Monday, August 23, 2010

More Fisk Follies

So Judge Lyle issued her decision in the Fisk case on Friday. She resolved one of the two remaining issues in the case; the other she kicked down the road a bit.

First, some background. Last summer, the Tennessee Court of Appeals sent the case back to Judge Lyle with instructions to perform a two-step analysis:

First, to figure out whether "the change of circumstances subsequent to the gift [has] render[ed] literal compliance with the conditions [of the gift] impossible or impracticable."

And second, if the answer to the first question is yes, then "to fashion a form of relief that most closely approximates Ms. O'Keeffe's charitable intent."

In Friday's decision, Judge Lyle ruled that the answer to the first question was in fact yes: "It is impracticable for a struggling university on the brink of closing to literally comply with Ms. O'Keeffe's plan."

So we move on to the second question -- how best to approximate O'Keeffe's intent -- and here things get a little wacky again. The Court of Appeals had already defined what that intent was: i.e., "to make the Collection available to the public in Nashville and the South" (emphasis, as I said here, importantly in the original). I had interpreted this at the time to be a nod towards the pending Crystal Bridges deal. But Judge Lyle is here to inform us that, if you think about it, Arkansas isn't really part of the South:

"Through the testimony of sociologist Dr. Amey the Attorney General established that Bentonville, Arkansas, is 555 miles driving distance from Nashville. That is the same distance as it is from Nashville to Milwaukee, Detroit, Cleveland and Pittsburgh. ... Nashville is more racially diverse and has a lower average household income [than Bentonville]. Using the U.S. Census Bureau's definition of the 'Southern' states, Nashville is closer to more Southern states than Bentonville."

With that out of the way, Judge Lyle invites the Tennessee Attorney General "to submit a proposal" (within 20 days) for "a sharing arrangement in Nashville or ... an institution in Nashville capable and willing to permanently house and maintain the Collection to replace Fisk." There's lots of talk in the decision about a "condominium" arrangement at the Frist Center for the Visual Arts, but, presumably, any institution in Tennessee that steps forward and says "we'll take the work" will get it over the (non-Southern) Crystal Bridges Museum.

What's missing, of course, is any consideration of the interests of Fisk. The $30 million they would get for sending the works out of the South to Arkansas for six months each year is completely irrelevant because, as Judge Lyle states, the Court of Appeals "made no finding of a dual intention by Ms. O'Keeffe that includes perpetuating the existence of Fisk." In other words, the intent behind the gift to Fisk was not to benefit Fisk; it was simply -- and only -- to make the Collection available to the public in Nashville and the (true) South.

But, as the Charity Governance Blog's Jack Siegel says, this is ridiculous: "O'Keeffe must have believed the collection benefited Fisk and wanted those benefits to accrue to Fisk. ... We have no doubt that if she knew that the [sales proceeds] could save Fisk from closure, she would authorize the sale. ... We suspect that O'Keeffe will do a few spins in her grave if the collection is displayed in the Frist Center without any dollars accruing to Fisk."

As I've said before, I'm at a loss to understand why people would rather see Fisk hand over the entire collection to Museum A and get nothing back in return, than see it give up a half-interest in the collection to Museum B (or CB) in exchange for $30 million that it so desperately needs.