with the City's educational system in a manner which could only evidence mutual respect and esteem. Thus, it appears that the College relies in part on the resources of the City schools, and the public schools look upon the College as an obvious agency to which to refer "qualified" students, who, by definition, must be "white."
The park in Evans was open to the public in general, there being "no selective element other than race." In this case, the relevant sector of the public to be considered is school-age male orphans, since as defendants have many times reminded us, Girard College is as much an orphanage as it is a school, with some two-thirds of its budget allocated to the care, as opposed to training, of its wards. By their very nature, orphanages are restricted to poor children. As to the sex limitation, it is commonly accepted for reasons of administrability as well as tradition in such institutions. Furthermore, the record reveals that the Trustees have pursued a continuing policy of vigorous recruitment of applicants, without regard to their background, social status, intelligence, religion, or any other factor which might limit the broad (if not heavily populated) class of poor male orphans, other than the factor of race. While all applicants are tested extensively, the important fact is that no initial application is discouraged, except those from Negroes; quite the contrary, every effort is made to attract as many potential applicants as possible.
Thus, while Girard College is not a facility of general access to the public or even necessarily to the school-age population, it has always held itself out as an institution whose benefits are available to any needy, fatherless boy - as long as he is "white." In this sense, the College has become assimilated to a public boarding school or orphanage, "municipal in nature," the sole distinguishing feature of which at the present time is its racial restriction.
Surely, there is no question that State-sponsored racial inequality, as evidenced by State participation in or association with the discriminatory design, must be proscribed wherever it is found. On this, all of the parties to this litigation are wholly agreed. Sifting and weighing the factors of State involvement, we find it impossible to conceive that racial discrimination is constitutionally permissible at Girard College. The founder himself entwined the State in its administration, without even an articulated thought of some possible substitute. That entanglement persisted for over a century and a quarter. It was overtly removed by the unilateral action of a State agency, the Orphans' Court, which thereupon uniquely swore in the successors, binding them under State oath to carry out the founder's discriminatory policies, - and then officially thanked them for doing so. The State Legislature periodically receives reports, implicit in which is the perpetuation of discrimination. The Orphans' Court has demanded, uniquely as to this trust, periodic accountings and has, for all the record shows, accepted and approved them. Pennsylvania has overseen and approved both the education and upbringing of students at Girard College and the operation of the institution as a school and as an orphanage, serving an obviously public function. Recognizing the unavailability of an "infallible test," we nevertheless find it logically and legally impossible to escape the conclusion that racial exclusion at Girard College is so afflicted with State action, in its widened concept, that it cannot constitutionally endure. Since the strictures of the Fourteenth Amendment apply to the administration of the institution, it may no longer deny admission to applicants simply because they are not "white."
The foregoing shall be considered our findings of fact and conclusions of law pursuant to F.R.Civ.P. 52(a). In addition, the findings of fact in our opinion and decree of November 2, 1966 are reaffirmed. To the extent that they are relevant, the following requests of the parties for findings of fact are granted :
Plaintiffs' Nos. 1 through 5; 7 through 11-60; 11-62 through 11-68; 13; 16 through 23; 27; 28; 29; 31; 32; 40; 42; 43.
Defendants' Nos. 1 through 4; 9; 11; 12; 14 through 21; 23 through 34; 40 through 44.
The following requests for findings of fact are denied :
Plaintiffs' Nos. 11-61; 12; 14; 15; 24; 25; 26; 30; 33 through 38; 41.
Defendants' Nos. 5 through 8; 10; 13; 22; 35 through 39.
To the extent that the parties' requests for conclusions of law are consistent with the foregoing opinion, they are granted ; to the extent that they are inconsistent, they are denied.
There being "no just reason for delay," F.R.Civ.P. 54(b), we direct the entry of judgment for plaintiffs on Count One, in accordance with the appended decree.
It is so ordered.
And now, this 5th day of July, 1967, it is ordered and decreed that:
(1) This action shall be maintained as a class action under Federal Rule of Civil Procedure 23(b)(2). The class consists of all poor, male orphans who would be eligible for admission to Girard College except for the fact that they are not "white."
(2) Defendants are permanently enjoined from denying to members of the class [denominated in Paragraph (1) of this Decree] admission to Girard College on the sole ground that they are not white, provided that they are otherwise qualified for admission.
(3) The enforcement of this injunction is stayed pending application to and action by the Court of Appeals for such further stay as that Court deems proper, pending appeal.