Deaccession Questions

In The Amherst New Era Progress, Christa Desrets reports that the former director of Randolph College’s Maier Museum of Art, who resigned in protest over the school’s decision to deaccession four paintings last year, "has been granted a fellowship with the Smithsonian Institution to conduct research for a book on the practice of selling items from museum collections for profit."

The story quotes someone from the Smithsonian as saying the book will be about "the importance of understanding the notion of deaccessioning, and how that relates to museum ethics. Our museum association’s code of ethics states that if you deaccession, the money is to be put back into the museum collections. So that’s what she’s looking into — how is that implemented or not implemented."

That sounds interesting, and I look forward to it, but I'd be even more interested in a book that doesn't start with an uncritical acceptance of the norm that you can only deaccession to buy more art and instead explores to what extent, and in what circumstances, that norm seems justified. Among the issues that book could explore are the following.

Given that money is fungible, to what extent does the distinction between proceeds-used-for-buying-art and proceeds-used-for-other-purposes make sense? Imagine a museum that has $100 in annual operating expenses and wants to acquire $20 worth of new art. It has $100 available to spend. Under the AAMD rule, it would be okay for it to spend the $100 on operating expenses and deaccession some artwork in order to raise the $20 it needs to acquire the desired new art. That would be fine. No one would wax apoplectic. There would be no AAMD boycott of the museum. But if instead the museum takes the $100 and spends $80 of it on operating expenses and $20 on the desired new art, and then deaccessions the same existing artwork in order to raise the additional $20 it now needs to meet its operating expenses -- well, now we have a great catastrophe. How can that be?

Another question worth exploring is whether it's sensible to draw such a sharp distinction between the acquisition of art, on the one hand, and other ways museums spend money, on the other. Take, for example, Whitechapel Gallery, only because it was just in the news earlier this week. It recently completed a $20 million renovation and expansion -- a "desperately needed" makeover. "The added space will allow the gallery to remain open continuously, whereas before it had to close about 10 weeks a year when installing new art. Its educational space was too small to accommodate even an average-size school class, and the former library had no wheelchair access." Is it not possible to see those things as every bit as important to the institution's mission as the acquisition of additional artwork? Is keeping the museum open an extra 10 weeks a year not a good art-related reason? Does expanding space for education not count either? Why should we automatically assume that buying art always justifies a deaccessioning, but that no other use of proceeds -- no matter how important to an institution's mission -- ever can?

I think this whole issue is a lot more complicated than a lot of people let on. I'm glad someone's writing a book about it.

"So much for the public trust and the public interest."

I can't recommend highly enough this brief essay on deaccessioning in the Broad Streeet Review by Gresham Riley, the former president of the Pennsylvania Academy of the Fine Arts.

It's rhetorically very interesting, a little sneaky even.

He begins by paying homage to "the most important [deaccessioning] guideline," i.e., "the stipulation that the earnings realized from the sale of a work of art must be restricted to the acquisition of other art." "Nothing in the art museum world," he correctly observes, "possesses quite the sacred cow status as this particular guideline; to breach it is to become a pariah."

He says the "essential purpose" of the rule is that it "forces museum boards to distinguish between cultural and financial assets. Objects in the permanent collection must not be treated as simply one set of fungible properties among others."

So far, nothing remarkable. It seems like we're in for yet another lecture about preserving the collection for future generations and blah blah blah.

But then he quickly pivots, noting the "compelling fact" that "art museums are under enormous financial pressure, and how they finance their operations will increasingly call for creative thought." "Within this context," he says, "I believe a fresh look at deaccession is justified."

First of all, he argues, the current rules "fail to accomplish their intended purposes— namely, to protect the public interest and to encourage prospective donors to donate art works to museums. According to this theory, without firm deaccession guidelines, donors will lack confidence in the willingness of museums to keep what is given to them."

"But," he says, "the existing policy is in fact an exercise in smoke and mirrors, providing neither guarantees of public access nor commitments to maintain possession." On the one hand, "because of limited exhibition space, most museums’ collections are consigned to storage." In addition, the current rules "don’t prohibit a museum from selling ...; they merely limit the use of proceeds from the artwork that’s sold."

Wow. Just wow.

He continues: "Nor do the current guidelines place restrictions as to whom an artwork might be sold. There are no prohibitions against selling to private collectors .... Consequently, a museum can unilaterally remove a work of art from the public domain altogether .... So much for the public trust and the public interest."

Remember my Museum Directors Hall of Fame? Gresham Riley just got his own wing.

He concludes by calling for "new, more flexible guidelines" which would allow sales proceeds to be used for "a number of object-related (and more importantly, budget-relieving) activities and staff positions." Like what?

Like: "pay[ing] the salary of a conservator and/or the expenses associated with a conservation laboratory."

Yuck! Repulsive!

