Barnes Foundation Back in Court

Last week, the Philadelphia Inquirer and New York Times (and then the Philadelphia Inquirer again) reported on the decision by a Pennsylvania court to permit the Barnes Foundation to make some modest changes in how they display their art: specifically permitting temporary loans of art to other institutions or temporary displays of art in other locations in the museum.

Anyone who has followed the Barnes Foundation case(s) over the years knows that Albert Barnes amassed a truly incredible collection of art during his lifetime, and left it to the Barnes Foundation with unusually precise instructions on how it should be displayed. Over the years the trustees of the Barnes Foundation have returned to court over and over to try to alter those precise instructions, successfully winning the right to move the paintings from their original location in Merion, Pennsylvania, into Philadelphia, among other limited changes. The museum in Philadelphia is truly one of my favorite art museums in the world, and (despite really liking art museums) I was always too lazy to visit the museum in Merion before the courts permitted the Foundation to move the collection. So, I’m a direct beneficiary of the court’s permissiveness. On the other hand, this case is often used in Nonprofit Law classes (including mine) to illustrate the potential for conflict between philanthropists and the charitable institutions they create or fund, especially after their deaths. Barnes illustrates this conflict so well because he was so clearly mistrustful of the art establishment in Philadelphia, and worked so hard to direct his philanthropic vision after his death. So, even the most modest and reasonable alterations to the rules that bind the Foundation are viewed by some as a betrayal of Barnes and his legacy. I’m sympathetic to that instinct. If you want to get yourself worked up on Barnes’s behalf, I recommend the movie Art of the Steal (2009), which can be streamed from Amazon for a fee.

I’m also sympathetic to how difficult it is for a court to balance the competing interests in cases like these. Yesterday, I wrote about director standing, and my co-blogger Darryll Jones pointed out in a comment how annoying (and expensive!) it can be for a charity when a single person brings vexatious litigation. In the Barnes case, the Foundation brought an action to deviate from the terms of the trust indenture and the Pennsylvania Attorney General filed a “no objection letter,” leaving the judge with no party genuinely taking a position adverse to the Foundation. The judge did conduct a “site visit,” and probably did not really need an adverse party to make the case against deviation, but the fact that nonprofit standing is generally so limited does reduce the likelihood that the interests of a deceased donor will be fully represented. Again, I think that’s probably on balance a good thing, but it’s a hard balance to get perfect.

Benjamin M. Leff