Years after its horrific devastation of New Orleans, Hurricane Katrina just claimed two more victims--Newcomb College for women at Tulane University and the sanctity of donor intent in Louisiana.
The fate of both was sealed in February when the state Supreme Court ruled that Tulane had no obligation to honor Josephine Newcomb's 104-year-old bequest that it maintain, in perpetuity, a women's college as a memorial to her deceased daughter Sophie. After five years of litigation fueled by the spirited opposition of alumnae and Newcomb's descendents, the ruling ratified
Tulane's 2005 decision to abolish the college. The path to the ruling was fraught, both legally and ethically, and revealed the frailty of the rule of law when its officers don't want to comply.
The case began when Tulane cited the damage and effects of Katrina as a reason for restructuring itself, including the elimination of Newcomb College as a separate degree-granting entity. Vociferous opponents of the plan pointed out that the terms of Newcomb's gifts and of her 1901 will required Tulane to keep the college going. Despite the fact that it had honored the very specific conditions Newcomb placed on her gifts for 15 years before she died, and for 104 years after her death, Tulane claimed it had no obligations to her or her descendents.
Three levels of state courts also failed to discover what Josephine Newcomb had in mind when she handed over $70 million (adjusted for inflation) to Tulane University. They seem to have forgotten about the time when Newcomb discovered Tulane wasn't spending her donation on the women's college and threatened to stop funding it and instead establish a new college in Georgia. Tulane quickly apologized and even passed resolutions promising, again, to maintain Newcomb College. The judges probably also didn't think it relevant that Tulane had received other complaints about it not respecting "donor intent." The judges looked only at the words of her will and concluded that she hadn't placed any restrictions on her bequest, and that Tulane was not required to keep the college going.
But that conclusion ignores both the facts of the case and settled Louisiana law requiring courts to respect both a donor and a testator's intent, and, when that intent is in doubt, to make extra efforts to find out what that intent is. A reading of the key dissent of two appellate judges in the case makes this point as clear as a bell. If I had harbored any doubts-- extralegal, emotional, common sensical or otherwise--about the argument to keep Newcomb College intact, they would have been blown away by the clarity and dispositiveness of that dissent. A reasonable person reading the whole record can conclude only that the Powers That Be just wanted to let Tulane have its way.
My cynicism saves me from bafflement about how Louisiana's courts could ignore their own law. I am guided in my thinking by the words of others, such as Machiavelli (or, more recently, the new Chicago mayor, Rahm Emanuel) who said, "Never waste a good crisis," as Tulane certainly did not when Katrina became the excuse to take over Newcomb's legacy. Or that disreputable fixer Roy M. Cohn who said, "I don't want to know what the law is; I want to know who the judge is," and whose sentiment might have inspired Tulane's confidence in the state's judiciary to reach the desired decision. And every first-year law student recalls the contracts professor who said about nearly every issue, "That is the majority rule of law in the United States--except in Louisiana." Now we can add, "The majority rule is that 'donor intent' must be given great deference--except in Louisiana."
As former Newcomb College Dean, Anna E. Many once said, "Remember ladies: [Tulane] only married us for our money."