Cy Prés Comme Possible and the University Museum

Dana Elizabeth Rowland

Sotheby’s Institute of the Arts
Art Business Masters Program

40 E 61st Street, 12 C
New York, NY 10065
derowland986@gmail.com
405.850.6103

1
 Lacking foresight to predict future conditions of charitable institutions, donors

often exclude provisions in their donative instrument pertaining to economic distress that

might preclude the charity from carrying out their wishes in the future. Long ago, cy prés

doctrine arose in the legal system to deal with these difficult situations. Cy prés comme

possible, translates to ‘as near as possible’ and grants courts the power to interpret the

donative instrument when it deems the donor’s original wishes “illegal, impracticable, or

impossible.”1

Recent liberalization in cy prés relief indicates a trend towards releasing donor

restrictions. It has become increasingly difficult to keep charitable institutions

accountable in their charge to uphold donor intent.2 This places a difficult burden on the

donor, which could end up devastating future gifts. Tax benefits granted to the donor are

a major incentive of charitable giving. However, if donors are forced to include

premonitory language as to what will happen if a charitable institution can no longer

honor their wishes they will likely no longer reap tax benefits.3 This paper draws upon

relevant portions of recent litigation surrounding both Fisk and Brandeis University in

order to illustrate the elusive definition of general intent in regards to possible

deacquisition of artworks donated to university art institutions.4

WHY WOULD A UNIVERSITY SEEK CY PRÉS RELIEF?

1
Martin Morse Wooster, The Great Philanthropists & The Problem of Donor Intent, Second (Washington
DC: Capitol Research Center, 1998), 71.
2
For discussion of this topic see Karen Donavan, "Driven to Defy Donor Intent," Trusts & Estates, March
2009: 58-59. Donor ”restrictions may not be worth more than the paper they’re printed on.”
3
Charitable giving without restrictions would also still be an option, but this paper will deal exclusively
with restricted giving.
4
Since both the cases at hand are universities that is the word that I will use to represent the higher
educational bodies overseeing art collections.

2
 Declines in charitable giving and drastic endowment losses place a heavy

financial burden on universities. Looking for ways to mitigate losses, some schools seek

cy prés relief from the courts to sell off or de-accession portions of donated artworks and

redirect funds in order to remain viable.5 Tension between potentially conflicting

missions of a university and its museum or art collection has recently ended up in court

leaving judges to decide how to equitably balance donor intent with the needs of a

university. It is incumbent upon the courts to correctly apply cy prés: first by determining

“if it is no longer possible to honor a donor’s wishes exactly” and then how to proceed in

order to “honor them as closely as possible.”6 The deciding factor, in deliberation of

whether or not cy prés relief will be made available to a struggling charitable institution,

has often boiled down to the definition of specific or charitable intent within the donative

instrument.

FISK UNIVERSITY

In the 1940s and 50s Georgia O’Keeffe gifted 101 artworks to Fisk University.

Then in 2005 in light of overwhelming financial troubles, the African-American

university asked the court for permission to sell or de-accession some artwork, as per cy

prés doctrine, in order to supplement its dwindling endowment. A lawsuit followed, in

which the Georgia O’Keeffe Foundation (Museum) alleged that Fisk, in seeking cy prés,

5
N.Y. CLS Educ. Law § 233-a (1)(b) The term "deaccession" shall mean the permanent removal or
disposal of an object from the collection of the museum by virtue of its sale, exchange, donation or transfer
by any means to any person. 2. The deaccessioning of property by the museum must be consistent with the
mission of the museum. 3. Prior to the acquisition of property by gift, the museum shall provide the donor
with a written copy of its mission statement and collections policy, which shall include policies and
procedures of the museum relating to deaccessioning. The second tenet of this definition emphasizes the
mission of the museum, but when it comes to university art collections there are two missions to consider.
6
Wooster: 71.

3
was in breach of conditions of contract as per the original donative instrument.7 The

substantive issue at hand was whether or not Ms. O’Keeffe had given the artworks with

general or specific charitable intent. 8After much deliberation, in 2009 the Court of

Appeals partially reversed the ruling of the Trial Court stating that cy prés relief might be

available to Fisk in light of a trend towards clarifying the elusive nature of general intent.

