Former Westminster Choir College board members, students, parents and donors are plaintiffs in a federal lawsuit filed in New York City on Tuesday that seeks to stop any move of the choir college from the downtown Princeton campus where the school has been located for the past 83 years. The lawsuit seeks to halt any sale to commercial real estate developers or non-profits that would not maintain the school at the existing Princeton location.
Two of the plaintiffs, Howard McMorris and C. Daniel Bergfeld, were members of Westminster Choir College’s board of trustees just prior to the merger with Rider in 1991. They were both members of the board that authorized the merger under the terms and conditions of a 1991 agreement between Westminster and Rider.
The lawsuit, filed by coalition lawyer Bruce Afran, seeks an injunction barring Rider University from selling Westminster Choir College and its campus to a commercial developer or to any non-profit or public agency that would cease to operate Westminster at its current Princeton Campus. The suit was filed in New York because McMorris and fellow plaintiff Mona Davids live in New York, and Rider University also conducts business in New York, according to the suit.
“The complaint asserts that Rider University has no right under the 1991 merger agreement to sell Westminster’s campus to developers and to close Westminster Choir College. When the two schools were merged, Rider agreed in a solemn undertaking to continue to operate and fund Westminster,” Afran said. “Rider cannot sell out this world-renowned music college simply to cover its own deficit. Rider’s deficit arises out of its own loss of 1,000 students over the past five years while Westminster’s enrollment has remained stable. We are asking the U.S. District Court in New York to order that Rider cease all efforts to sell Westminster, and to honor its obligations under the 1991 merger agreement.”
After discussions with Rider President Gregory Dell’Omo and other administration officials on May 19, representatives of the coalition followed up the meeting with a written proposal to spin off Westminster as an independent institution, stating that a subsequent meeting would be expected within 30 days. It was indicated in the proposal that legal action would be taken should this meeting not take place by the deadline.
“As of Monday, June 19th, no request to meet had been received,” Coalition President Constance Fee said. “Rider had initially indicated that members of the coalition would be invited to participate in negotiations. When that opportunity never materialized, and no effort to schedule a follow-up meeting by the deadline was made, we were left with only one option, which was to do exactly what we said we would do, when we said we would do it, and proceed with legal action.”
Westminster is one of the world’s leading institutions of academic music, choral, voice, conducting and sacred music instruction, and is one of the nation’s leading training grounds for music teachers. Members of the coalition argue that if the choir college is broken up, the campus sold, and students, faculty and programs are relocated, the college’s world-class stature and international renown would be impossible to maintain, and would be gone forever.
The school’s trustees agreed in 1991 to merger with Rider and give the school the campus, programs and staff in exchange for a continuing commitment to operate and maintain the prestigious school of music education, according to the lawsuit. The plaintiffs claim in the lawsuit that Rider University’s plan to close Westminster and sell its Princeton campus is a direct violation of the 1991 merger agreement. Rider agreed it would continue to operate, maintain and fund Westminster Choir College and its Princeton campus, “except under limited financial circumstances that have not arisen,” according to the lawsuit.
“Rider’s administration’s intent to sell the Westminster campus, close Westminster Choir College and use the proceeds to fund Rider’s deficit, violates the 1991 agreement and public policy and will result in the dismemberment and destruction of this school of music and sacred music instruction and the loss of one of the world’s truly great academic and cultural institutions,” reads the lawsuit, which also details Westminster’s history and various accomplishments, including performances with the New York Philharmonic and more than 50 recordings on top record labels.
According to the lawsuit, Rider sought the merger back in 1991 in order to increase its curriculum offerings in the fine arts and performance arts by gaining access to Westminster’s world-renowned faculty. Since the merger, Rider has taken advantage of the unique Westminster faculty to open the Westminster College of the Arts, the lawsuit claims. About 300 Rider students study in the fine arts college under Westminster faculty at Westminster’s Princeton campus. The suit also claims that following the 1991 merger, Rider College applied for and gained New Jersey state recognition as a university on the strength of the expanded schools and graduate degrees available to Rider students through Westminster.
Under the merger agreement, Rider accepted the responsibility of continuing to maintain and operate Westminster Choir College in exchange for the gift of the Westminster property, faculty and course offerings and represented that it would continue to operate and fund the Westminster campus in Princeton under the separate Westminster identity, according to the lawsuit.
“Consistent with these purposes, the merger agreement placed limitations on Rider’s ability to collateralize the Westminster property and expressly stated that the resources of Westminster must be used for the Westminster programs and mission,” reads the lawsuit. “Rider will utilize WCC’s resources in support of WCC’s programs and provide such additional funds as may be necessary from time to time beyond the resources of WCC to accomplish the obligations of Rider as set forth in this Agreement.”