Or: "the addition of education professionals to help interpret the collection to the public, or curators to help maintain the collection."

Eww! Stalinesque! Appalling! Horrible! I hereby call on the Deaccession Police to call on the AAMD to sanction Mr. Riley (and anyone he has ever associated with) at once.

The big finale:

"Current deaccession guidelines perpetuate a museum culture in which objects are ends in themselves, more important than their use to educate, to inspire, to stimulate, to empower—even more important than their care and preservation. ... Rethinking deaccession guidelines would not only reduce some of the smoke and mirrors associated with museum operations. It might also stimulate novel ideas about financing museums while legitimately expanding their basic mission."

Like I said: Hall. Of. Fame.

BREAKING NEWS: Injunction denied in Berkshire Museum case (UPDATED 2X)

Story here.  More later.

UPDATE:  Lots of interesting stuff in the decision.  There are a number of museum directors in my Deaccessioning Hall of Fame, and we recently added our first scholar-in-residence.  Now we've got our first judge.  Some reactions, in no particular order:

1.  There were recently some efforts by the usual anti-deaccessioning crowd to downplay the museum's financial difficulties, but Judge Agostini gives that argument short shrift:  "There appears to be no dispute that the Museum is in serious financial trouble. ... Although the extent of the financial woes is disputed, it is beyond cavil that the Museum's financial outlook is bleak."  So stop caviling.

2.  He points out (at p. 6) that "deaccessioning items from a museum is neither illegal nor unethical per se and every proposed deacesssion must be examined on its own merits."  That's a pretty good statement of the anti-anti-deaccessioning position.

3.  The decision basically proceeds in two movements.  First, nobody but the Attorney General has standing to sue.  And, as for the Attorney General ... oh, does he take the Attorney General to the woodshed.  He points out that the AG was "made aware of the proposed sale" in June, at which point it "commenced a detailed and thorough review":  it "requested and reviewed numerous documents, conducted over 20 informal interviews, met with Museum officials in Pittsfield, had no fewer than 20 conference calls with Museum counsel and fielded more than 400 contacts by individuals interested in the transaction."  In September, when the November sale was announced, the AG "took no steps to intervene or even express dissatisfaction."  It wasn't until Oct. 30, two days before the court hearing, that the AG got involved, and even then did not "assert the the Museum breached its fiduciary duties, only that it has 'concerns' and needs more time to complete its investigation."

"Putting aside the issue of why four months was insufficient to complete this inquiry," the Court continued, the AG failed to specify "what information is necessary to complete its review, what attempts it has made to obtain such information, and when it will be in a position to offer its opinion."  The Court calls the AG "a reluctant warrior," and notes, dryly: "this request to enjoin based on concerns is unusual."

4.   The Attorney General didn't fare much better when the Court finally turned to the substantive question whether the museum's trustees breached their fiduciary duty.  It points out, first of all, that "the Attorney General, agreeing that the Museum was in dire straits, conceded at oral argument that the Trustees' decision to deaccession ... was in good faith."  It then goes on to note that the AG "cites no case, statute, or [AG] policy in support of the proposition that, to be reasonable, corporate board decisions must follow the professional ethics of the field."  In other words, the AAMD and their allies in the Deaccession Police do not make the law.

Let's stop there for a second because this is an important point.  The Court here is rejecting the argument that the museum's decision was unreasonable because it "would result in sanctions" by the museum associations.  The Deaccession Police have had some success with this argument in the past -- most notably, in the case of the Corcoran -- which has always struck me as remarkable.  It seems to me the argument is:

If you do X, we will smack you.
It is unreasonable and a breach of fiduciary duty to do something that results in your being smacked.
Therefore, it is a breach of fiduciary duty to do X.

Judge Agostini rejects that argument.  "The Trustees evidently considered the ethical implications of their decision and weighed those implications heavily."

5.   He also dismisses, in one quick footnote (n.11), the argument we hear over and over from the Deaccession Police "that deaccessions of this nature will chill relations with potential future donors to the Berkshire Museum, and to museums in general."  This argument, he says, "overlooks the simple fact that donors are free to restrict their gifts in express terms, and, quite often, they do."

6.  Nobody seemed to press the argument that works can't be sold because they are held in the public trust ... but maybe that's because there's no such thing as the public trust.

7.  The bottom, bottom line:  The trustees here "undertook a deliberate and careful review of the available options and chose what they believed to be the appropriate course.  That was their duty. Though the Attorney General, the non-governmental plaintiffs, and perhaps many in the public might disagree with the resulting decision, the law does not hold the Trustees to a standard of popular or political approval.  Rather, the law requires reasonable care under the circumstances, and there is no evidence that the Trustees afforded this decision less than reasonable care."  In other words:  once again, the Deaccession Police, writing on Twitter, do not make the law.