Judge Frank G. Clement, Jr. cited a recent restatement of trusts “which replaces the

requirement of ‘general intent’ with a less elusive prerequisite that ‘unless the terms of

the trust provide otherwise’,” cy prés relief may be made available.9

Georgia O’Keeffe’s “Radiator Building—Night, New York” and Marsden Hartley

“Painting No. 3”, together appraised at approximately $ 8.5 million, sit at the center of a

battle between fiscal woes and donor intent. O’Keeffe donated the paintings among

others to the Fisk University in 1949 “on the condition that they never be sold.”10 The

court found that the donative instrument of Ms. O’Keeffe lacked an “express divesting

condition” and was therefore void of specific intent.11 Upon this consideration, the court

remanded the case back to the Trial Court to determine whether or not the second part of

the Cy prés test would be satisfied by proposed alterations.

BRANDEIS UNIVERSITY

7
Georgia O Keeffe Foundation (Museum) v. Fisk University, 2009 No. M2008-00723-COA-R3-CV
(Tenn. Ct. App., 2009)
8
The Appeals Court also determined that the Georgia O’Keeffe Foundation (Museum) lacked standing to
contest the sale. The issue of standing will by outside of the scope of this paper given that it is largely a
procedural hold up to the substantive issues at hand.
9
Restatement (Third) of Trusts § 67(2003)
10
Corey Dade, "O'Keeffe Painting is at the Center of a Modern Fight; Fisk University Could Use the
Money, but Tennesse Delays a Deal to Sell," Wall Street Journal, February 16, 2009: A1.
11
Georgia O Keeffe Foundation (Museum) v. Fisk University, 2009 No. M2008-00723-COA-R3-CV at
*44 (Tenn. Ct. App., 2009)

4
 Deaccessioning or selling artwork from a traditional museum is complicated

enough; but when the collection stems from a university, the number of interested parties

and challenges increase with dramatic results. The January 2009 Brandeis University

announcement from trustees granting permission “to take the necessary steps to transition

the University’s Rose Art Museum to a teaching center and exhibition gallery…

(including an) orderly sale or other disposition of works from the University’s collection”

was met with outrage and disbelief.12 Family members of major donors of the Rose are

attempting to uphold original donor intent and have filed a complaint to “allege that the

establishment of the Rose Art Museum in 1961 and all gifts given thereafter were

specifically given to the Art Museum and not to Brandeis in general…(and) that Brandeis

had agreed to maintain the museum in perpetuity.”13

Brandeis responded to the outcry by filing a motion to dismiss the claims of the

plaintiffs citing their lack of standing. To date, a Probate Court judge has “issued a

preliminary injunction prohibiting Brandeis University from selling any art from the Rose

Art Museum…and den(ied) the university’s motion to dismiss the suit.”14 In order to

redirect funds from the Rose Art Museum, Brandeis will need to seek cy prés relief from

the courts.

12
Future of the Rose Committee, "The Future of the Rose Committee Interim Report," Brandeis
University, April 30, 2009,
http://www.brandeis.edu/provost/adhoc/Rose_Committee_Interim_Report_043009.pdf (accessed
November 14, 2009). They also mention that a “review by the Office of the Attorney General of the
Commonwealth and court approval” would be necessary.
13
Anonymous, "Members of Rose Art Museum Board of Overseers File Suit Against Brandeis," Business
Wire, July 28, 2009. See also: Meryl Rose, Jonathan O. Lee, and Lois Foster v. Brandeis University and
Hon. Martha Coakley, Attorney General of the Commonwealth, Complaint for Declatory Judgment
Concerning the Rose Art Museum, filed 7/27/09 (Mass.)
14
Ariel Wittenberg, "Judge Denies Motion to Dismiss," The Brandeis Hoot, October 16, 2009,
http://thehoot.net/articles/6780 (accessed November 22, 2009). This only applies to 500 out of the 7,813
works of art in the museum that were given with alleged restrictions.

5
Cy prés Relief

1.HISTORICALLY

From the onset, trusts and donor intent were problematic in America. Cy prés lay

at the heart of the early debate “before 1860 fifteen states had considered cases whether

cy prés might be invoked, and in ten states the courts had rejected cy prés as

unconstitutional.”15 After a Federal Supreme Court embraced the notion of altering

testator intent in cases where the original wishes were no longer viable, it fell to the states

to establish legislation regarding circumstances under which relief might be available to

charitable institutions. 16 Conservative minded “19th century judges believed that an estate

was private property, and property was something that must be preserved,” but as the

country’s political mood liberalized so too did the application of cy prés. 17 The 20th

century gave rise to an expanded use of the doctrine and courts began “to divert wills

from uses thought insufficient.” 18 Cy prés doctrine has burgeoned into a patchwork of

legal precedent with a lack of clarity over the legality and extent to which deviation from

donor intent will be accepted.

