The fate of both Fisk University and one of the nation’s great modern art collections, the Alfred Steiglitz Collection (the Collection), remain in doubt after a Tennessee Chancery Court recently rejected the current terms of a $30 million deal whereby Crystal Bridges Museum, in Bentonville, Arkansas (founded and supported by Walmart heiress Alice Walton), would purchase an undivided 50 percent joint interest in the Collection allowing it to display the Collection for half of the year in Arkansas.  The court gave the Tennessee Attorney General (AG), as protector of charitable gifts, until Sept. 20, 2010 to propose a local solution for the Collection’s display and maintenance.  Following that, Fisk University will have until Oct. 8, 2010 to file any responses to the AG’s proposal and to file amendments to the Crystal Bridges Museum deal addressing the court’s concerns.  The court will then order a solution for the display and maintenance of the Collection, the result of which will likely end up being appealed.

The story of the Collection isn’t unique, as colleges and universities throughout the country are considering the sale of parts or all of their collections to keep the lights on after the recent financial meltdown.  Other high profile college and university de-accessioning cases involve the Maier Museum of Art at Randolph College, the National Academy Museum and School in New York City and the Rose Museum at Brandeis University.  While philosophic arguments can be made about the virtues of selling a university art collection to fund the continued education of students, these cases are fundamentally legal ones.  Does the college or university have the legal right to sell parts or all of the collection and will such a sale stand up to a legal contest?  If a collection was acquired by gift rather than purchase, like the Steiglitz Collection, the governing legal document is the gift instrument.  If carrying out the terms of the gift instrument has become impossible or impracticable and the donor refuses to release the restriction or has died, then courts sometimes allow for the release of the restrictions under the common law arguments of cy pres, deviation or approximation.  These doctrines allow for changes to restrictions in keeping with the donor’s overriding charitable intent. 

Some History

Alfred Steiglitz was born in 1864, two years prior to the founding of Fisk University.  He was the son of wealthy Jewish immigrants and married into a wealthy family.  This family wealth allowed Steiglitz to learn photography in Europe.  He became one of the greatest photographers in history and is credited, over his more than 50-year career, with transforming photography into an accepted art form.  He was also a famous art collector and gallery owner whose New York City galleries helped introduce many avant-garde European artists to the United States.

Perhaps his greatest discovery was a young Wisconsin artist named Georgia O’Keefe, who went on to become the most important American female artist of the 20^th century.  Although O’Keefe was 23 years younger than Steiglitz, they fell in love.  Steiglitz divorced his first wife (who had been his primary benefactor) and married O’Keefe in 1924.

When Steiglitz died in 1946, he left a massive collection of paintings and photographs.  His will provided that O’Keefe was to distribute the Collection among one or more charities “under such arrangements as will assure to the public, under reasonable regulations, access thereto to promote the study of art.”

O’Keefe spent the next several years cataloguing the more than 1000 piece Collection and distributing the works among six institutions.  The first five were major arts institutions – the Library of Congress, the National Gallery of Art in Washington, the Metropolitan Museum of Art in New York, the Art Institute of Chicago and the Philadelphia  Museum of Art.  The sixth recipient was Fisk University, a small college in Nashville, Tennessee founded after the Civil War to educate newly freed slaves. 

How did Fisk University, which O’Keefe hadn’t visited prior to the opening of the Collection, end up with 97 paintings and photographs from Steiglitz’s estate and four paintings by O’Keefe herself?  The Collection includes works by Cézanne, Picasso, Renoir and Toulouse-Lautrec and has a current value of approximately $74 million.  The answer is Carl Van Vechter, a New York writer and photographer who was good friends with both Steiglitz and O’Keefe.  Van Vechter was a patron of the Harlem Renaissance with a deep interest in black culture.  Van Vechter made O’Keefe aware of his intention to leave his collection to Fisk, and introduced her to Fisk’s first black president, Charles Johnson.  O’Keefe later explained that she picked Fisk because she felt that it would have made Steiglitz happy. 

Strings Attached

The gift to Fisk wasn’t without strings.  Fisk was prohibited from selling or exchanging any of the objects of the Collection. The gift's purpose was to make the Collection available to the public in Nashville and the South for the benefit of those who didn’t have access to comparable collections to promote the general study of art.  The Collection was unveiled in 1949 and has remained in the Van Vechter Gallery at Fisk since that time. 

Financial Problems

Since its inception, Fisk had been plagued by periodic financial problems that threatened its existence.  In 2005, Fisk was on the verge of losing its accreditation, when a plan was announced to sell the Collection’s two most valuable pieces.  Enter the Georgia O’Keefe Foundation (Museum), which sued Fisk in 2007 and 2008 to prohibit the sale.  The court at that time held that because Fisk’s financial condition made it impossible for Fisk to support and maintain the Collection, the Collection would revert to the Georgia O’Keefe Museum in New Mexico, as the successor to the deceased O’Keefe.

Enter the Tennessee AG who argued successfully before the Tennessee Court of Appeals in 2009 that the O’Keefe Foundation had no reversionary interest in the Collection, and that it was up to the Tennessee courts to determine its fate.

The Tennessee Court of Appeals also held that the conditions imposed by O’Keefe on the gift including the no sale condition, could be removed if Fisk demonstrated that:  (1) the circumstances changed subsequent to the gift rendering literal compliance with the restrictions impracticable and (2) the proposed modification most closely approximated the donor’s charitable intent.

In terms of O’Keefe’s intentions in giving the Collection to Fisk, the Court of Appeals found that the clear intention of the gift was to enable the public in Nashville and the South to have an opportunity to study the Collection to promote the general study of art.  The Court of Appeals sent the case back to the Chancery Court with instructions to decide the two issues of (1) impracticability and (2) modification that closely approximate the donor’s intent. 

Unresolved Issues

After a trial,  the Chancery Court issued its ruling on Aug. 20, 2010.  As to the issue of impracticability, the court found that Fisk had satisfied that requirement and that it was impracticable for a struggling university on the brink of closing to literally comply with O’Keefe’s plan that Fisk maintain and display the Collection.

As to the modification requirement, the court ruled that Fisk hadn’t demonstrated that its solution of a joint ownership/location sale agreement with the Crystal Bridge Museum closely approximated O’Keefe’s intent.  The judge found eight provisions in the agreement that override, thwart and dilute the purposes for which O’Keefe made the gift.  As such, the court refused to approve the agreement as written.

Instead, the court requested a second round of proposals from both Fisk and the Tennessee AG.  They must submit the last of these proposals to the court by Oct. 8, 2010.  The court’s clear preference is a solution that keeps the Collection permanently in Nashville.  The AG is currently working with one of the local billionaire families to find a solution to keep the Collection in Nashville, while Fisk is working on a new agreement with the Crystal Bridges Museum that will be acceptable to the court.  It’s interesting that perhaps the most important work in the Collection is O’Keefe’s Radiator Building painting, which will likely be sold to keep the radiators on at Fisk University.