Counsel for the Situation: Shaping the Law to Realize America's Promise

The Girard College Case

193 twenty-six The Girard College Case The Lord so constituted everybody that no matter what color you are you require the same amount of nourishment. —Will Rogers Stephen Girard, a Philadelphia merchant and banker, was in 1813 the richest man in America. He had made his fortune in developing trade with China. When in 1811 Congress refused to renew the charter of the Bank of the United States, Girard purchased the bank’s nonfinancial assets. During the War of 1812 with Great Britain, he lent the U.S. Treasury more than $8 million, enabling the young nation to defend itself and end the war on respectable terms in the 1814 Treaty of Ghent. Girard was a great patriot and philanthropist. When he died in December 1831 in Philadelphia, his slave, Hannah, was at his bedside. He freed his slave but left no heirs. In his will, probated in 1831, he left a trust for the construction, maintenance , and operation of a “college” for “as many poor white male orphans, [to begin school] between the ages of 6 and 10 as the said income shall be adequate to maintain.”The sole trustee named in the will was the city of Philadelphia . The school was located in North Philadelphia and opened in 1848. At that time there were fewer than ninety thousand people living in Philadelphia , including a significant number of white and colored people living in poverty. In 1776, when Girard arrived in the Philadelphia area, there were as many as fifteen hundred African slaves living there, and under the phasedin Pennsylvania Emancipation Act of 1780, there were still a few slaves at the time the college opened. Even free blacks were treated more restrictively under commonwealth law. In later years, inspired by the Quakers, Philadelphia would become a hotbed of abolitionist fervor. In 1869 the Pennsylvania legislature enacted the first of several laws providing for the administration of the Girard College by a board of directors of Philadelphia’s City Trust. Board members included leading citizens, some of whom had attended the college. Although the college never received public money, as a charity it qualified for federal and state tax exemptions. 04-0488-1 part4.indd 193 9/9/10 8:28 PM 194 / a philadelphia lawyer As the years passed the beautiful walled campus of Girard College became a fortress. Shabbily constructed public housing in the neighborhood deteriorated into a dilapidated urban Negro ghetto. The people of color who surrounded the campus enviously observed the well-dressed white orphans, who received an excellent education and often went on to successful careers. Some became chief executive officers of major Philadelphia companies. In 1955, shortly after the Supreme Court’s decision in Brown v. Board of Education, Raymond and Sadie Alexander filed a lawsuit in the Orphans’ Court of Philadelphia County against the Philadelphia City Trust. Their clients were two orphan boys of color, William Ashe Foust and Robert Felder, who sought and were denied admission to the Girard elementary school. The Alexanders argued that the racial restrictions of the will were against public policy, urging the court to eliminate the word white from the City Trust. The Alexanders also relied on an English case involving the will of Cecil Rhodes. The Rhodes will had excluded people of color from India and other British colonies from the Rhodes Scholarship Program at Oxford College . The House of Lords had struck the exclusionary provision as disruptive to the Commonwealth of Nations with racially diverse populations. The Philadelphia Orphans’ Court, which handled estate and trust matters, rejected the Alexanders’ argument. It held that the city’s role in administering the trust was not state action and therefore not a violation of the Fourteenth Amendment . The Supreme Court of Pennsylvania affirmed. Still basking in the afterglow of Brown v. Board of Education, I read about the Girard College decision in the local press with shock and amazement. A couple of weeks later as I was leaving the courthouse, I bumped into Raymond Alexander on the street. I told him I thought the Pennsylvania Supreme Court’s decision that the city’s involvement was not state action was outrageous . I asked him if I could work with him on a voluntary basis to seek a review by the U.S. Supreme Court. He was delighted to get the extra help. I called Lou Pollak, who was then a professor at Yale Law School.The two of us joined the Alexanders in filing a petition for...