2. TODAY

Cy prés and equitable deviation allow for a modification of the original purpose

of a charitable gift. 19 Application for relief is a difficult two-step process whereby a

15
Wooster: 137.
16
Ibid.: 137. Doctrine was established in Edmund Jackson v. Wendell Phillips, 96 Mass. 539 (Supreme
Court of Mass.,1867) In which Jackson left money toward abolition of slavery Massachusetts supreme
court later said that the “13th amendment…nullified Jackson’s original plans…(but) because blacks still
faced considerable problems after slavery, the court ruled that cy prés applied.”
17
Wooster: 138.
18
Ibid.: 138.
19
Pearson, E. G. (2006). Reforming the Reform of the Cy prés Doctrine: A Proposal to Protect Testator
Intent. Marquette Law Review , 90 (127) 141. Equitable deviation, a close sibling of cy prés, applies “only

6
charitable organization must first prove that it is eligible under the three-prong test and

then the proposed alterations must be approved.20 The burden of proof falls on the

charitable organization to demonstrate that their situation meets the three prongs of cy

prés by first establishing that the nature of the gift is charitable, that “current or changed

circumstances…frustrate the settlor's specific charitable intent” and lastly that the

charitable intent is general and not specific.21 Only after completion of these first three

prongs establishes that cy prés relief might be available will the proposed reforms be

analyzed to determine if they are as close ‘as possible to the original’ stipulations of the

donor.

Establishing the first provision of the three-prong test is usually unproblematic. 22

The second prong, in relation to universities, can also generally be easily verified, as they

would not be in the position of liquidating assets if they were not in dire financial straits.

As a member of the nations’ historically black colleges and universities, Fisk is overly

familiar with financial troubles acknowledging it is “too expensive to continue insuring

and caring for the paintings” left to them by Georgia O’Keeffe.23

Brandeis University also has no problem corroborating a fiscal predicament.24

Brandeis has been a victim of its own financial planning as they eagerly sought to

to the administrative provisions of a trust” instead of the substantive provisions

20
See In re Hummel, 805 N.Y.S. 2d at 248-49. Because neither of the case studies discussed in this paper
have reached the second step of cy pres it will not be included in the discussion of this paper.
21
Pearson: 137.
22
Georgia O Keeffe Foundation (Museum) v. Fisk University, 2009 No. M2008-00723-COA-R3-CV at
*40 (Tenn. Ct. App., 2009). As is the case with Georgia O’Keeffe Foundation (Museum) v. Fisk University
where it is the only undisputed element.
23
Dade: A1. Racial integration has been tough for the nations’ predominantly black colleges and
universities and they have “lost prospective students and tuition revenue to better funded, predominantly
white universities.”
24
Whether or not the proceeds of the Rose Art Museum should be the part of the relief made available to
the University, one must acknowledge that they do need the money.

7
redirect giving towards an endowment. Facing a 25% loss in this recently acquired

endowment and diminishing donor prospects the fact that “Massachusetts law doesn’t let

endowments spend the original principal, just income and capital gains” places Brandeis

in a difficult situation. 25

It is the third and final prong of the test, the question of general charitable intent,

that usually determines the availability of cy prés. Traditionally, the burden has fallen

upon charitable organizations to prove “from the language in the donative instrument

that, in addition to the precise purpose specified there, the donor had a broader charitable

intent in making the gift…implicitly consent(ing) to the change the charity wants to

make.” 26 Some have argued that in addition to the three traditional reasons for seeking

deviation from donor intent (illegality, impracticability, and impossibility) efficiency

should also be considered. This would allow charitable organizations to present their case

for relief as “to continue pursuing (the original wishes of the testator), represents

considerable opportunity cost to the charity, given changed circumstances.”27

More recently, courts have taken a broader stance on general charitable intent. As

was the case in Georgia O’Keeffe Foundation (Museum) v. Fisk University, when the

donative “instrument is silent as to what happens upon failure of the gift or indicates no

preference for one purpose over another so long as it was possible to apply the property

to that specified purpose, courts are likely to find that the donor’s expressed a general

