“Good news,” tweeted Amherst-area Delegate Ben Cline. “VA Supremes endorse our Sweet Briar argument. Back to Bedford Circuit for rehearing and hopefully injunction to stop closure!”
With its opinion rendered less than two business days after an already accelerated hearing, the Supreme Court of Virginia has sent a message, according to legal analysts, that the plight of Sweet Briar College matters.
“It’s pretty unprecedented,” says Charlottesville lawyer David Heilberg. “The Supreme Court takes just a small percentage of cases, and usually they proceed all the way through trial and final resolution before they take an appeal.”
In an opinion issued June 9, the justices held that a lower court judge erred by not finding that the controlling corporation, Sweet Briar Institute, could also be considered a trust. That’s a rebuke of arguments made by the state’s top law enforcer, and it returns the case to the circuit court of Amherst County.
Sweet Briar spokesperson Christy Jackson downplays the ruling as merely extending an existing injunction by nine days.
“It keeps hopes alive for the plaintiffs,” says Heilberg, “but it definitely wasn’t a slam dunk win.”
In issuing two temporary injunctions, the lower court judge appears to have already indicated disapproval of the college closing. In one ruling, he said students have an expectation of “workmanlike” service. In another, he refused to let the college lease horses, give away its venerable study-abroad program or take any action “facilitating” a closing without his approval.
Such moves convince the lead attorney in one lawsuit that the judge’s next move might be a trust finding.
“It would be a massive defeat for the college,” says Elliott Schuchardt. “It would hugely broaden the case.”
Schuchardt, the lawyer leading a breach-of-contract action brought by students, explains that if Sweet Briar is a trust, then students could become trust beneficiaries.
“It will destroy the attorney general’s monopoly on the case,” says Schuchardt, who joins many alumni and several elected officials in questioning the actions of Virginia’s top law enforcer, Mark Herring.
At an April hearing, Herring dispatched three lawyers to quash the first suit to preserve the college. After widespread alumnae outcry, including sign-carrying, pink-and-green protesters converging on his public events, Herring ceased courtroom interventions and began convening mediations.
Herring spokesperson Michael Kelly, who declined to provide a comment on the new ruling, attributes Herring’s decision to steer clear of the Supreme Court to his focus on the mediation. Despite such focus, including two expansive in-person sessions as well as another Herring spokesperson’s claim that the parties are “communicating productively” with a professional mediator, the effort has yielded no public resolution.
Herring’s shifting stances have also raised eyebrows in open government circles, particularly after one citizen seeking e-mails between the AG’s office and the Sweet Briar board was presented an estimate exceeding $19,000; another citizen got an estimate exceeding $40,000. After an outcry, Herring announced that all releasable documents would be made available to the public free of charge, though no documents have been released by press time.
As for Ellen Bowyer, the Amherst county attorney who brought the case to the Supreme Court, she seems ready to present evidence that the Sweet Briar leaders breached a fiduciary duty by soliciting donations while planning the closing and must continue to abide by the will of the late Indiana Fletcher Williams, whose bequest of money and land launched the college toward “perpetuity” in 1901.
Bowyer’s suit seeks continued operation of the college under a new president and new board. Now armed with a bolstered legal basis, the Supreme Court ruling gives her a second chance to convince Amherst Circuit Judge James Updike that Sweet Briar is a trust.
“I’m absolutely delighted,” says Bowyer. “It really opens the door for him to reconsider this question.”
Bowyer has requested a hearing in Bedford County, where courtroom space is plentiful, to span the dates of June 22-24. For most faculty and staff, that’s not a moment too soon. Their pink slips are dated June 30.
The original version of this post inaccurately stated students’ possible status following the ruling. According to Elliott Schuchardt they could become trust beneficiaries. —ed.