Fisk Should Be Relieved of Responsibility to Art Collection, Judge SaysAugust 23, 2010 |
by Reginald Stuart
NASHVILLE, Tenn. — For the second time in as many years, Fisk University has been barred by a Tennessee court from selling an interest in its valuable art collection to raise funds for the ailing school.
The ruling here Friday also found Fisk to be in such dire financial straits it can no longer afford to care for the Alfred Stieglitz Collection of 101 paintings and photographs. It ordered Fisk and the state to make Nashville-centered proposals to remove the collection from Fisk’s responsibility in a manner that most closely reflects the intent of the collection’s donor, the late Georgia O’Keeffe, artist and widow of Stieglitz.
“It is impractical for a struggling university on the brink of closing to literally comply with Ms. O’Keeffe’s plan that Fisk maintain and display the collection,” wrote Judge Ellen Hobbs Lyle of the Chancery Court of Tennessee, 20th Judicial District.
In calling for new proposals for disposing of the collection, the judge rejected Fisk’s long-standing plan to sell 50 percent interest in the collection to the Arkansas-based Crystal Bridges Museum for $30 million, saying there are eight “provisions of the agreement (that) override, thwart and dilute the purpose for which Ms. O’Keeffe made the gift.”
O’Keeffe, who donated the collection to Fisk in the late 1940s and early 1950s to provide Nashvillians and Southerners access to the collection to promote the study of art, placed rigid conditions on her gift, including provisions that it be displayed at all times and never be sold.
The Crystal Bridges co-ownership plan ignores both restrictions, and Lyle said consideration of that plan was off the table until the objectionable portions of it were removed.
Lyle noted that under the “cy pres doctrine” used by courts nationwide to determine whether the terms of a gift can be changed, the court cannot fashion a “solution” to a petitioners’ issues “unchecked.”
“The reason the law limits the powers of courts in changing the conditions and disposition of gifts is for the greater good,” Lyle 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 … . A court may change a condition/restricting of a gift only if in doing so the result closely approximates the donor’s intent.”
Fisk, which has run a legal tab estimated at close to $1 million in its nearly five-year campaign to sell interest in the collection, issued a statement following Friday’s ruling that did not address the judge’s objections or issues raised about its finances.
“There is no daylight between a solution that benefits Fisk, the people of Tennessee and the nation,” the statement said. Fisk officials did not return requests for comments. Crystal Bridges issued no comment.
Tennessee Attorney General Bob Cooper, who initially supported the Crystal Bridges plan but quickly became a fierce opponent of the sale, praised the court ruling.
“While the court acknowledged that Fisk University is facing financial difficulties, the court found no precedent that would allow an institution to sell a charitable gift to generate money for the institution,” said Cooper. “We are grateful the Court agreed that this unique collection belongs in Nashville and that the proposed sale would undermine future charitable giving in the state.”
Lyle directed the state to come up with a Nashville-focused plan by early September for removing the Stieglitz Collection from Fisk. She went into great detail in suggesting the Frist Center for the Visual Arts, a relatively new art center in downtown Nashville backed by several wealthy Nashville families, be considered for showing and maintaining the Stieglitz Collection.
She said the museum could provide Fisk so-called “condominum” space for a downtown campus where the art could be exhibited. Such an arrangement could be looked upon favorably by the court, she noted.
Fisk, the city’s first university and one of a handful of HBCUs in the state, was given until Oct. 8 to reply to any state proposed plan and present its own, including a modified Crystal Bridges plan, if it wants. Lyle said she expected her final plan for relieving Fisk of its responsibility for the collection would be appealed.
While no closer to a definitive plan for the future of the Stieglitz Collection than it was nearly five years ago, Fisk’s pursuit of money for its art collection did force it to disclose more publicly about its finances than it has in years. The court found the school is essentially broke.
The court credited Fisk President Hazel O’Leary with significantly reducing the school’s $11 million debt she inherited upon becoming the school’s chief executive six years ago. Over the past two years as the economy has weakened, however, Fisk’s financial situation has worsened. Every Fisk faculty member has taken a 5 percent pay cut; administration salaries have been cut by 7 percent to 15 percent; the school has suspended contributions to pension plans and vacation accrual; all the campus buildings are mortgaged; its endowment has declined to $3.7 million from $4.27 million; and the school “regularly runs” a $2 million deficit annually, according to court testimony.
“The court accredits Dr. O’Leary’s assessment that Fisk has not cut just to the bone “but to the marrow”, and that with the economic downturn, cuts cannot sustain Fisk,” the judge wrote. “An infusion of capital is needed.” Reliving Fisk of its O’Keeffe gift would save the school about $131,000 a year, the court was told. The court cited those findings in determining it was legally “impracticable” for Fisk to continue honoring its responsibilities for the collection.