PEC Update, February 9, 2007

Two weeks ago, we issued a call to action asking if you wanted to support an appeal and continue the fight to preserve Randolph-Macon Woman's College. We have received a range of responses. It appears that the majority of PEC supporters want to proceed with an appeal. However, there are those who want to pursue additional activities such as working with the Alumnae Association to stimulate change or bring different types of legal action such as donor suits asking for the return of charitable contributions now being used to fund the coed effort. Sadly, there are others who believe that the time has come to walk away, resigned to Randolph College and its fate.

During this two week period, PEC's Board reached out yet again to the trustees and the college's administration. Again we requested an opportunity to meet with the full Board of Trustees to express our concerns. The Board has continued to reject our overtures. PEC Board members and others have been able to meet individually with the incoming Chair of the Board of Trustees and the interim President to see if there is some middle-ground in our positions. Regrettably, to date we have not found a workable compromise; those with whom we have met are entrenched in their view that there is no turning back from coeducation. While both sides are concerned about the future of the College, we still disagree about how to remedy the precipitous decline of the school; a decline we believe has been accelerated by the decision to go coed.

Therefore, without reservation, we believe that continued opposition to the Board of Trustees and the administration is necessary.

We believe that the steps being taken by the administration to make Randolph College a viable coed institution will fully deplete the college's resources. We believe there is a genuine risk that no college will exist at 2500 Rivermont Avenue as a result of these misguided efforts. Why do we believe this? The current admissions statistics are startling in their illustration of the failure of the college to achieve even preliminary benchmarks in its strategic plan.

As of February 2, overall completed applications from women have declined by 24 percent over last year (a decline of 15 percent if you include the completed applications from males). Admitted females are down 28 percent over last year (down 20 percent if you include accepted males). Deposits from students who have committed to attend the college are down 58 percent. These numbers are even worse relative to the same statistics of two years ago. These results come despite the fact that the college has mailed almost twice the number of print communications to solicit applicants and increased its electronic recruiting efforts in specific areas by a factor of ten.

There is no doubt that the Admissions office is working very hard and there is no doubt that a fortune is being spent marketing Randolph College to prospective students. Sadly, the results have not been "an immediate increase in applications" as Trustee Amanda Fox told us a few months ago in a letter to all alumnae. Her pronouncement that "Just by being a co-ed institution, you get more female applicants..." also has not come true.

Coeducation has also brought a historic high in the number of students that have left the college this semester. Whether it was because of coeducation, a less-than-ideal learning environment and the upheaval in the college's strategic direction, or other factors, the reality is that a large number of students left mid-year. There is no way to predict how many more will leave at the end of the year.

The strategic plan has also led to a serious drop in alumnae donations. Although the college has not issued any reliable statements about the current state of giving compared to other years, the silence is deafening. The Annual Fund is seriously behind in its campaign, and it is known that many major donors on whom the college has relied in the past have ceased to support Randolph College.

The crisis at Randolph-Macon Woman's College is emergent. The college is not achieving even the initial admissions objectives set out in the strategic plan. We must continue to protest and appeal the position of the Board of Trustees. It is no longer a matter of the strategic plan or coeducation; it is now a matter of survival. We urge you to decide now - because there will be no later in our view - whether you can support the protest and fund the appeals. We urge you to read the summary at the end of this update of the hearings held in Lynchburg on January 23 and decide for yourself how you will vote.

How We Will Win R-MWC Back and What You Can Do to Help

Let's be frank. There are no guarantees that we will win either suit on appeal or that the subsequent trial after a successful appeal will go in our favor. Even with that disclaimer, we firmly believe that a successful appeal on either or both suits, and a return to the trial court, can ultimately lead to a victory. Without any doubt, our appeal will provide a strong statement to the administration and Board of Trustees that we seek redress and remedy to the governance failure at the college.

To assure that we are acting rationally, and not simply reacting to the court's cavalier dismissal of the suits, we sought the advice of our trial counsel as well as other law firms and attorneys from our alumnae constituency. There was no equivocation on the merit of pursuing the appeals. If there is any hesitation, it is caused by the need to ask our loyal PEC supporters to reach deeper into their financial resources to fund the legal effort.

Wells College and other former women's colleges ended their opposition in the courtroom because they ran out of funds. We don't want to suffer that misfortune. Regrettably, we were not able to secure legal services on a pro bono basis but we do manage legal expenses tightly and vigilantly both on a weekly and a project basis. We recognize the importance of every dollar that has been donated and we take the management of our costs seriously. Your contributions to date have paid our legal expenses through December. While we have asked for and obtained spending caps, percentage reductions in billable time, and other concessions, the reality is that the ongoing litigation process is expensive. We believe however, that the outcome is worth the expense; that Randolph-Macon Woman's College will be reborn through our efforts.

