Oberlin College was in the news recently after a drawing, Girl With Black Hair, by Austrian Expressionist Egon Schiele, was the subject of a criminal seizure warrant out of the Manhattan District Attorney’s office.
The D.A. is attempting to recover that drawing and others located at other museums and private collections, which were stolen by the Nazis from Fritz Grünbaum, a prominent Jewish art collector and cabaret artist, who was forced under duress to sign over rights to his collection as part of the Nazi confiscation of Jewish property, while interned at the Dachau concentration camp in Germany, where he died in 1941.
While the criminal warrant to Oberlin College and two other institutions put the dispute in the current headlines, the Grünbaum heirs have have been trying at least since 2006 to get Oberlin College to return the drawing, to no avail. We have not seen that long history reported before, and we learned of it while reviewing court filings in a civil case filed against Oberlin College and others in late 2022, which Oberlin College also is fighting. Among other things, Oberlin College disputes the constitutionality of applying the Holocaust Expropriated Art Recovery Act of 2016.
Oberlin College’s fight to avoid returning this stolen art is in contrast to the college’s repatriation of an item of Native American craft returned to the Nez Perce tribe in 2002. Are items stolen from Jews during the Holocaust less worthy of return than items obtained from Native American tribes?
The Allen Museum is as woke as the rest of Oberlin College, recently featuring a show pushing back against ‘anti-woke’ pushback:
Hey America: If you’re tired of MAGA “anti-woke” culture war politics and you’d like to see a cultural response from the opposite side of the ideological spectrum, Ohio has an art museum for you: The Allen Memorial Art Museum at Oberlin College.Special exhibitions on view now at the Allen explore everything from racism at the St. Louis World’s Fair in 1904 to the question of how artworks communicate the idea of sexual consent — a big topic on college campuses, and in workplaces….Since it opened in 1917, the Allen’s excellent collection has grown to encompass more than 15,000 objects spanning 6,000 years of art history….But this summer [of 2023], especially, the museum seems eager to address the culture wars, although it’s not saying so overtly. The tone of the exhibitions on view is scholarly and above the fray, but there’s no mistaking the museum’s opposition to the current right-wing campaign against the teaching of Black history or the pursuit of rights for LGBTQ persons….Still, it’s clear that the Allen is sympathetic to contemporary artists whose politics lean left.
The NY Times reported on September 13, 2023, about the dispute over the stolen artwork:
New York investigators on Wednesday seized three artworks from three out-of-state museums that they said had been stolen from a Jewish art collector killed during the Holocaust and rightly belonged to the Nazi victim’s heirs.The Manhattan district attorney’s office issued warrants to the Art Institute of Chicago, the Carnegie Museums of Pittsburgh, and the Allen Memorial Art Museum at Oberlin College in Ohio, for works by the 1900s Austrian Expressionist Egon Schiele. According to the warrants, “there is reasonable cause to believe” that the works constitute stolen property.Prosecutors say the artworks rightly belong to three living heirs of Fritz Grünbaum, a prominent Jewish art collector and cabaret artist killed at the Dachau concentration camp in Germany in 1941.
The Associated Press added more details, including Oberlin College’s assertion that its purchase was and its current possession is lawful:
The son of a Jewish art dealer in what was then Moravia, Grünbaum studied law but began performing in cabarets in Vienna in 1906.A well-known performer in Vienna and Berlin by the time Adolf Hitler rose to power, Grünbaum challenged the Nazi authorities in his work. He once quipped from a darkened stage, “I can’t see a thing, not a single thing; I must have stumbled into National Socialist culture.”Grünbaum was arrested and sent to Dachau in 1938. He gave his final performance for fellow inmates on New Year’s Eve 1940 while gravely ill, then died on Jan. 14, 1941.The three pieces seized by Bragg’s office are: “Russian War Prisoner,” a watercolor and pencil on paper piece valued at $1.25 million, which was seized from the Art Institute; “Portrait of a Man,” a pencil on paper drawing valued at $1 million and seized from the Carnegie Museum of Art; and “Girl With Black Hair,” a watercolor and pencil on paper work valued at $1.5 million and taken from Oberlin….In a statement, Oberlin said it was cooperating with investigators and was “confident that Oberlin College legally acquired Egon Schiele’s Girl with Black Hair in 1958, and that we lawfully possess it.“We believe that Oberlin is not the target of the Manhattan DA’s criminal investigation into this matter,” the statement added.Before the warrants were issued Wednesday, the Grünbaum heirs had filed civil claims against the three museums and several other defendants seeking the return of artworks that they say were looted from Grünbaum.They won a victory in 2018 when a New York judge ruled that two works by Schiele had to be turned over to Grünbaum’s heirs under the Holocaust Expropriated Recovery Act, passed by Congress in 2016.
