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Lifting the Museum’s Burden from the Backs of the University: Should the Art Collection be Treated as Part of the Endowment?

Linda Sugin

Fordham University School of Law

May 13, 2010

New England Law Review, Vol. 44, 2010
Fordham Law Legal Studies Research Paper No. 1607133

A few universities in economic straits have recently attempted to sell artwork to address their financial woes, causing much consternation in the museum community. This article relates the stories of some institutions’ attempts to deaccession artworks, and explains why universities may suddenly perceive their art collections as important assets to monetize. It contends that the universities and their critics have fundamentally divergent conceptions of the role of the art collection in the university, which explains why they cannot agree on the legal responsibilities of universities vis-à-vis their art. The critics have a strong cultural-property conception that privileges art, while these universities see their collections as similar to other property they use in carrying out their programs. This article advocates a contextual approach for choosing among these conceptions.

The legal regime that governs the responsibilities of university fiduciaries in managing and selling property generally depends on categorization as endowment or program-related property. Unfortunately, there is no clear law determining whether university art collections should be treated as endowment property subject to the statutory rules of investment responsibility, program-related property governed by fiduciary duties, or cultural property subject to its own unique standards. The article concludes that university art collections are hybrid cultural-instrumental property, and that universities should be subject to a more flexible standard than museums in making deaccessioning decisions. It argues that university trustees would be faced with too great a fiduciary-duty conflict if subject to the stricter museum standard. To accommodate the cultural-property concerns, it proposes that trustees exercise a heightened level of attention when selling art, but retain their discretion to act in the best interests of the university.

Number of Pages in PDF File: 41

Keywords: nonprofit governance, deaccessioning, art, university endowment

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Date posted: May 14, 2010  

Suggested Citation

Sugin, Linda, Lifting the Museum’s Burden from the Backs of the University: Should the Art Collection be Treated as Part of the Endowment? (May 13, 2010). New England Law Review, Vol. 44, 2010; Fordham Law Legal Studies Research Paper No. 1607133. Available at SSRN: http://ssrn.com/abstract=1607133

Contact Information

Linda Sugin (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
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