The opinion of the court was delivered by: LORD, III
JOSEPH S. LORD, III, District Judge.
After we had previously denied defendants' motion to dismiss under F.R.Civ.P. 12, holding that count three of the complaint stated a cause of action, Commonwealth of Pennsylvania et al. v. Brown et al., 260 F. Supp. 323 (E.D.Pa., 1966), plaintiffs moved for a preliminary injunction under that count. A hearing was held and because the evidence adduced there was exhaustive, upon counsels' representation that no additional evidence on that count would be offered on final hearing, we ordered that the trial on the merits of count three be consolidated with the hearing on preliminary injunction and that the preliminary hearing be treated as if on final hearing. F.R.Civ.P. 65(a)(2). We will direct the entry of final judgment for plaintiffs on count three on the basis of the following findings of fact, discussion, and conclusions of law.
1. Plaintiffs are, Alan Levi Bond, by his mother, Ruby Bond; Charles William Hicks and Theodore Lewis Hicks, by their mother, Marie Hicks; James Scruggs and Henry Scruggs, by their mother Ardella Scruggs; Tyrone Karl White and Terry Sherwood White, by their mother Charlotte L. White.
2. Defendants are, Revelle W. Brown, John A. Diemand, Dr. Gilson Colby Engel, Fred Fox, Walter S. Franklin, Walter B. Gibbons, Esquire, Hubert J. Horan, Jr., Esquire, Dr. Louis P. Hoyer, Frederick H. Levis, David F. Maxwell, Esquire, Mrs. Mina F. Oliver, Roland Rodrock Randall, Harry G. Schad, Trustees of the Estate of Stephen Girard, who control, direct and operate Girard College.
3. The President of Girard College is Karl Friedman, and the Director of Admissions of Girard College is Emil Zarella, each of whom is under direct control and supervision of the defendants.
4. The present action is brought by the individual infant plaintiffs on behalf of themselves and all others similarly situated.
5. The matter here in controversy exceeds the sum of $10,000 exclusive of interest.
6. Girard College is located on a tract of ground approximately 43 acres in extent. 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 which is kept closed except for deliveries 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 permission.
7. No orphan boy is admitted into the institution until after the mother or guardian has made formal application and the boy has been examined by the resident doctors, 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 social workers. The Admissions Committee, consisting of the psychologist, the Director of Admissions and the physician, makes its recommendation as to each applicant to the President of the College who in turn makes his recommendation to the Trustees. Only the Trustees can approve final admission. From 25% to 30% of the applicants are rejected for psychological, intellectual or educational reasons.
8. Upon introduction into the College the mother or guardian of the orphan executes a document under which the legal custody and control of the orphan is transferred to the Trustees so long as the orphan remains in attendance at the institution. If the boy's home is not approved by the institution, he remains at the institution continuously.
10. The will of Stephen Girard, as interpreted by defendants, permits the admission of boys who have not yet reached their eleventh birthday.
11. Each of the plaintiffs has applied for admission to Girard College, but defendants refused to consider such applications solely because plaintiffs were deemed not to be "white" without any consideration of whether they were otherwise qualified.
12. Each of the plaintiffs and the mothers of each of the plaintiffs want the said plaintiffs to attend Girard College as soon as possible.
13. Paragraph XX of the will of Stephen Girard recites that he was "impressed with the importance of educating the poor" and that he was desirous to provide for the objects of his bounty "a better education."
14. Paragraph XXI provides for the erection of "a permanent College." The same paragraph provides:
"When the college and appurtenances shall have been constructed, and supplied with plain and suitable furniture, and books, philosophical and experimental instruments and apparatus, and all other matters needful to carry my general design into execution; the income issues and profits of so much of the said sum of two millions of dollars as shall remain unexpended shall be applied to maintain the said college according to my directions:
"1. The institution shall be organized as soon as practicable, and to accomplish that purpose more effectually, due public notice of the intended opening of the college shall be given - so that there may be an opportunity to make selections of competent instructors, and other agents, and those who may have the charge of orphans may be aware of the provision intended for them:
"2. A competent number of instructors, teachers, assistants and other necessary agents, shall be selected, and when needful their places from time to time supplied: they shall receive adequate compensation for their services: but no person shall be employed, who shall not be of tried skill in his or her proper department, of established moral character - and in all cases persons shall be chosen on account of their merit, and not through favor or intrigue.
"7. * * * They shall be instructed in the various branches of a sound education, comprehending reading, writing, grammar, arithmetic, geography, navigation, surveying, practical mathematics, astronomy, natural, chemical, and experimental philosophy, the French and Spanish languages [I do not forbid, but I do not recommend, the Greek and Latin Languages] - and such other learning and science, as the capacities of the several scholars may merit or warrant: I would have them taught facts and things, rather than words or signs: * * *"
15. The will of Stephen Girard has always been administered in accordance with these directions.
16. The defendants have issued brochures and pamphlets describing Girard College as a school, of which the following are examples:
"Girard College, founded in 1831 under the Will of Stephen Girard, was opened on January 1, 1848. It is a privately endowed, free boarding school for fatherless boys from six to eighteen years of age. It maintains and educates free of charge as many boys as the income from the endowment will permit. The present enrollment is approximately eight hundred boys.
"The school provides in every particular for each boy admitted. In addition to his living and the care of his health, it offers him an elementary school education and a comprehensive secondary school course, providing the credits in academic subjects required for entrance to college, together with vocational training along either business or trade shop lines. The college preparatory curriculum is complemented by a general education course. Personal, social and educational guidance, basic military education, athletics and physical education, art, library, instrumental and vocal music augment academic and vocational offering. All combine not alone to prepare boys successfully for college, for business and trade positions, but also for successful, happy living in a complex American social life." (P-1).
"GIRARD a free private boarding school for boys who have lost their fathers by death * * *" (P-16).
17. Girard College is a primary school, a secondary school and a high school, and is an educational institution, although only one-third of the cost of running it is attributed to educational functions.
18. Girard College is supervised by the Commonwealth in that, inter alia, under the Act of March 10, 1949, P.L. 30, 24 P.S. § 1-101 et seq., all persons in Pennsylvania between the ages of 8 and 17 are required to attend "a day school in which the subjects and activities prescribed by the State Council of Education are taught in the English language" and that "such child or children shall attend such school continuously throughout ...