Rider cannot close Westminster because Westminster requires additional annual financial support in the form of subsidies or deficit support, according to the lawsuit, which argues that that the financial support was “a fundamental understanding and predicate of the merger.” According to the lawsuit, the merger agreement obligated Rider to continue to operate and maintain the Westminster Princeton campus except where Rider determines “in good faith” that it cannot continue to do so if it would be “substantially impracticable or would substantially adversely affect the affiliated or merged institutions.”
Under the 1991 merger agreement, Rider is allowed to use the Westminster property as collateral for the purpose of borrowing money to support Westminster programming, which the lawsuit argues is a “further demonstration of the intended limits to be placed on Rider’s use of this property.”According to the lawsuit, Rider is selling the school and land to fund the university’s anticipated $10 million deficit and to construct other buildings on the Rider campus for Rider’s purposes, not Westminster’s programming.
The suit claims Rider is seeking to sell the choir college and campus to either another academic institution or commercial developers at a market value of between $40 and $60 million.
“Although Rider has made statements that it would prefer that Westminster be sold to an academic partner that would continue the operation of Westminster at its Princeton campus, Rider has failed to make good faith efforts to solicit such interest but, instead, offered to sell the Westminster campus to other academic institutions at market value, a solicitation that is not a good faith effort to continue the purposes of the 1991 merger agreement,” reads the lawsuit. “Academic institutions do not typically purchase colleges or universities at market value but merge with existing entities in the same manner as Rider merged with Westminster, without payment but with a commitment to continue to operate and maintain the school and its programs.”
The lawsuit also claims that the only entities responding to a solicitation circular by Rider are real estate developers or for-profit commercial businesses that do not operate non-profit fine arts or liberal arts institutions of higher education. The suit claims that Rider is considering offers from EPR Properties, the Guanghua Education Group, Bloom, Garden Homes of Princeton; the Weichert Development Company, CITIC Private Equity Funds, Lunar Capital Management Ltd. Toll Brothers, and the Vistria Group to purchase and develop the campus in the heart of Princeton.
“Each of the above entities is a real estate developer that invests in commercial or residential real estate projects or, in the case of the Guanghua Education Group, is a commercial developer of private, for-profit business and language schools,” reads the lawsuit.
“Rider has announced to its board that it will be considering moving ahead with such interested purchasers, none of whom are institutions of higher education and will not be operating Westminster Choir College,” reads the lawsuit. “Montclair State University has expressed interest in incorporating Westminster’s choral education faculty and certain courses into Montclair’s existing choral education program, but will not maintain a separate Westminster Choir College as required under Rider’s 1991 merger agreement.”
Rider has declared that it will cease to operate Westminster Choir College on its Princeton campus as of the close of the 2017-2018 academic year. “Such declared intention will be or is in breach of the 1991 merger agreement that requires Rider to continue to operate, maintain, fund and subsidize Westminster Choir College and its campus and maintain its separate identity, except under limited circumstances,” reads the suit, which argues that the continued operation of Westminster Choir College is neither “substantially impracticable” nor “would substantially adversely affect the affiliated institutions”, the conditions necessary to any cessation of operation of Westminster under the 1991 merger agreement.
The plaintiffs have asked the court to:
-Declare that Rider University has breached the 1991 merger agreement
-Direct Westminster Choir College to form an independent board of trustees that will resume operation of Westminster Choir College as a non-profit institution of higher education, or direct Rider to seek out an academic institution to merge with Westminster Choir College on terms similar to the terms and conditions under which Rider received the Westminster property under the 1991 merger agreement.
-Direct Rider to seek another entity to run the choir college on the Princeton campus because Rider University has declared its intention to abandon the grant of the Westminster property
-As an alternate remedy, appoint a special master to seek out and identify an academic institution to merge with Westminster Choir College.
-Permanently block the sale of the Westminster property to any commercial developer or other commercial entity, corporation, partnership or association or any entity that will not continue to operate Westminster Choir College at its Princeton campus.
The plaintiffs are also seeking attorneys fees and the reimbursement of other costs for the lawsuit.
The suit also argues that the sale of the campus and removal of its programming to other venues will
cause the irreplaceable loss of the nearby ancillary buildings and venues in the Princeton community, at Princeton University and Princeton Theological Seminary, including religious settings and performance venues used for many decades by Westminster’s faculty and students as a part of the choir college’s academic mission.
“Westminster is an internationally acclaimed school that is also a national treasure. I chose Westminster because it has a proven legacy of excellence and world class faculty. Our choirs sing with the top orchestras in the world and our music education program produces many of the music teachers in our nation’s public schools,” said Mymoena Davids, a sophomore student plaintiff .
“Westminster is thriving, my education should not be jeopardized because Rider is financially unstable and under-enrolled by over 1,000 students due to an incompetent executive management team and poor board oversight,” Davids said. “Rider has no legal right to sell Westminster for profit and is violating the 1991 merger agreement. Furthermore, Rider does not have clear title to Westminster’s Princeton campus due to the restrictive covenant in the original deed of trust.”