In museums we trust: analyzing the mission of museums, deaccessioning policies, and the public trust.

• Author: Tam, Sara
• Position: Introduction to II. Evaluating the Prohibitions on the Use of Deaccessioning Proceeds, p. 849-873

Introduction I. The Mission of Museums and the Recent Deaccessioning Debate A. Background of American Museums 1. Types of Museums and Their Organizational Structure 2. Exhibiting Art and Sharing Cultural Knowledge 3. Developing and Managing a Collection B. Understanding Public Trust Theories 1. Museums as a Public Trust 2. The Public's Trust in Museums C. History and Development of Deaccessioning Policies 1. Professional Codes of Ethics 2. Judicial Analysis of Deaccessions 3. Current and Proposed State Legislation a. New York State Board of Regents Rules b. Proposed New York State Legislation II. Evaluating the Prohibitions on the Use of Deaccessioning Proceeds A. Dictating Deaccessioning Policies: Whose Role? 1. Museum Professional Organizations 2. Judicial Analysis 3. State Legislatures B. Examining Trends in Deaccessioning Positions 1. The Deaccessioning Absolutist Position 2. A Restrained Approach: A Compromise 3. A Broader Perspective on Deaccessioning III. A Balanced Approach to Preserving the Public Interest in Museums A. Museums Should Lead the Development of Guidelines for Collections Management 1. Museums Know Themselves Best 2. Judicial Analysis Lacks a Comprehensive Approach 3. State Regulation and Legislation Do Not Accommodate the Diversity of Museums B. Enforcement and Creating an Opportunity for Review C. Promoting a New Conception of Deaccessioning That Can Protect the Public's Trust in Museums 1. An Absolute Prohibition Against Deaccessioning is Inconsistent with Today's Museum 2. The Prevalent Restrained Approach Does Not Adequately Protect the Public Interest in Museums 3. A Broader Approach Allows for a Balanced Treatment of the Museum's Multifaceted Mission Conclusion INTRODUCTION

New York City almost lost its leading institution dedicated to the appreciation of traditional folk art (1) in the fall of 2011. (2) The American Folk Art Museum (Folk Art Museum), a "stubborn, single-minded little institution," is the world's center of folk-outsider art, a source of inspiration to the modern art movement, and a counterpoint to contemporary life. (3) The fifty-year-old museum was on the brink of closing and dissolving after defaulting on a $31.9 million loan taken out in 2009 that had been used to build a new flagship site. (4) At the time, the Folk Art Museum was forced to contemplate how it should disperse its collection of works after closing down the museum)

In California, the Fresno Metropolitan Museum of Art and Science (Fresno Metropolitan) met its end shortly after completing a heavily financed renovation that was intended to revive the museum. (6) The museum was an important influence on a community that has limited museums and education-related activities. (7) After defaulting on a fifteen million dollar municipal loan, the twenty-five-year-old museum's last day open to the public was January 5, 2010. (8) In winding up its affairs, the Fresno Metropolitan sold its collection at auction, using the proceeds toward paying off its debts. (9)

The difficulties of these two institutions illustrate how museums across the country are facing financial challenges and struggling to pursue their mission to acquire, preserve, and exhibit their collections for the benefit of the public. (10) Faced with financial hardship, however, some museums have decided to remove artwork from their collections, a process known as "deaccessioning," (11) and to sell this artwork for cash critically needed for the museum to stay open to the public. (12) More often than not, the alternative is closing the museum. (13)

Deaccessioning is one of the most debated and sensitive issues for museums today. (14) The reaction from the museum world has ranged from dismay to disgust, and there is no consensus on the ethics or legality of deaccessioning. (15) Specifically, the controversial question is how museums should be able to use the funds received from selling a deaccessioned artwork. (16) The deaccessioning debate focuses on whether deaccessioning and the use of the proceeds of deaccessioning sales for operating costs breaches a museum's duty to the public. (17) Professional ethical codes and state regulations permit the use of proceeds only for future purchases for the collection, or for collection preservation costs. (18) Nevertheless, some museums intend to use the proceeds towards operating costs because they lack the necessary funding for those expenses. (19) Even so, museum professional organizations sanction museums for violating ethics codes, and donors and attorneys general sue museums for breaching gift restrictions and fiduciary duties. (20)

This Note demonstrates that the emphasis on collections management policies undermines a museum's mission to provide public access to its collections and exhibitions, whether the emphasis originates from museum professional organizations, legislative and judicial action, or media criticism. It highlights the relationship between museums and the public, exploring museums' duty to the public, the public's support of museums, and the public's expectations of museums. Defining this relationship is a key factor in shaping museum standards. This Note provides a comprehensive examination of the varying perspectives on the legal and ethical duties currently imposed on museums.

Part I provides an overview of the museum's mission to collect and exhibit art for the benefit of the public. It also describes the historical development of museum standards and deaccessioning policies. Part II evaluates the effectiveness of current and proposed policies on deaccessioning and the use of deaccessioning sales proceeds, as well as the theories supporting those policies. Part III posits that museums can be trusted to develop and enforce standards that equally reflect the public interest in museums themselves, their collections, and the educational experiences museums offer. Therefore, this Note suggests that legislative intervention is unnecessary to protect the public interest in museums and their collections.

1. THE MISSION OF MUSEUMS AND THE RECENT DEACCESSIONING DEBATE

   Defining standards for how a museum should manage its collection and perform its social duties requires an understanding of the museum's dual and dependent goals of collecting and exhibiting objects for the benefit of the public. Part I.A provides an overview of the different types of museums in the United States and explains their common mission to build collections and to provide access to lifelong learning through exhibitions. Part I.B discusses interpretations of the public trust theory with respect to museums. Part I.C explains the current legal and non-legal policies on collections management.

   1. Background of American Museums

      Museums are unique in their focus on visual- and object-based learning. (21) Thus, the museum's relationship with its collections is distinct from the museum's relationship with...