UPDATE (6/15): I am officially nominating this post as the Most Typo-Riddled Ethics Alarms Article of 2015. At least I hope it is—alerted by a reader, I just found and fixed about 10, and I have no idea what happened. I suspect that I somehow pasted the next-to-last draft instead of the final. My proofreading is bad, but not THAT bad. I am embarrassed, and apologize to all: that kind of sloppiness is never excusable, but I especially regret it on a topic this important.
Sweet Briar College was officially scheduled for termination, date of execution later this summer, by a board that chose not to offer alumnae and other interested parties a fair opportunity to raise objections, propose solutions, or mount a rescue effort. Indeed it was almost an ambush.
Although the distinguished graduates of Virginia’s unique and venerable all-female college have mounted a spirited effort to reverse this dubious move, time is not on their side. Amherst County Attorney Ellen Bowyer, working with the passionate opposition to Sweet Briar’s closing, argued in court that this would violate the terms of the will upon which the college was founded, and that the college’s board has engaged in malfeasance or misfeasance, violating its fiduciary duties and misusing charitable funds. A circuit court refused Bowyer’s request for a temporary injunction that would at least delay the closing —Tick-Tick-Tick!—and the case was appealed to the Virginia Supreme Court. Those justices concluded that the lower court, in denying the injunctive relief, erred by concluding that that the law of trusts do not apply to a corporation like the college. It does. So now the case returns to the circuit court to reconsider the merits.
I find this infuriating and heart-breaking. As I’m certain the college’s treacherous board knew in March, legal challenges and court decisions take time, and the realities of the academic year halt for no man, or woman. It’s June now, and Sweet Briar has no 2015 entering class. Its sophomores and juniors are seeking, or have found, other schools as well. One of Sweet Briar’s problems—not an insuperable one to a board appropriately dedicated to is traditions and mission—was increasingly lagging enrollment. Whatever the solutions to that may be, skipping a year of entering freshman is not one of them. Faculty have to eat: presumably most, if not all of them, and the staff, are seeking employment elsewhere. The battle to save Sweet Briar, as noble and as important as it is, may have been lost from the start, simply because the clock, and the calendar, keeps moving.
This was, I fear, a fait accompli of the worst variety, an unjust, unfair, even illegal action that is successful because once set in motion, there is no way to stop it. Using the fait accompli strategy is intrinsically unethical, and the mark of an “ends justifies the means” orientation. It is based on the principle that an omelet, once made, cannot be unmade, because eggs can’t be put together again. In a situation where the ethical, fair, procedurally just approach is to debate and challenge a proposed policy action before it takes place, the fait accompli approach operates on the practical maxim that if you have no options, you have no problem. In essence, it says, “Yes, you may be right, but what are you going to do about it?”
In our history, this tactic has been used for good purposes and bad: Vice-President John Tyler extra-constitutionally declared that he was the new President, not just an acting President, when President William Henry Harrison died, and dared Congress to reverse his decision, thus setting a precedent that survives today. Even though the Supreme Court had decreed that President Jackson’s plans to relocate Indian tribes by force to make way for white settlements was illegal, Jackson went ahead with his plan anyway, knowing it could not be undone.
One President was killed by a fait accompli: When President Garfield was shot, Doctor Willard Bliss (his first name was also Doctor, meaning that he was Doctor Doctor Bliss…) simply took over Garfield’s care, declaring that it was the President’s wish, though it wasn’t. Once he had set up all the treatment procedures and began issuing orders, everyone assumed that removing him would do more harm than good. In fact, Bliss’s stubbornness and outdated practices regarding sterilization are generally believed to have been the reason Garfield didn’t recover.
This is also the argument being currently employed by President Obama and the supporters of Obamacare to pressure the Supreme Court in the King v. Burwell case. The Court just can’t declare the law’s current interpretation illegal, we are being told—it’s too late. The danger is that policies adopted because their architects calculated that it would be too late to stop them– fait accompli-–become templates and justifications for future conduct, until the principles trampled by the fait accompli tactic aren’t just breached and wounded, but dead.
This is one of many reasons why Sweet Briar’s fate should concern us all.