8.  The Court closes with one last shot at the Attorney General -- "it is bewildering that the [AG] would seek such an injunction ... when its investigation has uncovered no evidence of bad faith, no conflict of interest, no breach of loyalty, no express gift restrictions, and yielded unconvincing evidence of implied gift restrictions or a breach of reasonable care during a two-year decision-making process" -- and expressly frames its decision as vindicating "the rights of a charitable board to make thoughtful decisions to steer its charity through troubled times."

UPDATE 2:  Felix Salmon needs a drink.  (Scroll around for his other thoughts on the decision.) And Brian Frye called it.  (Yes, he did.)

"Watching a museum die is painful."

Judith Dobrzynski reports on the closing of the Fayetteville, NC, Museum of Art.  This is a case where deaccessioning could not have kept the museum afloat -- "of 22 works offered in a live auction [last week], just six sold -- bringing a total of $13,000" -- but it's an important reminder of what happens when we let a museum go under.  If we prevent them from selling one work (or two, or three) to stay solvent, then the result may be that they end up selling that same work anyway ... along with every other work in the collection.  Clearly, that's much better.

That certainly seems to be the implication of Lee Rosenbaum's grilling of National Academy director Carmine Branagan, three years after the museum sold two paintings from its collection to pay operating expenses.  Branagan says they "profoundly" regret the loss of the two paintings, "but there was no choice. There was no choice! So the collective Academy made the decision that staying open and being able to have the opportunity to continue this historic legacy was what was important. ... If the decision was made not to do it, the Academy wouldn't exist."

That's not good enough for Lee, who issues Branagan a Deaccession Police citation for Insufficient Remorsefulness and forwards her Incident Report to the AAMD bureau ("I can't imagine that AAMD's arbiters of museum ethics will be pleased by Barnagan's responses to my questions").

So just to review:

Selling two paintings to keep from having to close a 175-year old museum:  Deeply, deeply troubling.  "Deplorable."  Repulsive. The AAMD would like to have a word with you.

Selling eight paintings -- including works by Monet, Gauguin, and Pissarro -- to buy a single work by Caillebotte:  No problem.  Knock yourself out.  Kind of a Humane Society.  It's not like there aren't thousands of other pictures at the museum.  Get a grip.

(I do note that, alone among the Deaccession Police, Lee opposed the latter sale too -- because it violated her principle (which is not, it's worth noting, the principle of the AAMD or the New York Board of Regents) that only works "deemed unworthy of the museum's collection" should be sold.  But her criticism of that sale -- which you can read here -- is extremely mild in comparison to her criticism of the "deplorable" National Academy sales.)

In the course of making the case for the eight-for-one deaccessioning, Boston Globe art critic Sebastian Smee says the following:

"[I]n cases like these, I think, it's important to be realistic, and not to take refuge in principle. (Principles are fine, but they have a habit of short-circuiting active thought and judgment)."

I couldn't agree more.  In the Great Deaccession Debate, it's the AAMD, the Brodskyites, the Deaccession Police who want to take refuge in principle.  They have their principle, their prissy fatwa -- thou shalt not sell except to buy more art -- and they cling to it, against all reason.  They are the enemies of active thought, and of judgment.  It's actually a little repulsive.

"Like many institutions, the Met is looking to take advantage of a two-year window in which the Association of Art Museum Directors ... has relaxed the guidelines that govern how proceeds from sales of works in a collection (known as deaccessioning) can be directed." (UPDATED 3X)

The Met floats a trial balloon: Facing Deficit, Met Considers Selling Art to Help Pay the Bills. It's considering. It has "begun conversations." It would be "inappropriate" not to consider it, "when we’re still in this foggy situation." They are "engaging in [an] evaluation process" that is "the more conscientious course of action." "Every museum in the U.S. is having these conversations." For them "not to discuss this now would be irresponsible."

They would also like us to know that, if it happens (which it might not, it's only being considered, mind you) it will be done carefully. "As museums periodically do routinely, the Met’s curators will evaluate the holdings in their departments with an eye to which pieces are duplicative or have been supplanted by better examples, or have rarely — if ever — been shown. Works to be sold will then have to be approved by department heads, the museum’s director and the board before public auction."

Also, anticipating one of the main lines of attack from the Deaccession Police (i.e., however legitimate the need, the money should be raised by other means), the story includes the following from a Met curator: "We’re facing a huge budget deficit. We’ve tried for years to get more robust funding for conservation."

So the idea has been floated. The "conversation" has begun. Over to you, Deaccession Police.

UPDATE: Paddy Johnson: "The Association of Museum Directors should have disqualified museums with endowments over a certain size from deaccessioning work. The Met does not need to do this."

Greg Allen: "The Met rolls out its deaccession plan in an exclusive to the Times. Meanwhile no comments from the trustees with the billions to fund the budget gap who will vote on selling artwork instead."

