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September 2, 1966

COMMONWEALTH OF PENNSYLVANIA, Attorney General of the Commonwealth of Pennsylvania, City of Philadelphia, and Alan Levi Bond, by his mother, Mrs. Ruby Bond, Charles William Hicks and Theodore Lewis Hicks, by their mother, Mrs. Marie Hicks, James Scruggs and Henry Scruggs, by their mother, Mrs. Ardella Scruggs, and Tyrone Karl White and Terry Sherwood White, by their mother, Mrs. Charlotte L. White, on behalf of themselves and all others similarly situated, Plaintiffs,
Revelle W. BROWN et al., Trustees of the Estate of Stephen Girard, Defendants

The opinion of the court was delivered by: LORD, III

 This is an action brought by the Commonwealth of Pennsylvania, the Attorney General of the Commonwealth, the City of Philadelphia, and seven minor Negro male orphans, by their guardians. The individual plaintiffs sue in behalf of themselves and all others similarly situated. The defendants are the trustees of the Girard Estate. They are charged with the duty of administering Girard College, a charitable educational establishment created under the will of Stephen Girard.

 The complaint alleges that the defendants have refused to admit the individual plaintiffs to Girard College solely because of their race. The relief prayed is an injunction to prohibit defendants' continued refusal to admit the minor plaintiffs and other applicants merely because they are Negroes, and such additional relief as might be necessary.

 The complaint consists of three counts and seeks relief from the alleged violation of, respectively, (1) the Constitution of the United States, and particularly the equal protection clause of the Fourteenth Amendment; (2) the testamentary intent of the settlor, Stephen Girard, in the context of previous actions of the trustees and present-day circumstances; and (3) the statutes and public policy of Pennsylvania precluding the denial of admission solely on the basis of a racial criterion.

 The defendants have moved to dismiss the complaint for (1) lack of jurisdiction over the subject matter, due to the asserted absence of a substantial federal question presented by the first count of the complaint and diversity or pendent jurisdiction over the second and third counts; (2) res judicata, by reason of a final order of the Orphans' Court of Philadelphia County; *fn1" (3) failure to state a claim upon which relief can be granted; and (4) lack of standing to sue on the part of the Commonwealth, the Attorney General and the City.


 For the purpose of deciding a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure, the well-pleaded allegations of the complaint must be assumed to be true. Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964); United States v. Shubert, 348 U.S. 222, 75 S. Ct. 277, 99 L. Ed. 279 (1955); Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 68 S. Ct. 174, 92 L. Ed. 88 (1947); Polk Co. v. Glover, 305 U.S. 5, 59 S. Ct. 15, 83 L. Ed. 6 (1938); Rogers v. American Can Co., 305 F.2d 297, 318 (C.A.3, 1962). On this motion, plaintiffs must also be given the benefit of all the inferences which may fairly be drawn from the complaint. Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (C.A.3, 1965); Valle v. Stengel, 176 F.2d 697 (C.A.3, 1949). See also F.R.Civ.P. 8(f). The sufficiency of the complaint must be considered within the framework of these well-established rules.

 The complaint alleges that Girard College, a school for boys between six and eighteen years of age, was constructed in 1848 pursuant to a trust established under the will of Stephen Girard, who died in 1831. Girard left the principal part of his estate to the "Mayor, Aldermen and citizens of Philadelphia their successors and assigns in trust" for the creation and administration of the school, the construction and improvement of certain streets in the City of Philadelphia, neighborhood improvement in the vicinity of the Delaware River and the demolition of the wooden buildings in the city. He left $2,000,000 of the residue of the estate in trust for the College, and substantially the rest for the maintenance of a more adequate police force, the improvement of city property and the appearance of the city.

