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A Fine Art: Public Institutions Maneuver the Delicate Work of Deaccessioning Art

by Kathleen C. Carignan

Summer 2007, Vol. 70, No. 2

After a groundbreaking fundraising drive, Thomas Eakins's painting The Gross Clinic will remain in Philadelphia, and Thomas Jefferson University will receive $68 million. This is just the beginning of the story, however. The Gross Clinic controversy highlights a legal issue all collecting institutions face — deaccessioning. The term refers to the disposal, usually by sale, of art work by a public institution. Deaccessioning presents three key issues: which works should an institution sell, what is the impact of donor intent, and will the revenues be reserved exclusively for purchases of more art? Museums have encountered controversy when selling art to rescue the institution from debt or upgrade facilities or infrastructure. Although the fate of The Gross Clinic is now settled, the question of how public institutions choose which art to keep and which to sell — and how revenues from sales should be spent — is just beginning to be asked.

Many critics of the Eakins sale – including Mayor John Street and Anne d'Harnoncourt, the director of the Philadelphia Museum of Art — believed that the painting was too much a part of Philadelphia's heritage to be sent out-of-state. The 1875 painting shows Dr. Samuel D. Gross — an eminent surgeon at Jefferson Medical College in Philadelphia — operating on a patient with osteomyelitis of the femur. Although standard practice at the time would have been to amputate, Dr. Gross pioneered a technique that allowed the patient to keep the leg. A shaft of light shines down on Dr. Gross and — because hygienic practices had not yet been introduced — the blood on his ungloved hand and scalpel as he pauses to describe the procedure for the attentive audience. His assistants, dressed in frock coats and ties, bend over the incision while a female relative of the patient shields her eyes from the disturbing image. A clerk carefully records Dr. Gross's words. Medical students watch from the gallery above. In a corner, Eakins painted himself sketching or taking notes. The painting’s unflinching realism and subject matter was typical of Eakins’ belief in the connectedness of art and science. Eakins studied at Jefferson Medical College and briefly considered becoming a doctor himself.

In 1878, a group of Jefferson Medical College alumni bought The Gross Clinic for $200 and donated it to the college. Thomas Jefferson University, a descendent of Jefferson Medical College, has owned it ever since. In recent years, the painting has been displayed in the Eakins Gallery, where it received only about 500 visitors a year.

On November 10, 2006, Thomas Jefferson University announced its plans to sell The Gross Clinic, setting off a firestorm in Philadelphia. In a deal brokered by Christie's in New York, Jefferson accepted a bid of $68 million in a private sale to a partnership of the Crystal Bridges Museum of American Art under construction in Bentonville, Arkansas, and the National Gallery of Art in Washington, D.C. The Crystal Bridges Museum, backed by Wal-Mart heiress Alice Walton, made news in 2005 with the purchase of Asher B. Durand's Kindred Spirits from the New York Public Library.

Art and cultural institutions, city politicians and Jefferson alumni all opposed the Gross Clinic sale. On November 17, Mayor John Street wrote to the Historical Commission, "The spectacular aesthetic qualities of this masterpiece, its cultural value, its rich history and that of its creator, along with the public's significant interest in the preservation of it in Philadelphia, appear to me to be more than sufficient grounds to compel the commission's serious consideration" for designation as a historical object.

STEWARDS OF LOCAL HISTORY

Other communities have objected to their public institutions selling important work. The recent case of the Albright-Knox Art Gallery in Buffalo, New York, illustrates the tensions of deaccessioning decisions. The gallery houses a premier collection of contemporary and modern art as well as a large collection of antiquities. The Board of Directors decided after three years of studies, consultants and expert advice to deaccession about 200 antiquities, in part because it saw these pieces as less important to its stated mission "to acquire, exhibit, and preserve both modern and contemporary art." The sales revenue was designated to the museum's endowment and for future purchases of modern and contemporary pieces. A group of Buffalo residents calling themselves the Buffalo Art Keepers publicly objected to the sale with editorials, meetings and a lawsuit, which New York State Supreme Court Justice Diane Y. Devlin threw out. The group claimed the board had been secretive, violated corporate documents and New York’s not-for-profit corporation law, perverted the gallery's mission, violated terms of certain donations and betrayed the membership. Christopher Knight in the Los Angeles Times wrote, "Museum staff and trustees are transient stewards for a civic legacy and they have no right to dispose of it," and suggested that when a museum chooses to sell works of great value the objects should be “offered to other museums first.” By the end of March, the gallery had sold some of the works for a total of $22.2 million with more slated for this summer.