UPDATE 2: Brian Frye: "This is big news. If the Met starts deaccessioning in order to generate operating revenue, it's game over for the deaccessioning police. I'll eat my hat if they don't go bananas."

UPDATE 3: They're going bananas. No hats need be eaten.

More on my deaccessioning puzzle

Michael Rushton offers up a speculative, tentative, cautious, possible answer to the deaccessioning puzzle I presented last week.

It's basically a "capture" theory -- that, as with all large, complex nonprofit organizations, the general direction of major art museums is determined by their "knowledge workers" (i.e., the curatorial staff), and the deaccession policy that we see is the one they prefer.  Like anything Rushton writes, it's worth thinking about, and I will do so, but in the meantime, let me offer two quick reactions:  (1) I'm not sure it's true.  I've linked before to a number of curator-types who have publicly questioned the wisdom of the standard view on deaccessioning; I've heard many others do the same in private conversations.  And (2) even if true, all this would do is explain where the rule came from; it wouldn't tell us whether we ought to give it any weight.  So curators want more and more art.  Big surprise.  Why is that the end of the discussion?

But more importantly, notice how nuanced ... subtle ... creative Rushton's answer is.  This is in stark contrast to the way the AAMD and its accomplices among the Deaccession Police talk about it.  For them, it's a simple, black and white issue.  There is no puzzle, there is nothing to be explained or defended.  It's a simple matter of "common sense."  It's the "coin of the realm."

In fact, the Deaccession Police don't have an answer at all.  What they do, instead, is pretend the question doesn't exist.

"Is art really this static?" (UPDATED 2X)

Derek Fincham also weighs in on the National Academy deaccessioning, making an interesting comparison with the situation at LA MOCA: "We might point to [MOCA's] financial mismanagement, but how much of this financial difficulty can be focused on the decision to focus on the art itself, on the acclaimed exhibitions. MOCA seems to have focused entirely on the art, and now needs the art world equivalent of a financial bailout. The National Academy has instead chosen to deaccession works ...."

UPDATE: Meanwhile, Lee Rosenbaum has all the latest developments in the National Academy story, including "emergency" proposed legislation by the New York Board of Regents and a letter from the National Academy director to AAMD members "strongly express[ing] our concern about the AAMD's practice of publicly censuring organizations in crisis."

UPDATE 2: An update Monday from Lee on the Board of Regents maneuvering. They've apparently withdrawn the proposed "emergency" amendment: "The new proposed guidelines ... are now even MORE stringent than the deaccession guidelines of the Association of Art Museum Directors. ... The Regents' revised proposed guidelines, to be considered at today's meeting of the Cultural Education Commitee, are more forceful. They state that 'an institution may deaccession an item or material in its collection ONLY [emphasis added] where one or more' of the following criteria are met: The item is not relevant to the institution's mission; it no longer 'retain[s] its identity' (presumably because of condition problems); it is lost or stolen; it is a duplicate not needed for research or educational purposes; the institution lacks the ability to conserve it."

"Bateman said Randolph College’s Maier Museum of Art is not a 'museum' but part of a 'non-profit institution that owns art.'"

"As a result it operates not according to the rules and regulations that govern museums but the fiduciary responsibilities of an institution of higher education, said Bateman."

Bateman is Randolph College's President, and I think he's clearly right.  For those interested in this issue of university-owned artworks -- I mean really interested in grappling with the complexities rather than doing the usual Ohmigod Repulsive routine -- I would start with the law review articles mentioned here and here.

It's also interesting to compare Randolph's approach to that taken by the Brandeis administration during the Rose debacle.  Brandeis started out by conceding too much rhetorical ground to the Deaccession Police.  They thought if we have a "museum," we are bound by their rules.  So they came up with what turned out to be a disastrous plan to "close" the Rose.  But that put them on the defensive right from the start.  Randolph, on the other hand, made the decision to stand up to the deaccession bullies, to refuse to accept their way of framing the debate.  As Bateman says in the article linked above:  "They [the AAMD and the other deaccession bullies] have a single position and they don’t want anyone to think about these issues in any way other than the way they want you to think about it."  I think he just summed up about five years of my blogging on this subject in one sentence.

"Many of Rockwell’s paintings for the Boy Scouts have been on display at the Medici Museum of Art in Howland, Ohio, since last year as part of a free exhibition that is still continuing."

So the Boy Scouts of America, "faced with tens of thousands of sex-abuse claims," is planning to sell 60 works by Norman Rockwell to "help raise money for a settlement fund of at least $300 million for sexual abuse victims."

I don't think even the Deaccession Police will have a problem with this -- Deborah Solomon tweets out what I assume will be the consensus view: "Should the Boy Scouts de-accession their art? Hell yes. They're not a museum & are facing 1,700 lawsuits from victims of sexual abuse who need to be compensated" -- but it's worth noting that, to the extent you believe (as some members of the Deaccession Police do) that it's the tax-exempt status of museums that puts their assets in the public trust, the same logic should apply to the Boy Scouts. I've never heard any other explanation for how they come to be in the public trust.

