NEW YORK—Late last month, the Tennessee Supreme Court declined to hear an appeal of a lower court’s ruling that the Georgia O’Keeffe Foundation, Santa Fe, N.M., has no standing to reclaim a major donation Georgia O’Keeffe (1887–1986) made to Fisk University, Nashville, Tenn., in 1949: 101 works of modern art from the collection of her late husband, Alfred Stieglitz. The collection includes major works by O’Keeffe and by Marsden Hartley.
The O’Keeffe Foundation (formerly the Georgia O’Keeffe Museum) sought the return of the collection, arguing that the university violated the terms of the artist’s gift when it sought to sell part of the collection to help relieve its financial woes. O’Keeffe had donated the works on the condition that they be kept together. Saul Cohen, a spokesperson for the O’Keeffe Foundation, declined to comment on the Supreme Court’s decision.
Fisk initially sought legal permission to sell two of the works from the collection in late 2005, prompting a lawsuit from the O’Keeffe Museum. The two parties reached a settlement in 2007, under which Fisk would sell an O’Keeffe painting to the museum for $7million; however, Bob Cooper, the Tennessee state attorney general, whose office is in charge of overseeing charitable gifts, rejected that settlement (ANL, 4/17/07), calling it “a bad deal financially for Fisk.”
As the legal wrangling between Fisk and the O’Keeffe Museum continued, in late 2007 the university reached an agreement with the Crystal Bridges Museum of American Art, Bentonville, Ark., founded by Wal-Mart heiress Alice Walton. Under that arrangement, the university would sell Crystal Bridges a 50 percent interest in the collection for $30million. Fisk and Crystal Bridges would have joint ownership, allowing for “mutual care and management of the collection as well as the right to publicly display [it] on an equal basis.”
The O’Keeffe Museum opposed that deal, and in early 2008, Tennessee State Chancery Court judge Ellen Hobbs Lyle tossed out the art-sharing agreement, ruling that it violated the terms of O’Keeffe’s 1949 gift.
Last summer, an appellate court in Tennessee found in favor of Fisk, determining that the O’Keeffe Foundation lacked standing to object to the deal, and dismissed the foundation’s suit. The appellate court also reinstated the university’s cy pres petition and ordered the trial court to determine whether cy pres relief could be applied in the Fisk matter. (Cy pres, literally “as near as possible,” is a doctrine that permits a court to redefine or reinterpret the terms of a bequest in cases where the trust is poorly written, technically illegal, or over time has become impossible to uphold. Cy pres allows a judge to enforce a gift in terms that he or she feels most closely follow the original intent of the donor.)
Crystal Bridges director Don Bacigalupi said the decision “has renewed the possibility for Fisk University and Crystal Bridges Museum of American Art to share ownership of the Stieglitz Collection. Sharing this great resource will allow the collection to become more widely accessible to diverse audiences in Tennessee, Arkansas and the nation and will ensure that the collection remains intact for generations to come.”
However, on Feb. 23 the Tennessee attorney general’s office issued a statement that suggested otherwise. “This means that the Georgia O’Keeffe Museum can no longer pursue its efforts to take Fisk University’s Alfred Stieglitz Collection to New Mexico, contrary to the express wishes of the late Ms. O’Keeffe,” Cooper wrote. “The decision … held that the conditions placed by Ms. O’Keeffe on her charitable gift to Fisk can be modified only under extremely limited circumstances.” However, the statement continues, “given Fisk’s recent reaccreditation by the Southern Association of Colleges and Schools (SACS), the university can no longer argue that the sale of the collection is necessary to its financial survival. … It seems increasingly unlikely that Fisk will be able to justify to the court proceeding with its proposed sale of the world-renowned art collection.”
SACS president Belle Wheelan confirmed to ARTnewsletter that Fisk’s accreditation was reaffirmed late last year as part of a standard review that takes place every ten years. The university was first accredited in 1930.
Fisk’s attorney Michael Norton, of Nashville-based Bone McAllester Norton, told ARTnewsletter, “We’re not saying much at this point. We want to have a discussion with the attorney general and see if we can come to a meeting of the minds.” He added, “Obviously we are very pleased at the decision, which puts the case back in trial court. There is one issue left to prove, that we have just cause to have an exception made to the no-sale condition.”