How Long Should the Dead Rule?

Should wills have an expiration date?

Journalist David Satter takes to the pages of the Wall Street Journal to warn “The Rhodes Scholarship Turns Against Its Legacy of Excellence,” arguing that recent steps to ensure that racial and other minorities are more represented has watered down the prestige of the honor he himself earned nearly half a century ago. The debate over affirmative action programs has been ongoing since he was at Oxford and, while I agree with some of his points, none of them are new or likely to be unfamiliar to OTB readers. And, frankly, the notion that talented people will stop competing for the award strikes me as silly.

What interested me, though, was his secondary argument.

Cecil Rhodes (1853-1902), the imperialist and financier who founded the scholarship, wanted Rhodes Scholars to be “the best men for the world’s fight.” The Rhodes Trust rewarded those who survived a withering competition with three years at Oxford University, all expenses paid. (Women were made eligible in 1977.)

[…]

Elizabeth Kiss, warden of Rhodes House, wrote that the Rhodes Trust today rejects Rhodes’s goal of educating young men for a civilizing mission as “wrong and obsolete.” Oxford itself, she writes, is a place where “racism in all its forms—structural, overt and implicit—remains rife.”

The goal, according to a recent statement, is “radical inclusion.” That means racial preferences, which violate Rhodes’s will. Its 24th point states: “No student shall be qualified or disqualified for election to a Scholarship on account of his race or religious opinions.” The phrase “no student shall be qualified” is particularly important. I don’t see how the trustees have the right to change this condition.

[…]

Former Rhodes Scholars rely on the warden and the trustees to manage the trust in keeping with the conditions spelled out in Rhodes’s will.

Cecil Rhodes has been dead for 119 years, more than twice as long as he lived. Even leaving aside that he was a controversial figure in his own time, the world has changed a lot in the intervening period. How long ago was 1902? Joe Biden’s father wouldn’t be born for another 15 years.

So long as the terms are legal and don’t otherwise violate public policy, those who bequeath large sums of money to a cause have the right to dictate how they will be administered. Rhodes’ trustees wouldn’t have had the right to simply pilfer the money or use it for some purpose wildly divergent from those specified in the will.

But when an endowment is so large that it lives on for generations after the bequest was established, it surely can’t continue to be managed from the grave. I doubt Rhodes would have approved granting scholarships to women but, by 1977, it was long past time to do so. Should it really matter what Rhodes thought more than half a century later? (Indeed, the period between his death and that policy change equals my entire lifetime thus far—and more than exceeds Rhodes’ 49 years on this earth.)

Presumably, the trustees have verified that they have the legal authority to what they’re doing. But—leaving aside whether you agree or disagree with the steps being taken to promote diversity—do they have the moral right to change the terms of Rhodes’ bequest?

FILED UNDER: Education, Law and the Courts, Society
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Joe says:

    It’s interesting to me that Mr. Satter can read right past the unambiguous “men” language but still gets hung up on “race.” Different issues become obvious at different times.

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  2. Not directly on topic but I thought I might pass along what Sam Clemens said about Cecil Rhodes: “Frankly, I admire him and when his time comes I will buy a piece of the rope as a keepsake.”

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  3. James Joyner says:

    @Joe: Yes. I guess they started including women around the time he was at Oxford, so it now seems normal. But we also developed a tendency to see “men” as a generic term for mankind, so it’s an easier sell.

    @David Schuler: Ha.

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  4. Michael Cain says:

    Question from ignorance: When the Rhodes scholarships were opened to women, was it simply a matter of no longer rejecting women’s applications, or was there an affirmative action aspect to it?

    My general opinion is that any long-lived trust includes an (at least) implicit condition that the trustees must adapt its mission to maintain the prestige of the trust. That probably includes considerations of “community of interest”. By its nature — postgraduate scholarship — the community of interest is going to be heavily weighted towards university academics. Satter’s own involvement in academia has leaned conservative, but even those institutions have no doubt adapted to be more inclusive — or at least appear more inclusive — over the years.

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  5. mattbernius says:

    That means racial preferences, which violate Rhodes’s will. Its 24th point states: “No student shall be qualified or disqualified for election to a Scholarship on account of his race or religious opinions.”