 In 1832, the city accepted the trust by the passage of an ordinance, and administered the College until 1959. The Board of City Trusts consistently refused to admit those applicants for admission to the College whom they deemed not to be "white." This practice, engaged in by an instrumentality of the state, was held by the Supreme Court of the United States to constitute governmental discrimination in violation of the Fourteenth Amendment. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S. Ct. 806, 1 L. Ed. 2d 792 (1958). Thereafter, on remand from the Supreme Court of Pennsylvania, the Orphans' Court of Philadelphia County, without notice or opportunity for the parties to be heard, removed the Board of City Trusts as trustee and appointed private persons. This action was found by the Supreme Court of Pennsylvania to be inconsistent with neither the mandate of the United States Supreme Court nor the Fourteenth Amendment nor the will of Stephen Girard. Girard College Trusteeship, 391 Pa. 434, 138 A.2d 844 (1958), appeal dismissed and cert. denied sub nom. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 357 U.S. 570, 78 S. Ct. 1383, 2 L. Ed. 2d 1546 (1958). The policy of discrimination by race has been carried on by the substituted trustees since they took office.

 Girard's will (a copy of which is attached to the complaint) recited in paragraph XX that he was "particularly desirous to provide for such a number of 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." Pursuant to that aim, Girard provided in paragraph XXI(3) that "[as] many poor white male orphans, between the ages of six and ten years, as said income shall be adequate to maintain, shall be introduced into the college as soon as possible; and from time to time as there may be vacancies, or as increased ability from income may warrant, others shall be introduced." He specified that if there were "more applicants than vacancies, and the applying orphans shall have been born in different places, a preference shall be given, - first to orphans born in the city of Philadelphia," and then to those born in other enumerated areas of the country. Will, P XXI(6).

 The complaint alleges that each individual plaintiff is a poor male orphan (father deceased) *fn2" between the age of six and ten, was born in Philadelphia, and would be eligible for admission to Girard College except that defendants deem him not to be white. The ultimate question, therefore, is the validity of the racial exclusion. The complaint attacks it from numerous angles. The several grounds for relief, which are asserted either by explicit statement or by fair inference from the complaint, follow.

 (a) COUNT I

 The first count relies principally on alleged violations of the Fourteenth Amendment of the United States Constitution. *fn3" It alleges that the public policies in force in 1830 induced Stephen Girard to discriminate, as these public policies themselves did, against Negroes. This continuing discrimination, if private, is viewed nevertheless as having emanated from earlier state and federal policies especially hospitable to it, which created an environment perhaps unreceptive to anything else. More direct governmental assistance is also averred. It is said that Girard College "is so impressed with state involvement and state action" that its acts must be imputed to the state itself, and the College must accordingly comply with the Fourteenth Amendment.

 The state action alleged in the first count includes both laws of general application which have benefitted the College and the passage of numerous statutes, ordinances and resolutions designed to effectuate the terms of the will and accommodate the law of Pennsylvania and of Philadelphia to its implementation. In the former category are the waiver of the rule against perpetuities, immunity from tort liability, and exemption from taxation. In the latter are the acts enabling the city to accept and perform the trust duties, denying the city the power to place a road through the property, authorizing the construction of a boundary road around it, providing the College library with a set of the Colonial Records, and creating a Select Committee of the House of Representatives on the Estate of Stephen Girard to oversee the College's operation and receive the annual reports which Girard's will required the trustees to submit to the legislature.

 It is alleged that municipal management of the estate for longer than a century resulted in a more than fifteenfold increase in the amount of the trust corpus, because of the provision of administrative services without charge by the city's personnel, as well as the various pecuniary exemptions in which the estate shares with charitable trusts generally. This, plaintiffs say, is a permanent benefit conferred by the public which cannot be dissipated.

 It is also contended that the state courts have contributed to the discrimination by failing to correct harmful and racially-motivated deviations by the trustees from the terms of the will and by appointing, sua sponte, substitute trustees to administer the College when city administration was found to violate the Constitution.

 The first count thus alleges that Girard himself irretrievably entangled the city and state governments in the administration of the College, that they obligingly became enmeshed, that they have, wittingly and unwittingly, fostered racial discrimination in its operation and, finally, that education is in any event an inherently public function, to which the strictures of the Fourteenth Amendment attach.


