Earlier this year, following the passage of the Donor Intent Protection Act in Kansas, Philanthropy Roundtable launched a monthly series on donor intent controversies around the country to better inform those who care about this important topic. We await updates on lawsuits involving Middlebury College and the former Hastings College of the Law, and will continue to inform readers about those topics.
Most cases discussed this year have involved gifts to colleges and universities. Art and natural history collections have also experienced disputes, as indicated by our continuing coverage of the Barnes Foundation and the October 2023 discussion of a landmark case at the Berkshire Museum. This month, following nearly six weeks of campus turmoil, we are returning to higher education and featuring several recently-published articles that raise important questions about the relationship between donors and the institutions they support.
We encourage donors to contact us with any questions they have about our featured items and consult additional resources on donor intent at the Roundtable’s Donor Intent Hub. We also welcome any news about donor intent that we may have missed.
Wealth Management: “Philanthropists are Pulling the Plug”
Trust & Estates legal editor Anna Sulkin Stern writes about donors’ responses to the October 7 Hamas attack on Israel and rising antisemitism on campuses, naming those who have suspended or terminated their giving to Harvard University, Columbia University and the University of Pennsylvania. She also reminds readers that donor dissatisfaction can easily spread to other donors and campuses, quoting from an October Trusts & Estates article:
Upholding and respecting donor intent encourages charitable giving. When donors know their intent will be honored, they develop confidence in the charitable sector and the organizations to which they give. However, if donors lack trust or confidence that their intent will be protected by those responsible for upholding it, some either won’t give or will give somewhere else.
The article goes on to suggest that although this season’s disputes between donors and higher education grantees do not necessarily involve violations of donor intent, donors who continue to give to colleges and universities may change how they structure their gifts. Avi Z. Kestenbaum, co-chair of Meltzer Lippe’s Trusts & Estates practice group, warns: “
… In the future, I could see major donors putting more conditions and restrictions on their donations, not only as to how the funds are used, which is already common, but also with regard to the world view and belief system the university espouses and supports on its campus, in light of what we are now witnessing at some of these universities.
In the current environment, Kestenbaum’s prediction is likely correct. Increased donor restrictions, however – especially those that speak to an institution’s “world view and belief system” – are likely to run head on into faculty and administration concerns about hiring, tenure and ultimately, academic freedom. Donors will need to be well-informed about utilizing appropriate language in their gift agreements and should be prepared to engage legal assistance if needed.
Read more here.
The Chronicle of Higher Education: “The Dangers of Donor Revolt”
In The Chronicle of Higher Education, Lila Corwin Berman, a professor of Jewish history at Temple University, and Benjamin Soskis, a senior research associate at the Urban Institute’s Center on Nonprofits and Philanthropy, discuss the unfavorable reactions of many philanthropists to recent campus events. They also worry this signifies an unhealthy and dangerous level of power in the hands of megadonors that warrants increased regulation.
The authors note:
In 2022, the Council for Advancement and Support of Education calculated that institutions of higher education took in $59.5 billion in charitable gifts and found that the top 1% of givers accounted for at least 80% of all donations. Dependent on these top givers, colleges allowed them to earmark funds through “restricted” gifts dictated by donor-determined limits and priorities. According to one recent study, a full 68% of money in the largest private universities is “restricted” in this way.
Of particular concern, Berman and Soskis suggest, is that the political leanings of the wealthiest Americans “tend to skew centrist and conservative on many issues.”
While conceding that donors who are now threatening to withhold further gifts if universities fail to address antisemitism on their campuses may be “hold[ing] power to account,” the authors suggest these donors may also be engaging in “public grandstanding … showing the public that, far from balancing power, they are arrogating too much for themselves by elevating their concerns over others’ interests.” Regarding the revolt of Jewish donors, they maintain, “It is safe to assume that some critics will draw on a deep well of antisemitic tropes linking Jews to perfidious uses of power.”
“The donor revolt,” Berman and Soskis conclude, “has brought to the surface long-simmering debates about philanthropic power. … At the very least, we should take it as an opportunity to ask whether the philanthropic system as it exists is worth defending, or whether a public revolt against the philanthropic status quo is in order.”
Yet the authors never clarify what form such a public revolt might take, or what manner of increased charitable regulation they propose. Their concerns about donors who are demanding that higher education grantees abandon free speech and the protection of academic freedom are certainly warranted, yet they fail to acknowledge that donors have the right to restrict the use of their gifts to programs and institutions aligned with their values.
They imply that Jewish donors should avoid voicing their anger and retracting financial support because they will likely inspire more antisemitism. Their focus on donors’ power discounts the bargaining power a university can bring to the table – especially when donors are alumni who are emotionally invested with their alma maters.