    This language is exactly the sort of “colorblind” meritocrat language that has been shown time and time again to never have been actually applied in practice. Especially when systemic frameworks came into play. This is exactly what the Rhodes foundation itself has noted:

    The issue of race is a bit more complicated. The Will stated that “No Student shall be qualified or disqualified for election to a Scholarship on account of his race or religious opinions.” While Rhodes himself may not have envisioned Black Scholars when writing this, the first Black Rhodes Scholar, Alain Locke, was selected out of the United States in 1907, in just the fourth cohort of Rhodes Scholars. He went on to forge an extraordinary career, becoming one of the fathers of the Harlem Renaissance.

    In the ensuing years, Black Scholars were selected out of several constituencies. They included such towering figures in the anti-colonial struggle and in race theory as Jamaican National Hero and Premier Norman Manley (1914); Jamaican-British sociologist and theorist of race and multiculturalism Stuart Hall (1951), and Nigerian Scholar Tajudeen Abdul-Raheem (1983), Secretary-General of the Pan-African Movement.

    But entrenched racism within and beyond the Rhodes community resulted in a gap of 56 years before the next two African-American Black Rhodes Scholars were selected in 1963, Stan Sanders and John Edgar Wideman.

    Racial barriers also took a very long time to fall in South Africa. In 1970, 85 Rhodes Scholars signed a petition denouncing the allocation of certain South African Scholarships exclusively to Whites as a “stark evil” and “intolerable example of the most extreme form of racial prejudice.” These efforts led to the creation of the new South Africa-at-Large Scholarship and the selection of the first non-white South African Rhodes Scholars, Ramachandran Govender in 1977 and Loyiso Nongxa in 1978. Nongxa, a former Vice-Chancellor of the University of Witwatersrand, is now Chair of the National Research Foundation of South Africa.

    https://www.rhodeshouse.ox.ac.uk/impact-legacy/blacklivesmatter-racism-and-legacy/

    Emhpasis both mine.

    Of course, there are some folk who I am sure believe that for 56 there was not a single qualified Black candidate. These will most likely be the same people who marvel that the awarding of a subjective scholarship to people from a minority means that far more qualified white candidates are being excluded (because in the end, that is what complaints about “seeing color” are inevitably about).

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  6. Mimai says:

    Full disclosure: I know very little about this.

    Cecil Rhodes…wanted Rhodes Scholars to be “the best men for the world’s fight.”

    Is it possible that “men” is a language convention and not meant to explicitly exclude women? I doubt it, but it is potentially relevant, especially given that we retain much of this gendered language today (though that is changing).

    If “men” is meant to exclude women, changing the eligibility requirements to explicitly include women does not seem parallel to what is happening now. Now, they are taking a clause that is explicitly non-exclusionary (“No student shall be qualified or disqualified…”) and making it more [I don’t know what to call it – some might say “just” others might say “biased” etc].

    This is not a commentary on the wisdom, much less legality, of any such changes. It is merely to note that these seem to be of a different kind.

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  7. wr says:

    I must be slow this morning. When I read the headline, my first thought was that if the natural inheritor was Phish, then the Dead should rule forever…

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  8. Mimai says:

    @wr:

    Haha! The headline assumes the Dead ever ruled at all.

    I can see your point about Phish, but Trey Anastasio appears to be a mensch and he’s a damn fine guitar player, so there’s that..

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  9. Slugger says:

    Back in the US, the initial trust established by Milton Hershey that funded the medical school named after him in Pennsylvania stipulated that it was for white young men only. This requirement was eliminated in 1970. He died in 1945. Let’s return his generosity with the thought that in time he would have rejected the racist stipulation. We are all products of our times, and one lifetime might not be long enough to learn to reject the follies and evils of our contemporaries. I’m ok with overturning wrong ideas of testators.

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  10. Stormy Dragon says:

    There was a philanthropist from my local area (southeast Pennsylvania) named Albert C. Barnes, who was born the child of a working-class butcher at the end of the 19th century, managed to put himself through medical school, and the eventually invented an early anti-septic that turned in him into a millionaire.

    Once he became wealthy, one of his passions was collecting impressionist art (Renior, Matisse, Picasso, Cezane, etc.) back when high society considered this “degenerate” art. He also passionately hated the “old money” in Philadelphia, so he went to a lot of trouble to set up a museum outside Philadelphia and make sure it would never fall under the control of the Philadelphia Art Museum.

