You Missed This! Additional Information for the Campbell Law Observer

The news of Sweet Briar College's closure resurrection has reached audiences worldwide.  Unfortunately, the untruths spouted by the previous President and Board of Directors have stuck in the public's collective brain (so many jokes, so little time); #SweetBriar supporters continue to correct misinformation.

Paige Miles Feldman, Managing Editor of the Campbell Law School Observer, wrote about the current state of Sweet Briar, but left out a lot of information.  Four months ago, I would have glanced at the article, noticed the legal mumbo jumbo legalese, and turned tail.  My family has one lawyer; I'm not it.  How my world has changed since the afternoon of March 3, 2015!  As it turns out, I like the law and all of its gobbledegook concepts (you're going down in our next argument, baby brother).

Ms. Feldman, allow me to clarify some of the misconceptions in your article.

1. Sweet Briar Women’s College in Virginia


2. SBC "will live to see another year" and "the money will only keep the school open for so long"
   We will, in fact, be open for the next 114 years.  And beyond.


3. Bowyer "claimed that Sweet Briar was a trust, and therefore would require court action to close.  Sweet Briar disagreed, stating that because it did not have stockholders, it did not need the permission of the court to close."
   We lovingly call the Amherst suit Lawsuit #1.  The lawyers for the former president and Board argued that Sweet Briar was a non-stock non-profit corporation--not a trust--and therefore were subject only to the Business Judgement Rule, not the Virginia Uniform Trust Code.  Trusts do not have stockholders.


4. "Initially, the injunction was denied in circuit court on the grounds that the court lacked the ability to stop the school from closing."
   The requested injunction (based on Virginia Code § 57-59) had nothing to do with whether or not the court was able to stop the closure.  Circuit Court Judge James Updike ruled that Sweet Briar was a non-stock corporation, not a trust, which is why the injunction was denied under this statute.


5. "The Virginia Supreme Court did not agree with the decision, and ordered the court to reconsider it."
   The way this is written, I understood you to mean that the Supreme Court of Virginia did not agree that "the court lacked the ability to stop the school from closing."  That's misleading.  


6. "As a part of this order, the higher court said that being a trust and a non-stock corporation were not mutually exclusive in this case, and Sweet Briar could exist as both."
   The ruling does not apply just to Sweet Briar; "in this case" should be removed.
   
   In addition, the court did not rule that Sweet Briar could exist as both a corporation and a trust, merely that a corporation could also be a trust.  The ruling said nothing about Sweet Briar herself, which is why the case was remanded back to Circuit Court. (yes! more chances to make swoony eyes at Judge Updike.)


7. "While Bowyer sought the injunction, she also contacted Sweet Briar’s vice-president for finance and administration and asked him to ensure that employees maintain any documents regarding Sweet Briar."
   Commonwealth's Attorney Ellen Bowyer sent a cease-and-desist letter to Scott Shank because his office held midnight shredding parties to destroy school records.  


8. "Additionally, she requested an injunction to forbid the school from using any donated money to shut down the school.  The court allowed this action."
   This is what's known as burying the lede.  This sentence should be moved up one paragraph to follow #4 above.
   
   "This action" was the first of many legal battles won, providing a 60-day injunction against the College from using previously-solicited funds for closure based on Virginia Code § 57-57.  It did not enjoin the College from soliciting donations for the purpose of winding-down operations (if I never see "winding-down" again, it will be too soon).


9. "After the Amherst County Attorney filed suit, the faculty of Sweet Briar chose to also file an injunction in mid-April."
   Technically, this is Lawsuit #3.  Lawsuit #2 is the student/parent/alumnae suit, which I discuss in point #13 below.  


10. "They claimed that the shutdown would be a breach of contract, but the school replied with a clause from the faculty manual:  that faculty can only be fired 'under extraordinary circumstances because of financial exigencies.'  Naturally, the faculty disagreed with this reasoning, arguing that the school was in fact not in danger of financial crisis."
    The faculty presented the manual, not the College.  As noted in the Faculty and Staff Complaint on page 12:
    
    
    


11. "Ultimately, the decision by the Virginia Supreme Court ruled, and Sweet Briar could stay open."
    The court's ruling worked in #SaveSweetBriar's favor, but it was not an automatic victory.  All parties spent five weeks in mediation under the guise guidance of the office of Virginia Commonwealth's Attorney General Mark Herring. (Herring only called for mediation after we stalked harassed spoke with him at multiple political fundraisers)


12. "The $24 million is nothing more than a temporary solution"
    It's $28 million.