Choosing which art is "surplus to requirements" is a difficult decision that can easily result in public opprobrium. In his blog Modern Art Notes, Tyler Green writes, "The ultimate responsibility here falls with museum trustees. They need to be reminded that their responsibility is to safeguard our cultural objects with an eye toward history." In Philadelphia as well as other communities with vibrant public cultural institutions, this is an issue the public and museums will continue to face.

The case of The Gross Clinic illustrates this problem. On December 21, Mayor John Street announced that a massive fundraising drive spearheaded by the Philadelphia Museum of Art and the Pennsylvania Academy of the Fine Arts raised approximately $30 million. This included more than 2,000 donations from more than thirty states, $10 million from the Annenberg Foundation, $3 million from H.F. "Gerry" Lenfest, $3 million from Joseph Neubauer and $3 million from the Pew Charitable Trusts. Wachovia Bank agreed to loan the rest while fundraising continued.

Perhaps the controversy in New York surrounding the purchase of Kindred Spirits inspired the Gross Clinic deal to include a clause allowing local institutions forty-five days to match the purchase price. The Philadelphia Museum of Art and Pennsylvania Academy of the Fine Arts purchased The Gross Clinic for $68 million, the most ever paid for a pre-World War II American painting. The Crystal Bridges Museum of American Art and the National Gallery issued a joint statement saying, "We are disappointed that Eakins' Gross Clinic will not be coming to the nation's capital or America's heartland. However, we are pleased for the city of Philadelphia." It will now be displayed alternately at the two Philadelphia art institutions. Jefferson University issued a statement saying it was pleased the painting would stay in Philadelphia and "be accessible to millions of people."

CONSIDERING DONOR INTENT

Museums and cultural institutions must also consider donor intent when deciding which pieces might be sold. Some of the harshest critics of the deaccessioning of The Gross Clinic were alumni whose predecessors originally donated the work to Jefferson. Another Philadelphia example of funding crises and the need to balance donor intent with the future of the institution is the Barnes Foundation. The Merion institution houses one of the finest collections of Post-impressionist and early modern art in the United States, valued at about $2 billion. Albert C. Barnes established the Barnes Foundation in 1922 as part gallery, part arboretum and part educational center. The foundation faced financial and legal troubles for much of the last decade. Limited visitation, location and rising operating costs combined to place the Barnes Foundation in a precarious situation.

In December 2004, after extended litigation, a Pennsylvania court overruled Albert C. Barnes' express intent that the art collection remain at the Barnes estate in Merion. The decision, while controversial, was based on financial exigency. The art collection will move to the Benjamin Franklin Parkway in Philadelphia in 2009 or 2010. The Friends of the Barnes — a group of Merion residents, Barnes students and alumni, and local politicians — argue that the foundation could raise funds in less dramatic ways, such as increasing the number of visitors and raising admission prices. Donn Zaretsky in the Art Law Blog asks, "Wouldn’t a combination of … fundraising, the sale of non-art assets (e.g., real estate), and possibly even, as a last resort, the deaccessioning of a small part of the collection … have been preferable to violating the settlor's intent so drastically by relocating the collection?" Local legislators also are attempting to block the use of $100 million in state funds earmarked to move the museum to Philadelphia.

Choosing between two bad options is not unique to Philadelphia. Fisk University in Tennessee provides a recent example. Financially troubled Fisk University decided to sell two important paintings from the Alfred Stieglitz Collection — Georgia O'Keeffe's Radiator Building – Night, New York and Marsden Hartley's Painting No. 3. Georgia O'Keeffe donated the collection's 101 works after the death of her husband, photographer Alfred Stieglitz. O’Keeffe carefully compiled a teaching collection of pieces by Picasso, Cezanne, Renoir, Toulouse-Lautrec, Charles Demuth, Arthur Dove, Stieglitz and two of her own paintings, with a condition of the bequest that the collection remain intact. When O'Keeffe donated the collection, she believed that a small, Southern, historically black college would benefit from having works of this stature as part of the educational institution. She wanted the paintings to be used in teaching and the edification of the community.

More than a year ago, the O'Keeffe estate filed suit to block the sale or seize the entire collection. Fisk negotiated a settlement. Fisk agreed to sell O'Keeffe's Radiator Building – Night, New York to the O'Keeffe Museum in Sante Fe, New Mexico, for $7 million and Fisk would then be able to sell Marsden Hartley's, Painting No. 3 on the open market. Taking a page from Philadelphia's playbook, the Tennessee state attorney general imposed a 30-day holding period in hopes fundraising or a local buyer could keep the collection intact and remain in the city. When the period ended, no local buyer had been found. Does the institution have a responsibility to the donor's intent? In her blog CultureGrrl, Lee Rosenbaum writes, "This is one of the chief dangers inherent in deaccessioning — that the goodwill of present and possible future donors will be jeopardized or lost."