In any event, the new talking point the Deaccession Police seem to be settling on is that deaccessioning -- at least the naughty kind we've been seeing lots of lately -- is "monetizing" the collection and "monetizing" the collection is just simply and obviously wrong (or perhaps repulsive), no explanation or theory required. Whereas the non-naughty kind of deaccessioning, where you sell work from the collection and thereby convert it into, um, money, which money you then use to purchase works of art, is not monetizing the collection and is therefore ok. Got it?

Imperious Waving (UPDATED)

George Wallace notices a distinct lack of engagement with the actual issues in Christopher Knight's response to my Art in America piece yesterday:

"Christopher Knight's art writing belongs on the very short list of things that the much-abused Los Angeles Times still has left to be proud of these days. That said, it is a disappointment to see that he has himself largely succumbed to argumentum ad strawmanum when he isn't stooping to outright argumentum ad hominem, dismissing both Zaretsky ('Such is the nature of routine blogging') and Art in America ('The magazine had a shakeup in its editorial ranks last year, but if this is the best they can do . . . , it was apparently a wasted effort') with little more than an imperious wave rather than really engaging his opponent on substance."

He also offers what I think is a reasonable summary of the competing positions:

"Zaretsky -- who can take some satisfaction, I suppose, from Knight's suggestion that there is a faction of 'Zaretskians' among the managers of the nation's museums -- objects less to the concept of 'the public trust' than to that concept being used as a great 'Thou Shalt Not' to shackle all but a very limited class of deaccessions and dispositions. Where Zaretsky sees imprisonment and an unreasonable restriction of curatorial freedom of choice, Knight and AAMD see a sort of protective custody, a binding of administrators' hands for their own good, to save them from their own worst instincts, or to serve a perceived Greater Good. Zaretsky would trust museum managers to exercise sound judgment, Knight and company would prefer that judgment to be exercised only within strictly proscribed limits" (emphasis added).

I also liked this very sensible comment from Pamela Logan of the Kham Aid Foundation:

"The question of whether it is ethical or allowable to deaccess a work of art should be a private matter between the museum and the donor who contributed the piece. Wise donors with strong feelings against deaccession should insist on a donation agreement that forbids it. Wise museums that want to preserve a parachute to be used in time of emergency should be courageous enough to ask donors to grant them flexibility. Museum boards who spend funds frivolously should be subject to censure, dismissal, or prosecution using the existing checks and balances that govern all nonprofits."

And for another, more positive review of the Art in America piece, see The Deaccessioning Blog.

And the always-measured Tyler ("The art can be the art anywhere. It can be seen anywhere") Green jumps in primarily (1) to argue that "held in the public trust" does not equal "cannot be sold" (although what he actually says is that Knight "does not equivocate 'public trust' with 'cannot be sold,'" which is kind of funny; in any event, he should tell it to AAM President Ford Bell) and (2) to defend Knight's strange charge that the chairman of LA MOCA blithely spent money the museum didn't have because he figured that "the museum could just peel off a masterpiece from its collection and save the day" (I'm aware that he discussed that possibility after the fact -- I quoted it on the blog -- but that's a far cry from accusing him of overspending because he "figured" he could sell work to cover the deficit, which of course was not what ended up happening at all). He also wonders if I have "any clients that are considering a deaccessioning." I do not.

UPDATE: Derek Fincham says Knight's criticisms were "lazy":

"If you want to have a serious discussion on the merits of a policy, then you should probably avoid distorting the opposing viewpoint, provide some evidence for your position, or at least take the time to read your opponnent's views. In this case, painting Zaretsky with a broad 'deregulation' brush, and revealing a real distaste for lawyers generally cuts against any broader point Knight may have had."

He adds:

"That appears to be a real shame in this case as Zaretsky probably doesn't disagree too much with Knight's core philosophy on collections management. It seems to me Zaretsky points out the flaws and inherent inconsistencies in the stated policy. ... That seems to me to be a very valuable argument, and an important role that few others have done. He goes on to discuss the prominent deaccession examples of recent years, including the National Academy to avoid closing its doors, or Universities want to sell works because of substantial drops in endowments, or Thomas Jefferson decides to sell its $68 million work because nobody visits it, or a universal museum attempts to shift gears because of a declining local economy. Now we can challenge these stated views, and certainly should maintain healthy skepticism of these attempts to deaccession works. However the current rules prevent and even preclude this kind of debate."

"Deaccessioning is both legal and ethical ... and should be embraced as a tool for museum survival."

