Newcomb College — Tulane University Update

The following history of the Newcomb College controversy is adapted from Marguerite Adams, Conditional Bequests, Oct. 2007:

Newcomb College, a women’s college that was affiliated with Tulane University, was established in 1886 through gifts made by Josephine Louise Newcomb, in memory of her daughter, Sophie Newcomb.  At the time the gifts were made Tulane University was an all male institution.  In her correspondence to Tulane, dated October 11, 1886, Mrs. Newcomb advised that she was donating funds to the university for the establishment of the H. Sophie Newcomb Memorial College.  Her letter stated:

“Feeling a deep personal sympathy with the people of New Orleans, and a strong desire to advance the cause of female education in Louisiana, and believing also that I shall find in the board selected by the benevolent Paul Tulane, the wisest and safest custodian of the fund I propose to give, I hereby donate to your Board the sum of $100,000 to be used in establishing the H. Sophie Newcomb Memorial College, in the Tulane University of Louisiana, for the higher Education of white girls and young women…  I do not mean in this my Act of Donation to impose upon you restrictions which will allow the intervention of any person or persons to control, regulate or interfere with your disposition of this fund, which is committed fully and solely to your care and discretion with entire confidence in your fidelity and wisdom.”

Mrs. Newcomb thereafter left the residue of her estate for the development of Newcomb College and stated, in her will, as follows:

“I have implicit confidence that the Administrators of the Tulane Educational Fund will continue to use and apply the benefactions, and property, I have bestowed and may give, for the present and future development of this Department of the University known as the H. Sophie Newcomb Memorial College which engrosses my thought and purposes, and is endeared to me by such hallowed associations.”

After Katrina, Tulane University eliminated the college and took over its endowment.  This resulted in two (2) lawsuits:

• Students of the university initially filed suit in federal court.  Suit dismissed based on no standing.
• Heirs of Mrs. Newcomb filed suit in Civil District Court requesting a temporary restraining order.  The Court refused to grant the restraining order.  They appealed to the Fourth Circuit Court of Appeals. The Court of Appeals in a 2-1 decision upheld the lower court’s ruling.  In the majority’s opinion, the court concluded that there was no condition imposed upon this donation and that the plaintiffs, Mrs. Newcomb’s grandnieces, had no right of action.  In his dissent, Judge Tobias concludes that the grandnieces did have a right of action, as the successors to Mrs. Newcomb’s intestate heirs, and that, based on the wording of Mrs. Newcomb’s gift and her Will and other evidence presented in support of this, Mrs. Newcomb did intend to impose a condition upon her donations.

On July 1, 2008, the Louisana Supreme Court heard the appeal of this decision and concluded the following:

• the right to revoke a donation for non-performance of a condition grants to the donor the right to enforce the performance of the conditions;
• a donor’s heirs and universal legatees, in their capacity as successors, have a right of action to seek enforcement of a conditional donation;
• alleged heirs’ petition failed to disclose that they had a right of action, as it failed to attest to their successorship to donor; and
• alleged heirs were entitled to an opportunity to amend their petition to more accurately establish their standing.

See Howard v. Administrators of Tulane Educational Fund, 2008 WL 2811515.

Based on this ruling, a great-great-great-niece of Mrs. Newcomb (Susan Henderson Montgomery) has recently filed suit to reopen the women’s college.  As reported in Descendant of 19th-Century Donor Sues Tulane Over Dissolution of Women’s College, Chronicle of Higher Education, Aug. 20, 2008:

“Because there is no question that Montgomery is a successor to Josephine Louise Newcomb, her petition should allow the courts to get quickly to the most critical outstanding question related to Tulane’s dissolution of Newcomb College: Did the Tulane board violate the condition of Mrs. Newcomb’s donations, which was to create, maintain, and operate the college?” said Renée Seblatnigg, president of the support group, the Future of Newcomb College.

Special thanks to Jennifer Bard (Alvin R. Allison Professor of Law, Texas Tech University School of Law) for bringing this recent development to my attention.