The portrait is listed on the Allen Museum website, and apparently is being held by the college now for the benefit of the Manhattan District Attorney’s office, pending further proceedings regarding the warrant:
The Museum does not currently have the drawing on physical display, but has brought it for exhibition in other locations over the years, the local Chronicle reports:
The drawing has been exhibited throughout the United States and in Europe more than a dozen times since 1956, according to a list of exhibits on the Allen Museum’s website. The last 10 times were at the museum itself, between 1986 and 2014.The Allen Art Museum’s website lists “Girl with Black Hair,” in watercolor and graphite pencil on paper, as “not on view” at the museum. Created in 1911, the drawing is 17 11/16 by 12 7/16 inches.”This arresting drawing by Austrian artist Egon Schiele is related to a lost oil painting of the same model, there fully clothed, executed in the same year. While it likely functioned as a preparatory work for that painting, the drawing is finished in its own right, rather than serving merely as a sketch. It is also closely related to at least four other drawings of the same year that depict the same model,” according to the page dedicated to “Girl with Black Hair” on the Allen Memorial Art Museum’s website.”Unlike many of his other drawings of nudes, Schiele here pays great attention to the girl’s face. Her heavy-lidded, dark-smudged eyes with their distant gaze and the sharply angular contours of her nose and chin give her an air of intense tiredness, belying the red of her rosebud lips and cheek,” the museum’s description reads. “The extremely spare rendering of the sitter’s midsection and breasts contrasts with the heavy, dark watercolor masses of her hair and skirt. Her bare knees slightly protrude below the edge of her skirt, as she sits back, legs behind her and to the side, and add yet another note of vulnerability.””With such works by Schiele and Klimt, as well as Pechstein, Kokoschka, Schmidt-Rottluff, Jawlensky, Klee, and Kollwitz, the AMAM has a small but important collection of Expressionist art,” according to the Allen Museum’s website.
The Oberlin Review, the college’s student newspaper, noted that seven other pieces of artwork (not including the one in the possession of the college) were recently returned, as reported in The NY Times:
Seven works by the Austrian Expressionist Egon Schiele will be handed over on Wednesday to the heirs of the Viennese cabaret artist who had owned them before he was murdered by the Nazis, according to Manhattan prosecutors, marking a major turning point in one of the art world’s longest-running Holocaust restitution cases.The ceremony to return the artworks to the heirs of Fritz Grünbaum, who was killed in the Dachau concentration camp in 1941, was scheduled to be held at the office of the Manhattan district attorney, Alvin L. Bragg, which investigated the case.“This is of huge importance in our world,” said one of the Grünbaum heirs, Timothy Reif, referring to the descendants of Holocaust victims seeking the return of looted property nearly 80 years after the end of World War II. “It sets the tone and the agenda for all future cases.”
The criminal warrant which has generated so much attention comes after several civil court lawsuits were filed in late 2022 against Oberlin College and other entities holding stolen artwork. Those civil case filings revealed even more than has been reported.
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The civil case against Oberlin College’s Allen Memorial Art Museum was filed in NY State court on December 15, 2022, then removed by Oberlin College in March 2023 to federal court.
Oberlin College has moved to dismiss the First Amended Complaint, and the Grünbaum Heirs have cross-moved for summary judgment. You can read these pleadings, which set forth the parties’ asserted facts and legal positions. Those court filings reveal a dispute going back at least until 2006. You can see how hard Oberlin College has been fighting to hold onto the artwork:
Notice of Removal, and Exhibits A-1 (State Court Complaint and Exhibits) and A-2 (additional exhibits)
First Amended Complaint (without exhibits)
Motion to Dismiss First Amended Complaint and supporting Memorandum of Law
Opposition to Motion to Dismiss
Cross-Motion for Summary Judgment
Reply In Support of Motion to Dismiss
The court docket does not reflect any decision on the pending motions, and has no new entries since early August 2023.
