Ask Not What Your Charity Can Do for You: Robertson v. Princeton Provides Liberal-Democratic Insights into Cy Pres Reform

Abstract

This article centers on a long-standing problem in the law of public charity: how to ameliorate the force of restrictions imposed by donors on large gifts in the face of societal change. Seeking to advance personal beliefs or social agenda, donors of large gifts commonly limit the application of donated funds to particular programs. Under current law, such restrictions obtain in perpetuity. A restriction, if socially apposite when made, often functions as a dead hand upon the charity with the passage of time. What has long been sought by the legal community is a substantive standard by which to evaluate the continued social efficacy of these donor-imposed restrictions and to justify interpreting them more liberally in the face of change. This article sheds light on this challenge by first understanding these restrictions as private views of the public good, and by then locating charitable mission and in particular restricted gifts in the context of liberal democracy. At that point, we can discern the deep, normative reasons for which this criterion has eluded commentators, judges and legislatures operating in a tradition of political liberalism. This argument is grounded in John Rawls's use of the distinction, fundamental to liberal political thought, between the concepts of the right and the good, to locate within a liberal democracy certain claims about the public good.

By way of illustration, this article also examines aspects of the ongoing legal dispute between the Robertson family and Princeton University. The Robertsons allege that the University has failed to comply with a restriction that the family imposed on a gift made decades earlier and, further, has applied Robertson funds far outside the compass of the grant. Now valued at almost $800 million, the gift represents 6% of Princeton's endowment. The Robertsons' gift was made in response to President Kennedy's challenge to Ask not what your country... The Robertsons claim that, consistent with the patriotic impulse that motivated the grant, funds were to be used to establish a graduate program to educate students for careers in the U.S. government. As one family's response to Kennedy's challenge to the nation, the Robertson restriction is a quintessential example of a private view of the public good. Within a few short years, however, the moment of idealism that inspired the gift came to an abrupt end with the assassination of Kennedy, the mire of Vietnam and other national embarrassments, and young people were not interested in working for the U.S. government. No case or controversy better illustrates the role that restricted gifts play in the charitable sector or demonstrates the particular inadequacies of the current law in guiding charities in their stewardship of such gifts over time.

Keywords: Charitable Reform, Lilberal-Democratic Norms, Cy Pres Doctrine

JEL Classification: K0