Rose Lawsuit Weapon: Signed Contract Between Founder and Brandeis on Use of Art-Sale Proceeds

Abram Sachar, founding president, Brandeis University, who agreed to the Roses' stipulations regarding art-sale proceeds

Buried in the 142 pages of exhibits appended to the complaint just filed by three overseers of Brandeis University's Rose Art Museum is a one-page letter from 1968 that could prove just as crucial to this court case as a 1949 letter from artist Georgia O'Keeffe proved in the ongoing Fisk University court battle over the fate of the Stieglitz Collection.

In her June 8, 1949 letter to Fisk, O'Keeffe, donor of the Stieglitz Collection, said it was her understanding that Fisk "will not at any time sell or exchange any of the objects" in the collection. The university's then president pledged to honor that understanding.

A similarly pivotal document in the Brandeis case could be the Aug. 13, 1968 letter to university (second document in Exhibit B of the plaintiffs' brief), by Edward Rose, the eponymous museum's founder and lead donor. In that signed missive, he set forth his stipulations regarding the use of his acquisitions endowment for the museum. He directed that income from the endowment "only...be used to acquire additions to the collection for the Bertha C. and Edward Rose Museum."

Then comes the kicker:

Net proceeds of sale of items from the Museum collection shall be treated in the same way [used only for acquisitions] as income from said Endowment [the acquisitions endowment Rose established].

Finally, the clincher:

The foregoing is agreed to:
Brandeis University
By [signed] Abram L. Sachar
President

A key contention of the three Rose Museum overseers who brought suit against Brandeis is that any art sale proceeds must be use to replenish the museum's collection, not to address the university's general financial needs. The plaintiffs' chief objective is to keep the Rose's facility fully functioning as a museum.

The university's lawyers may well try to argue that this signed contract only governs sales of art acquired from the relatively meager acquisition funds donated by the founders. But the language of the mutually accepted letter appears to restrict sales from the museum's entire collection. The litigants will need to thrash that out.

For now, Brandeis has declined to comment on the lawsuit, beyond a prepared statement issued by former the Massachusetts Attorney General Thomas Reilly, Brandeis' outside counsel. His harsh response rode roughshod not only over the Rose Museum but also over the sensibilities of any Brandeis donor who might have assumed he could designate money for specific purposes, rather than for the general benefit of the university.

Reilly declared:

We believe that this lawsuit is frivolous and without merit. Like every other major University in the country, Brandeis has taken aggressive steps to protect its core educational mission, which means providing its students with a first class education and ensuring that Brandeis continues to provide financial assistance to needy students.

The debate here does highlight a difference between Brandeis and these three Rose overseers. That is, that the University has a responsibility to provide the very best education and faculty to fulfill its higher educational agenda. Apparently, these three overseers are oblivious to the Brandeis mission.

The Rose Art Museum is a part of Brandeis University and represents four tenths of one percent of the University budget. Their endowment is part of the Brandeis endowment, its presence is on the Brandeis campus, and its major fundraising over the past dozen years has been done by the Brandeis President. We look forward to aggressively defending our position in court.

But as indicated by this statement [via], recently issued by seven leading organizations concerned with art museums (including AAMD, AAMC, AAM, ACUMG, CAA), museums are (or should be) regarded as integral parts of universities' missions, fully consistent with the goal of providing what Brandeis calls "the very best education" and fulfillling a "higher educational agenda." It appears that Reilly, not the Rose overseers, is "oblivious to the Brandeis mission."

Meanwhile, over at the deaccession-friendly Art Law Blog, Donn Zaretsky questions whether the overseers have legal standing to bring this case to court.