Fisk University this week cleared a major hurdle in its bid to raise $30 million by selling half ownership in its treasured Alfred Stieglitz Collection of art and photographs, when the Tennessee Supreme Court refused without comment to hear appeals by the state’s attorney general, who was seeking to halt the proposed sale.
The decision by the state’s highest court means an appeals court approval of the proposed sale stands and the Fisk case goes back to the trial judge who originally heard the case. The appeals court had ordered the lower court to work with Fisk on some guidelines governing the valuable collection that Fisk received as a gift more than half a century ago from the late artist Georgia O’Keeffe.
At the time of the gift, Fisk had agreed to several strict covenants tied to it, including a promise to never sell all or any part of the 101-piece collection, which includes paintings by Cezanne, Renoir, Deigo Rivera, O’Keeffe and photographs by photographer legend Alfred Stieglitz.
When the school’s financial fortunes began a steady downfall in the last decade, Fisk decided to monetize the collection by seeking a court declaration that it was the clear and sole owner of the collection and that the strict covenants essentially died with the passing of O’Keeffe.
The state, in its position as guardian for the public of charitable gifts to institutions, opposed the sale. It argued that the long-established “dead hand” rule applied to the O’Keeffe gift, meaning the intent of a gift must be honored beyond the death of a donor. The state also contended the Tennessee courts were not applying the longstanding so-called cy pres doctrine courts across the nation use when allowing gift recipients to deviate from the terms of a charitable gift.
An essential component of cy pres doctrine holds that any deviation must be as closely in line with the intent of the donor in order to be acceptable.
The state attorney general’s office issued a brief statement saying it was “disappointed” in the Tennessee Supreme Court decision. It stopped short of saying whether it had given up its fight.
Fisk also was low-key in its statement regarding the high court ruling that clears the way for it to consummate its deal with the Arkansas-based Crystal Bridges Museum, a new arts facility backed by Wal-Mart heiress Alice Walton.
“This puts an end to the multi-year legal controversy about whether or not Fisk has the right to share the Stieglitz Collection with Crystal Bridges,” the university says in a statement issued Monday. “…The agreement provides that the collection will be exhibited one-half the time at Fisk and one-half of the time at Crystal Bridges. The agreement ensures that each Fisk student will have an opportunity to study and view the art over the course of his or her matriculation at the University and that the entire collection will be available for the public to view and enjoy during these periods.”
Fisk President Hazel O’Leary, who made the art sale the centerpiece of her fundraising efforts during her tenure at the Nashville institution, was quoted as saying she looked forward to working with the attorney general “to resolve the remaining administrative matters identified by the Court of Appeals.”
O’Leary, who has announced her retirement from Fisk effective in December, had several years ago said the school needs approximately $100 million to fully restore itself to good health. She has said the $30 million would be used to pay outstanding bills, to repay the school’s endowment, which has regularly been tapped before her appointment to support the school, and to endow several chairs in the sciences.
Fisk, whose enrollment has nosedived over the past decade and is expected to graduate about 60 students this spring, has told the courts is has regularly run an annual deficit of $2 million, mortgaged all of its property that it can, and imposed other cost-cutting measures to stay afloat.
Fisk is trying to raise $8 million in cash and pledges by the end of June (when its fiscal year ends), as part of a larger effort to demonstrate its financial viability. Its financial condition is among several areas of concern voiced by the Southern Association of Colleges and Schools (SACS), the regional accrediting agency, when it placed Fisk on probation last December. It could not be immediately determined whether Fisk would be able to use the one-time cash windfall from the art sale in its arguments with SACS.