25
Felix Salmon, Why Brandeis is Closing the Rose Art Museum, February 1, 2009,
http://www.portfolio.com/views/blogs/market-movers/2009/02/01/why-brandeis-is-closing-the-rose-art-
museum (accessed November 14, 2009).
26
Iris J. Goodwin, "Donor Standing to Enforce Charitable Gifts: Civil Society vs. Donor Empowerment,"
Vanderbilt Law Review 58, no. 1093 (May 2005) 1132.
27
Goodwin:1133.

8
charitable intent.” 28 However the law still dictates, “the controlling consideration in

determining the meaning of a donative document is the donor’s intention” and should be

“given effect to the maximum extent allowed by law.” 29

The attorney of one of the plaintiffs argues in the complaint filed against Brandeis

University that “all endowments established by the Fosters at Brandeis University for the

Rose Art Museum were predicated on the understanding that it would always be a full

fledged art museum.” 30 But, this understanding appears nowhere in writing except

perhaps a 1968 letter from the museum’s founding donor Edward Rose (the donative

instrument) discussing the establishment of an endowment fund and the limitation of use

income and proceeds from sale of items of the museum collection.31 Signed and agreed to

by the then President of Brandeis Abram L. Sachar, but seven years after the museum

opened and after a large part of the collection was amassed.32 The interpretation of this

one letter will be at the heart of determining if cy prés relief will be available. As courts

increase their willingness to find towards a general charitable intent they should bear in

mind the repercussions of doing so, namely, the loss of donor faith that their gift will be

used as directed.

CONFLICTING MISSIONS

28
Ibid:1133.
29
Ibid:1143.
30
Greg Cook, "Key Weaknesses in the Rose Suit," The New England Journal of Aesthetic Research, July
31, 2009, http://gregcookland.com/journal/2009/07/key-weaknesses-in-rose-suit.html (accessed November
14, 2009).
31
Meryl Rose, Jonathan O. Lee, and Lois Foster v. Brandeis University and Hon. Martha Coakley,
Attorney General of the Commonwealth, Complaint for Declatory Judgment Concerning the Rose Art
Museum, filed 7/27/09 (Mass.) Exhibit B.
32
Greg Cook, "Key Weaknesses in the Rose Suit," The New England Journal of Aesthetic Research, July
31, 2009, http://gregcookland.com/journal/2009/07/key-weaknesses-in-rose-suit.html (accessed November
14, 2009). “Even if the 1968 letter does restrict sales from the collection—which is debatable—it post-dates
the Mnuchin gift which funded the acquisition of the heart of the collection.”

9
 Generally questions of deaccessioning are legally challenged “on the grounds that

trustees have failed to act in good faith, were not acting in the public’s best interest, or

did not administer the trust as a manager of ordinary prudence would under similar

circumstances.” 33 In the case of university art collections and universities there are two

boards of trustees the former of which takes precedence over the latter. University

trustees argue deaccessioning works from art collections is a beneficial and prudent

decision to ensure the survival of the educational body.

Complications of the fiduciary relationships between university museum or art

collection and universities abound. As the umbrella institution, the university, and the

trustees that govern it must place the educational mission above any other. The museum

and its governing trustees have a subsidiary relationship to their parent institution.

Museum trustees must “weigh their fiduciary duties to the museum and their ethical

obligations to the public against their more immediate responsibilities (including the)

broader role the museum plays within the cultural life of a community or university.” 34

Both museums and universities, as non-profit 501 C(3) organizations granted tax breaks

as a result of their status, carry a “duty of loyalty and the duty of care…both trustees and

directors fulfill these duties in light of a fiduciary relationship with the public.” 35 Many

charge that this duty limits the ability to deaccession artwork because as source of a tax

deduction artworks should remain in the public trust and not be allowed to fall into

private hands. 36

33
Derek Fincham, "Navigating the Deaccessioning Crisis," Social Sciene Research Network, September
2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1470211 (accessed November 15, 2009) 42.
34
Fincham: 25.
35
Ibid:12.
36
Ibid:18. Public trust doctrine the public has an interest “must preserve the public’s right to access and
use.”

