Fisk University’s legal battle over its efforts to raise funds for the school by monetizing part of its prestigious Stieglitz Collection of photographs and paintings entered another testy chapter this month, demonstrating that the clash among Fisk, the state of Tennessee and an angry group of Fisk alumni over the future of the school is far from resolution.
In legal documents recently filed with the Tennessee Court of Appeals, all three parties challenged a 2010 ruling by a Tennessee District Court in Nashville, citing different reasons why they felt the district court was wrong in its order and urging the Court of Appeals to send the Fisk case back to the lower court for reconsideration.
The alumni group, calling itself “The Task Force for the Rescue and Restoration of Fisk University,” is asking the appeals court to order the lower court to consider the group’s plan, which provides funds for keeping the collection at the school, as envisioned by the late Georgia O’Keeffe, donor of the collection, and relieving the school of any financial costs associated with the collection. The task force includes a number of Fisk alumni, including Carol Creswell Betsch, daughter of the late Pearl Creswell, the first curator of the Stieglitz Collection.
The appeals court has set oral arguments on the case for June 28. In its court papers, the Fisk alumni group told the justices it was organized “to oppose collectively the continued tenure of the current President (attorney Hazel O’Leary) and most of the members of the Board of Trustees due to their poor handling of the University’s resources.” The group said it wanted to “… make it known that the alumni of Fisk … are not in lockstep with the arguments and positions proffered by the University and its Board of Trustees to this Court.”
The alumni group is asking the appeals court to bar the sale of any portion of the 101-piece collection of art and photographs and order the trial court to consider the alumni group’s proposal that Fisk be ordered to work with the Pearl Creswell Fund, a new trust the group says will generate enough money to pay Fisk’s expenses for maintaining the collection without having to sell ownership in it to raise funds for other school needs.
The alumni legal appeal this month was the first major public airing of alumni unhappiness with the university’s leadership since last fall when the group and school administration had an exchange of biting letters attacking each other’s credibility, with the school board’s chairman dismissing the legacy alums as incorrect and out of touch.
Fisk’s board of trustees has backed O’Leary’s argument that the school needs serious money to secure its long-term future, and the $30 million sale of 50 percent interest in the art collection is the only way for the school to generate the necessary capital.
Fisk has had no success at major fundraising for years, despite several declarations in recent years of plans to attempt such. Recently, the school reported to the Southern Association of Colleges and Schools that fundraising in recent months has improved. The school does not want that considered by the court of appeals in weighing the school’s long-term financial condition, partly because the school is arguing that it may run out of money if the sale does not go through.
In its filings this month with the court of appeals, the state of Tennessee urged the court of appeals to embrace the Pearl Creswell Fund proposal and to order the local court to abandon its ruling allowing Fisk to sell part interest in the Stieglitz to the Alice Walton-backed Crystal Bridges Museum.
In urging a reversal of last year’s order by Chancery Court Judge Ellen Hobbs Lyle, the state says Lyle’s ruling and order approving the Fisk-Crystal Bridges deal “constitutes a clear abuse of discretion” in fashioning an order Lyle asserted most closely approximated the intent of the donor (O’Keeffe).
In most cases where institutions accept gifts, they are legally bound to use the gift in accordance with the donor’s intent, even if the donor subsequently dies. In legal and philanthropic circles, that long established guideline is called the “dead hand rule,” meaning the wishes of a donor must be honored in perpetuity, absent court permission to steer from the donor’s intent. In the Fisk case, O’Keeffe imposed numerous restrictions on the collection, including the no-sale, no-loan provisions from which Fisk is trying to escape.
In its filing with the appeals court earlier this week, Fisk dismissed the Pearl Creswell Fund proposal, assailing it as a “hypothetical, illusory plan that misses the point.” The school says the core of its arguments is “not whether Fisk has the funds necessary to pay the direct cost of exhibiting the art, but whether Fisk has enough money to avoid closing.”
Fisk went on to accuse Tennessee Attorney General Robert Cooper of “ignoring the law of this case, mischaracterizing the proof on remand and creatively misreading New York law,” the case law that is governing the art collection sale dispute.
While avoiding direct attacks on Judge Lyle, Fisk also asked that its case be sent back to her with orders that she make a major change in her order, if the sale is allowed to proceed.
Tucked toward the very end of its filing with the court, Fisk says “the only change” it seeks is an order that Lyle remove a key requirement that $20 million of the $30 million Fisk would receive from a sale be placed in a secure fund to be used exclusively for the upkeep of the Stieglitz collection.
Giving Fisk freedom to use the entire $30 million as it sees fit “…has the advantage of returning Fisk to economic viability…,” the school asserted. Adopting the Pearl Creswell plan embraced by the attorney general, would most certainly hasten the closure of Fisk, the school argued.