    Today, 70 years after his death, his entire collection is housed in downtown Philadelphia at a museum owned by the Philadelphia Museum of Art.

    My point is, as one commentator noted relative to the breaking of the Barnes Trust: “Once everybody’s dead, They’ll do what they want”. Rhodes’ wishes will only bind the Rhodes Trust to the extent they want to be bound. All the handwringing about his wishes is really about people today who share his imperialist vision, but don’t want to openly admit that and so are using a century dead mining magnate as a scapegoat to hide their own views behind.

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  11. James Joyner says:

    @Slugger:

    Hershey that funded the medical school named after him in Pennsylvania stipulated that it was for white young men only. This requirement was eliminated in 1970.

    Yes. But that’s a different thing. In that case, the law forbad even private discrimination on the basis of race. Contract law has long had “public policy” exceptions, allowing the broader contract to stand while rendering provisions against public policy to go unenforced.

    So, for example, a father may leave X portion of his estate to his son on the condition that he divorce his spouse. The courts would almost certainly allow the son the inheritance without enforcing the divorce provision.

  12. Chip Daniels says:

    A scholarship itself is a form of affirmative action.
    It gives an artificial boost to someone who otherwise wouldn’t be able to achieve something.

    Rhodes himself grasped that concept, that some young men were blocked by the very structure of society from great achievements, which is why he created the scholarship.

    Objecting to affirmatively seeking out people of color for consideration might just raises the obvious question of why these people are under-represented in the first place, which inevitably leads to the question of what structures exist that disadvantage those people.

    And ironically, the most articulate voices describing structural injustice are from conservatives, at least when they are talking about why conservative Christians are under-represented on college campuses.
    When it comes to that topic, they display a keen grasp of the subtle microaggressions that make conservative Christians feel unwelcome and how this translates into a lack of representation and achievement.

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  13. Mister Bluster says:

    @Mimai:..Haha! The headline assumes the Dead ever ruled at all.

    Eros: You know, it’s an interesting thing when you consider… the Earth people, who can think, are so frightened by those who cannot: the dead.
    Plan 9 From Outer Space

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  14. mattbernius says:

    @Chip Daniels:

    When it comes to that topic, they display a keen grasp of the subtle microaggressions that make conservative Christians feel unwelcome and how this translates into a lack of representation and achievement.

    Oh, thank you for that. Without a doubt, the typical complaints about the treatment of conservatives and conservative Christians on college campuses are textbook examples of microaggressions. And yet that’s a term/concept that often conservatives reject outright in any other context (and probably wouldn’t apply it–microaggression–to what they are experiencing).

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  15. Just nutha ignint cracker says:

    @James Joyner: And, of course p***n*****s and c***ks aren’t even “men” to begin with so how could any of those kind be “the best men for the world’s fight? It’s simply impossible.

    Yes. It’s time to move on. Even before Cecil Rhodes shuffled off this mortal coil, we were already late in leaving.

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  16. Mimai says:

    @Slugger:

    Major +1 on the call for generosity. Oh do we need more of this!

    I’m not sure what your specific thoughts are about the Rhodes scholarship, so please don’t interpret this as directed at you. Re rejecting a “racist stipulation,” I am in favor of that in theory. And it’s often easy enough to apply in practice. But it’s not so easy here.

    While the OTB community likely shares the view that race-based affirmative action is good/just, there is a reasonable case for the other side, and many reasonable people make this case (yes, lots of unreasonable people make it too). So it’s not simply a matter of correcting a clearly unjust stipulation.

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  17. Just nutha ignint cracker says:

    @Chip Daniels: Given your very on point comment about evangelical Christians being under represented on college campuses, that the primary reason they are under represented is because they self-select not to attend secular colleges. Choosing instead to attend one of hundreds of Christian colleges across the nation. Including the first for-profit Christian university (https://en.wikipedia.org/wiki/Grand_Canyon_University). Modern era Christian colleges were specifically formed for the purpose of sheltering Christian young people from the toxic influences of worldly secularism (and even the toxic influences of Christians outside one’s own denomination, in some cases). The irony of complaining about it on top of everything else is breathtaking. 🙁

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  18. John430 says:

    @James Joyner: Putting aside the issues of race and gender for a moment; when you die, I shall claim your property. Like it or not. You’re dead, whaddya gonna do about it?