While the civil court case only dates back to December 2022, Oberlin College has been on notice of the dispute at least since 2006, which is one of the reasons it asserts in its Motion to Dismiss the case should be dismissed as barred by the statute of limitations (emphasis added):
… the cases against Carnegie and Oberlin should alternatively be dismissed as time-barred. The record is conclusive that Plaintiffs had actual knowledge of Carnegie’s and Oberlin’s possession of their Schiele drawings back in 2006 – Plaintiffs made written demands for those drawings at that time, which were refused. Yet Plaintiffs made no claims against Carnegie or Oberlin until the end of 2022. As explained by AIC, under both New York law and the statute of limitations rules prescribed by the Holocaust Expropriated Art Recovery (“HEAR”) Act of 2016, Pub. L. No. 114-308, 130 Stat. 1524 (2016), Plaintiffs’ claims against Carnegie and Oberlin are time-barred.
Oberlin College’s Motion to Dismiss makes clear that Oberlin College rejected demands for return of Girl With Black Hair in 2006 and again in 2009, providing this narrative history (emphasis added):
1. Plaintiffs’ Prior Demand To Oberlin Was Refused
On January 24, 2006, Fischer and Vavra (through the same counsel representing Plaintiffs herein) sent a demand letter to Oberlin “to formally demand the return of art works owned by Grunbaum” and “demand the return of the artworks held at your institution,” which was further identified in a chart submitted in the Bakalar case to include the Schiele drawing owned by Oberlin, Girl with the Black Hair (1911). (Declaration of Matthew Lahey dated June 7, 2023 (“Lahey Decl.”) at ¶ 2, Ex. A.) The demand letter additionally stated: “If you fail to notify us of your intention to return the works, it is our intention to assert claims against your institution for the return of the works in an amended pleading [in Bakalar] ….” (Lahey Decl. Ex. A.)
Oberlin did not accede to Fischer’s and Vavra’s demand and did not surrender its Schiele drawing to them. Accordingly, on February 6, 2006, Fischer and Vavra amended their pleading in Bakalar and named Oberlin as an additional counterclaim-defendant and putative class representative. (Bakalar ECF No. 35.) Fischer and Vavra alleged that they had “demanded the return of the Grunbaum artworks [sic] held by Oberlin College. Oberlin has refused to return the works or ignored such demand.” (Id. at ¶ 296.) Following the denial of Fischer’s and Vavra’s motion for class certification in 2006, they made an additional, correspondence-based demand upon Oberlin in or about early 2009, which was likewise refused. (Lahey Decl. at ¶ 3; Ex. B.)11 Fischer and Vavra did not re-assert a claim against Oberlin until bringing this action concerning the same Schiele work in December 2022, over 16 years after their initial demand had been refused.
The Oberlin College motion papers reference the Affidavit of Matthew Lahey, and the exhibits thereto, showing the dispute as of 2006 and 2009:
Of course, the plaintiffs have a different view not only of the statute of limitations, but also the merits of the case. From the Opposition to Oberlin College’s Motion to Dismiss:
The simple question that would resolve this entire controversy is whether or not the power of attorney Fritz Grünbaum executed on July 16, 1938 in the Dachau Concentration Camp (the “Dachau Power of Attorney”) is void as a product of duress and involuntary. If the Dachau Power of Attorney was involuntarily, this renders void any transfer of artworks that occurred after Grünbaum July 16, 1938 voiding any transaction that would divest any of Grünbaum’s heirs of title to the Artworks. Because that simple question has been “actually decided” by the Appellate Division, First Department and was not “actually decided” by the Second Circuit (which expressly stated in its opinion “we do not decide” that question), this controversy can be resolved. Because collateral estoppel requires deference to the Appellate Division’s decision, this Court should grant summary judgment in favor of the Grünbaum Heirs. The Grünbaum Heirs signaled their intention to ask the Court to convert the Museums’ motions to dismiss to summary judgment motions, anticipating that the Museums would submit voluminous materials to the Court. The Court granted permission for the application pursuant to Rule 12(d) of the Federal Rules of Civil Procedure. Because there are no material issues of undisputed fact and because the Museums chose to lay bare all of their proof, it would be fair and just (and the Museums would suffer no prejudice) for the Court to award summary judgment granting replevin and declaring title in the Artworks to the Grünbaum Heirs, and awarding prejudgment interest for conversion.
