In the wake of George Floyd’s murder six months ago,
Americans flocked to the streets to voice their anger against
institutions that perpetuate racial oppression.
Protestors experienced the murder of Floyd as the latest in a long
history of acts of racist violence against Black people and other
people of color, a history that in recent years included the
murders of Eric Garner, Michael Brown, and others; a white
supremacist rally in Charlottesville; and a massacre at a
Charleston church. They demanded that American
society at long last reckon with its racist
past. These demands gave fresh fuel to the
movement to examine who we as a society choose to honor in public
places with statutory and other forms of recognition.
Prominent among the institutions called to account, in the past
and with added fervor now, are the nation’s colleges and
universities whose buildings, schools, and programs often bear
names that honor racist alumni, donors, and historical
figures. In fact, as recently as this week, the Virginia Military Institute removed a campus
statue honoring the Confederate General, Thomas Stonewall
Jackson.
In this alert, we address on-campus naming issues, including the
un-naming or renaming process. We describe
universities’ obligations under gift agreements, a common
source of naming rights, and the avenues available to a university
seeking to modify controlling terms. We then
propose some best practices for addressing campus naming
issues.
Naming Issues in Recent Campus Activism
Names have been a focus of recent on-campus civil rights
efforts, particularly where the name of a building, an academic
program, or the institution itself honors slavery, white supremacy,
or their proponents.
Although activists often demand immediate change, the decision
to examine, modify, or remove campus names is not one that
institutions typically reach quickly.
Universities may face legal restrictions (discussed in more detail
below), as well as the interests of various university
constituencies. Universities have taken a
longer, more deliberative approach when faced with such demands
than those demanding change would like. For
example, in 2017, efforts by student leaders initiated changes such
as Harvard Law School revoking its school seal
and Yale renaming one of its residential
colleges, both the result of extensive review
processes.
With Yale, the university began reexamining
the name of one of its residential colleges, named after U.S. Vice
President John C. Calhoun, an infamous white supremacist and ardent
supporter of slavery, in 2015, in response to an online petition
that summer followed by protests in the fall.
After months of university-hosted “conversations” and
“listening sessions” with students, Yale announced in
April 2016 that it would not change the name of the
college. This led to further student protests,
and by August, the university convened a Committee to Establish Principles on Renaming,
comprising Yale faculty, students, staff, and
alumni. That fall, the committee produced a report identifying a set of principles to
guide renaming efforts at the university.
Applying these principles, the university president set up an
ad-hoc group of three advisors, which in 2017 unanimously
recommended to rename the college.
Given this summer’s widespread and persistent demands for
racial justice, it was reasonable to expect protests at higher
education institutions in the fall. The COVID-19
pandemic, however, has largely prevented this from occurring;
without all students on campus, and with strict rules in place
limiting group gatherings for those on school grounds,
university-based protest and community organizing are largely
nonexistent.
Despite the impact of the pandemic, the topic of naming rights
is unlikely to fade from focus on college and university campuses.
Online activism has sparked continuing dialogue and action.
This year alone, many colleges and universities
announced name changes to show solidarity with ongoing efforts to
confront anti-Black racism. The University of Virginia School of Law removed the
name of a former Confederate soldier from a school building
after review by an ad hoc committee of alumni, faculty, staff, and
students and using the school’s naming guidelines; and Princeton University removed President Woodrow
Wilson’s name from its schools in June, four years after it
had previously declined to alter the name.
The relative and likely temporary absence of on-campus activism
presents an opportunity for colleges and universities to address
naming issues thoughtfully and methodically, without the pressure
to act too quickly and the animosity and division that often
accompany demands for urgent action. In that
vein, below are key considerations—legal and
otherwise—that institutions should keep in mind as they
embark on this process.
Review Gift Agreements
Any institution considering a name change must first identify
the original source of the naming rights. Naming
rights can arise from a number of sources, including internal
administrative decrees, government-controlled designations, and,
more commonly, contractual agreements between the university and a
donor. The source of naming rights will
determine how, when, or under what circumstances un-naming or
renaming may be possible. The guide below
summarizes how a university may modify or terminate naming rights,
including overcoming common issues faced by institutions with
decades- or centuries-old naming obligations tied to deceased or
unidentified donors.
In the case of a name bestowed by university decree or other
honorific, universities will generally look to internal policies
and procedures and work with current administrators, board members,
and overseers.
Universities reviewing names rooted in historic preservation
laws will need to petition state or federal legislatures or seek
court intervention.
Most often, naming rights and other obligations to place
inscriptions on university property are contained in private gift
agreements voluntarily entered into between the institution and
donors. Donors often include conditions on
charitable gifts, embodied in the final written gift agreement
between the parties. Conditional gift agreements are
enforceable contracts and governed according to the agreement’s
terms. In such cases, a university’s legal
obligations will require careful review of the agreement’s
terms and applicable laws. Key provisions will
include:
- Identity: Who owns the naming rights,
including whether such rights terminate upon an individual’s
death or pass to an estate or heir.Similarly, whether rights may be
transferred or assigned and under what circumstances.