  19. Kathy says:

    There’s a term you come across often when studying history: presentism.

    It means the tendency to judge the past, particularly historical figures, by the standards of the present

    This Rhodesian kerfuffle, along with the veneration of the Founders in America, strikes me as anti-presentism. In this case meaning to keep the standards of the past in the present, perhaps in an attempt to circumvent modern day standards and sensibilities.

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  20. mattbernius says:

    @John430:

    Putting aside the issues of race and gender for a moment

    But other than that, Mrs. Lincoln, how was the play?

    When you die, I shall claim your property. Like it or not. You’re dead, whaddya gonna do about it?

    Also, can you explain how this endowment is “property” in any meaningful sense of the word? It’s also worth noting that the trust has been amended several times since the passing of Cecil Rhodes and the creation of the irrevocable trust.

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  21. mattbernius says:

    Also, as I think is important to look at in these conversations, it’s worth understanding what the Rhodes foundation is doing. A quick scan of their legacy, equity, and inclusion page demonstrates that they are not specifically building quotas into enrollment or considering race as a deciding factor.

    They are establishing scholarships in more non-majority-white countries and recruiting an increasingly diverse board of reviewers in the hopes of countering unconscious bias.

    https://www.rhodeshouse.ox.ac.uk/impact-legacy/legacy-equity-inclusion/

    So if anyone wants to unpack how that is antithetical to the original vision (or why that vision could only be realized via a… checks notes… board of reviewers made up exclusively of old white OxBridge dons who, historically, picked primarily white cohorts have at it).

    As far as I can tell David Satter is largely bemoaning the fact that the foundation celebrated the overall diversity of the current cohort. Someone get him the fragile white guy fainting couch. Of course, the WSJ editorial page has never resisted the urge to blow that particular dog whistle.

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  22. Gustopher says:

    @Mimai:

    While the OTB community likely shares the view that race-based affirmative action is good/just, there is a reasonable case for the other side, and many reasonable people make this case (yes, lots of unreasonable people make it too). So it’s not simply a matter of correcting a clearly unjust stipulation.

    I think you would find a lot more people here object to it to some degree or another than you expect, and that those who are in favor are often uneasy with it.

  23. Gustopher says:

    If we taxed Cecil Rhodes effectively, and had an aggressive inheritance tax, I think this entire problem wouldn’t have happened.

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  24. James Joyner says:

    @Gustopher:

    If we taxed Cecil Rhodes effectively, and had an aggressive inheritance tax, I think this entire problem wouldn’t have happened.

    Well, Rhodes was a Brit who spent most of his life in what would become South Africa, so I’m not sure we had the means of taxing him. But today’s mega-rich, including the likes of Bill and Melinda Gates and Warren Buffett, are establishing these trusts while they’re still alive. I’m honestly not sure there’s a morally-justifiable level of taxation that would have prevented Bill Gates or Warren Buffett from amassing tremendous wealth.

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  25. Philadelphian says:

    @Stormy Dragon: This is false. Unlike the Rodin Museum (which is owned by the city of Philadelphia and operated by the PMA) the PMA does not own or operate the Barnes Foundation on the Parkway. They are separate entities entirely. And Barnes’s will still very much rules over the display of his collection. No curator can ever give visitors the opportunity to see a Monet or Cezanne in any other context than the one Barnes specified (at least as long as the Foundation is in operation). It’s one thing to dictate how your collection is seen in your lifetime but (IMHO) to dictate how anyone will see it in the future is obnoxiously vain.

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  26. Gustopher says:

    @James Joyner:

    I’m honestly not sure there’s a morally-justifiable level of taxation that would have prevented Bill Gates or Warren Buffett from amassing tremendous wealth.

    100% after $100M lifetime.

    You might not like it, but it isn’t immoral by any common definition of morality. If anything it’s like making a kid share toys in day care — you had your turn, Billy, let’s give someone else a chance.

    It’s more than enough to live very comfortably for generations, and prevents fortunes so large that they outlive the person by many generations and keep affecting policy during that time.

