Billionaire Girard’s Imperfect Legacy
In his early-19th century will, Stephen Girard, one of the richest persons in United States history, endowed a school, Girard College, for the education of white boys who were poor and orphaned. As of the early 21st century, the Philadelphia school (whose Founder’s Hall is pictured at right and from which I was graduated in 1980), educates students of all races and both genders from families with limited financial resources headed by a single parent or guardian. Thus have the scope of race and gender radically opened and the concepts of poor and orphaned subtly shifted.
Girard’s will, which elaborately detailed all aspects of the school and dedicated his entire fortune to creating it, also prohibits clergy of any sect ever from stepping foot on campus. Despite early constitutional challenges, this provision remains unchanged and generally enforced. Though there is considerable scholarship on Girard College, in law as well as sociology and other fields, relatively little intellectual energy has been devoted to discerning how and why transformations occurred as to race, gender, poverty and family, yet not as to religion.*
In Vidal v. Girard’s Executor, 43 U.S. 127 (1844), the Supreme Court upheld the Girard will over challenges to its banning clergy from ever appearing on campus. Justice Story’s opinion announced that this was not repugnant to prevailing norms favoring Christianity as these were reflected in state common law and public policy. It has thus ever been and the school has never taken any steps to change the policy. The College’s religious training is limited to bi-monthly chapel services that include secular lectures and brief readings from selected religious texts, chiefly the King James Bible and, more recently, the Koran.
In Pennsylvania v. Board of Directors of City Trusts, 353 U.S. 230 (1957) and ultimately in Pennsylvania v. Brown, 392 F.2d 120 (3rd Cir. 1968), courts excised the will’s whites-only clause as repugnant to the Fourteenth Amendment. They invoked the cy pres doctrine to announce that Mr. Girard was a “prisoner of his times” and opined that he would accept the outcome or even have intended it.
In 1985, the school petitioned the Philadelphia Orphan’s Court, having original jursidiction, to approve admission of girls, which the court granted on the College’s terms. During that same period, the school’s internal policies and literature recharacterized its mission to educate not “poor orphans” but young students suffering from limited financial resources and having a single parent or guardian.
These legal adjustments concerning race and gender, and internal school policies concerning the notions of poverty and orphanage, are intended to accord with both Stephen Girard’s probable intentions and prevailing social norms many generations after his death. But what about that clause banning clergy from campus? Should that be sustained? What are the odds of a clergy member, say an alumnus of the school, today winning a case challenging the constitutionality of the Girard will’s no-clergy-on-campus clause?
(Personal disclosure: my uncle, also a Girard College alum, class of 1958, and for nearly 50 years an ordained Catholic priest, has occasionally had trouble returning to campus under the ban.)
* Examples of this scholarship include contributions of esteemed scholars like former 10th Circuit Judge and Stanford Professor Michael McConnell and my former Boston College colleague, and now Dean of Hawaii Law School, Avi Soifer. See Michael W. McConnell, The Supreme Court’s Earliest Church-State Cases: Windows on Religious-Cultural-Political Conflict in the Early Republic, 37 Tulsa Law Review 7 (2001); Aviam Soifer, Facts, Things and the Orphans of Girard College, 16 Cardozo L. Rev. 2305 (1995) (available here.)