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  • Donor Intent Watch: A Dispute at the Berkshire Museum Offers Lessons on Donor Intent

    Earlier this year, following the passage of the Donor Intent Protection Act in Kansas, Philanthropy Roundtable launched a monthly series on donor intent controversies around the country to better inform those who care about this important topic. We continue to await updates on lawsuits involving Middlebury College and the former Hastings College of the Law, and will continue to inform readers about those topics.   

    Most cases discussed this year have involved gifts to colleges and universities, and that will likely continue. Art and natural history collections have also experienced such disputes, however, as indicated by our coverage of the Barnes Foundation. This month, our focus is entirely on the museum world as we discuss a landmark case and the complications that can ensue regarding donations to museums and donor intent.  

    We encourage donors to contact us with any questions they have about our featured items and consult additional resources on donor intent at the Roundtable’s Donor Intent Hub. We also welcome any news about donor intent that we may have missed.   


    The Controversy Over Raising Funds by Selling Art at the Berkshire Museum 

    As we noted in August, the controversy at the Brauer Museum of Art at Valparaiso University revolved around the university president’s decision to sell three notable pieces of art to raise funds for expanded on-campus student housing. The courts eventually dismissed the lawsuit brought by his opponents because they lacked legal standing. There was no decision on whether the institution’s financial need was sufficient to justify the sale.  

    A 2017 case in Massachusetts, however, was ultimately resolved – at least legally – on the basis of financial need. The Berkshire Museum, a relatively small facility in the western part of the state, faced continued annual financial losses and its trustees had been considering how best to resolve its critical budget crisis since 2015.  

    In 2017, they agreed to deaccession and sell 40 works of art at auction, not only to address the museum’s immediate need, but also to raise $60 million for a long-term sustainability plan to recreate the museum to showcase science and history along with art. Among the art works to be auctioned were two Norman Rockwell paintings that had been donated by the artist himself, an Alexander Calder sculpture and a painting by the Hudson River School’s Frederic Church.  

    Two lawsuits were filed in response, one by the three sons of Norman Rockwell who argued the museum trustees were violating their father’s donor intent. All the sons were beneficiaries of the Rockwell estate, and one was the estate’s executor. Another plaintiff in that suit was Tom Patti, an artist and owner of a company contracted by the Berkshire Museum to install two glass works. He sought to prevent the modification or revocation of his contract in the museum’s proposed plans.  

    The last group of plaintiffs in the Rockwell lawsuit were members of the museum, several of whom had also made donations beyond their membership dues. They claimed the decision to sell works of art constituted a breach of contract between the museum’s trustees and its members. A second lawsuit was filed by a group of plaintiffs who were residents of Berkshire County, some of them also museum members. 

    Museum professionals also objected to the proposed sale. In July 2017, the American Alliance of Museums and the Association of Art Museum Directors issued a joint statement noting the two organizations were “deeply opposed to the Berkshire Museum’s plans to sell works from its collection to provide funds for its endowment, to make capital investments and to pay for daily operations. One of the most fundamental and long-standing principles of the museum field is that a collection is held in the public trust and must not be treated as a disposable financial asset.” 

    From the beginning of the dispute there were questions about the legal standing of the plaintiffs to seek injunctive relief from the courts to block the sale of the paintings. On October 30, 2017, the attorney general of Massachusetts at the time and now governor of the state, Maura Healey – who had been named a defendant in the Rockwell suit – joined that lawsuit and “filed an emergency motion to ‘convert from defendant to plaintiff if plaintiffs lack standing’ and, if so, to seek a preliminary injunction on behalf of the Commonwealth.” This motion was granted. 

    The decision of the Superior Court of Massachusetts was issued on November 7, 2017. Associate Justice John A. Agostini dismissed all the non-governmental plaintiffs in the Rockwell lawsuit and all the plaintiffs in the second lawsuit for lack of standing and denied the attorney general’s motion for a preliminary injunction. The text of the decision is enlightening in understanding the various factors when a museum’s collection management policies are in play.  

    Regarding art deaccessions, for example, the court noted, “If it is used to pay for a greater work of art or to change a collection’s focus, deaccession is generally tolerated. However, if it is used for operations or capital expenses, it is discouraged, if not condemned.” Agostini added, however, “there are numerous examples of museums deaccessioning artwork for operating or capital costs,” and “the courts have played a very limited role and there is scant legal authority, statutory or case law, when a conflict of this nature arises.”  

