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Do You Know the Way to Cy Près? What’s Wrong with Judge Okun’s Corcoran Opinion

DC Superior Court Photo by Lee Rosenbaum

District of Columbia Superior Court
Photo by Lee Rosenbaum

A newcomer to the bench, DC Superior Court Judge Robert Okun proved to be no Judge Stanley Ott when it came to the rigor of his courtroom questioning, legal analysis and writing mastery in crafting his momentous Corcoran-dissolving decision. The Corcoran name will be perpetuated (on its dispersed artworks, its figurehead board and its university-subsumed school), but not much else of the Corcoran as we know it (and as founder William Corcoran wanted it) will remain, save for a token “Legacy Gallery” in its landmark building.

Notwithstanding their differences of approach, there are striking similarities between Judge Ott’s wrongheaded Barnes Foundation cy près decision and Judge Okun’s lamentable granting of cy près for the Corcoran Gallery’s plan to merge with George Washington University and the National Gallery of Art. In both cases, the Attorney General, charged with defending the interests of both the public and the deceased benefactor, was in league with the proponents of changes that would forever destroy the institution’s unique qualities.

Both judges gave too much credence to the testimony of the endangered institutions’ overmatched, under-qualified leaders, who were intent on cooperating with the high-powered forces behind the changes requiring court approval. As in Barnes, the Corcoran judge accepted the arguments of the institution’s failed leaders that no adequate funding sources could be found to preserve the 145-year-old Corcoran as is.

Okun wrote in his opinion that even if “the criticisms of the Corcoran’s past management” had merit, it has now become “impracticable for the Trustees to carry out the existing Deed of Trust” [my link, not his], by which Corcoran founded his eponymous institution. It didn’t help the opponents’ case that the two alternative plans they set forth—the Wayne Reynolds and University of Maryland proposals—were (as Okun correctly observed) “amorphous and aspirational.”

The opponents presented these under-developed proposals to demonstrate that other options might yet be explored to more closely conform to the founder’s original intent. With hindsight, it seems that propounding these was counterproductive, given the weight that Okun gave to their inadequacies.

It would have been better had the opponents made no concrete proposals, rather than introducing vague, unconvincing schemes. It wasn’t their job (nor within their expertise) to provide a specific, detailed roadmap. They needed only to convince the judge that a plan to end the Corcoran’s independence, dismembering its components and dispersing its celebrated collection, could not, by any stretch of the imagination, adhere “as nearly as possible” (the definition of cy près) to the donor’s intent. Other options needed to be explored.

If he agreed, Judge Okun could have sent the Corcoran trustees back to the drawing board, instructing them to come up with a new plan that did meet the legal requirements. But that would have taken time and better expertise and resourcefulness than the Corcoran currently has in-house. George Washington University argued that time was of the essence, given the imminent start of its new semester, in which students at the Corcoran College of Art + Design (now renamed “the Corcoran School of the Arts and Design, Columbian  College, George Washington University) will enroll.

As I tried to suggest in my recent Wall Street Journal opinion piece—Isn’t There a Better Way?—a dynamic, experienced director who believes in the institution, embraces challenges and has a compelling creative vision might have succeeded in fundraising and in reenergizing the institution, where less knowledgeable leaders had failed, especially since potential funders would be on notice that it was now or never. This worked for the American Folk Art Museum, which is now directed by Anne-Imelda Radice, former director of the federal government’s Institute of Museum and Library Services (IMLS). It could also have worked for the Corcoran, given a bit more time.

Interestingly, the Judge Okun cited both the Barnes decision and the Fisk decision as precedents for his determinations, so we now have a growing body of case law that weighs against honoring donor intent in cases where the current leadership, however inadequate, throws up its hands and cries, “Impracticable!”

In his conclusion, the judge suggested that he had faced an either/or choice of granting cy près or allowing the Corcoran “to face its likely demise.” But with more time and enhanced leadership, there might have been a third way.

Now, it seems, we’ll never know.

an ArtsJournal blog