10
 Although donors might intend for gifts to be given to a university museum as a

distinct body, they must also recognize that part of the museum’s mission lay within the

scope of the governing university. The relationship between the Rose and Brandeis

University demonstrates the power struggle as they “receiv(e) almost no money from

Brandeis, (and)…must do its fund-raising outside of the university’s donor base.” 37 In

addition if “the museum spends any of the money it raises, 15 percent of it must be paid

to the university.”38 It seems like an unbalanced relationship, but without the parent

institution the Rose would not exist at all. If Brandeis were allowed to fail, it would bring

the art museum down with it.

REGULATION AND LIMITATIONS OF DEACCESSIONING UNDER CY PRÉS

1. EXTERNAL

The legal standard for upholding restricted charitable gifts falls within the domain

of state attorney generals. This “arrangement…recognizes the publics role as the ultimate

beneficiary of any public charity,” but also places regulation of deaccessioning on a long

docket where it is likely to fall near the bottom on a scale of importance. 39 Also, as

stated previously, in order to alter restricted gifts charitable organizations must go

through the courts.

37
Roberta Smith, In the Closing of Brandeis Museum, a Stark Statement of Priorities, February 2009,
2009, http://www.nytimes.com/2009/02/02/arts/design/02rose.html (accessed November 14, 2009). See
also: Ariel Wittenberg, The Brandeis Hoot, July 28, 2009, <http://thehoot.net/articles/6334>. (accessed
November 14, 2009). The University’s council argues that “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.”
38
Roberta Smith, In the Closing of Brandeis Museum, a Stark Statement of Priorities, February 2009,
2009, http://www.nytimes.com/2009/02/02/arts/design/02rose.html (accessed November 14, 2009). “In
return for this Brandeis pays for the Rose’s light and heat.”
39
Goodwin: 1094. See also:1138. Inadequacies of attorney general oversight of charitable trusts including
but not limited to “underfunded, understaffed, ill equipped to monitor” as well as having a host of “more
pressing concerns.”

11
2. INTERNAL

Museums have always argued for a policy of self-regulation through guidelines

written and enforced by membership in their accrediting bodies. The two primary

museum organizations, the American Association of Museums and the Association of Art

Museum Directors have established strict policies on deaccessioning in regards to the use

of proceeds from sale of artworks.40 Although they are “not mandatory…these

organizations may exert their own internal pressure to promote compliance” including
31
rescinding membership, refusing to loan works, and ostracization from the community.

There is in a sense a double standard one the legal standard and the other an

ethical standard.41 The courts may overlook the ethical or internal regulatory standard in

regard to deaccessioning by coming to the “conclusion that some museums are primarily

schools and may not be subject to many of these codes.” 42 It is even easier to free art

collections owned and managed by a University from internal regulatory codes. 43 Many

saw the attempt to close the Rose by Brandeis as a “way to avoid the messy legalities of

deaccessioning artworks, with the attendant denunciations from…professional

organizations that monitor and weigh in on sales.”44 Doling out internal punishments,
40
Including within this a stringent prohibition of use of funds on anything besides the acquisition of more
art.
41
Roberta Fre Gilboe, "Report to the Deaccessioning Task Force of the Registrars Committee of AAM," in
A Deaccession Reader, ed. Stephen E. Weil, 237 (Washington, D.C,: American Association of Museums,
1997) 40.
42
Fincham: 31.
43
Association of College & University Museum & Art Galleries, "ACUMG Responds to the Closure of
the Rose Art Museum, Brandeis University," News and Views, Winter 2009,
http://www.acumg.org/files/BrandeisStatement.pdf (accessed November 22, 2009). To bridge the gap, a
third accrediting body has arisen, the Association of College & University Museum& Art Galleries. This
organization has publically weighed in on the situation at Brandeis charging, “to capitalize that which is
related directly to learning and sell it off to fund general operations or to bolster waning endowments is…
myopic.”
44
Roberta Smith, In the Closing of Brandeis Museum, a Stark Statement of Priorities, February 1, 2009,
http://www.nytimes.com/2009/02/02/arts/design/02rose.html (accessed November 14, 2009). “If there is no

12
does not affect the university art collection in the same way they might a traditional

museum because educational institutions have separate accreditation bodies that weigh

more heavily on their status.

