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Do You Know the Way to Cy Près? What’s Wrong with Corcoran’s Court Petition UPDATED

District of Columbia Superior Court

Corcoran’s fate in balance: District of Columbia Superior Court

I’m no stranger to cy près arguments, having attended the court hearing for the Barnes Foundation that paved its way to Philadelphia. Cy près is legal lingo describing petitions that request court permission to deviate from a donor’s written stipulations. D.C. Superior Court Judge Robert Okun is scheduled to hold a hearing at 2:30 p.m. on July 18, Courtroom 317, regarding the Corcoran Gallery’s cy près request for approval of its proposed merger with the National Gallery of Art and George Washington University.

From what I’ve seen in the Corcoran Gallery’s 18-page cy près petition and its supporting 204-page Motion for Entry of Proposed Order, its lawyers haven’t met the legal test for cy près—that “the revised conditions must seek ‘as nearly as possible’ [the translation of "cy près"] to adhere to the original donor’s intent.” That description is a quote from the Corcoran’s own “Motion” (on p. 18 of 204), which also notes that the Corcoran must additionally prove that “the continued operation of the trust as originally contemplated [is] impracticable or impossible.”

As I reported in this previous post, founder William W. Corcoran’s May 1869 deed stated that the real estate conveyed in his gift “shall be…used…for the perpetual establishment and maintenance of a Public Gallery and Museum” [emphasis added] that would house his collection.

A plan wherein the Corcoran Gallery ceases to be a museum and parcels out the founder’s collection to a variety of (as yet undetermined) institutions cannot, by any stretch of the imagination, be said to adhere “as nearly as possible” to the founder’s wishes. Asserting that the new arrangement formulated by the Corcoran, National Gallery and George Washington University fulfills the founder’s charitable intent by (in the words of Corcoran’s deed) “encouraging American genius” isn’t close enough to what he had clearly and specifically established in writing—a museum.

The Corcoran Gallery’s filing asserts that the collection will be “preserved.” It will not, however, stay intact. Choice works will go to the National Gallery, while others will be transferred or loaned to other institutions (with preference to DC museums). According to his deed, William Corcoran’s collection was to “form the nucleus” of his museum’s holdings; he surely never envisioned its substantial dispersal.

The Corcoran’s school, unlike the museum, will survive under the auspices of George Washington University. As discussed in the Corcoran’s own filings, the school was not part of William’s Corcoran’s plan, although he “was aware of [its] creation” and helped fund it.

Although the college will continue to exist, it now appears likely that it will operate very differently, once absorbed by the university. It has now been revealed that the Corcoran College of Art + Design, under GW’s auspices, could become “one of the most expensive art schools in the country,” according to the university’s student newspaper. Colleen Murphy of the GW Hatchet reported in May that while existing students will continue to “pay the tuition they expected,” new students may pay GW’s going rate.

UPDATE: A GW spokesperson responds to this here.

“GW’s tuition of about $48,700 is almost $17,000 more than tuition at the Corcoran,” according to the Hatchet. “Fees and room and board tack on thousands of dollars for a price tag topping $60,000.”

What’s more, Murphy and Allison Kowalski reported last month that Corcoran students “could have to complete GW’s general curriculum requirements to graduate”:

Alan Wade, a GW theater and dance professor who is one of the [Corcoran] school’s interim directors, said some professors have proposed that the University offer dean’s seminars to guide Corcoran students through the minimum of nine required courses.

In the case of the Barnes Foundation hearings, the students had legal standing to express their objections in court. When I asked Ted Gest, public information officer for the D.C. Attorney General’s office, who would be allowed to speak at the July 18 Superior Court hearing, he replied that only the AG’s representatives and trustees of the Corcoran “have legal standing to speak. However, the judge has the discretion to allow others to speak.” He added that further hearings are possible, “but this would be up to the court.”

When I asked Mimi Carter, the Corcoran’s spokesperson, whether the heirs of William Corcoran or of the gallery’s other mega-donor, William Clark, had raised any objections to the dismantling of the museum and its collection, her reply e-mail disregarded my question about Corcoran heirs but merely stated:

The Corcoran has maintained open communication with the Clark family and its representatives.

In the meantime, those wanting their comments to be considered by the court should send them to by noon, July 15 to: Catherine A. Jackson, Assistant Attorney General, Office of the Attorney General, 441 Fourth Street, N.W.—Suite 600-S, Washington, DC  20001 (catherine.jackson@dc.gov).

The court has set an “initial conference” on the Corcoran matter for Sept. 23, but that will be moot, Gest informed me, “if the July 18 hearing results in a final order granting cy pres.

Clearly, that’s what the Corcoran, GW and the National Gallery are hoping for.

I’ll have more to say later on this and other subjects. But posting will likely be spotty this week (as it was last week), because of my mainstream-media obligations.

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