Finally, Berman and Soskis seem to neither understand nor acknowledge that the common thread in the current communications of dissatisfied donors is a powerful feeling of betrayal. That is true for many donors who cannot be simply written off as “megadonors,” including the 1,600 Harvard alumni who are threatening to end any financial support of their alma mater unless the university addresses the wave of antisemitism on its campus.
Read more here. (You may need to create a free account to access this article.)
Cornell University and Dartmouth College on Faculty Responses
In The Cornell Daily Sun and on Dartmouth’s website, these articles focus on faculty members and their responsibilities to the community of students and others they serve. Both are potent reminders that the core purpose of higher education institutions is not fundraising, not lobbying, not public relations – it is teaching.
Responding to the October 7 terrorist attacks on Israel, eight Cornell University faculty members representing a variety of fields of study sent a joint letter to the student newspaper regarding the tumultuous events on that campus over the month that followed. “Whatever our personal response to the unfolding spectacle of physical and verbal violence now being directed at Jewish people not only here, where we live, but everywhere,” they write, “it is as professors and educators that we wish now to speak and to register our offense.” What follows is a stark reminder of the many ways in which too many faculty members have abrogated their responsibilities not simply to their profession, but – and far more importantly – to their students.
Failure to ensure student safety is a primary concern, the authors argue, as students must be given an opportunity to discuss issues in classrooms “without fear of reprisal, intimidation and the threat of public shame.” They go on to say, “If professors abdicate their responsibility to ensure the freedom of all their students to speak their minds, what happens in the classroom hardly deserves the name of higher education. What passes for teaching under such circumstances is called propaganda.”
Faculty members who express opinions in public about matters they have not studied are expressing “contempt for the years of painstaking effort that it takes to master any subject,” the authors continue. Those faculty members, they say, are not only disrespecting their colleagues and their profession, but “are also making it very difficult for all of us to ask our students to follow the rules that differentiate the conscientious pursuit of knowledge from the irresponsible reproduction of ignorance.”
Finally, the authors say too many faculty members fail to engage students in understanding “the implications of their position on a specific question” and in “confront[ing] fully and honestly the meaning and consequences of what they are saying.” Intentionally – and even unintentionally – allowing one’s students to adopt a mindset based on slogans is one more symptom of the current “assault on the teaching profession and discourse, an assault with which the profession itself seems to be cooperating.” The victims of this assault, the Cornell authors conclude, “are precisely those whose approval we are now shamelessly courting and whose young impressionable minds are our most important charge.”
At Dartmouth, faculty members have succeeded in creating a safe forum for open and educated dialogue on matters at the heart of their scholarship. Since October 7, they have offered three on-campus and livestreamed events for the college community. Susannah Heschel, chair of the Jewish studies program, and Jonathan Smolin, associate professor of Middle Eastern Studies, have led this effort which has featured faculty from Dartmouth and other institutions. Heschel has credited the longstanding practice of scholarly collaboration between the two programs, noting, “Because of that long-term relationship and understanding, we were able to immediately jump right in on this issue as soon as the October 7 attacks took place. … You don’t wait until there’s a crisis.”
Beyond this, a Dartmouth senior lecturer, Egyptian author and academic Ezzedine Fishere has taught a course on the politics of Israel and Palestine for seven years. In recent years he co-taught the course with visiting professor Bernard Avishai, a scholar of Israeli politics. “We thought having both perspectives would create a safer space for everybody in class,” Fishere has remarked. Although Avishai will not be available for the college’s winter term, Fishere will bring in other presenters by Zoom, explaining:
The idea has always been to teach students to understand the motivations of the players and their concerns and their aspirations so that they can better analyze this conflict and understand its dynamics—where it might be going—rather than to try to get them to know, quote-unquote, the truth and take positions about it. … I’ve seen how students, once they feel safe enough to allow themselves to exercise introspection about the community that they come from and about their own beliefs and stereotypes, they can open up and allow themselves to go beyond the point where they started. It’s heartwarming and it’s also what learning is about.
The critical importance of the teaching faculty to donors who are committed to reforming higher education is manifested in both Cornell University’s faculty letter and Dartmouth College’s faculty collaboration. In our guidebook on donor intent, “Protecting Your Legacy,” we recommend that a donor find at least one (ideally tenured) faculty member at the target institution who shares the donor’s vision and can help a donor navigate the bureaucracy of a particular campus. Faculty members can be particularly useful in explaining an institution’s academic processes and the boundaries of academic freedom, and can assist donors in building more support and continuity for their proposed reforms.
Read more here and here.