The Attorney General also has supervision over the College as a charitable educational institution. Defendants' cause is not helped by the fact that some of the supervision is by agencies of the Commonwealth other than the Department of Public Instruction. The language of the statute is extremely broad. The Legislature could have postulated "supervision of the Department of Public Instruction." It did not. It merely required that the institution be under the supervision of "this Commonwealth." Nor, for that matter, does the statute require any particular degree of supervisory control.
Defendants argue that many of the regulations and statutes which the Commonwealth has promulgated affect only the parents of schoolchildren, not the schools themselves, in that sanctions are visited upon the parents for failing to send their children to schools which comply with these requirements. But we are not concerned with the manner in which Pennsylvania's supervision is exercised; we have no doubt about the fact that the direct effect of these potential sanctions is to "supervise" the curricula, calendar, personnel, and other policies and activities of the schools themselves.
The evidence shows that Stephen Girard himself contemplated and, indeed, even encouraged the "supervision" of the Commonwealth. Surely, the reports to the legislature contemplated at least potential supervision. It should be emphasized that "supervision" may mean not only affirmative direction, but also a kind of paternalistic over-seeing, an effort to look out for the College's best interests.
Finally, defendants argue that Girard College is an institution or place of public accommodation which is in its nature "distinctly private," within the meaning of the Public Accommodations Act. In our first opinion, we discussed at length the meaning of the proviso. 260 F. Supp. at pp. 344 to 345. We there expressed the view that, with few exceptions, it would be difficult to conceive of a school which is in its nature distinctly private. Nonetheless, we adopted the most liberal interpretation of the exclusionary clause to which defendants would be entitled for the purposes of testing whether Girard College could in any case be considered "distinctly private." We concluded that "[the] exception * * * was carved out to protect the associational preferences of individuals where those preferences go to the reasons for the institution's continuing existence and where enforcement of the preferences is not likely to work a substantial interference with the equal opportunity goals of the main provisions." 323 F. Supp. p. 353.
We have afforded defendants every opportunity to present evidence which might sustain their contention that Girard College is "distinctly private" within the meaning which we assigned that term, but they have failed to rebut the ineluctable inference that "[a] school, such as Girard, does not have as its primary goal the furtherance of the private preferences of its students." Ibid. In fact, our conclusion is buttressed by the uncontroverted evidence that Girard College actively solicits - indeed, at one time, it even advertised - in order to attract the largest possible group of applicants who are interested in obtaining a fine education and upbringing. The test under the statute is not whether Stephen Girard preferred whites over Negroes; the test is whether his purpose was to establish a school whose primary function is not education, but association. We cannot believe that Stephen Girard, or the trustees who administer his will, or the students who attend his College have conceived of Girard College as an institution existing primarily, if at all, for the purpose of effectuating the personal ideas of its "scholars" as to whom they prefer to associate with.
As Girard himself so eloquently concluded: "My desire is, that all the instructors and teachers in the college shall take pains to instil into the minds of the scholars the purest principles of morality, so that, on their entrance into active life, they may, from inclination and habit, evince benevolence towards their fellow creatures, and a love of truth, sobriety and industry * * *." (P XXI(9))
This adjudication, of course, reaches and disposes of finally only count three of the complaint. In our former opinion, we found it unnecessary to reach the merits of counts one and two. That is still the case, since plaintiffs have obtained the full relief they sought. However, we find it necessary to advert to counts one and two in order that the future course of this litigation, if future course there be, may be reasonably and expeditiously plotted.
We have summarized count two rather fully in our former opinion at 260 F. Supp. 323, pp. 330 to 331. Simply stated, it alleges that changed conditions in the City warrant a deviation from the literal white limitations of the will under the doctrine of cy pres. We held that we had pendant jurisdiction of that count. Curiously, while strenuously arguing our pendant jurisdiction, plaintiffs nevertheless suggested the possibility of abstention, a suggestion that defendants did not see fit to urge upon us. At that time, we concluded there was no reason for us to abstain. We now feel differently. In reaching this conclusion, we are moved by several considerations.
In connection with the pendant jurisdiction question, we noted that "the three counts of the complaint constitute a single 'case' for a single trial," and that "the proof required on the several counts is overlapping * * *." 260 F. Supp. at 335. We believed that a single trial would have disposed of the common issues of fact involved in all counts of the complaint. However, plaintiffs' insistence upon proceeding preliminarily (as it turned out, finally) on count three has made this an impossibility. The result reached here affords the plaintiffs the entire relief to which they would be entitled under any or all of the three counts. Therefore, it is not necessary for us to venture, at least at this time, into an adjudication of count two. Indeed, it might almost be presumptuous to do so. The Orphans' Court and the Pennsylvania Supreme Court are tutored in the interpretation of testamentary dispositions. It cannot be gainsaid that a federal court, while not completely devoid of testamentary experience, has been exposed to it to a much lesser degree. And, in fact, those Pennsylvania courts have had before them in the past this very will.
