Amicus Briefs in Support of the City/Park District
Click on each title for a link to the original briefs
Art Institute of Chicago
Chicago History Museum
DuSable Museum of African American History
The Field Museum
Museum of Contemporary Art
Museum of Science and Industry
National Museum of Mexican Art
National Museum of Puerto Rican Arts and Culture
The Chicago Academy of Sciences/Peggy Notebaert Nature Museum
The Shedd Aquarium
The brief focused on three key points: 1) Chicago has long had a precedent for siting Museums in public parkland, 2) the OPC meets the same standard of serving the public interest that undergirds the operation of the other Museums under an agreement that carries more stringent terms than those of the other museums; and 3) that the POP lawsuit creates uncertainty for the current Museums that could undermine their ability to serve the public interest through their programming.
The tradition of having Chicago Museums situated in parkland started in 1893 with the World’s Fair and the early siting of the Art Institute in Grant Park and the Chicago Academy of Sciences (Peggy Notebaert Nature Museum) in Lincoln Park. The precedent has continued throughout the decades with the common belief that “musuems were located in parks precisely because it would benefit the City, the people and the institutions alike”. Daniel Burnham, the architect of the Plan of Chicago, noted the importance of museums in parks and specifically situated the Field Museum on former railroad landfill that became part of the Chicago parklands system.
The brief is comprehensive in documenting the positive contributions to the public interest, specifically noting the educational and economic benefits. Collectively each year, more than 8 million Chicagoans and tourists visit the museums; 1.5 million school children visit through organized field trips; and more than 120,000 teachers are offered professional development training, school visits, and other support services. Based on 2017 information, the museums generated $850 million in economic impact which includes 3,700 jobs and $80 million in city and state tax revenue. Indirectly, they contribute to Chicago’s ability to “attract the ‘creative class’ and reverse ‘brain drain’”, bring in new businesses, creating a positive feedback look that benefits the economy as a whole, but also favors local communities.
Regarding the second and third points, the brief outlines the similarities in the use agreements between the existing museums in the parks and the city with the City-approved OPC agreement. The City retains ownership of both the buildings and parklands, leasing back the operation of the OPC to the Obama Foundation for 99 years. Much like the other Museums, the Foundation is responsible for the maintenance of the buildings and grounds under the same guidelines set by the Park District and City. And also like the other Museums, should the OPC deviate from its mission or compliance with the Museum Art, the City has the right to revoke the lease and return the site to the Park District. Finally, the brief points out that “If the Court finds that the OPC cannot be established in Jackson Park under the proposed use agreement, that ruling may have an unintended consequence of undermining the very public interest that the Plaintiffs seek to vindicate.” They suggest the position that the POP plaintiffs are taking will undermine the definition of the public interest when it comes to the educational mission of museums in the parks.
George W. Bush Foundation
William J. Clinton Foundation
George H. W. Bush Presidential Library Foundation
Ronald Reagan Presidential Foundation
Gerald R. Ford Presidential Foundation
Richard M. Nixon Foundation
Lyndon Baines Johnson Foundation
John F. Kennedy Library Foundation
Harry S. Truman Library Institute
Herbert Hoover Presidential Foundation
The OPC is the 14th presidential center to be built. It will celebrate the legacy of the first African-American president, and will allow visitors to view records and artifacts, and learn more about the American presidential institution through related programming. The 13 other presidential libraries and museums joined together to support the Chicago Park District and City of Chicago in its support of the OPC in Jackson Park. Of the issues raised by the plaintiff, Protect Our Parks, this brief focuses on two major points. First, that “it is neither unusual nor improper for the OPC to be linked to a non-governmental foundation.” The brief points out that every other presidential library has a non-profit foundation that negotiated an arrangement with the National Archives and Records Administration as to how the presidential center would operate. Varying degrees of control are in place, some where NARA controls the entire operation, some where duties are shared with a private foundation, and still others where the center is completely run by the private foundation. The variation in shared responsibilities and leadership structure undermines the plaintiff’s argument, such that it is completely insignificant whether NARA or the Obama Foundation controls the site. All that is required is an agreement between NARA and the OPC, and that the center meet the core mission of presidential libraries.
Second, the brief tackles the issue of digital records being accessible at the OPC and more voluminous paper records being kept off-site. The amici cite the May 2017, NARA “new model for the preservation and accessibility of Presidential records.” NARA, like many other businesses and agencies, instituted a policy consistent with modern day technology and a move toward a greener environment. NARA stated that it would “focus its resources and personnel on preserving and making accessible the Presidential records of [Obama] in digital format to the greatest extent possible.” This model is a result of the digital era. It is also consistent with Presidential Libraries Act, 44 USC 2112, which has no requirement that physical depositors be on-site at presidential centers. Simply because the OPC will be the first presidential center to keep mostly digital records, it does not negate the purpose of the center or make it a misfit amongst its predecessors. Most other presidential libraries are starting to digitize their artifacts for long term preservation and ease of access for researchers. It is of special note that because the archives will be mostly digital, less space needed to properly store, secure, and display presidential records, thereby leaving more space available for visitors, researchers and the public.
David A. Dana, Kirkland & Ellis Professor of Law at Northwestern Pritzker School of Law, and Professor of Real Estate at the Kellogg School of Management
Lee Anne Fennell, Max Pam Professor of Law at the University of Chicago Law School
Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law at the Notre Dame Law School
Thomas W. Merrill, Charles Evans Hughes Professor of Law at Columbia Law School
Nadav Shoked, Professor of Law at Northwestern Pritzker School of Law
Stephanie M. Stern, Professor of Law at Chicago-Kent College of Law
Lior J. Strahilevitz, Sidley Austin Professor of Law at The University of Chicago Law School
Property law professors at law schools around the Chicagoland area, Northwest Indiana and New York, filed a brief in support of the support the Chicago Park District and City of Chicago in its support of the OPC in Jackson Park. This brief focuses on the underlying property law rights with respect to the public trust doctrine. These legal scholars explored the history of the public trust doctrine since it was first recognized in 1892. The public trust doctrine relates to land that is held in trust for the people of the state so that they may enjoy it without obstruction of interference from private parties. When deciding whether use of land violates the public trust doctrine, courts ask whether (1) title and control of public land is being transferred for private ownership; and (2) whether there are plausible public benefits for the transfer.
These questions can be best explained by reviewing examples of use throughout the City of Chicago that were found to not violate the public trust doctrine. The 2003 renovation of Soldier Field, a structure owned by the Chicago Park District, was found to be consistent with the public trust doctrine, even though the renovation removed landmark status, restricted access to a public park, and mainly benefitted a for-profit entity, the Chicago Bears. Still, the courts acknowledged that the private benefit was not enough to outweigh the simultaneous public benefit. The placement of a golf course in Jackson Park, the acquisition of park land by schools, and the 1926 renovation of the Museum of Science and Industry were all found to be consistent with the public trust doctrine for public benefit reasons.
The legal scholars agree “that the OPC is consistent with the public trust doctrine and is an appropriate use of the Jackson Park site under any application of the doctrine.” The City of Chicago is only providing a 99 year lease of the land, not a sale of the land. Moreover, the building and surrounding improvements, paid for by the Obama Foundation, will be given the City of Chicago upon completion. The site will contain a public library branch and will provide free admission days consistent with other museums throughout the City. The OPC benefits to the public are clear and adequate, such that it would not violate the public trust doctrine and should be allowed to proceed.