A D.C. Judge Accepted a Challenge to the Corcoran’s Partition. What Happens Next?
Advocates who aim to preserve the Corcoran Gallery of Art and College of Art + Design won a major victory in court yesterday. As the Washington Business Journal reported, D.C. Superior Court Judge Robert Okun awarded standing to several members of the Save the Corcoran group that filed a motion to intervene in the legal proceedings to partition the Corcoran. Now allowed to weigh in on the cy-près petition filed by trustees at the Corcoran, opponents of the plan to dismantle the Corcoran will see their challenge heard by the court.
Seven current students, one faculty member, and one staff member were acknowledged by the court as parties that might be harmed if the Corcoran petition to alter its trust were successful. Beginning this week, the court will review Corcoran trustees' argument that partition is the only way forward. The court has asked trustees to present documents explaining the deal with the National Gallery of Art and George Washington University, the bodies that would take over the Corcoran museum and college if the institution is split up and dissolved. The foes of the plan will also get some of the answers sought by challengers: The court ordered the petitioners to share documentation on the Corcoran's finances, including audited financial statements from 2007 to 2013 and copies of the board's books from 2010 to the present.
Challengers and petitioners will exchange more information in this week's lead-up to the evidentiary hearing that Okun scheduled for Monday, July 28. That hearing is the outcome that Save the Corcoran has sought from the beginning—and one that Corcoran trustees hoped to avoid.
"Basically, we are saying, look carefully at these issues, before you make a factual finding that it is really the case that the Corcoran can't go on," says Andrew Tulumello, counsel for the Save the Corcoran, in an email. "It's too important an issue not to test these in a real hearing with evidence."
With a legitimate challenge at hand, it's worth thinking through what will happen if the court denies the trustees' petition to change its trust.
Could the Corcoran be forced to sell work to pay its bills?
That's essentially already happened. It bears repeating: The Corcoran has already sold works from its collection, and the proceeds may be used to pay the bills.
In June 2013—eight months after trustees first announced that they sought to relinquish authority for the Corcoran to GW and the National Gallery—the Corcoran auctioned 25 Middle Eastern and Asian rugs from the William A. Clark collection. One of them, the famed Clark Sickle-Leaf Carpet, sold for $33.8 million, earning the lion's share of the $38.4 million netted by the Corcoran in the sale.
What happens with this purse (and other enormous sums generated by sales of assets) is a question that has lingered over the proceedings. The Corcoran may have auctioned the rugs with the intent to buy more works for the museum collection, although leaders knew at the time of the sale that the museum's future was unstable. Even still, the Corcoran could insist today that the $40 million be used by the National Gallery for future art purchases. Indeed, back in February, that's what the National Gallery guessed would happen, according to spokeswoman Deborah Ziska.
While the Corcoran at first declined to say where the Sickle-Leaf millions would wind up, it emerged in court proceedings that the money would go to GW, which would put the funds toward the restoration of the building.
To some parties in the case, the question of selling works—deaccessioning—is the case itself. In court filings, Corcoran trustees said that a "determination by the Corcoran not to adhere to the guidelines [on deaccessioning] would likely result in a loss of accreditation, and would dramatically undermine the Corcoran's reputation within the museum field." Which is true: Selling works to pay the bills is met with tight-lipped disapprobation from the professional museum bodies that oversee these things.
D.C. Attorney General Irwin Nathan summoned the specter of deaccessioning in the AG's office filed in support of the trustees' petition. Art law expert and attorney Donn Zaretsky editorializes on what this means:
One of the arguments the Save the Corcoran folks make is that the museum doesn't have to close, it can sell some art to raise the money it needs to stay alive. Oh, says the AG, if only that were possible: unfortunately, doing so "would likely result in a loss of accreditation, and would dramatically undermine the Corcoran's reputation within the museum field."
We saw the same thing with the Barnes Foundation; they could have sold a very small number of works and raised the cash they needed to stay put. But the big bad Deaccession Police, with their non-nuanced black and white view of deaccessioning, and their sanctions, always with their sanctions, made that impossible.