Via The Deaccessioning Blog, a student Note entitled Let Them Sell Art: Why a Broader Deaccession Policy Today Could Save Museums Tomorrow: "Instead of exiling museums for deaccessioning for financial reasons and forcing other museums to cancel loans to and exhibits with the exiled museum, the AAMD and AAM should work with their members to form and enforce a deaccessioning policy that will protect the public trust by helping museums stay open."

Or we can just let them fail.

Do you ever get the feeling that, outside a small circle of True Believers, no one's really buying the absolutist case against deaccessioning?

But speaking of the small group of True Believers, there is one bit of news in the Note (or at least it's news to me; I don't recall seeing this reported anywhere): it seems the NY Board of Regents ad hoc committee on deaccessioning has proposed an amendment to the current rules and -- big surprise! -- the idea is to maintain the status quo. They keep the basic AAMD principle -- sales proceeds can only be used to buy more art -- but now they propose to tell museums When It’s Okay to deaccession (even when the proceeds go to buy more art). There's a list of nine specific crieria -- the item is inconsistent with the mission of the institution, the item has failed to retain its identity, the museum can no longer properly care for it, etc. -- but one of them is "refinement of the collection" and that seems to me to be an exception big enough to drive a truck through. I think you can justify just about any case of deaccessioning by saying it’s to REFINE THE COLLECTION. So as a practical matter, I don’t know how much of a difference this proposed amendment to the rules would make. Which I suppose is how the museum directors want it.

Hazardous (UPDATED)

I've been meaning to flag Michael Rushton's characteristically thoughtful response to my post last week on the moral hazard argument against deaccessioning. He helpfully marshals a lot of the academic commentary on agency problems generally, though concedes "the literature on nonprofits is not as deep." His bottom line:

"In the end ... I appreciate DZ's point that we just are not yet in a position to say with accuracy whether the costs of the moral hazard I worry about exceed the benefits from flexible access to funds through deaccessioning in times of crisis. But I will maintain the cost is there, even if, under new, relaxed norms governing deaccessions, the costs would not immediately be apparent."

One quick thought in response. We already have real-world experience we can draw on to assess the effects of a permissive deaccessioning regime on museum management. U.S. museums routinely deaccession to raise money to buy more art. Is there any evidence that that leads to poor management (in the area of acquisitions or otherwise)? Does it seem to encourage "pet projects and perquisites and risky schemes that are contrary to the interests of the organization"? My understanding is that most (or at least many) European museums do not deaccession at all (not even to buy more art). Do they seem better managed than their U.S. counterparts? It would make for a fascinating research project. In any case, it's interesting that you never hear about the moral hazards of acquisition-related deaccessioning.

UPDATE: Rushton responds.

"It’s a reminder that American museums deaccession all the time, and have done so for years."

The Washington Post's Sebastian Smee takes a look at what has actually happened since the AAMD relaxed its deaccessioning rules at the beginning of the pandemic. The bottom line:

"[T]he AAMD’s decision to loosen its restrictions on deaccessioning hasn’t really resulted in the bonanza for auction houses that many predicted. In fact, when you even it out, sales from art museum collections have been more or less in line with sales pre-pandemic. ... In 2020, the number of institutions consigning work to Sotheby’s and Christie’s remained about the same as in previous years."

It's almost as if the Deaccession Police have a tendency to overreact to things.

More on the Dobrzynski Proposal

Speaking of sensible reform proposals, there've been a number of interesting follow-ups to Judith Dobrzynski's deaccessioning op-ed in the NYT.

First, there were several letters to the editor in response, including one from the president and CEO of the J. Paul Getty Trust, but I liked the one from the Brandeis student best:

"Here’s a simpler, sounder system to guide deaccession: The bought can be sold. This system reserves the sanctity of donor intent, as well as that of artwork acquired under special circumstances. And it ignores the largely unjustified slippery-slope paranoia that if allowed to sell one piece of artwork in a time of need, then institutions would more easily part with others in the future. If the struggling institution purchased a piece of artwork free of restrictions preventing resale, then that institution should be permitted to sell it at will."

Dobrzynski responds to some of the responses here, including the following:

"Donors will not give art if they know it may some day sold. This is a canard: they already know (or should know) that their gifts may be sold to raise money for future acquisitions. Those who fear this put restrictions on their gifts."

I think that's quite right. Remember (and I know I've made this point a thousand times): we're not talking about moving from a world where works are never deaccessioned to one where suddenly it's okay to deaccession. We're talking about moving from a world where deaccessioning for one purpose (the purchase of more art) happens all the time to one where deaccessioning for other valuable purposes (e.g., preventing a museum from having to close its doors or, worse, move 4.6 miles away to Philadelphia to a brand-spanking new facility designed by Tod Williams and Billie Tsien) is, in the right circumstances, occasionally permitted.

