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Rose suit hinges on Museum’s independence

By web

Section: News

September 18, 2009

University counsel Thomas Reilly’s Tuesday filing of a motion to dismiss the lawsuit brought against the university by three Rose Art Museum benefactors marks the first proactive measure taken by Brandeis in the suit.

Since three Rose Art Museum Board of Overseers filed suit for a court order to stop the closure of the museum and the sale of its artwork on July 27, the university’s role has been to respond, generally through statements given to the press, to the plaintiff’s actions, as opposed to being the actor.

Tuesday’s motion, on the other hand, is the first window into the university’s legal strategy, which underscores a fundamental chasm between the two sides concerning whether the Museum is considered a part of or independent from the university. The answer to that question may decide the verdict.

Brandeis argues in the motion that the Rose Art Museum “is and has always been part of Brandeis,” and contends that the Rose’s Board of Overseers is merely “an advisory body without any governing power of fiduciary responsibilities.”

“The Rose museum is neither privately endowed nor autonomous,” the university’s motion to dismiss reads.

The plaintiffs, Rose Board of Overseers members Jonathan Lee, Meryl Rose and Lois Foster, on the other hand, argue that the monetary donations given by Edward Rose in 1961 to build the museum were given to the university “for permanent use as a museum, located on its campus in Waltham, Massachusetts,” according to the suit. The plaintiffs also argue that because the Rose Art Museum has its own endowment, it is financially independent of the university.

Plaintiff Jonathan Lee maintains that the Rose is “self funding” and that the museum’s now $16 million endowment pays for everything from the museum’s staff’s salaries to the building’s electric bill.

Indeed, Edward Rose’s 1974 last will and testament (filed with the Suffolk Probate Court as part of the lawsuit against the university), the document which founds the Museum’s endowment, says that Edward Rose donated $500,000 to the university “to be set aside by Brandeis as a separate Endowment fund.”

The will continues that the income from the Rose endowment “shall be used to defray the expense of maintaining the museum.” The will allows for the income from the endowment to be used toward “substitute uses” within the university as a whole if the executors of the endowment agree with the university on the alternate use.

Edward Rose’s will concludes that the museum must be maintained in perpetuity as a public art museum and that “my wife and I are relying on good faith of the Brandeis leadership who made this commitment and of those who follow them.”

Contributions by Henry Foster to the endowment fund in 1999 contain similar restrictions.

In a phone interview with The Hoot, Reilly argued that legally, the university is allowed to use the Rose’s endowment because the money originally given by Edward Rose to be used specifically for the museum “has been used for the museum. The museum is there.”

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