Oberlin also asserted that applying the HEAR Act was unconstitutional, “application of the HEAR Act at this point to deprive Carnegie and Oberlin of their vested title in their respective drawings would cause an unconstitutional taking,” to which plaintiff’s responded:
The Museums’ constitutional attacks on the HEAR Act are frivolous. New York and other common law jurisdictions do not recognize adverse possession of or prescriptive rights in stolen chattels, and even if they did, the Museums cannot put forth admissible evidence sufficient to raise a triable issue of fact on whether they could satisfy the elements of common law adverse possession under the law of any state.
I can’t assess, at this point, the legal strengths or weaknesses. The return of stolen artwork is not an area of law with which I am familiar. The Courts will have to sort it all out. What is clear and undisputed is that Oberlin College steadfastly has refused to return the drawing at least since 2006 despite multiple demands and a civil lawsuit.
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Why such a long and hard fight – starting at least in 2006 – to hold onto Girl With Black Hair? It’s not like returning Girl With Black Hair would strike a serious financial blow to the college or cause a serious disruption to the Allen Museum. It’s just one drawing out of 15,000 in the museum that sits in storage and not even on display.
There is precedent for Oberlin College returning items wrongfully (but not necessarily illegally) acquired. In 2002, Oberlin College returned a twined root bag that had been taken from the Nez Perce tribe a century before, and even held a symposium celebrating the return:
On April 27, 2002, the Oberlin College Department of Anthropology returned to the Nez Perce Tribe a twined root bag that had been lost in their ethnographic collections for over a hundred years. This bag was collected by Henry Harmon Spalding, missionary to the Nez Perce, in the 1840’s, and is part of the Spalding-Allen Collection that is on display at the Nez Perce National Historic Park in Spalding, Idaho. The symposium consisted of lectures on the history of the collection and the development of flat twined weaving in the 19th and 20th centuries, as well as panel discussions on museum collections and repatriation of Native American cultural patrimony.The symposium was accompanied by an exhibition at the Allen Memorial Art Museum titled, QAQA’PE: FLAT TWINED BAGS OF THE COLUMBIA RIVER PLATEAU, and an exhibit in the Oberlin College Library about the early missionary movement in the Oregon Territory.The purpose of this page is to provide a virtual version of the AMAM exhibition, as well as to provide historical background on the people and the events leading up to the return of this root bag to the Nez Perce Nation.
Oberlin College appears to have “lawfully” possessed the twined root bag, but returned it anyway.
Oberlin College also is reviewing its inventory of artifacts and human remains for possible repatriation to Native American tribes. Whether Oberlin College “lawfully” possessed those items did not seem to be a defense raised by the college.
I have not been able to find any reports that Oberlin College plans to or has contested the seizure warrant or finally will return the artwork stolen by the Nazis from Fritz Grünbaum without further fight. A report on September 27 does not include Oberlin College as one of the institutions cooperating in the return of the stoken artwork at issue.
An email to Oberlin College media relations yesterday morning asking why the college wouldn’t return the stolen drawing, even if it had a legal right to keep it, has not been returned:
I understand that the college believes it lawfully purchased the artwork. Assuming that is legally correct, why not give it back anyway? Why would the college want to hold onto a piece of artwork stolen during the Holocaust even if the college has a legal basis to keep it?
I have a feeling Oberlin College will end up returning the stolen artwork, rather than fight the seizure warrant. Perhaps that already is in process, but not publicly announced. It’s not as if the college needs more bad publicity, after the Gibson’s Bakery debacle.
Yet the question remains, why fight for so long the return of an item stolen by the Nazis during the Holocaust? Why not treat it like the twined root bag returned to the Nez Perce tribe, where ethics and morality — not the law — led Oberlin College to give up its possession? Are items stolen from Jews during the Holocaust less worthy of non-legal ethical considerations than items obtained from Native American tribes?
Why wait until the legal and public pressure mounts? Why not have returned the artwork in 2006, or last year when a civil lawsuit seeking its return was filed. Will it really take a criminal seizure warrant to get back this stolen property?
It’s often said that “integrity is doing the right thing, even when no one is watching.” No one was watching Oberlin College as relates to Girl With Black Hair for most of the 17 years Oberlin College has been fighting its return. Oberlin College had almost two decades to do the right thing as to the stolen drawing, when no one was watching. Now people are watching, so no virtue signaling is warranted if Oberlin College finally gives up possession of the drawing.
Oberlin College, which professes its social justice bona fides, apparently didn’t consider the return of a stolen drawing taken by the Nazis from a Jewish Holocaust victim to be social justice.
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