In our last update, we issued a challenge to raise a substantial amount of money to fund the appeals, pay outstanding legal bills, and support information efforts to continue to contact the larger alumnae body. While some donations have come in during the month of January, the amount is not enough to sustain the legal effort. We need you to let us know that you will continue to fund the legal effort to preserve Randolph-Macon Woman's College. Without your contributions, this effort cannot go forward. PEC exists because you sustain the cause. If the cause is not sustainable, the appeals will not go forward, and Randolph-Macon Woman's College will be lost. That is the stark reality. Please tell us with your dollars how you would like us to proceed.

Donations can be made via PayPal on our website or by mailing checks to:

Preserve Educational Choice, Inc.
P.O. Box 29612
Richmond, VA 23242

All contributions to PEC are fully tax-deductible to the amount allowed by law. As always, please consult your tax advisor in regards to your specific tax obligations, but in case you missed the news in our previous updates, the IRS approved our application for 501(c)(3) status, and our certification is effective as of September 1, 2006.

There are other ways to bring pressure to bear on the trustees.

This week, please take an hour to write a heartfelt letter to the trustees letting them know that you do not support Randolph College but that you would support Randolph-Macon Woman's College. Outline specifically how you would help R-MWC - what time and money you are willing to commit to a woman's college. You've probably written many letters - but please write another. If you copy PEC on your letter (please email it to info@preserveeducationalchoice.org) we will be delighted to post your letter on our website.

Please write at least 10 of your R-MWC classmates. Explain your concerns about the strategic plan and ask that they look at our website and materials. Ask them to write the trustees and ask that they write 10 of their R-MWC friends. As alumnae we can and must rise up in a groundswell of support for R-MWC. The reality is that if a large portion of the alumnae body is not willing to fight to keep R-MWC, then the college cannot be saved and sustained. Your participation makes a difference to the college's future; you need to take action today if you care about preserving Randolph-Macon Woman's College.

Finally, please become more involved with PEC. While your financial support is much appreciated, we have room on our communications and fundraising committees for all interested alumnae. We want to increase our communications with the larger alumnae body but we need committed volunteers with good ideas to help us. If you are an attorney, please consider joining our Legal Committee. You can find more information about our committees here.

This is a critical time for Randolph-Macon Woman's College. Now is the time for each of us to take action, to pledge our money and our time, and to make our voices heard.

Summary of the January 23 Hearings and the Basis for Appeals

The official transcripts of the hearings are now available here. Due to the length of the transcripts, we have provided a brief summary of the arguments and the judge's rulings below for your convenience.

Student Contract Case

Basis for Complaint: The College provided offers to each student for a four-year education at "Randolph-Macon Woman's College," an institution with a 115-year history of providing an excellent liberal arts education to women. The College made these promises - expressly and implicitly --both in writing and in oral representations to each student plaintiff, including repeated and pervasive representations regarding the specific benefits to be gained by attending a woman's college, the sole distinguishing feature that would cause a student to choose R-MWC over any number of coed options from which these students could have chosen.

College's Defense: The College contended it had never made a promise to remain a woman's college and argued that any contract with the students was for one semester only. According to the College, it was always free to admit men, change its curriculum plan, and/or change its name.

Judge's Ruling: The Judge, in an oral ruling from the bench, held that he could not find in any of the pleadings or the volumes of documents provided by the student plaintiffs "that there's any specific contract that says that it's guaranteed that it would be a four-year woman's college." Accordingly, the Judge granted the college's Demurrer.

Basis for Appeal: It is important to note that the Judge dismissed the case on the college's Demurrer, which is similar to a Motion to Dismiss in federal court. We believe the Court's ruling is clearly wrong. All that is necessary to survive a Demurrer is for the students to plead a set of facts upon which a jury could find that a contract exists. The students did so. The offer letters comprise the main promise made to the students, and those letters meet the requirements for an "offer" under Virginia law. Each student accepted those offers in the manner directed by the offer - by sending in their reservation deposits.

Although the letters do not contain the phrase "and we promise to remain a woman's college for your entire four years at R-MWC," there can be no doubt that the college made such a promise. At the very least, it was implied in every reference to "Randolph-Macon Woman's College," the history of the student body, the promotional materials, and the focus of student development.

