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Judge Blocks Sale of Art by Fisk

August 23, 2010

A Tennessee judge on Friday blocked Fisk University from selling a half share in a noted collection of modern art, finding that the institution's fragile financial condition could not be used to justify a sale that went against the terms of the donation under which the university received the art.

While there are a set of unusual circumstances about the Fisk situation (circumstances that have led to years of legal wrangling), the judge's ruling bolsters an argument that has been made in recent years by supporters of campus art museums who have feared that their sponsoring institutions might try to sell art to deal with institutional financial problems. A key part of the court's ruling was that just because a donor of art selects a college or university to display the art doesn't make general support for the college or university a purpose of the gift.

The ruling in the Fisk case was based on an appeals court's finding that the purpose of the gift of art was to have the art displayed, not "perpetuating the existence of Fisk." That means, Friday's decision said, that however worthy the goal of helping Fisk, that goal can't be the only determining factor in the fate of the collection.

The next step in the case is to allow new plans to be submitted -- and the ruling leaves open the possibility that Fisk could sell the collection in a way that satisfies legal requirements and helps the university. Fisk issued a statement Friday saying that it could come up with a way to do just that -- and that it would function normally for the time being. But university statements during the trial suggested that Fisk is in dire financial condition without an infusion of the sort envisioned by the sale that has now been blocked. (The sale was supposed to bring the university $30 million.)

Fisk, a historically black institution, was founded shortly after the Civil War -- and the arts have been central to the institution's financial survival long before the fight over its paintings. In the 1870s, facing closure for lack of money, Fisk sent its Jubilee Singers on national and worldwide tours and the funds the group raised kept the university going and brought it fame.

The art at the center of the current fight is the Alfred Stieglitz Collection (which includes works by Picasso, Cezanne, Renoir, and Toulouse-Lautrec, among others), which was donated to Fisk by Stieglitz's widow, the painter Georgia O’Keeffe, who also added some of her own works. (An article in Nashville Arts Magazine details how the collection came to Fisk.) Fisk has now for about five years been trying to sell some or all of the collection, arguing that it cannot afford to maintain it -- and that it badly needs the funds it could raise for the university to thrive. The current plan has been to sell a half-share in the collection to the Crystal Bridges Museum of American Art, currently being constructed in Arkansas with backing from Alice Walton, a Walmart heir.

Under a Tennessee appeals court ruling, the district court had to consider two tests to approve the sale: that conditions had made it "impracticable" for Fisk to maintain the collection and that the proposed solution to that problem "most closely approximates the donor's charitable intent."

On the former, Fisk had no difficulty. As detailed in the court ruling, the economic downturn of the last two years has hit Fisk -- never a wealthy institution -- hard. Faculty salaries have been cut by 5 percent while administrative salaries have been cut by 7 to 15 percent; pension contributions have been halted, every building has been mortgaged, the unrestricted endowment is down to zero, and departments such as philosophy and religion have been eliminated. Hazel O'Leary, Fisk's president, testified that Fisk would "bleed to death" if it cannot sell the art.

Judge Ellen Hobbs Lyle, however, said that was only of minimal relevance when it came to the question of approving a sale. She noted that O'Keeffe's goal in giving Fisk the art was for it to be displayed in Nashville and that the gift specifically barred Fisk from selling.

The legal doctrine of "cy pres," under which courts try to be sure that donations are managed as close as possible to donor intent, is key, Judge Lyle wrote in her decision. "The reason the law limits the power of course in changing the conditions and dispositions of gifts is for the greater good," she wrote. "The law has made the value judgment that it is better in the end for society as a whole that charitable giving be encouraged and rewarded by sticking to the plan and intent of the donor. The theory is that if donors see that the law does not honor their plans and intentions, donors will quit giving."

Many advocates for college art collections have been pushing for more protections for the works that are donated to colleges -- following the proposed sale at Fisk, one at Brandeis University (currently on hold) and other proposed or actual sales.

Brandeis has taken more criticism in the art world than Fisk, but some of Fisk's arguments in the recent trial over the fate of the collection have raised the eyebrows of arts advocates.

As reported by The Tennessean, a Fisk lawyer tried to make the the argument that the university should be allowed to sell the art because it was not black. The lawyer held up poster-sized reproductions of two paintings in the collection and told the court that "both artists are white, not black, not Southern. They have nothing to do with Fisk." Then the lawyer held up an image of the Aaron Douglas murals at Fisk. (Douglas was part of the Harlem Renaissance and his murals are not part of the collection Fisk wants to sell). "That is a treasure," the lawyer said. "For Nashville, the South and the black community. That is what we should be saving."

The Web site ArtInfo referred to this argument as "a novel race card." The argument did not appear to influence the judge.

 

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