The construction of a will involves different considerations from the construction of a statute. The latter requires merely the utilization of accepted principles of statutory construction, applicable alike to a state statute or a federal statute. The former requires the invocation of law peculiarly state-oriented. Furthermore, while control over the trust res is not requisite to jurisdiction of an action to construe a will, Colton v. Colton, 127 U.S. 300, 8 S. Ct. 1164, 32 L. Ed. 138 (1888), it is the fact that the Orphans' Court does have control of the res and it is to that Court that the trustees must account.
For these reasons we have now concluded that it would be appropriate for us to exercise our discretionary authority to abstain as to count two. Plaintiffs are thus free to present to the Orphans' Court the contentions contained in count two. As we noted in our original opinion (323 F. Supp. p. 345, n. 16):
"Abstention possesses the additional virtue, in contrast to outright dismissal, that when the state courts pass on the state claims they must view them 'in light of the constitutional objections presented to the District Court', Government & Civic Employees Organizing Committee v. Windsor, 353 U.S. 364, 366, 77 S. Ct. 838, 1 L. Ed. 2d 894 (1957), even though the litigant need not present his federal claims to the state courts for decision but only to 'inform those courts what his federal claims are,' so that they may be seen in full context. England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 420, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964). See also Martin v. Creasy, 360 U.S. 219, 225, 79 S. Ct. 1034, 3 L. Ed. 2d 1186 (1959); Harrison v. NAACP, 360 U.S. 167, 177-178, 79 S. Ct. 1025, 3 L. Ed. 2d 1152 (1959)."
As to count one, it would at this juncture be an unjustifiable waste of judicial time to proceed to final hearing. If the disposition of the cause made here, now final and appealable, becomes the ultimate disposition, it is the end of the law suit. Additionally, the Pennsylvania courts may reach the same result under the doctrine of cy pres. In either event, it will become totally unnecessary to hear voluminous testimony or to decide in this case the frontier questions of constitutional law presented by count one. It seems to us that we should properly avoid both, if that is possible. We will not, then, set count one for final hearing at this time. However, should it become necessary to hear and decide count one, the parties are entitled to have that done with all reasonable speed. To this end, we will permit the parties to proceed as they see fit, subject to the control of the court, with such discovery as they deem necessary for the full presentation of their respective cases. In this way, the parties can be assured that no delay will be encountered if it becomes necessary to decide count one.
CONCLUSIONS OF LAW
1. This court has jurisdiction of the parties and the subject matter, including pendant jurisdiction of counts two and three of the complaint.
2. The amount in controversy is in excess of Ten Thousand Dollars ($10,000), exclusive of interest and costs.
3. Girard College is a primary school, a secondary school, a high school, and an educational institution under the supervision of the Commonwealth and is not distinctly private in its nature within the meaning of the Pennsylvania Public Accommodations Act of June 11, 1935, P.L. 297, as amended by the Act of June 24, 1939, P.L. 872, 18 P.S. § 4654.
4. Girard College is covered by Sections (a) and (c) of said Act, and is not within the proviso of Section (d).
5. Said Act prohibits defendants from refusing plaintiffs admission to Girard College on the ground that they are not white, if they are otherwise qualified.
6. If plaintiffs are otherwise qualified for admission to Girard College, they may not be excluded on the basis of their race.
7. Plaintiffs are entitled to a permanent and final injunction, enjoining defendants from excluding them from Girard College solely on the basis of their race if they are otherwise qualified for admission.
8. This court should abstain as to count two of the complaint.
AND NOW, this 2d day of November 1966, it is ORDERED and DECREED that:
1. Defendants are permanently enjoined from denying to minor plaintiffs admission to Girard College on the sole ground that they are not white, provided that they are otherwise qualified for admission. The enforcement of this injunction is stayed until November 16, 1966 to afford defendants an opportunity to appeal to the Court of Appeals and to apply to that Court for such further stay as that Court deems proper, pending appeal.
2. Defendants shall proceed forthwith and without delay to complete all customary pre-admission procedures in connection with the minor plaintiffs' applications; to wit, all examinations, interviews, and pre-admission orientation. Defendants' motion for stay of execution of this part (2) of this decree is DENIED.
3. The court determines expressly that there is no just reason for delay and expressly directs the entry of final judgment for plaintiffs and against defendants on count three of the complaint.
4. Plaintiffs may institute an action in the Orphans' Court of the County of Philadelphia, in order that the courts of the Commonwealth of Pennsylvania may have due opportunity to decide promptly and expeditiously all issues involved in count two of plaintiffs' complaint.
5. This court shall abstain from deciding count two of the complaint, but will retain jurisdiction over all allegations of the complaint, pending a final determination of plaintiffs' right to the relief granted in part (1) of this decree.
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