DISTRIBUTING PROCEEDS FROM DEACCESSIONING SALES

After institutions have determined what to sell and if donor intent will be a bar to sale, the institution must decide what to do with the money. The Association of Art Museum Directors guidelines suggest that deaccessioning should be governed by member institutions written collection management policies. Even when an institution does spend funds gained from a deaccessioned work of art to purchase a new work of art, it can be controversial. In order to purchase The Gross Clinic, the Pennsylvania Academy of the Fine Arts chose to sell another Eakins painting: The Cello Player. The Art Museum also has suggested a future sale may be necessary. In The Philadelphia Inquirer, Stephan Salisbury reported, "The tight-knit academy community was upset anyway" over "trading up" — trading a nice but mid-level Eakins for a masterpiece.

Jefferson seems to be having trouble deciding how to spend its $68 million. Jefferson's core mission, as a health sciences university, is not the collection, preservation or display of art. Brian G. Harrison, chair of the Board of Trustees, said, "By selling this painting, the retention and preservation of which is outside the scope of our central mission, we are managing our resources most prudently and will be able to further our essential responsibility to educate, teach and heal."

In November, Jefferson announced that it will use the $68 million to expand the campus as part of its 10-year strategic plan, which includes the construction of a medical education building and new School of Pharmacy and Ambulatory Care Center. Jefferson has since suggested that it would be willing to sell the other two Eakins paintings it owns.

In March, Jefferson announced the money will be used to establish a fund for scholarships and endowed faculty chairs. And in April, Eakins' Portrait of Professor Benjamin H. Rand was sold to the Crystal Bridges Museum in Arkansas.

Will these funds also go to an expansion of the hospital? And, if so, is there anything wrong with that? Its collection of art is extensive, consisting mainly of portraits related to the school and the history of medicine. The collection, mostly donated works, includes historical medical texts and illustrations, woodcuts, photographs, prints, sculpture and early medical instruments. The university continues to acquire new pieces, but unlike a museum, it is not clear that it should.

Fisk University is caught in a similar dilemma. It has a premier collection of art any educational institution would envy. Due to a funding crisis and water damage to its gallery's roof, however, the building is unsafe for the display of valuable objects: the collection has been in storage and out of view for three years. With a seriously depleted endowment and a need for additional funds, the university has looked at the collection — now providing no benefit to anybody — as a possible revenue-generating asset. Fisk plans to use the funds "to provide increased educational opportunity to its students." According to Fisk’s Web site, the proceeds also will be used to secure the gallery, replenish the university’s endowment, establish endowed chairs and as seed financing for a new campus building.

Vivien Green Fryd, professor of art history at Vanderbilt University, and Lisa Tremper Hanover, president of the Association of College and University Museums and Galleries, both were quoted in The Philadelphia Inquirer regarding the uproar this type of action has caused in the art community. Generally, money from the deaccessioning of art work is used to acquire more artwork. But the Jefferson and Fisk Universities’ situations make it clear that this can be a difficult issue for institutions whose core mission is not the collection or display of art.

In the months and years to come, we will continue to see institutions struggle with these issues. All public institutions must consider the importance of artworks to be deaccessioned, the possible ramifications of donor intent, and the use of those funds after the sale is finalized. Philadelphia has become a model of sorts for communities struggling with deaccessioning issues. Culling the collection of mediocre, damaged or extraneous pieces is routine; however, when public institutions deaccession major pieces, it can lead to fireworks. Recently, the Buffalo Art Keepers sought to block the sale of antiquities from the Albright-Knox Gallery, the Merion community seems to have found new life in its fight to keep the Barnes Foundation in Merion, and in Tennessee, the attorney general ordered a 30-day period to search for local buyers to purchase the two important works Fisk University wished to deaccession. These situations illustrate the importance of strong deaccession policies that are tailored to the mission of the institution. Unless decisions are made in full consultation with local government, community leaders, donors and other cultural institutions, deaccessioning institutions are virtually guaranteed to suffer unwanted protest, public criticism and expensive litigation.

Kathleen C. Carignan is acting executive director of Philadelphia Volunteer Lawyers for the Arts. Her e-mail address is kcarignan@pvla.org.