I flipped through the Attorney General's brief in the Fisk appeal. No surprises, but I continue to scratch my head at the argument that "the Collection obviously will not be available to the public in ... the South ... when it resides in Bentonville, Arkansas." This could be an example of this phenomenon, but I always thought Arkansas was part of the South.
Much more interesting is this law review article by BU's Alan Feld: Who Are the Beneficiaries of Fisk University's Stieglitz Collection? The whole thing is worth reading (and I thank Terry Martin for the pointer), but I'd like to highlight a couple of points here.
First, on why the debate should be different when it's a Brandeis or a Fisk that seeks to sell work: "When a university rather than a museum owns artwork, ... the institutional calculus becomes more complex. The university appropriately considers the educational value of the artworks, their relationship to the core educational mission, and the university's capacity to derive maximum educational utility from continued ownership of the work. Other educational needs may deserve higher priority. The public reaction to any proposed sale often fails to balance the school's multiple obligations." (But it's always so much easier to be OUTRAGEOUSLY OUTRAGED than to balance multiple obligations.)
Next, he reminds us that the Fisk-is-selling-the-work narrative doesn't really accurately describe what's going on here: "Under the proposal, Crystal Bridges would pay Fisk $30 million for an undivided half interest in the collection. Fisk and Crystal Bridges each would display the collection for six months of each year. The proposed sale to Crystal Bridges thus would reallocate some of Fisk's ownership rights to a public institution pursuing an arts education mission, keeping the works out of private hands, while enabling Fisk to proceed with its proposed educational improvements." (I know, repulsive, right?)
He has the following answer to those who "fear that the failure to respect donor wishes after they make the gift will discourage subsequent donors from donating gifts to charity: "[T]his disincentive should have only modest effect on rational donors who see that the modification of conditions results from the combination of changed circumstances and the passage of a long period of time." (Or, as Jack Siegel put it, "Let's get real.")
He also points out that we are often dealing with "thin or cryptic evidence of donor intent": "If cy pres requires a court to ask, 'what would the donor do in the face of changed circumstances?,' the answer comes close to guesswork in such cases. We simply cannot know precisely what either Stieglitz or O'Keeffe would have directed had they known of Fisk's current economic difficulties. ... Would they have favored the sale to Crystal Bridges of a half interest in the collection? We do no know." (I made a similar point -- that "we actually have no idea what [O'Keeffe] would have wanted had she known Fisk would end up in the condition it's in" -- here.)
He ends up arguing for a pragmatic approach: "The institution should maintain fidelity to donor conditions until circumstances have changed. At that point, an inquiry broader than donor intent should ensue. The court ... should identify the parties whose interests bear on the matter at hand -- including, but not limited to, the explicit concerns that the donors expressed when they made the gift -- and determine the best current outcome."