The students argued that the name "Randolph-Macon Woman's College" unambiguously and clearly indicated to the students that they would be attending a woman's college for their four years of undergraduate studies.

The documents (which the Trial Court failed to address directly) contain numerous statements by the college touting the benefits of a woman's college to entice these students to choose R-MWC over all their other options, including some rather impressive coed options. For example, Plaintiff Jennifer Mullins gave up an appointment to West Point to attend R-MWC because she felt that the leadership opportunities for women are greater at a woman's college. It is clear that if these student plaintiffs wanted a coed education, they had any number of colleges from which to choose. They chose a woman's college because of the explicit and implicit promises that were made by the college.

These students have clearly pleaded the existence of a contract; we have assisted them this far in trying to obtain the benefit of their bargain; and PEC is determined to continue to support their efforts to force this College to honor its commitment to them.

Charitable Trust Case

Basis for Complaint: Randolph-Macon Woman's College is a charitable corporation. By statute in Virginia, the assets of a charitable corporation "are deemed to be held in trust for the public for such purposes as are established by the governing documents of such charitable corporation..." The assets of Randolph-Macon Woman's College, then, are held in trust for the following purposes under its Articles of Incorporation (the corporate charter):

to conduct, maintain and operate a college, or university, or institution, under the name of Randolph-Macon Woman's College, for the higher education and culture, primarily of women, and for their instruction and training in the liberal arts...

We believe that the charitable assets of the college are governed by the Uniform Trust Code (UTC) (effective July 1, 2006 in Virginia), which specifically states that the Trust Code applies to trusts created by statute. Although the College may amend or change the corporate purpose in its Articles of Incorporation, such a change applies only to those assets acquired after the change in the Articles. All assets existing prior to that change in articles are governed by the corporate purposes in existence at the time those assets were donated, unless the College proves that it would impossible, impracticable, unlawful, or wasteful to continue the existing purpose (the Cy Pres doctrine).

College's Defense: The College primarily argued that only the Virginia Attorney General has the authority to enforce the provisions of charitable trusts in Virginia, and that, in any event, the UTC does not apply to the College.

Judge's Ruling: The Court first held "clearly from the pleadings that Randolph-Macon Woman's College is a charitable nonstock corporation doing business in Virginia and their assets would be deemed to be in trust for the public under [Virginia Code §2.2-507.1]." The Court further ruled that the Attorney General has the power to "act on behalf of the public and the assets if he believes they are not being handled properly." But, with respect to the UTC, the Court held that the statutory trust created by Virginia Code §2.2-507.1 does not create a trust that would be governed by the UTC. The Court stated that corporate law - not trust law - applies.

Basis for Appeal: The question of governance of the assets of charitable corporations after the enactment of the UTC and Virginia Code §2.2-507.1 are complicated issues that are difficult to summarize. Basically, the Judge's decision turned on one phrase - that the statute creating the trust must require that the trust be "administered in the manner of an express trust" (Virginia Code §55-541.02) and that the statute applicable here lacks such language.

Nevertheless, the trust created by that statute must be administered in some manner. If the Attorney General can step in to enforce the terms of the trust as all parties seem to agree, then what standard should he use to evaluate the purposes for which the trustees have used the assets? We believe that the Virginia General Assembly provided those terms when it enacted the UTC. With complete knowledge of the language of existing statutes then on the books, the General Assembly modified Section 55-541.02 to include "trusts created by statute."

Moreover, if the UTC does not provide the standards that must be applied to the use of the college's assets, then those standards must be governed by the common law existing prior to the enactment of the UTC. The doctrine of Cy Pres exists at common law as the mechanism by which charities may petition to change their charitable purpose prior to the passage of the UTC.

The Trial Court also failed to render any decision on Count II of the Complaint, as to whether the plaintiffs had standing to enforce the terms of the trust created by Virginia Code §2.2-507.1 under the "special interest exception" for standing to bring actions to enforce charitable trusts.

We hope that you agree that appeals are a worthwhile part of our continued opposition to the strategic plan. We cannot continue without your help. Randolph-Macon Woman's College needs each of us to take action today. Only the concerted efforts of all concerned alumnae will preserve our College.

Vita abundantior,

PEC Board

Gail Ballou (R-MWC '64)
Carol Curcio Lang (R-MWC '68)
Diane U. Montgomery (R-MWC '85)
Anne Yastremski (R-MWC '05)
Martha McClerkin Durnett (R-MWC '85)

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