    Instead, the court’s primary concerns were whether the plaintiffs had standing and whether the requirements for a preliminary injunction had been satisfied. The Rockwell sons, Agostini ruled, had no standing to enforce their father’s contracts; only his estate or trust had that option. Patti lacked standing because his suggested injuries were “too speculative.” And the rights claimed by museum members or donors or residents of Berkshire County were simply insufficient for legal standing. 

    Regarding the attorney general – who clearly did have standing to request an injunction – Agostino raised many questions. Noting that her office had been “fully engaged in this controversy” for at least four months, no steps had been taken to intervene or even question the upcoming auction until the last minute. Even then, the office stated merely that it had unspecified “concerns,” and needed more time to investigate the situation. Yet there was no request for a continuance, simply one for a preliminary injunction. He concluded, “In this litigation, the AGO is a reluctant warrior” and the “general reluctance [of her office] gives the court pause.”  

    Tackling the major points of the attorney general’s argument, the court found the museum trustees were responsibly performing their fiduciary duty by acting “in good faith” and with “reasonable care.” Their proposed sale of works of art would not violate any charitable trusts, nor would their plan to showcase science and history as well as art violate their corporate purpose.  

    In his opinion, Agostino paid particular attention to the assertion that the sale of the two Rockwell paintings would constitute a violation of donor intent, a contention he vigorously countered by noting, “There is no evidence before this court that Rockwell ever said – to anyone, let alone the Museum – that he wanted these paintings to remain with the museum or to be displayed forever in the Berkshires.” “The sum total of the evidence,” he added, “tends to show that Rockwell simply wanted to benefit a museum that he particularly enjoyed.” 

    In his final statement, Agostino recognized that his denial of an injunction “may very well mean that timeless works by an iconic, local artist will be lost to the public in less than a week’s time.” That, however, was not the case. Just three days before the auction was scheduled to begin at Sotheby’s, the Massachusetts Appeals Court, responding to a motion requested by the attorney general’s office, placed an injunction on the sale until at least December 11, 2017, and granted that office the option to request an extension beyond that date so it could continue its investigation of the matter.  

    In February 2018, the attorney general and the trustees of the Berkshire Museum won court approval of the settlement agreement they had reached and the sale of designated works of art was scheduled for April. Both sides had made concessions to reach this point, and again, the fate of the Rockwell paintings – particularly, Shuffleton’s Barbershop – was a key issue. The attorney general’s office conceded the right of the Berkshire Museum to sell some of its acquisitions because of financial need and agreed its long-range plan was appropriate. The museum trustees agreed to the restriction that Shuffleton’s Barbershop be sold only to another nonprofit museum and to a $55 million cap on the revenue the museum could earn from the sale, ensuring no additional works would be sold once proceeds reached that total.   

    Selling for an estimated $25 million, Shuffleton’s Barbershop found a new home at the (George) Lucas Museum of Narrative Art in Los Angeles. Because the Lucas Museum would not open until 2022, the painting would spend at least two more years in Massachusetts on loan to the Norman Rockwell Museum, only 20 miles from the Berkshire Museum. The balance of the sales at Sotheby’s did not go as expected, however, as many of the works up for auction failed to bring in their pre-sale estimates, and it took longer than anticipated to achieve the museum’s goal.  

    Despite the settlement, critics of the sale continued to voice their opinions. In addition to the protesters who gathered daily at Sotheby’s, the Association of Art Museum Directors issued a statement that made their position clear:  

    Notwithstanding the decision by the Court, AAMD will continue to advocate for the highest ethical and professional practice standards in collections management and deaccessioning. And if the Berkshire Museum proceeds with its current plan for selling deaccessioned works and utilizing the funds for operating and capital purposes, AAMD will have no choice but to consider taking further action in accordance with its policy, which may include censure and/or sanctions.  

    AAMD did, in fact, impose sanctions on the Berkshire Museum in May 2018, asking all of their 243 members to refrain from lending or borrowing works of art and also to refrain from collaborating with the Berkshire Museum on exhibitions. In 2020, AAMD altered its policy temporarily, placing a two-year moratorium on any punitive actions “in recognition of the extensive negative effects of the current crisis on the operations and balance sheets of many art museums.” AAMD also said a museum “might use proceeds from deaccessioned art to pay for expenses associated with the direct care of collections,” noting, “Each museum must determine its own definition of ‘direct care.’” In 2022, AAMD restored its pre-pandemic policy, a response not only to changed economic conditions, but also to equity-focused definitions of “direct care.”  