Finally, Felix Salmon weighs in on Dobrzynski's proposal:

"Essentially, Dobrzynski here is taking the Kimmelman rule — that museums should get first dibs on any deaccessioning sale — and beefing it up with two extra layers: first arbitration, and second the option to buy in the wake of a public auction. Personally, I think that the Ellis rule is still the best option, since it puts the focus where it belongs — on the art, rather than on the museum. Both Dobrzynski and Kimmelman would let art disappear from a museum into private hands, never to be seen again; Ellis wouldn’t."

Here We Go Again

La Salle University in Philadelphia is planning to sell some art, hoping to raise "as much as $7 million, or more, which would be used to 'to help fund teaching and learning initiatives in its new strategic plan.'"

The debate (if you can call it that) will follow its usual form.

The Deaccession Police will cite the guidelines of the various museum organizations as if they were the word of God.

The university will point out in response that it is a university not a museum and (as a school official tells Lee Rosenbaum here) its "Board of Trustees has fiduciary responsibility for the University, and their decisions supersede those of the ... the guidelines established by museum trade associations."

The Deaccession Police will respond with their usual tactic of throwing rotten tomatoes and saying how dare you? and well, I never a lot.  They will compete with one another to see who can seem the most devastated by the trimming of a collection that, until five minutes ago, they didn't know existed.

For a more rational perspective, I recommend the law review article mentioned here.

"There’s a strong feeling that as board members we are responsible for protecting the club and ensuring its success in the future. The most important way to do that was through a sale."

This is a couple weeks old, but I didn't want to let it pass without mention.  The Washington Post reports that "the National Press Club and its affiliated journalism institute will sell a Norman Rockwell painting the artist gave them more than 50 years ago and bank the estimated $10- to $15-million windfall to support future programs."

You probably haven't heard anything about this, and with good reason.  This is, and ought to be, utterly noncontroversial.  As the Press Club's President says, the sale will allow them "to expand our mission and do even more for the profession of journalism and press freedom."

Now, if you're a member of the Deaccession Police, or even just a sympathizer, you may be saying:  "Who cares?  What's your point?  The National Press Club is not a museum?  What do they have to do with anything?"

The answer is that the way this connects to the general deaccessioning debate is that it shows that non-profit status alone (and the tax benefits that come with it) is not enough to give rise to a public trust.  (I don't know what kind of entity the National Press Club is exactly, but I believe "its affiliated journalism institute" is a 501(c)(3).)  One of the questions I've asked around here (repeatedly) is how do museums come to hold their work in the public trust?  Literally, how does it happen?  One answer that's sometimes given is that, as a result of their non-profit status, "we" have a claim on the works.  But the Press Club example shows that isn't right.  Non-profit status alone doesn't get you there.

I submit to you that there are lots of other institutions -- colleges and universities chief among them -- who are more like the Press Club than museums:  they have larger missions to serve, and if they conclude that selling a work of art will further that larger mission, they should be free to do so.

I would also submit to you that museums are more like the Press Club than what the Deaccession Police imagine museums to be.  They too have larger missions, and if the sale of work is in furtherance of that mission, why be so touchy about it?

"What curator worth his or her salt couldn't come up with a plausible argument that the deaccession of any item or group of items would not refine a collection?"

Amy Goldrich on the new deaccessioning rules:

"[A]lthough the new rules appear to require a more carefully justified decision to deaccession, at least one criterion -- accomplishing refinement of collections - could end up being a virtual 'get out of jail free' card."

The Stealth Brodsky Bill

Lee Rosenbaum reports that the NY State Board of Regents has released its Proposed Permanent Amendment to its deaccessioning rules. Lee summarizes:

"This amendment ... would prohibit use of deaccession proceeds for operating expenses, payment of outstanding debt, or capital expenses (other than those for historic buildings designated as part of an institution's collection). Proceeds cannot be used as loan collateral, and 'collections shall not be capitalized' (i.e., listed as assets on an institution's balance sheet). They can be used only for the acquisition, preservaton, protection or care of collections."

Lee thinks these rules are even "more stringent than the deaccession guidelines of the [AAMD]," but I'm not so sure about that. It seems to me that the exception for "refinement of collections" puts us exactly where the AAMD rules are: sales to buy more art are fine; sales for any other purpose you can think of are not.

Lee is of course thrilled: "I believe that government oversight ... is needed now more than ever, as the temptation to monetize collections for a quick fix becomes increasingly hard to resist. I've lost confidence in the ability of the field to regulate itself. It's time to call in the reinforcements." Cornell's Peter Hirtle offers some thoughts here. My own views on this issue should be pretty clear by now.

Public comments on the proposal are due Sept. 25. The Regents will vote on it at their meeting on Oct. 19-20. If they are adopted, the effective date of the new rules will be Nov. 12.

One interesting feature of this whole debate is that, while it's the Brodsky Bill that gets all the attention, with the exception of the few institutions not chartered by the Board of Regents, these regulations achieve the same effect, but in a much quieter way.

