Deaccessioning of Library Books Goes to Court

- by Michael Stillman

Ohio Attorney General sues Hebrew Union College.

A case is taking place in Cincinnati right now that could have significant ramifications for the collecting and preservation of old books and related ephemeral material. We have entered a period that has been called the “Great Deaccession.” People, libraries, institutions are flooded with books and some are drowning in them. They want or need to remove some. If it's your personal books, no one really cares. It's your business. Unless you are a serious collector with valuable books, the issue is more finding someone who wants them. The same is true of ordinary books in a library (hence library sales). If it's a library or institution with valuable books, that is another question. There may be no good answer.


A Cincinnati institutional library has some very valuable books and manuscripts they may, or may not, wish to convert to money. They are hurting financially. As if this issue of control of private property weren't enough, this case involves religion. So along with Fifth Amendment rights (private property), throw in the First Amendment (free exercise of religion).


The institution is the Hebrew Union College and its Klau Library. The Cincinnati college for well over a century was the major training ground for Reform Jewish rabbis in the U.S. It was the oldest college for training rabbis in America. The Klau Library's collection of Jewish material is said to be second only to that of the National Library of Israel.


In 2022, it was decided to close the residential rabbinical program in Cincinnati. Decreased enrollment and financial constraints were cited as reasons. However, pledges were made to continue to support the Klau Library as before.


In April, the local Jewish press reported that the institute was considering selling parts of its collection to raise funds. They brought in an appraiser to estimate the value of its collection. An appraisal is not in itself a red flag, but this appraiser was – Sotheby's. Sotheby's is best known for something other than its appraisals. That is not to say they don't have the best appraisers. They do, but still, we all know what Sotheby's is best known for doing.


This story got the attention of Ohio Attorney General Dave Yost. Yost had expressed dissatisfaction with the earlier decision to close the Cincinnati seminary. This time, he went to court. He sought to prevent the institution from selling off its collection. He requested, and was granted, a temporary restraining order to prevent the sale of the books. This will put a halt to any potential sales until the case next comes up again in July. For its part, the Hebrew Union College has continued to deny it plans to sell the collection. Obviously, not everyone takes that as written in stone.


What makes this case so significant well beyond the borders of Cincinnati is Yost's reasoning. Naturally, overruling private property rights or interfering with the free exercise of religion is not something you can do because you (and many others) feel that it is ethically wrong to disperse parts of such an important collection. Distasteful as it is, it happens all the time. However, he is asserting something along the lines of contract law. He believes many of the books and other items were given to the institution with stipulations, or at least understandings, as to how they were to be used. Selling them to raise money was unlikely an intended use. Beyond that, Hebrew Union undoubtedly at times did fund raising on behalf of the library, and most likely said the funds would be used to build the library's collections. A sale would run counter to the understanding contributors had when they gave the institution their money. Yost wants to enforce that, perhaps unwritten, agreement. As he said in a release explaining his action, “Their sale would not only betray donor trust but also may violate legal restrictions placed on the gifts.”


Rhetorical question warning. For how many other libraries wishing to deaccession materials can the same be said?


Now, in the age of the Great Deaccession (much of which goes on quietly behind the scenes), this case could throw up a roadblock. Is this good or bad? It's both. It's the ideal versus the practical. Whatever the outcome, it will be good and bad. The reality is that many libraries are struggling with insufficient funds. Maintaining books little used is expensive. Patrons now want services beyond books, such as access to databases and the internet. Those compete for limited funds. Being a repository to preserve history and culture was not an original purpose. Nonetheless, that is a role many libraries play today and it is an essential one. If they give up that role, what society will lose is immeasurable. There is no easy answer.