Only in this case, the Corcoran has already sold works while the museum's footing was uncertain, deciding after the fact that the sale's proceedings will go toward paying the bills and not toward growing the collection under the National Gallery.
And they did so with impunity! Both the American Alliance of Museums and the Association of Art Museum Directors, two accrediting bodies that trustees fear, have issued statements of support for the Corcoran's partition plan. Despite the fact that 1) the alternative to smart deaccessioning in order to right the ship is deliberately sinking the institution and 2) the Corcoran went ahead and sold works to pay the bills, violating the one holy writ that museum accrediting bodies hold sacred.
Challengers who would prefer to maintain the integrity of the college and museum have argued that smart deaccessioning—a grim reaper's bargain, no doubt—is worth the risk of professional sanctions and the loss of beloved works.
In a six-page letter to his former colleagues at the Corcoran, former director Paul Greenhalgh outlined a program of "controlled, intellectually and artistically logical de-accession program of specific materials" in order to save the museum. He describes an exhaustive inventory of the collection conducted in 2006, and concludes that "much of the 18th century English, 17th century Dutch, 18th century French, and Renaissance material is irrelevant to the mission."
Save the Corcoran filed Greenhalgh's grand bargain as an exhibit in its challenge, arguing that the trustees have not exhausted every avenue in preserving the institution. Targeted deaccession is a path that the Corcoran has not considered strategicially—although the Corcoran has certainly sold works to pay the bills.
Will the upcoming school year will be interrupted?
That's already happened, too. The Middle States Commission on Higher Education, the body that oversees the Corcoran College of Art + Design, is currently evaluating the school's accreditation. The Corcoran got an extension on a standard evaluation in November 2012. Now, with GW ostensibly taking over operations at the college, the Commission has asked it for a report showing how the Corcoran School in George Washington University will work. That report is due Sept. 1.
While the court schedule can be accelerated, plans for the next school year can't be drafted in a hurry. At present, the Corcoran's academic calendar lists key dates through the last day of fall classes in December—but not afterward. According to an HR memo from the Corcoran dated June 10 ("Legal Notice of Mass Layoff"), all Corcoran employees will be laid off in August. (The Corcoran confirms that events yesterday do not change that timeline.)
A different letter, filed by GW Provost and Executive Vice President Steven Lerman, explains that George Washington has offered to hire about 150 current Corcoran employees, including 125 full-time and part-time faculty. "These offers are contingent on the approval of the cy pres petition and the closing of the transaction by the parties," the statement reads. GW spokeswoman Candace Smith clarifies that the offers will be valid if the petition is not approved by the fall, but says that "a delay beyond the start of the semester makes the employment transition more difficult."
Under one flag or another, faculty members will welcome the class of 2018 this fall. Save the Corcoran argues that trustees at the Corcoran have not provided an alternative to partition and dissolution. "No one left inside of the Corcoran thinks the Board has the capacity to put a contingency plan together," a Save the Corcoran post reads. "In short, trustees tried to 'bake the cake,' making any option other than the dissolution of the institution impossible."
Will the National Gallery and/or George Washington University walk away from an agreement?
Neither institution has expressed anything but continued commitment to the present course. There is no reason now to think that either the National Gallery or George Washington University will walk away. But if parties to the proposed agreement were to lose heart, there are others waiting in the wings: namely philanthropist Wayne Reynolds and consultant Tony Podesta.
Both are key to the challenge mounted by Save the Corcoran. Reynolds, who as a trustee helped turn around Ford's Theater, courted the Corcoran unsuccessfully in April 2013. Podesta is a longtime art collector whom the Corcoran describes as "among the most important donors of art to the Corcoran."
Details of their alternative vision for keeping the Corcoran whole aren't public. And the mechanism by which they might replace key trustees on the Corcoran board is not obvious. But the challengers do not need to prove the merits of a different path—they only need to demonstrate that trustees have not exhausted the possibilities for proceeding without altering the Corcoran's original trust. With legal standing, challengers have taken a step toward that goal.
Photo by Darrow Montgomery.
This article has been updated to clarify that if the cy-près still isn't approved by this fall, offers to about 150 Corcoran employees from George Washington University will still be valid.