You can read the proposed amendment here. The full text of the current version of the regulations (see §3.27) is here.

"Is it a logical option? Yes. Is it a probable option? No, probably not"

Lee Rosenbaum breaks the news this evening that "the NY State Board of Regents' Cultural Education Committee this afternoon voted in favor of revised rules ... which would prohibit most museums and historical societies in the state from using deaccession proceeds to defray debts, operating expenses, and most capital expenses. ... This reverses the original proposed amendment, which would have allowed such proceeds to be used to satisfy debts."

One institution certainly not bound by those rules is LA MOCA, and today, at the LA Times "Culture Monster" blog, Mike Boehm considers deaccessioning as a possible solution to their problems.

He starts by stating the simple "ethical" rule that, for some people, is also the end of the discussion:

"Two leading service organizations, the American Assn. of Museums and the Assn. of Art Museum Directors, say flatly that it's unethical to sell objects from a collection -- 'deaccession' is the technical term -- except to raise funds to buy more pieces."

Notice, though, what is being (flatly) said here: there is nothing inherently wrong with selling objects from a collection. The problem comes when you sell objects from a collection and don't use the funds to buy more pieces. That, we are (flatly) told, is unethical. So what's really going on here is a judgment that "buying more pieces" (no matter how many pieces you may already have) is always and everywhere more important than . . . well, than anything else you can possibly think of. We don't even need to know what it is. It's wrong. It's unethical. It can't possibly be as important as "buying more pieces."

Boehm goes on to note that "the AAMD already has come down on New York's National Academy Museum for breaking the no-sell rule," and then adds: "The reason it's considered unethical is that museums' fundamental role is to keep beautiful, fascinating and meaningful works of nature and humankind in their community and in the public domain. Hawking them in the marketplace would, for those who set the standards for museums, be akin to Uncle Sam raiding the National Archives and putting the Declaration of Independence out to bid to help retire the national debt."

Hmmm. First, it should go without saying that not every work in every museum collection in the world is akin to the Declaration of Independence, but, more importantly, the logic of the AAM/AAMD position is that it would be fine to sell the Declaration of Independence as long as the proceeds are used to buy more historic documents. Remember: the AAM/AAMD position is not that works of art may never be sold. It's that the proceeds from sales may be used for buying more art and for no other purpose.

Second, even if one accepts that a museum's "fundamental role" is to keep artworks in its "community" and "in the public domain," there would seem to be a large number of sales that would pass muster. Take "public domain" first. Any sale from one museum to another would seem to satisfy this constraint. (Crystal Bridges, go to town!) "Community" is a little trickier. Do we define MOCA's community as California (such that the museum has an obligation to keep its artworks within the state borders -- unless, of course, the proceeds are being used to buy more art, in which case the same restrictions somehow don't apply)? Or just Los Angeles? It certainly isn't obvious to me that MoMA, for example, has special obligations to the New York City art community, as opposed to a wider national, or even international, community of art lovers. In any case, even on the narrowest conception of the relevant community, a sale from, say, the National Academy across the street to the Met, or from MOCA across town to LACMA, would keep the works in both the "community" and "the public domain" and therefore would seem to be unobjectionable under this "fundamental role" theory.

Boehm then quotes MOCA co-chairman Tom Unterman as saying "if we were in the position of the National Academy, where you weren’t able to pay your creditors, and we’re nowhere near that, then it would become more on the radar screen than it probably is now. Is it a logical option? Yes. Is it a probable option? No, probably not. I don’t want to get way ahead of the board on this because they all may wake up one morning and say that’s the best thing to do, but I’d be surprised."

He also talks to board member Jane Nathanson, who says "I think these are dire times, and I certainly have strong feelings about deaccessioning art for any other reason but buying more art.... I know those are the guidelines, and they're the guidelines I have always gone by, but sometimes one has to look at alternate possibilities .... I’m not saying it should be done, but at different times one needs to think of different solutions. It’s a solution I would entertain. Is it one that would be the best? I don’t know."

Did the Deaccession Police Kill the Corcoran?

In his decision today, the Judge noted that, "throughout this proceeding, [opponents of the plan] have argued that the Corcoran can address this [financial] shortfall by selling some of the more than 17,000 pieces in the Corcoran's collection."  But he said he was "less optimistic ... about the likelihood of success" of this proposal.

Why?  Because SANCTIONS.  "This proposal," he wrote, "has a serious downside.  It is undisputed that the AAM and the AAMD can impose, and have imposed, sanctions on museums that have sold art to pay for operating expenses."  He quotes the Director of the National Academy Museum as describing the effect of these policies as:  "sanctions, and you're dead."  "Thus," he wrote, "this Court believes there are substantial risks associated with the Intervenors' proposal to de-accession art to pay for the renovation of the Flagg Building and to pay some of the Corcoran's other operating expenses."

I hope they're happy at Deaccession Police headquarters.