certainly clear from its 
opinion in Evans that the United States Supreme Court had 
not so extended Shelley. In that case, as could be expected, it 
was argued by the petitioners and by the intervening Solic­
itor General that the act o f the Georgia court in accepting 
the resignation o f the governmental trustees and appointing 
private ones, just as in the Girard case, constituted judicial 
state action which was unlawful under Shelley. I f the 
Supreme Court had wished to extend the Shelley doctrine, 
as plaintiffs now contend it should be extended, it would 
have been simple to have done so. Instead, the Court ig­
nored Shelley and decided the case on the basis o f continued 
state involvement through maintenance and the public 
nature of an open park.

Although the lower court erred in extending Evans 
beyond its holding to encompass the totally different facts 
o f this case, it was correct in its analysis that Evans is a 
repudiation o f the plaintiffs’ theory that the substitution of 
trustees by a court in the performance o f its customary 
duties amounts to prohibited state action.

CONCLUSION

The Girard Trust has stood as a symbol o f encourage­
ment to all who would be charitable, that they might freely 
choose the class they wished to benefit, secure in the assur­
ance that their personal choice would be respected.



41

More than one hundred years ago, the United States 
Supreme Court sustained Stephen Girard’s right to exclude 
all clergymen from the College grounds ( Vidal v. Girard’s 
Executors, supra). This was done at a time when the 
public practice o f religion was such an essential part o f the 
American scene that Daniel Webster argued that without 
the clergy the ophans would become “ infidels” .

Since then, the American public has become so tolerant 
in the practice o f religion that the issue would probably 
not now arise. Instead, we are deeply emotional and con­
cerned about another matter, the total integration o f the 
American Negro. But in our present enthusiasm to achieve 
this goal, just as in our past zeal for teaching sectarian 
religion, we must never lose sight o f the fact that individual 
freedom of choice must be maintained.

That freedom of choice can be destroyed in many ways. 
The worst way, because it is concealed from the public, is 
by erosion through judicial fiction. This case provides an 
outstanding example.

There can be no question that the State did not enter 
into Girard’s original selection o f the class o f children 
he wished to benefit; and there can be no question that the 
State is not now participating in the Trustees’ decision to 
adhere to that choice in deference to Girard’s wishes. It is 
equally evident that the formal trusteeship o f the City which 
terminated almost ten years ago has no present significance. 
These are the facts. The holding of the lower court that 
the State is nonetheless constitutionally responsible for this 
so-called discrimination is a complete fiction, carefully fa­
bricated out o f insignificant bits and pieces. I f allowed to 
stand, it will become a signpost on the road to total destruc­
tion o f the right o f individual choice.



42

For the foregoing reasons the order o f the lower court 
should be reversed.

Respectfully submitted,

A r t h u r  L it t l e t o n  
Jo h n  R u sse l l , Jr .
E r n e st  R . vo n  S t a r c k  
R ic h a r d  P. B r o w n , Jr .

Attorneys for Revelle W. Brown, 
et al., Trustees of the Estate of 
Stephen Girard 

2107 The Fidelity Building 
Philadelphia, Pennsylvania 19109

O f Counsel:
G a f f n e y  & Ga f f n e y

2124 Philadelphia National Bank Bldg.
Philadelphia, Pennsylvania 19107

M o r g a n , L e w is  & B o c k iu s  
2107 The Fidelity Building 
Philadelphia, Pennsylvania 19109

August 22, 1967