Women Blocked at Deep Springs

Deep Springs College had to reject all of its female applicants this week -- but that was no comment on their applications.

Rather, a California judge granted an injunction to Deep Springs alumni who have sued to block the institution from admitting women. The judge ruled that under the terms of a trust that supports the college, the trustees lack the authority to admit women. That means that Deep Springs -- an unusual institution that enrolls only 26 students in a two-year program -- will remain all-male for at least another year.

The college in 2011 announced plans to admit women this year. While officials plan to appeal the ruling, they say that there will not be finality on these issues during the current admissions cycle, so female applicants have been rejected, and male applicants have been told that they cannot expect a coeducational experience, at least next year. While the judge has issued his ruling, he has yet to release an opinion, so the judge's rationale is not yet clear.

The judge's decision means that for the next academic year, there will be four men's undergraduate colleges (excluding seminaries) left in the United States: Deep Springs, Hampden-Sydney, Morehouse and Wabash Colleges. The Deep Springs case is the latest in a series of legal disputes over colleges that have come to the conclusion that they must change something significant that was established by institutional founders. Several legal experts predicted that Deep Springs will eventually be able to admit women, but that it may be in for a long fight to do so.

Since its founding in 1917, the college has admitted very small classes of highly intelligent men, who take intense courses while managing both the college and its farm in an isolated spot in the High Desert of California. Students who complete the program are admitted as transfer students to some of the most competitive colleges in the country. All students receive a full scholarship (worth more than $50,000 a year). The decision to admit women followed years of requests by students to do so, and a series of decisions by the board not to do so.

L.L. Nunn, the industrialist and educational thinker who founded Deep Springs, viewed its purpose as training male leaders, whom he dubbed "the few." Trustees said in 2011 that it was important to acknowledge today that women can and should be trained as leaders. The coeducation plan was to preserve the curricular and work requirements of the college, as well as its small size.

A statement from the college said: "We are disappointed that we cannot move ahead with coeducation this year, but remain confident about the final outcome of the ongoing litigation."

Joseph Liburt, a lawyer for the alumni seeking to block the enrollment of women (and himself an alumnus of Deep Springs), said that the case is very simple. The trust that established the college called for it to educate "young men," he said, while the board of the college "says that what this really means is young men and women."

When Nunn created the college, he meant men only, Liburt said. And it doesn't matter if society has since changed.

"The trustees' foremost fiduciary duty is to carry out the terms of the trusts," Liburt said. "If they are unwilling to do so, they should resign."

He also said that news coverage has been "somewhat misleading" in describing the alumni legal action as being "against coeducation." Liburt noted that the vast majority of colleges and universities in the United States admit men and women, and said that the suit wouldn't change that. The case is about asking the court "to uphold the value of diversity in higher education," so that those male and female students who want single-sex education can find it.

Michael A. Olivas, director of the University of Houston Institute of Higher Education Law and Governance, said that "Deep Springs is going to win at some point," and women will be admitted. In his book The Law and Higher Education, Olivas discussed several cases in which courts upheld the right of an institution to go against a founder's wishes. One of the most famous of such cases he includes was the battle by Rice University in the 1960s to admit nonwhite students, even though the university was founded to educate only white students.

"Trustees not only have the power, but the duty to change" in certain circumstances, Olivas said. The laws vary to some degree from state to state, but generally assume that trustees will consider the wishes of the founders who created an institution, but also will consider other factors that may make the original terms unworkable. Truly taking fiduciary responsibility seriously, he said, means considering the future of a college, not just the circumstances that were present when it was created. Failing to see how the college and society have changed could in fact endanger a college's long-term survival, which is what trustees are charged with preserving, he said.

Olivas noted that the trustees at Deep Springs didn't rush into coeducation, but considered it long and carefully. Further, they are preserving "the fundamentals" of the college. He said that in suits challenging a decision to go coed, plaintiffs have consistently lost, but that institutions take "a political hit" from alumni who are upset about the decision.

The issue isn't just about single-sex status, Olivas said. He noted that in the current debate about whether Cooper Union should charge tuition, critics cite the principles that were used to set up the college. Olivas said that the trustees today are entitled to consider the long-term viability of that economic model, not just the original system of not charging tuition. He added that, many times, founding principles can't all be kept. For instance, one of Rice's arguments was that it could not achieve its founder's goal of being a top university while being a segregated one. Moving away from segregation advanced the larger goal, he said.

David Neidorf, president of Deep Springs, said via e-mail that he too viewed the trustees' push to admit women as reflecting a commitment to L.L. Nunn's most important goals. "The shift to coeducation is required precisely for the sake of L.L. Nunn's founding intentions and educational mission," Neidorf said. "The nature of his intended mission obviously permits more than one conscientious interpretation -- otherwise there would be no dispute. But few people would in honesty conflate intention and mission with literal adherence to each particular practice in place without explanation nearly a century ago."

Neidorf added that "single-sex enrollment policy is neither an intention nor a mission; it's an educational device, used by professionals for the accomplishment of real and identifiable mission goals. The modern stakeholders who make possible the life of the college are entitled to see it evaluated as such -- and this is what the trustees have done. Those trustees would have failed in their duty to the college mission had they omitted that evaluation."

Debates about donor intent may be particularly intense with regard to colleges founded as single-sex institutions. Trustees of Wilson College, a women's institution, will be meeting this weekend to consider a controversial plan to admit men to the residential undergraduate program. But many colleges deal with donor intent questions in ways that don't capture public attention in the same way as a decision of a single-sex institution to become coeducational. Joseph R. Irvine, senior assistant general counsel for Ohio State University, said that colleges "take donor intent very seriously," but must sometimes seek changes in the way a gift or bequest was set up.

He gave as an example a bequest of a house that the donor wanted a department to use for visiting faculty members. The house needed so much maintenance work that it would have required the department to spend money it didn't have before it could be used. Ohio State went to court (following a process set up in Ohio law) to sell the house and use the proceeds to support visiting faculty members at the department that the donor wanted to help. In these cases, he said, "you want to get as close as possible to a donor's intentions," but that doesn't mean never deviating from the way a donor set up a gift.