Georgia O’Keeffe’s conditions were not ambiguous.
When she gave Fisk University 101 works of modern art in 1949, she stipulated that the collection must never be sold and must never be broken up. The works were to remain together, on permanent display, for the study of art. This was not a suggestion tucked into a cover letter. It was the legal condition of the gift. O’Keeffe, who lived to ninety-eight and did not suffer ambiguity in any area of her life, meant what she said.
For fifty-six years, Fisk honored the condition. Then the money ran out.
By the early 2000s, Fisk University was in crisis. Enrollment had dropped. The endowment had shrunk to almost nothing. The school was in danger of losing its accreditation — the academic death sentence for a university. The campus infrastructure was deteriorating. And on the wall of the Van Vechten Gallery hung a collection that art dealers estimated was worth somewhere between $70 and $100 million.
In 2005, Fisk petitioned a Tennessee court for permission to sell two paintings: O’Keeffe’s Radiator Building — Night, New York and Marsden Hartley’s Painting No. 3. The estimated sale price was $7.5 million. The argument was simple: the university was dying. The paintings could save it. A dead university couldn’t display art at all.
The Georgia O’Keeffe Museum — the institutional successor to the donor’s rights — sued to block the sale. The Tennessee Attorney General intervened, arguing that the collection belonged to the people of Tennessee and that O’Keeffe’s no-sale provision was absolute. The AG proposed an alternative: move the collection to the Frist Center for the Visual Arts, the big museum on Broadway, where it could be properly maintained without selling anything.
This proposal missed the point of the original gift so completely that it’s worth pausing on. O’Keeffe hadn’t given the collection to Nashville. She’d given it to Fisk — a Black university, specifically chosen, at a specific moment in history. Moving the art to the Frist would have preserved the paintings while gutting the purpose. The AG’s plan would have taken a gift born of the Harlem Renaissance and handed it to a building named after a United States senator.
The O’Keeffe Museum eventually dropped its lawsuit. The AG did not.
In 2009, the Tennessee Court of Appeals introduced the concept that would eventually resolve — or, depending on your perspective, break — the case. The court ruled that the doctrine of cy pres could apply.
Cy pres is a legal term from the Norman French meaning “as near as possible.” It allows courts to modify the terms of a charitable gift when the original conditions have become impracticable. The idea is that when literal compliance with the donor’s intent would defeat the larger charitable purpose, a court can adjust the terms to come as close to the donor’s wishes as circumstances allow.
It is, in practice, the legal mechanism by which courts rewrite dead people’s instructions.
The court reasoned that O’Keeffe’s primary intent was for the art to be accessible and studied. Fisk’s insolvency made the no-sale condition impossible to maintain — the school couldn’t afford to insure, conserve, or properly display the works. If Fisk went under, the collection would be seized by creditors and scattered at auction, which was the exact outcome O’Keeffe had tried to prevent. Modifying the terms was therefore more faithful to her intent than enforcing them literally.
This is the kind of legal reasoning that makes perfect sense on paper and feels deeply wrong in your hands. The woman said don’t sell it. A court said actually you can, sort of.
The buyer — or rather, the partner — was Crystal Bridges Museum of American Art in Bentonville, Arkansas. Crystal Bridges was founded by Alice Walton, daughter of Walmart founder Sam Walton. It is a museum built with a fortune derived from the largest retailer on earth, located in the corporate headquarters town of that retailer, in the Ozark Mountains of northwest Arkansas. Its collection is excellent. Its funding is functionally limitless.
The deal, finalized on August 3, 2012, worked like this: Crystal Bridges paid Fisk University $30 million for a 50 percent undivided interest in the 101-piece Stieglitz Collection. The two institutions formed a limited liability company — Stieglitz Art Collection LLC — to hold the art, shielding it from Fisk’s creditors. The collection would rotate between Nashville and Bentonville on a two-year cycle. Crystal Bridges held a majority of seats on the management committee. Crystal Bridges paid for shipping and packing. Conservation and insurance were split.
Of the $30 million, approximately $5.8 million went to legal fees — seven years of litigation is not cheap. Another $3.9 million was set aside for the collection’s care. The rest went to Fisk’s general endowment and debts.
The Association of Art Museum Directors issued a formal rebuke, calling the deal a violation of professional standards. Critics pointed out the irony of Alice Walton — herself a major art donor — facilitating a deal that overrode another donor’s explicit wishes. Others called it predatory: a billionaire’s museum acquiring half-ownership of a struggling Black university’s most valuable asset for a fraction of its appraised value.
Fisk’s defenders argued that the alternative was the university closing. An HBCU founded in 1866 — one year after the end of the Civil War — would have ceased to exist. The paintings would have been saved. The school would have been dead. Which outcome better honored O’Keeffe’s intent?
The Radiator Building now splits its time between a small gallery on a hill in Nashville and a $218 million museum in the Ozarks. It was painted in 1927 by a woman looking out from the thirtieth floor of the Shelton Hotel at a black-and-gold skyscraper. She put her husband’s name in red neon on a neighboring building where the real sign said Scientific American. She gave the painting to Fisk because a friend asked her to and because she thought it mattered that Black students in the South could see modern art on their own campus.
Whether the deal was the right call depends on what you think donor intent protects — the specific wishes of the person who made the gift, or the survival of the institution that received it. The courts chose survival. The paintings survived too, though they now spend half their life in a town most of the original donors had never heard of, in a building funded by a fortune that didn’t exist when the gift was made.
The cy pres doctrine says as near as possible. It does not say the same. The Radiator Building hanging in Bentonville is not the same as the Radiator Building hanging at Fisk. The painting is identical. The meaning of it being there is not.
O’Keeffe died in 1986 at ninety-eight. She did not live to see the deal. It is probably better that way.
Photo: Samuel H. Gottscho / Library of Congress