Virginia Attorney General Mark Herring has sided against Amherst County Attorney Ellen Bowyer’s legal challenge to the closure of Sweet Briar College.
In a brief filed Thursday, Herring said Ellen Bowyer does not have standing to represent the commonwealth in this matter. Further, he said, whether the college remains open rests with Sweet Briar’s board of directors.
Herring wrote he worried disruption from legal challenges to the Sweet Briar board’s decision could be “counterproductive to protecting the interests of the public, the students, alumnae, faculty, administrators and staff of Sweet Briar.”
The filing comes just days before Tuesday’s scheduled hearing on Bowyer’s complaint in Bedford County Circuit Court.
Sweet Briar College’s board of directors voted unanimously Feb. 28 to close the school, effective Aug. 25. College President James Jones and board chairman Paul Rice said the decision came after concluding the school could not overcome financial challenges.
After the March 3 announcement, alumnae mounted a campaign to oppose the decision, forming the group Saving Sweet Briar Inc., aided by many faculty, students and other supporters. In turn, Saving Sweet Briar threw its support behind Bowyer, who filed a complaint against the school March 30.
Bowyer did not return a request for comment Thursday.
Herring’s brief does not take a position on whether Sweet Briar should continue to operate, according to his director of communications Michael Kelly.
“Sweet Briar College has provided young women with an outstanding liberal arts education for generations, and it's unfortunate that the Board of Directors could not find a sustainable path forward,” Herring said in a statement.
Reached on March 30, for response to Bowyer’s complaint, Kelly said the attorney general’s office deferred to Bowyer for comment.
In her complaint, Bowyer stated she is empowered by Virginia law to take legal action on behalf of the commonwealth if she believes laws about the solicitation of charitable donations are being violated or will be violated. Further, she stated she has the power to enforce the Uniform Trust Code.
The attorney general disagreed that Bowyer has power to enforce the trust code, and disputed whether the trust code even applies to Sweet Briar. Further, he said Bowyer’s authority under the Charitable Solicitations Act comes second to the authority of the attorney general in these matters.
He said an institution may use a donation for a purpose other than what it was donated for by following a legal process to modify or release the restrictions on the donations. Only the attorney general and the judicial system have the authority to oversee that process, he said.
“Accordingly, the Office of the Attorney General should be permitted to continue its examination of the decision to close Sweet Briar and its review of proposed modifications to charitable gifts without interruption by this case…” Herring said in the brief.
According to Kelly, Bowyer traveled to Richmond for a meeting with the Office of the Attorney General two to three weeks ago.
“In the meeting with the county attorney, we asked to coordinate efforts but that did not happen,” he wrote.
Reached Thursday, University of Richmond law school professor Carl Tobias said he found the attorney general’s argument persuasive.
“I think it was clear, to the point, convincing, but we'll see what the judge thinks,” he said.
Tobias said the attorney general raised some points similar to points raised previously by college attorney Calvin Fowler, but those arguments have more weight coming from the attorney general.
If the judge decides Bowyer doesn’t have standing, she can appeal, Tobias said, but time is running out on Bowyer’s end to stop the closure of the school.
Also reached Thursday, Liberty University law school professor Phillip Kline said he believes Herring has ensured Sweet Briar’s closure by his action.
Kline, an Amherst County resident and former attorney general of Kansas, disagreed with Herring’s decision.
Herring, he said, could file his own legal action to stop the college from closing, or he could give his blessing and support to Bowyer to act on behalf of the commonwealth.
Kline said he feels Herring is failing to consider the local impact of the closure of Sweet Briar College and the specific interest of Amherst County in the matter.
“His legal foundation is fairly strong, but it’s not a matter of what he can do, but what he should do,” he said.