    I think it’s harder to come up with a moral justification for allowing the accumulation of that much wealth, honestly, unless you want to call them God’s Chosen Elite and get into the Prosperity Gospel.

    But ignoring morality, does it make sense for a well run society to allow that much concentration of wealth and power, or does it create instability that leads to a collapse of institutions, people against the walls and heads on spikes?

    I’m not saying that 100% taxation after $100M lifetime is a good policy — I did just make it up 30 seconds ago after all — but we have an income inequality problem in general. We have laws that kick in at 50 employees, which give a special boost to small companies — why not laws that kick in at $100M in revenue? Are we well served by having massive companies? Telecom probably needs to be, given the expenses, but retail or fast food?

    Or we could Logan’s Run people once they reach a certain net worth, complete with the carousel and the lasers.

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  27. Mattbernius says:

    @mattbernius:

    Of course, there are some folk who I am sure believe that for 56 there was not a single qualified Black candidate.

    Ok correction, there wasn’t a single Black American candidate. I will note that media scholar Stuart Hall, a Black scholar, had been arhodes scholar during that time. I will also now he was a native of Jamaica (which the scholarship had been expanded to). Which is a prime example of an early diversification.

  28. Stormy Dragon says:

    @Philadelphian:

    Okay, if “owned by” was too strong a term. Would “controlled by” be more to your liking? The Barnes Foundation board is populated by people from the same small group of old money charitable trusts that control the Philadelphia Art Museum, so acting like they’re completely independent is silly.

    It certainly isn’t controlled by Lincoln University, as Barnes wanted. Instead it’s controlled by exactly the people he wanted to keep it away from.

  29. HarvardLaw92 says:

    @Mimai:

    Is it possible that “men” is a language convention and not meant to explicitly exclude women?

    No. You have to read further into the will to find it, but the will explicitly establishes the scholarships for male students (the word male is used in the text).

    to establish for male students the Scholarships hereinafter directed

    With respect to their plans – if they’re proposing to change territorial allocations of scholarships or to increase the number available to certain countries / area in order to build diversity, that wouldn’t seem to challenge the terms of the will. Introducing any sort of racial quota system or frankly introducing race into the selection criteria at all, however, absolutely would. The text is pretty clear on the subject.

  30. HarvardLaw92 says:

    @James Joyner:

    They started awarding scholarships to women in 1977, and that change (like any other proposed changes to the terms of the will) required an act of Parliament to make it happen.

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  31. grumpy realist says:

    Well, in MOST cases of trusts, we get the Rule Against Perpetuities (the bane of all law students studying property law.) It’s only the so-called charitable ones that get to hang on forever.

    (Yes, and I know that leaves a pretty big loophole, but if Great-Grandpa is trying to control the lives of his descendants beyond his grave, no, he can’t do it.)

  32. DrDaveT says:

    @James Joyner:

    I’m honestly not sure there’s a morally-justifiable level of taxation that would have prevented Bill Gates or Warren Buffett from amassing tremendous wealth.

    I’d be fascinated to learn what you think determines whether a given level of taxation is “morally justifiable”.

    It seems to me that if there is nothing Bill and Warren could have done before being taxed that they can’t do now but would have wanted to, then there is no issue of moral justification. The tax had, literally, no effect on them. In Bill’s case, that could be a 99% tax on every marginal dollar he makes…

  33. DrDaveT says:

    @Philadelphian:

    It’s one thing to dictate how your collection is seen in your lifetime but (IMHO) to dictate how anyone will see it in the future is obnoxiously vain.

    I am somewhat bemused by the majority opinion in this thread, which seems to be that the dead have some ability to dictate how their bequests are used in perpetuity, but not absolute ability. I don’t get it. If you can change the rules in the future, why couldn’t you change them while The Dear Departed was still cooling?

  34. James Joyner says:

    @DrDaveT:

    If you can change the rules in the future, why couldn’t you change them while The Dear Departed was still cooling?

    Because of the effect on the living. Right now, Bill Gates and Warren Buffett are going to leave massive endowments to various charitable trusts precisely because they can dictate how those funds are disbursed. Knowing that, half a century or more down the line, as social mores change, some future trustees will modify those dictats accordingly wouldn’t be much of a disincentive. But, if the trustees could just do what they wanted with the loot, why establish a trust at all? At that point, give it all to the kids.