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Rose Art Museum lawsuit recalls the Barnes 'legal theft'

July 27, 2009 | 10:17 pm

Rose Brandeis 001 As expected, a suit was filed in Massachusetts state court Monday to halt closure of the Rose Art Museum at Brandeis University, as well as to prevent the possible sale of masterpieces by Willem de Kooning, Roy Lichtenstein, Bruce Conner, Robert Rauschenberg and other artists in a collection estimated to be worth $350 million. Though the Rose is in good financial shape, Brandeis has struggled in the economic downturn, exacerbated by losses related to the Bernie Madoff pyramid investment scandal.

The suit was filed by three museum overseers: Meryl Rose, a member of the 1961 founding family for whom the museum is named; and benefactors Jonathan O. Lee and Lois Foster, whose name is affixed to a building expansion. The suit says the plan to change the museum into an art-study center contradicts the charitable intentions of the museum's founders and benefactors.

That's no surprise. But I wonder: Is a grim precedent at play here? Ever since news of the Brandeis scheme rocked the art world six months ago, the tragic fate of the Barnes Foundation outside Philadelphia has been rumbling around in my head.

In what has been called the "legal theft" of a multibillion-dollar art collection, a group of powerful Philadelphia philanthropies, politicians, businessmen and others finagled the planned relocation of the foundation's unparalleled collection of Post-Impressionist, early Modern and other art from its unique Brad C. Bower AP Barnes Foundation suburban home to a downtown spot on the Benjamin Franklin Parkway -- a grand total of less than eight miles, but light-years away from the non-commercial, domestic environment the donor envisioned, constructed and gave to Pennsylvania for safekeeping. Aside from the waste of at least $150 million in private and public money to make the move, the relocation plan represents a 180-degree departure from the charitable intentions of the late founder, Dr. Albert C. Barnes.

Moving required approval from the Montgomery County Orphans Court, which oversees trusts. When the court agreed to the plan in December 2004, setting aside the founder's mandate, a hue and cry arose over the possibility that the high-profile case was setting a dangerous precedent. What effect would the ill-advised orphans court decision have on future charitable gifts, at home and elsewhere, not to mention donations already made?

Marie Malaro, a professor emeritus of museum studies at George Washington University and author of "A Legal Primer on Managing Museum Collections" and "Museum Governance: Mission, Ethics, Policy," both published by Smithsonian Press, was among those concerned. She noted that the state's attorney general hadn't even performed a rudimentary examination of the issues. Instead, Pennsylvania simply went along with a startling plan to break a donor's settled will.  

Myriad details between the Barnes and the Rose are different, including the apparent participation of their respective state attorneys general, but the basic principle is the same. Donor intent is at issue. A little over four years later, will Massachusetts follow Pennsylvania down the (you should pardon the expression) primrose path? We may be finding out whether the Barnes incident indeed set a noxious precedent.

Read the Rose lawsuit here.

The Boston Globe story is here.

--Christopher Knight

Photos: Top, Rose Art Museum. Credit: Christopher Knight/Los Angeles Times; Barnes Foundation.  Credit: Brad C. Bower/Associated Press