IMPLICATIONS

Tax breaks, a major incentive for gifts to charitable organizations and trusts are

dependent upon the status of gift or contract. As institutions of higher education

“struggle…to fund their core operations many are looking to a rich pool of so-called

restricted gifts—held in endowments whose donors often provide firm instructions on

how their money should be spent.”45 Directed or restricted gifts “hover somewhere

between a gift and a contract” dependent upon the language regarding the rights of the

testator in the case of failure or cancellation of such gift. 46 As courts move towards

interpreting general charitable intent absent any express divesting clause there is a

potential that donors will have no choice but to either give a gift free and clear of

restrictions or accept that in order to uphold their restrictions they might not receive the

same tax benefits. The answer may be the inclusion of a “power to redirect the gift to

another charity willing to abide by the restrictions” along with insurance by courts that

this would fulfill the requirements of specific charitable intent therefore severely limiting

the possibility of alteration through cy prés.47

museum, there are no guidelines to violate.”

45
John Hechinger, "New Unrest on Campus as Donors Rebel," Wall Street Journal, April 23, 2009: A1.
The problem of donor intent and University deviation spans the country recently playing out in courts in
Connecticut as a professor challenges Trinity College use of excess funds from an endowed professorship
for other purposes, donors angry at the dissolution of a college radio station WCAL at St. Olaf College in
Minnesota, and the alleged misuse of funds donated by the Robertson Family to Princeton University that
resulting in a $100 million settlement.
46
Goodwin:1149. See also Fre Gilboe: 237. “ The IRS forbids the return of donated property which may
have been claimed as a tax deduction.”
47
Erik Dryburgh, "UMIFA and UPMIFA: The Law of Endowments ," September 12, 2008,

13
 One commentator notes “You can’t really evaluate whether a sale is justified until

you fully come to grips with the costs of not selling,” but what if in the long run

mechanisms of charitable giving are allowed to fail?48 Fisk and Brandeis University are

not alone in their consideration of liquidating art collections to survive severe economic

challenges. Both argue that deaccession might preferable to any more cuts that detract

from the educational mission of their organizations.49 Despite this, courts should be

hesitant to offer deaccession through cy prés too liberally. It might be a quick fix with

lasting implications. What will happen to charitable institutions if private donations are

no longer made available? If donors lose faith that their wishes will be upheld absent any

express divesting clause or reversionary right that would limit the appealing tax benefits

of giving charitable giving, institutions including higher educational bodies will not

survive.

http://www.abanet.org/rppt/meetings_cle/2008/jointfall/Joint08/ExemptOrgCharitablePlanOrganGroup/U
MIFAandUPMIFA.pdf (accessed November 19, 2009).
48
Donn Zaretsky, On Purity, October 5, 2009, http://theartlawblog.blogspot.com/2009/10/on-purity.html
(accessed November 14, 2009).
49
Christopher R. Beha, "Voodoo Academics," Harper's Magazine, November 2009: 52-53. “This spring,
Brandeis suspended payments to all faculty retirement accounts and enacted a 6 percent staff cut.” See
Also: Dade, C. (2007, February 16). O'Keeffe Painting is at the Center of a Modern Fight; Fisk University
Could Use the Money, but Tennessee Delays a Deal to Sell. Wall Street Journal , p. A1. “The whole
collection was valued at $33 million…more than the total endowment of Fisk”

14
 Bibliography

Anonymous. "Members of Rose Art Museum Board of Overseers File Suit Against

Brandeis." Business Wire. July 28, 2009.

Association of College & University Museum & Art Galleries. "ACUMG Responds to

the Closure of the Rose Art Museum, Brandeis University." Association of

College University Museum & Art Galleries, Winter 2009.

http://www.acumg.org/files/BrandeisStatement.pdf (accessed November 23,

2009).

Beha, Christopher R. "Voodoo Academics." Harper's Magazine, November 2009.

Cook, Greg. "Key Weaknesses in the Rose Suit." The New England Journal of Aesthetic

Research. Web log entry posted July 31, 2009.

http://gregcookland.com/journal/2009/07/key-weaknesses-in-rose-suit.html

(accessed November 14, 2009).

Dade, Corel. "O'Keeffe Painting is at the Center of a Modern Fight; Fisk University

Could Use the Money, but Tennessee Delays a Deal to Sell." The Wall Street

Journal [New York] 16 Feb. 2009, Eastern Edition ed.: A16. Print.

