NEW YORK, NY.- What makes a painting conservative?

An Indiana judge is facing that very question as Valparaiso University contends that it should be able to sell high-value paintings it owns, including a Georgia O’Keeffe landscape of the New Mexico desert, in order to finance a renovation of freshman dormitories.

When the private, nonprofit university announced its plan last year, it said the sale was necessary because enrollment had declined, which has also prompted the school to cut some programs and positions.

After opposition to the sale of the art that had long hung in its on-campus museum, the college is now arguing before a court that selling two of the paintings is justified because they should never have been acquired in the first place.

The stipulations of the 1953 gift used to purchase them, which Percy Sloan donated in honor of his father, Junius R. Sloan, a self-taught Hudson River School artist, said it could be spent only on “conservative” works.

The gift, which included money and hundreds of paintings, specified that any art acquired with the funds must be “exclusively by American artists preferably of American subjects” and “of the general character known as conservative and of any period of American art.”

The paintings in question are “Rust Red Hills” by O’Keeffe (1930) and “The Silver Veil and the Golden Gate” by Childe Hassam (1914), an American impressionist. In a court petition, the university says that because the paintings are from modernist art movements and are not representational, they are not conservative and therefore can now be sold.

“At the time those paintings were purchased in the 1960s, the committee knew that it was straying from Sloan’s directive to acquire conservative art,” the petition reads.

The third painting the university wants to sell, Frederic E. Church’s “Mountain Landscape,” was a part of Sloan’s original donation and is not included in the “conservative” argument.

Valparaiso also argued in its petition that its financial situation makes it impossible to care for and display the three paintings properly and to protect them from any protests. It cited as examples the climate activists who have targeted famous museums such as the Louvre and the National Gallery in London.

All three paintings were removed from the campus’s Brauer Museum in September and have since remained in what the university called a “secure off-site location.”

The university needs legal permission to stray from the terms of Sloan’s donation, which preceded the existence of the Brauer. It contends that fulfilling the specific intention of the gift is no longer possible and that improving conditions for the student body is a suitable charitable use.

The Indiana attorney general’s office, which represents the state in charitable trust litigation, declined to object to the petition. Judge Michael Fish of Porter County Superior Court is considering the university’s petition as well as a motion to intervene from Richard Brauer, 96, whom the museum is named after.

Jonathan Canning, who was the director of the Brauer before the position was terminated last month, said that declaring that a painting was not “conservative” enough to be in the Sloan collection was a legal tactic that did not make sense in a museum context.

“I think it was a clever way of trying to pick at the validity of the paintings, and it was done because they thought they wouldn’t have to answer to anyone but the judge,” Canning said after his position was cut.

Valparaiso confirmed that Canning’s job was “eliminated as part of an administrative restructuring” but did not answer questions about its court petition or any potential sales.

In 1962, when Brauer was a Valparaiso art professor and a member of the committee created to administer the gift, he successfully lobbied the rest of the committee and the Sloan-appointed trustee, Louis Miller, to expand the collection to include American modern art.

Notes from that meeting included in the university’s petition show that Miller agreed that the collection’s effectiveness was limited by its focus on the Hudson River School. “He suggested that we should gather paintings of diverse styles — including some of the extremes of ‘modern’ art,” as long as they communicated to students a greater awareness of beauty, the notes read.

Miller disliked abstract art, according to a chronological history of the Sloan collection that Brauer wrote for its 50th anniversary in 2003, but would not veto acquiring a work unless it was “totally abstract.”

Brauer wrote that the committee had “many heated discussions” about major modern acquisitions. “What was done, rightly or wrongly, in the years 1958 to 1972, with the great help of a very favorable art market, was to purchase nine paintings by first-ranked 20th-century American painters,” he wrote.

The university’s petition says the committee bought the O’Keeffe in 1962 for $5,700 and the Hassam in 1967 for $9,000. “Rust Red Hills” renders New Mexico mountains in draping, muscular forms, and “The Silver Veil and the Golden Gate” explodes a pre-bridge San Francisco Bay into an impressionistic light-dappled array.

Those modernist American landscapes are now the most valuable works in the Brauer’s collection. Appraisals commissioned by the university estimated fair market values of $10.5 million to $15 million for the O’Keeffe and $1 million to $3.5 million for the Hassam. (The Church is valued at $1 million to $3 million.)

Whether the paintings are actually sold, though, may depend on how the judge interprets the word “conservative,” and the definitions presented have varied widely.

In a filing alongside the university’s petition, the boutique appraisal and art advisory firm Sterling Teel Capital argues that “Rust Red Hills” (and American modernist art in general) is not conservative because it is abstract and “rejects the mere transcription of a place.”

In Brauer’s motion, Chicago art historian Wendy Greenhouse argues that “conservative” is a highly relative term and that if the collection abided by the word as defined when the trust agreements were written, it could exclude work by Native American or Black artists.

“The university is being extremely conservative — that is literal — in its interpretation of Percy Sloan’s trust,” Greenhouse wrote.

Linda Grasso, an O’Keeffe scholar, said the painter largely avoided political language but did see her work as part of an avant-garde movement.

A broad spectrum of observers appreciated her work: Conservative presidents Gerald Ford and Ronald Reagan recognized O’Keeffe with some of the nation’s highest honors.

The partisan preference of Hassam, whose most famous work is of American flags on New York City’s Fifth Avenue at the outset of World War I, is somewhat clearer. In a 2004 review of a Hassam retrospective, New Yorker art critic Peter Schjeldahl called him “conservative to the core.”

Because Percy Sloan never married and has no known descendants, Brauer appears to have the best chance of preventing the paintings from being sold.

He said the fact that the trustee approved of including modern art in the collection was reason enough to reject the university’s argument for selling the paintings. He is vigorously fighting the sale, he said, because he feels strongly that dormitory renovations are not equivalent to exposing students to prized artwork.

“The masterpiece painting is a great painting, and it’s a great teacher,” Brauer said. “We’d lose three great teachers.”

Sloan never defined what he meant by “conservative,” with that qualification coming in his last will and testament, a largely terse legal document. But in the trustee agreement, he went into more detail about what he hoped the collection would deliver.

“It is asserted that beauty is everywhere observable,” he writes. “Strange to say, this truth must be demonstrated: people must be shown.”

This article originally appeared in The New York Times.