- Duration: Whether the naming rights are
indefinite, limited in time, or allow for university review or
reconfirmation after a specified period. If an agreement is set to
expire or go through review in the near term, the university may
opt to plan for an un-naming process to coincide with that
timing.
- Consideration: The specific gift promised by
the donor in exchange for the naming rights, and confirmation that
the donor has fulfilled or is in the process of fulfilling the
pledged gift.If the donor never completed their promises to the
university, the agreement may be subject to cancellation.Where the
gift is non-monetary, and includes items or property that the
institution no longer needs or values, returning the gift may
likewise terminate the agreement.
- Retention of Rights: Whether the university
reserved the right to revoke or change the name and any criteria
triggering that right, including the discovery of illicit sources
of funds or conduct that would be detrimental to the
university’s reputation.The institution may be able to cite
such provisions as the basis for revoking naming rights, including
cases where the university seeks to cut ties with persons connected
to racial injustice.
Absent any clear provisions permitting the termination of a
donor’s naming rights, the university can still work with the
living donor or their designee directly to amend the
agreement. A donor may no longer desire the
notoriety associated with naming rights, determine that the purpose
of the original gift is no longer served by the university, or
simply agree to a name change or relinquishment of naming rights
altogether.
If a donor is unwilling to relinquish naming rights voluntarily,
change remains possible. Institutions can
negotiate a buyback price with the donor or return the full
original gift in exchange for un-naming rights.
(In such cases, at least some jurisdictions have held that the
original gift amount must be adjusted by the consumer price index
to reflect present-day value.) While it may
require large sums to terminate naming rights successfully,
universities may conclude that any long-term reputational harm,
donor relations, or impact on the student body outweigh the cost of
the negotiated payment. Institutions like Vanderbilt University have even launched
successful charitable campaigns to raise the funds necessary to
return gifts tied to naming rights.
If the donor is deceased and has not transferred or assigned
naming rights to an heir or third-party, or if the donor cannot be
identified, a university should work with legal counsel to contact
the office of the relevant State Attorney General and discuss
modification of the gift agreement. State
attorneys general maintain both common law and statutory authority
to oversee the activities and governance of nonprofit organizations
and charitable trusts. Courts reviewing
petitions for relief contrary to a donor’s intent will
undoubtedly inquire whether the attorney general’s office
assents to the request.
Recommendations and Best Practices
Even where the path to revoking naming rights is clear,
universities must consider how to ensure that the decision-making
process is thoughtful and deliberative.
Institutions can best position themselves to consider un-naming
demands by establishing written policies and procedures
now. These policies can also help prevent future
issues as new naming opportunities arise. A
university naming policy should: (1) aim for transparency; (2)
structure a fact-based inquiry; (3) manage expectations; (4) engage
relevant stakeholders; and (5) meet reputational challenges by
invoking the university’s core values. Key
criteria should include:
- Any principles guiding the approval, change, or removal of
names connected to the institution, including what aspects of the
university’s mission statement or values should be reflected
when naming spaces, scholarships, programs, etc.
- Rules or restrictions on names, including buildings or programs
that must remain unnamed or regulations concerning how or where a
name may appear on a physical structure.
- Minimum philanthropic requirements for obtaining consideration
for naming rights, including approved sources and forms of
support.
- The process that must be followed to approve, revoke, or alter
name use, including the form of any such request, notice
requirements, and timeline.
- The duration of naming rights, including policies setting term
limits or periodic reviews.
- Any reservation of rights to un-name or rename, including the
circumstances that would warrant or qualify for such action.
- Persons responsible for administering the policy, including
whether those individuals retain the authority to appoint standing
or ad hoc committees to review naming rights, launch credible
studies to investigate whether name changes are warranted, seek
input from relevant constituencies, or release statements on the
institution’s behalf concerning naming rights.
- Persons or bodies with the ultimate power to approve, revoke,
or alter any naming rights, including university presidents and
other administrators, boards, or overseers.
- Discussion of the role students, alumni, donors, and local
residents should play in the name review process, including
membership in any standing or ad hoc committees to ensure a wide
array of community interests are represented in the process.
- Relevant timetables for delivering interim and final reports
related to name changes or un-naming to ensure accountability.
Establishing these policies now—or reevaluating and
tightening existing policies—will provide a solid foundation
for a college or university when it confronts its first (or next)
un-naming demand from members of the community.
Having a clear, written policy will also provide reputational
support to the institution both as applied to: (1) students,
showing that the university understands the legitimacy of concerns
relating to naming, is not defensive, and has processes in place to
address requests; and (2) current, past, and future donors,
demonstrating that the university is not purely reactionary, but is
being deliberative and thoughtful about any un-naming
suggestion. Universities may also consider going
a step further and begin proactively reexamining the names on their
walls, programs, and schools. Being on the
forefront of the issue will demonstrate an affirmative commitment
to anti-racism and make clear that when the university is able to
fully reopen, it intends to be welcoming for all who walk the
campus.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