    We can reasonably anticipate ongoing donor intent disputes in cultural institutions, and we will report on them as they arise. 

  • Saving the Arts from Politics and Presentism

    How philanthropy can support the arts in an age of activism

    Philanthropy Roundtable’s Values-Based Giving Program connects our donor community to high-impact organizations that advance our shared values of liberty, opportunity and personal responsibility. This story is part of our campaign highlighting how donors and nonprofits work together to improve lives. Interested in learning more about Values-Based Giving and the services our team provides? Click here.

    Lincoln Jones doesn’t like to talk about ballet. That’s because as the founder of American Contemporary Ballet, his Los Angeles-based company of 21 dancers that mounts some 70 performances a year, he thinks about ballet in a different way than most. “Imagine a theoretical art form that is populated by almost impossibly beautiful creatures,” he says. “Angels, practically, angels inhabited by pure rhythm, and moving in a way that is unmistakable proof of human nobility.”

    Jones’s reverence for ballet has meant going against the grain of traditional staging, bringing the art form to warehouses and open spaces where his audiences can be immersed in the performances. But his quest for independence also goes beyond the stage. In summer 2020, Jones found himself dancing on a newly unstable platform. Like arts organizations across the country, Jones was pressured to post a black square to his company’s social media accounts. The reason: to show solidarity with Black Lives Matter. It wasn’t just a request. It was more like a demand. Yet, Jones refused. One of the few arts leaders to do so, he faced a backlash that almost overturned his company.

    “In 2020, they tried to kill us,” he recounts. “The ‘black square’ swept the arts world. Everyone was supposed to post the black square in support of Black Lives Matter. I didn’t do it. For one, because I read what Black Lives Matter was and I didn’t support it. And, two, it was not my prerogative to represent the artists in my company politically.”

    For his sin of omission, Jones’s dancers were threatened. They feared for the future of their careers. They worried they would be ostracized from the world of dance. But Jones stood his ground, writing an open letter to his company explaining his actions. There were resignations and loss of funding, but his audience returned. Now, two years later, as other LA-based arts organizations still find their numbers down, American Contemporary Ballet is up and dancing to a sold-out run.

    “There is no thought of the moralizing and the guilt trips that now come with what should be joyful, personal and celebratory experiences,” Jones says of the impact of today’s politics on the arts.

    In contrast, for his company, “Not a single audience member has complained that we have not apologized for the land we are dancing on, or the music that we’re dancing to or the color of our skin,” said Jones. “They all just seem to want a good show.”

    Jones is now one of the signatories of Philanthropy Roundtable’s “True Diversity” Initiative, which published a statement of principles pledging to “return love, compassion and empathy to the diversity conversation by embracing an equality-based perspective.” His journey reveals the challenges of finding a middle ground in a culture that has become anything but neutral. The same is true for today’s arts funders who seek to stay above the fray of contemporary politics.


    The problem is that, in the past few years, mainstream arts organizations have become besotted with politics. Transcendence is out. Presentism is in. Arts for art’s sake? Today, it can seem more like art for the sake of climate change, social justice or racial redress. In the news, we now see activists storming museums to throw soup at paintings or glue themselves to the walls. Yet these outward convulsions often only mirror the vandalism from within. Mainstream arts leaders are attacking the legacies of their own institutions. The director of the American Museum of Natural History has overseen the destruction of her institution’s memorial to Theodore Roosevelt. The director of the Whitney Museum of American Art gave the green light to an exhibition that attacked one of his own trustees, who was forced to resign. The director of the Metropolitan Museum of Art has called his institution “connected with a logic of what is defined as white supremacy.”

    In a recent City Journal article, “Guardians in Retreat,” Heather Mac Donald decries the firing of the 82 volunteer docents at the Art Institute of Chicago and their replacement with six paid educators. The reason? The color of their skin. In the mantra of “diversity, equity and inclusion,” the museum claimed its docent program had “centered certain stories while marginalizing and suppressing others.”

    Mac Donald continues:

    “The racialist wave that swept the United States following the arrest-related death of George Floyd in May 2020 has taken down scientists, artists and journalists. Entire traditions, whether in the humanities, music or scientific discovery, have been reduced to one fatal characteristic: whiteness. And now the anti-white crusade is targeting a key feature of American exceptionalism: the spirit of philanthropy and volunteerism.”