 The second count asks for the application of the doctrine of cy pres to fulfill Girard's alleged intentions to benefit the City of Philadelphia and eradicate poverty. Plaintiffs allege changes in the condition of the city and the College which in their view would warrant a judicially-decreed deviation from the literal terms of the will to effectuate its less literal purposes. The complaint states that at the time of Girard's death the proportion of Negro to white inhabitants of Philadelphia was less than one to eight, whereas the present ratio is more than one to four. In Girard's time, poverty and ignorance were widespread among the white population, while now they are far greater among the Negro population. Girard College can best fulfill its functions, it is averred, by the admission of poor male orphans without regard to race.

 Count two also contains another line of approach. The College is alleged to be able to accommodate 2,000 boys. It presently serves only 700. Capacity, therefore, exceeds enrollment. Notwithstanding the large number of vacancies, the trustees are charged with having deviated from the terms of the will arbitrarily and discriminatorily. They have, according to the complaint, been faced with a dearth of applications from poor white children within Philadelphia and have resorted to accepting, in derogation of the will provisions, boys who are not "poor" but, on the contrary, "come from families of considerable means." Likewise, they have sought and admitted large numbers of students who were not born in and do not reside in Philadelphia. If circumstances demand deviations from the will, the plaintiffs maintain that, as a matter of proper construction, the deviations may not be motivated by caprice or racial malice. The plaintiffs argue that if the requirement of poverty and the preference to Philadelphians may partially be dispensed with, then so must the requisite of whiteness, at least to the same extent.


 The third count alleges that denial of admission to applicants for Girard College solely because of their race is violative of the Pennsylvania Public Accommodations Act. Act of May 19, 1887, P.L. 130, § 1, as amended, 18 P.S. § 4654. This statute makes it a misdemeanor to refuse, withhold from, or deny to "any person on account of race, creed, or color" the "full and equal accommodations, advantages, facilities and privileges of any places of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons." Places of public accommodation include, among other facilities, "kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses, and all educational institutions under the supervision of this Commonwealth * * *." Excepted from the application of the statute is "any institution, club or place or places of public accommodation, resort or amusement, which is or are in its or their nature distinctly private * * *."

 Count three contains allegations designed to establish that Girard College is an educational institution under the supervision of the Commonwealth in the same manner as all other schools and even beyond, since, as a charity, it is subject to the visitation of the Commonwealth through its Attorney General. The continued enforcement of racial restrictions by those responsible for operating such a school would, it is maintained, contravene the statute and the public policy of Pennsylvania.


 The threshold question is jurisdiction. The jurisdiction of the federal district court must appear from the face of the complaint, F.R.Civ.P. 8(a), and the court must be satisfied before it proceeds that jurisdiction exists. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S. Ct. 744, 83 L. Ed. 1001 (1939).

 The complaint bases jurisdiction on a number of statutory provisions:

 (1) 28 U.S.C. § 1331(a), which gives district courts "original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States";

 (2) Civil Rights Act of 1870, § 16, 42 U.S.C. § 1981, which insures that all "persons within the jurisdiction of the United States shall have the same right * * * to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens," and the Civil Rights Act of 1871, § 1, 42 U.S.C. § 1983, which renders liable to the person injured, in suits at law and in equity, any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws * * *;" and

 (3) 28 U.S.C. § 1343, which confers jurisdiction on the district courts over "any civil action authorized by law to be commenced by any person * * * (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States"

 In order for jurisdiction to lie under the first of these three provisions, there must be both a substantial federal question and the requisite amount. See Fuller v. Volk, 351 F.2d 323 (C.A.3, 1965). We are not obliged, however, to determine whether federal question jurisdiction has been properly invoked in the present case, compare Hague v. C.I.O., 307 U.S. 496, 530, 59 S. Ct. 954, 83 L. Ed. 1423 (Stone, J., concurring), because jurisdiction does exist under section 1343(3) of Title 28 and section 1983 of Title 42. See Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943); WRIGHT, FEDERAL COURTS § 32, at pp. 92-93 (1963). The complaint sufficiently raises substantial questions of whether the defendants are, "under color of" state authority, depriving the individual plaintiffs of their right to the equal protection of the laws.