Donovan, Karen. "Driven to Defy Donor Intent." Trusts & Estates Mar. 2009: 58-59.

Dryburgh, Erik. "UMIFA and UPMIFA: The Law of Endowments." Abanet.org,

September 12, 2008.

15
 http://www.abanet.org/rppt/meetings_cle/2008/jointfall/Joint08/ExemptOrgCharit

ablePlanOrganGroup/UMIFAandUPMIFA.pdf (accessed November 23, 2009).

Fincham, Derek. Navigating the Deaccessioning Crisis (September 8, 2009). Indiana Law

Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1470211.

Fre Gilboe, Roberta. "Report to the Deaccessioning Task Force of the Registrars

Committee of AAM." In A Deaccession Reader, edited by Stephen E. Weil.

Washington D.C.: American Association of Museums, 1997.

Future of the Rose Committee. "The Future of the Rose Committee Interim Report,"

Brandeis University, April 30, 2009,

<http://www.brandeis.edu/provost/adhoc/Rose_Committee_Interim_Report_0430

09.pdf> (accessed November 14, 2009).

Georgia O'Keeffe Foundation (Museum) v. Fisk University. No. M2008-00723-COA-R3-

CV. Tenn. Ct. App., 2009.

Goodwin, Iris J. "Donor Standing to Enforce Charitable Gifts: Civil Society vs. Donor

Empowerment." Vanderbilt Law Review 58 (2005): 1093-162. Print.

Hechinger, John. "New Unrest On Campus as Donors Rebel." The Wall Street Journal

[New York] 23 Apr. 2009, Eastern Edition ed.: A16. Print.

"Members of Rose Art Museum Board of Overseers File Suit Against Brandeis

University." Business Wire. Schwartz Communications, 28 July 2009. Web.

Meryl Rose, Jonathan O. Lee, and Lois Foster v. Brandeis University and Hon. Martha

Coakley, Attorney General of the Commonwealth, Complaint for Declatory

Judgment Concerning the Rose Art Museum, filed 7/27/09 (Mass.).

Pearson, Eric G. “Reforming the Reform of the Cy Pres Doctrine: A Proposal to Protect

16
 Testator Intent.” Marquette Law Review 90 (Fall 2006): 127-153.

Philips, Matthew. "Cutbacks on Campus; Cancel the buses, sell the art. Welcome to

budget crunch 101." Newsweek 17 Aug. 2009. Print.

Restatement (Third) of Trusts § 67(2003).

Salmon, Felix. “Why Brandeis is Closing the Rose Art Museum.” Portfolio.com. Web

log entry posted February 1, 2009. http://www.portfolio.com/views/blogs/market-

movers/2009/02/01/why-brandeis-is-closing-the-rose-art-museum/ (accessed

November 14, 2009).

Smith, Roberta. "In Closing of Brandeis Museum, A Stark Statement of Priorities." The

New York Times, February 1, 2009.

http://www.nytimes.com/2009/02/02/arts/design/02rose.html (accessed November

23, 2009).

Strom, Stephanie. "Nonprofits Paying Price For Gamble On Finances." The New York

Times 24 Sept. 2009, East Coast ed.: A16. Print.

Sullivan, Paul. “Keep Donations Flexible Now to Avoid Conflict Tomorrow.” The New

York Times 2 May 2009. Web. 14 Nov. 2009.

<http://www.nytimes.com/2009/05/02/your-money/estate-

planning/02wealth.html>.

Wittenberg, Ariel. "Judge Denies Motion to Dismiss." The Brandeis Hoot. 16 Oct. 2009.

Web. 5 Nov. 2009. <http://thehoot.net/articles/6780>.

Wittenberg, Ariel. “Rose benefactors sue university.” The Brandeis Hoot. 28 July 2009.

Web. 14 Nov. 2009. <http://thehoot.net/articles/6334>.

Wooster, Martin M. The Great Philanthropists & the Problem of "Donor Intent" 2nd ed.

17
 Washington D.C.: Capital Research Center, 1998.

Zaretsky, Donn. "On Purity." The Art Law Blog. Weblog entry posted October 5, 2009.

http://theartlawblog.blogspot.com/2009/10/on-purity.html (accessed November

23, 2009).

18