                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    January 7, 2009 Session

GEORGIA O’KEEFFE FOUNDATION (MUSEUM) v. FISK UNIVERSITY

                     Appeal from the Chancery Court for Davidson County
                       No. 05-2994 III  Ellen Hobbs Lyle, Chancellor



                      No. M2008-00723-COA-R3-CV - Filed July 14, 2009



RICHARD H. DINKINS, J., concurring.


       I concur in the thorough and well-reasoned opinion authored by Judge Clement and write
separately to express considerations I believe should guide the trial court and the parties as they
determine the appropriateness and nature of any cy pres relief.

        As a result of the dismissal of the O’Keeffe Museum and Foundation from this litigation, the
question of whether Fisk has breached the conditions attendant to the gift and, if so, the appropriate
remedy therefor, is not in issue. Significantly, the record does not show an unwillingness on the part
of Fisk to display the art or to honor the purpose of the gift and the conditions set forth by Ms.
O’Keeffe. Rather, Fisk’s dilemma - and the reason it seeks cy pres relief - is based on an inability,
due to expense, to maintain and display the collection as originally contemplated by Ms. O’Keeffe
and President Johnson.

         Alfred Steiglitz, in his will, and Georgia O’Keeffe, by her actions, bestowed this
extraordinary collection of art on Fisk University in order to make the collection available to
Nashville and the South to promote the study of art. In my view, it is not insignificant that, of the
six institutions chosen to house Mr. Steiglitz’s photographs and art work, Fisk was the only
university and the only institution located in the South designated. In the decades prior to the receipt
of Ms. O’Keeffe’s generosity, Fisk had gained a reputation as a center of art and music, in addition
to its academic reputation. Joe M. Richardson, A History of Fisk University, 1865-1946, (The Univ.
of Alabama Press (1980)). Among the factors giving rise to this reputation was Fisk’s receipt in
1931 of a collection of 300 pencil sketches and water colors by Cyrus Leroy Baldridge, the renowned
murals of Aaron Douglas and the hiring, in 1937, of Aaron Douglas as a member of the faculty at
Fisk. Id., pp. 148-49. According to the allegations of the complaint, Fisk converted what was then
the University Gymnasium to house the Steiglitz Collection, thereby establishing the first permanent


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gallery space at the university. The Van Vechten Gallery opened on November 4, 1949, a few
months following the New York surrogate court’s approval of Ms. O’Keeffe’s petition. Gifts from
Ms. O’Keeffe’s personal collection followed, beginning with the gift of Calla Lillies in December
1949. It is reasonable to conclude, therefore, that Ms. O’Keeffe approved of Fisk’s response to the
immediate challenge of housing and displaying the Steiglitz collection by its establishment of the
Van Vechten Gallery and all of her gifts to the university were in recognition of Fisk’s growing
status as a repository of art and culture.

        By the same token, the primary mission of Fisk is education and, as noted previously, it was
the only university amongst the donees of Alfred Steiglitz’s artwork. Dr. Charles Johnson became
president of Fisk in 1947 and served until his death in 1956. Under his leadership, “Fisk built five
major buildings, continued to develop an outstanding international faculty . . . and [Fisk] moved into
a condition of acceptance for a chapter of Phi Beta Kappa, the American Association of University
women, and the Association of Schools of Music.” Patrick J. Gilpin and Marybeth Gasman, Charles
S. Johnson: Leadership Beyond the Veil in the Age of Jim Crow, (State Univ. of N.Y. Press (2003))
p. 225. Not being convinced that desegregation of education would become a reality, Dr. Johnson
created an environment in which the faculty, guest speakers and students were integrated and
“prominent artists and intellectuals of varying races and nationalities came together to nurture
students and encourage scholarship.” Id. p. 227. In addition to her donation of art to the institution,
Ms. O’Keeffe was among a group of “visiting luminaries,” including Martin Luther King, Jr.,
Langston Hughes, Carl Van Vechten, W.E.B. DuBois and Paul Roberson, who donated their time
and intellect as participants in Fisk’s Basic College program, established by Dr. Johnson “in an effort
to provide equal education within the then segregated society . . .”. Id., p. 230-31.1 Dr. Johnson’s
tenure was also noted for his support for and expansion of the Fisk Race Relations Institute.2 Id.,
Chs. 13, 14; Richardson, at 141-42. Ms. O’Keeffe’s choice of Fisk to house the collection,
consequently, should also be viewed in the context of her recognition, appreciation and support of
Fisk’s primary mission as educational institution, birthed in the aftermath of slavery to educate newly
freed slaves, and its efforts to advance into an uncertain future as a liberal arts institution of national
prominence and stature.

        The question for the court, the Attorney General and Fisk on remand is what “will most
effectively accomplish its general purposes, free from any specific restriction, limitation or direction

         1

           “President Johnson founded the Basic College on the principle of individual ability and
         preparation. His goal was to raise the national standard for liberal arts education and to enrich a
         student’s overall educational process. Further, Johnson aimed to prepare students for graduate
         study, and to create a nucleus of black intellectual leaders.” Gilpin & Gasman, pp. 230.

         2
             The role that Fisk played in the early days of the national effort to eradicate de facto segregation was
multi-faceted and multi-disciplinary. The Race Relations Institute brought to the South, the Nashville community
and Fisk campus a wide array of people and organizations seeking to establish not only a new chapter in race
relations in America and the world but also “to educate those in a position to make, or at least directly influence,
public policy in urban America.” Gilpin & Gasman, p. 176. This is an effort that continues today. See
www.fisk.edu/rri.

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contained therein. . . .” N. Y. Est. Powers & Trusts Law § 8-1.1(c). As noted by Judge Clement,
there is no indication in her correspondence with Fisk that Ms. O’Keeffe intended to retain a
reversionary interest in the art; likewise there is no indication that she did not intend for Fisk to have
control over the artwork, subject only to its adherence to the general purpose of the gifts and the
conditions imposed relative to its maintenance and display. The financial challenges facing Fisk are
not unique and are shared by other educational institutions; there is a significant public interest in
keeping and expanding educational opportunities and service even in difficult times. See generally
www.uncf.org. The trial court noted $17 million in deferred maintenance and other long-term
financial challenges that Fisk faced at the time of trial as well as Fisk’s recent fund-raising success
in response to the Mellon challenge grant. I think it is appropriate, as the court and parties consider
the question of cy pres relief, that the primary mission of Fisk as an educational institution be
weighed as well, and that the extent and manner to which the Steiglitz collection may serve to attract
revenue or donors to the university is not an impermissible area of inquiry in addition to issues
related to modifying the conditions of maintenance and display of the art in light of the advances in
technology as recognized by the trial court.


                                                _________________________________________
                                                RICHARD H. DINKINS, JUDGE




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