 Where the question of jurisdiction is so intimately tied to the merits as it is here, the frequent practice has been to assume jurisdiction tentatively and defer final ruling on jurisdiction until decision on the merits of the federal claim. Campbell v. Glenwood Hills Hosp., 224 F. Supp. 27, 29 (D.Minn., 1963). In the instant case, decision on the ultimate merits of the federal question has, for the present, been rendered unnecessary. Nonetheless, if those claims are without substance, we have no jurisdiction to decide the state law claims in counts two and three. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966); Rogers v. Provident Hosp., 241 F. Supp. 633, 639 (N.D.Ill., 1965). But if the federal claims are substantial, even though ultimately insufficient on their merits, Baker v. Carr, 369 U.S. 186, 199, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); cf. Wheeldin v. Wheeler, 373 U.S. 647, 649, 83 S. Ct. 1441, 10 L. Ed. 2d 605 (1963); Bell v. Hood, 327 U.S. 678, 682-684, 66 S. Ct. 773, 90 L. Ed. 939 (1948) (both under § 1331), we have original jurisdiction over the federal claims, and jurisdiction, if any, over the state law claims would be pendent jurisdiction. We must therefore examine in limine, not the ultimate merits, but the substantiality of the federal questions involved in count one.

 If Girard College is indeed an instrumentality of the Commonwealth of Pennsylvania or the City of Philadelphia, its discrimination in the selection of students by race would be forbidden by the Fourteenth Amendment. Commonwealth of Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230, 77 S. Ct. 806, 1 L. Ed. 2d 792 (1957). Racial discrimination is as much prohibited where the state involvement is covert as it is where it is blatant. Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L. Ed. 2d 5, 19 (1958). While "private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it", nevertheless state involvement is not insignificant merely because it is "nonobvious." Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961). The "central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States." McLaughlin v. Florida, 379 U.S. 184, 192, 85 S. Ct. 283, 288, 13 L. Ed. 2d 222 (1964).

 Some of the constitutional questions presented by this complaint are on the frontier of the Fourteenth Amendment, but their substantiality cannot be gainsaid for that. It is certainly not clear whether, after more than a century of municipal administration, the sustaining cord from the city to the College has been cut by the substitution of trustees. The initial relationship was willed by Girard himself, and it is arguable that whatever benefits it may have brought persist.

 The Court assumed from the pleadings in Evans that the park had been maintained as a public facility, "as well as granted tax exemption * * *." Id. at 301, 86 S. Ct. at 489. What weight it accorded the latter factor is unclear. Whether the enjoyment of the benefits of tax exemption, immunity from tort liability and waiver of the rule against perpetuities - which accrue alike to all charitable trusts, whatever their policies - would be enough to make the state responsible for the trustees' discriminatory conduct has not yet been authoritatively decided. Cf. Eaton v. Grubbs, 329 F.2d 710 (C.A.4, 1964).

 In Evans it was also suggested that a city park, public or private, is "municipal in nature." 382 U.S. at 301, 86 S. Ct. 486, 15 L. Ed. 2d 373. Evans could therefore be assimilated to the cases holding constitutional limitations applicable to organizations performing irretrievably public functions. See Terry v. Adams, 345 U.S. 461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953); Public Util. Comm'n v. Pollak, 343 U.S. 451, 72 S. Ct. 813, 96 L. Ed. 1068 (1952); Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946). It is true that Terry, Pollak and Marsh involved monopoly positions (white primary, public transportation and company town, respectively), and a private school existing side-by-side with a city school system may be distinguishable. In Evans the case of a testator who "wanted to leave a school or center for the use of one race only and in no way implicated the State in the supervision, control, or management of the facility" was distinguished as arguably involving "no constitutional difficulty." 382 U.S. at 300, 86 S. Ct. at 489. But the state was involved in Girard College and plaintiffs maintain that Girard has such a "firmly established" tradition of municipal control that it must remain subject to the restraints of the Fourteenth Amendment; or perhaps, irrespective of the tradition, that the College, which opened on a racially-exclusive basis in 1848, is part of the residue of state-encouraged segregation which it was the purpose of the Civil War Amendments to obliterate. Cf. Robinson v. Florida, 378 U.S. 153, 156-157, 84 S. Ct. 1693, 12 L. Ed. 2d 771 (1964); Peterson v. City of Greenville, 373 U.S. 244, 248, 83 S. Ct. 1119, 10 L. Ed. 2d 323 (1963).