    Beyond these racialized attacks, cultural philanthropy continues to find itself up against the notion that charity should be spent on only utilitarian concerns. The Princeton philosopher Peter Singer reflects this Benthamite attitude, named for English writer Jeremy Bentham, in his book “The Life You Can Save”: “Philanthropy for the arts or for cultural activities is, in a world like this one, morally dubious.”

    Singer pointed to the $45 million the Metropolitan Museum of Art spent on a Duccio painting in 2004 as an amount that would pay for cataract operations for nearly one million blind people in the developing world. “If the museum were on fire,” he wrote, “would anyone think it right to save the Duccio from the flames, rather than a child?”

    Of course, the choice is a false equivalence. Philanthropy is not a zero-sum equation. A dollar directed to a museum does not remove a dollar from a hospital, food bank or shelter. And the soul is a vital organ of its own. American philanthropists have long understood this call as they established a vital legacy of arts support. Without a monarchy, largely with support from the state, private philanthropy created and underwrote American cultural organizations in ways that have become the envy of the world and a reflection of the virtues of our democratic ideals. Unfortunately, for many of today’s progressive cultural leaders, these ideals are just the problem as they seek to overturn this democratic legacy and undermine American legitimacy. They check all of the boxes except the one that matters: as Jones puts it, the box for “human nobility.”

    For philanthropists who still believe in America’s founding principles, funding for the arts can be a dance of its own. Sometimes the answer is to go it alone—funding one’s own cultural projects. With support from the Morris and Alma Schapiro Fund, the painter Jacob Collins founded a school called the Grand Central Atelier in 2014—after taking on students informally for more than two decades—that is dedicated to reviving the classical traditions of art. His first students from the 1990s have become his faculty, and his school now attracts students and attention from across the globe. Likewise in 2009, Rick DeVos founded ArtPrize, a contemporary art competition and festival that has invigorated Grand Rapids, Michigan, by offering nearly $500,000 in prizes and attracting half a million visitors a year, with art displayed throughout the city.

    Fortunately, outside of the world of land acknowledgments, preferred pronouns and black squares, there are still partners to be found who value art for art’s sake and the freedom that spirit represents. Take Riverside Symphony, composer and cofounder Anthony Korf’s 41-year-old Lincoln Center orchestra that rejects identity politics through its concerts and music literacy program for inner-city school children.

    “We program music on the basis of its value, or the potential of a contemporary composer to achieve that stature over time,” he says, going against the DEI mandates of many of today’s foundation functionaries.

    Or consider the National Civic Art Society, the advocacy organization led by Justin Shubow promoting America’s classical vernacular as envisioned by the Founding Fathers.

    “We shape our buildings; thereafter they shape us,” Shubow says, quoting Winston Churchill. “Our Founding Fathers were architects in their own right. They chose classical architecture to harken back to Rome and Athens.”

    What these arts organizations all share is a commitment to beauty and excellence that rises above contemporary trends and political convenience.

    The answer for today’s arts funders, one museum trustee tells me, is to look beyond the biggest organizations and the supposed prestige conferred by their board seats. Instead, he says, “Look to the second and third tier museum,” noting the abundance of local arts institutions that can still mount serious shows by flying under the radar of the Fords, Mellons and Carnegies and their progressive mandates. Join up with other connoisseurs, he advises, who don’t want to be led around by the nose.

    Likewise at Bader Philanthropies, one strategy of funding the arts is through its “Building Resilient Communities” initiative. “Through this strategy,” says the program officer Bridgett Gonzalez, “we are able to embrace the rich cultural diversity that embodies our local artistic community, exemplified through creative and traditional art forms.”

    When it comes to the arts, the solution, ultimately, goes beyond the politics of left and right. “There is a very specific political ideology that has taken over,” concludes Lincoln Jones. “It has for a very long time. This did not start in 2020. You have art that is politically based. And then there is art that is based on the human desire for connection and spirituality.”

    Nevertheless, to avoid the politics of art, it now takes some understanding of the art of politics and a willingness to dig deeper into the cultural organizations that expect your support. The question is not what is right or left, but what is right or wrong when it comes to the arts and the bravery to embrace, in English poet Matthew Arnold’s famous phrase, what is still “the best that has been thought and said in the world.”

    James Panero is the executive editor of The New Criterion.

    (Photo Credit: American Contemporary Ballet)