Discriminatory Charitable Trusts: Time for a Legislative Solution

Abstract

Despite society’s increasing intolerance of discrimination, courts have seldom invalidated charitable trusts which discriminate on the basis of race or sex in the selection of their beneficiaries. Courts’ failure in this respect is due to the inability of traditional legal principles – traditional trust law and equal protection – to deal effectively with discriminatory charitable trusts. In this article, Professor Swanson demonstrates that deciding whether to enforce a racially or sexually discriminatory trust necessitates balancing the creator’s interest in having the trust enforced against society’s interests in preventing discrimination. Neither traditional trust law nor equal protection law properly balances these interests and thus have led to inconsistent and erroneous decisions. To remedy the inadequacy of traditional law, legislatures must draft anti-discrimination statutes which articulate the states’ resolutions of this balancing process and license courts to modify discriminatory trust provisions when necessary. Towards this end, Professor Swanson proposes a model anti-discrimination statute designed to accommodate the creator’s and society’s interests by deleting sexually or racially discriminatory provisions of a charitable trust, but otherwise remaining the trust’s benefits.

Keywords: Charitable trusts, trust, discrimination, intolerance, racism, sexism, equal protection