13. "Students were rightfully upset, but did not sue to attempt to stop the closure, and might not have standing to do so if this happens again."
    Lawsuit #2, filed by Elliott Schuchardt on behalf of students, parents, and alumnae, netted a bigger gain than the initial injunction from Lawsuit #1: a six-month stay on selling or disposing of any of the College's assets.
    
    Honestly, 95% of us believed that the case would flounder (sorry, Elliott!); imagine our surprise when we won!  Elliott has major cojones. (don't worry, Catherine! it's just an expression!)


14. "If Sweet Briar students had attempted to bring suit on a contract claim, they would likely have also failed.  Furthermore, the only way Sweet Briar students could possibly win on a contract claim in the future is if Sweet Briar closed in the middle of a semester, thus requiring the school to refund any tuition to the students."
    Delete delete delete.


15. "[T]he faculty could again sue over the financial exigencies clause, or any other contract breach that could be in question."
    Truuuuuue.  But 10,000 people spent four months saving Sweet Briar.  Do you really think that we're going to let the College fail?
    
    If we find that there are financial exigencies, we'll be able to prove them and reverse course.  If we fail and the College closes, at least we will have done everything in our power to save her.  Unlike the previous administration, we won't hide the financials at every turn.


16. "Here, everything was dismissed by the court before final judgments were reached."
    An important point: the lawsuits were dismissed as part of the Settlement Agreement.

I love a good rebuttal, but I do expect better research from a third-year law student.

Paul G. Rice: Parallels Between Work and Play(ing with Sweet Briar's Future)

Abrupt announcements.  Misleading stakeholders.  Endowment squandered.  Millions of dollars due to creditors.  Breach of fiduciary duty.

These are not the (Sweet Briar) stories you're looking for.

In fact, this isn't a Sweet Briar story at all.

(okay, it totally has to do with the events at SBC)

Five Lessons Learned at the Virginia Supreme Court (TM)

(Not all of these lessons pertain to Sweet Briar; there were three cases on the docket prior to ours)

1. Don't interrupt Justices when they are speaking.  They don't like that.
2. Don't tell Justices what they can and cannot do in regards to hearing a case or making a ruling. They *really* don't like that.
3. The Attorney General's office is not above making deals behind the Supreme Court's back. Guess what the Justices think!
4. If you're going to argue your position, stick to your guns.  When you say "maybe," "I think," "perhaps," or "I guess," you lose credibility.
5. There is such a thing, legally, as an "average" sex offender.*

* Seriously?

Mark Herring and Equal Pay Day

Yes! Let me fix the last line for you, though: We can and must do better, and we can start by strengthening women's education and not closing Sweet Briar College.

“The Attorney General is concerned that the disruption and conflict engendered by challenges raised against the decision of the Sweet Briar Board of Directors to close Sweet Briar are counterproductive to protecting the interests of the public, the students, alumnae, faculty, administrators and staff of Sweet Briar, and other interested parties.”

Who are these "other interested parties," Mr. Attorney General?

I can guarantee that you are NOT protecting the interests of the public (did you read the Amherst County Mayor's letter?), the students (have you seen the banners?), alumnae (lawsuit), faculty (lawsuit), and staff (lawsuit). I do believe that leaves administrators and others.

On the one hand, you have 14,000+ women--and the parents, faculty, staff, and community who have worked to grow and nurture said women--working to #savesweetbriar.

On the other hand, you have 23 board members--with two men at the helm--and an unknown number of unknown stakeholders who are fighting their hardest to close the school for unknown reasons.

And you're working to protect the interests of whom, exactly?

An Open Letter to Mark Herring

Mr. Herring,

I am a constituent and a voter; a Democrat who helped to fund your campaign for AG; an alumna of Sweet Briar College.

I am extremely disappointed that you filed an amicus brief in support of the closure of Sweet Briar College. Please help me understand why you made this decision.

There are thousands of stakeholders--a large percentage of whom are your constituents--working non-stop to ‪#‎savesweetbriar‬. There are less than two dozen people fighting to close the college. Why? Mr. Jones and Mr. Rice have shown no transparency--which you claim to be one of your tenets--in this process.

"Attorney General Herring believes that transparency and accountability are keys to good governance. The people of Virginia have the right to know how their money is being spent and how this office is working on their behalf." The same holds true for the not-actually-voted-in president and Board of Directors of Sweet Briar.

It is the responsibility of the Board to protect the College, not destroy it. If they have given up on her, let them resign.

Make the right choice, Mr. Attorney General: enforce transparency; read the findings of the forensic accountant and the analysis of the Sax study; and redeem yourself in the eyes of those who funded and campaigned for you.

Respectfully,
A Vixen Says Moo