 Plaintiffs also argue that the unsolicited action of the Orphans' Court in choosing the mode of implementing the Supreme Court's mandate was itself a form of affirmative state action. *fn4" Compare Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953); Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). On the assumption that the mandate could have been fulfilled by either a change of admission policy or a change of trustee, plaintiffs contend, in effect, that the Orphans' Court, in deciding to perpetuate the restrictive admissions criteria of the will, unconstitutionally converted a public into a private school. Compare Griffin v. County School Bd., 377 U.S. 218, 231, 84 S. Ct. 1226, 12 L. Ed. 2d 256 (1964). In Evans it was said: "We may fairly assume that had the Georgia courts been of the view that even in private hands the park may not be operated for the public on a segregated basis, the resignation would not have been accepted and private trustees appointed," 382 U.S. at 302, 86 S. Ct. at 490, and, to be sure, the Pennsylvania courts were also aware that replacement of the trustees would mean continued exclusion of Negroes from the school, see, e.g., Girard College Trusteeship, 391 Pa. 434, 455, 138 A.2d 844 (1958). The defendants' response to the charge of judicial state action is that the will, not the courts, compelled the substitution. Cf. Black v. Cutter Labs., 351 U.S. 292, 76 S. Ct. 824, 100 L. Ed. 1188 (1956). *fn5" Thus, this case presents important questions regarding the ultimate reach of the Shelley principle.

 What has been said so far suffices to demonstrate the substantiality of the controversy over the alleged deprivation of federal rights. If such denials have in fact occurred, clearly they were committed "under color of law." Under color of law means under state authority or pretense of it. Cf. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941). The complaint here does not allege that Girard College maintains any open or purported connection with the state. Save for the alleged judicial action, the state action, if any, is "nonobvious." This distinction is quite immaterial. Cf. Turner v. City of Memphis, 369 U.S. 350, 82 S. Ct. 805, 7 L. Ed. 2d 762 (1962); Smith v. Holiday Inns of America, Inc., 336 F.2d 630 (C.A.6, 1964); Eaton v. Grubbs, 329 F.2d 710 (C.A.4, 1964), all brought under section 1343 and all involving nonobvious governmental action. If state action is established, color of law must follow, lest there be an incentive to discreet discrimination. "In cases under § 1983, 'under color' of law has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment." United States v. Price, 383 U.S. 787, 794 n. 7, 86 S. Ct. 1152, 1157, 16 L. Ed. 2d 267 (1966).

 We have so far put to one side the possible defense of res judicata. To adjudicate the merits of that defense requires jurisdiction. All the discussion to this point merely shows the seriousness of the constitutional questions present in this case. Certainly it could not be said that plaintiffs' federal claims are "unsubstantial and frivolous." Baker v. Carr, 369 U.S. 186, 199, 82 S. Ct. 691, 700, 7 L. Ed. 2d 663 (1962). Since "no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the subject matter", ibid., we find that this court has jurisdiction over the subject matter of count one of the complaint.

 In the absence of diversity of citizenship among the parties, jurisdiction over counts two and three, which rest on state law, must be pendent jurisdiction. Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933); Osborn v. Bank of United States, 22 U.S. 738, 9 Wheat. (22 U.S.) 738, 823, 6 L. Ed. 204 (1824). In United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), the Supreme Court clarified the characteristics required for the state claims in ...

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