BMOC

Ian Cooper of Tueth, Keeney, Cooper, Mohan & Jackstadt in St. Louis tells us about representing universities and handling controversies

Published in 2014 Missouri & Kansas Super Lawyers — November 2014

Photo by: Don Ipock

Q: What first got you interested in the law?

A: When I was 7 years old, I had a neighbor who was a very interesting and impressive individual. He showed me some of his really large law books with single words on them like “contracts” or “torts,” and I thought, “Wow, if there’s an entire book on one word, that has to be a really fascinating career.”

 

Q: Did you ever get in touch with your neighbor after you became a lawyer?

A: I did, actually, years later. Judge George Palmer. He was on the Ohio Court of Appeals. I contacted him sometime after law school and told him I became a lawyer and he seemed very happy.

 

Q: Where did you work after law school?

A: I clerked for a judge on the Court of Appeals in Houston, Texas for a year.

 

Q: That would be James Warren?

A: James F. “Bud” Warren. He was a wonderful, fascinating guy. [After that], I came back to St. Louis and joined what was Shepherd, Sandberg & Phoenix at the time. John Shepherd was a towering figure in the law. He was former president of the American Bar Association. Oh gosh, he was just a wonderfully imposing figure. I worked there for three years.

Then I went from there to Peper Martin. At the time it was called Peper, Martin, Jensen, Maichel & Hetlage. It was a large firm that had a much more diverse practice with corporate and securities and litigation and various other things.

That’s when I met Peter Ruger. Pete Ruger had been the general counsel at Washington University. The first general counsel, actually, at Washington University. Pete introduced me to higher education law. I was a faculty brat. My dad was a faculty member at Rice University in Houston, my alma mater, and my sister is faculty at Middlebury College and my brother-in-law is faculty at Middlebury. Higher education law sounded fascinating. So I started working with Pete and that was really how my career started in terms of representing education institutions.

 

Q: So that's where you really got into your education-related work. How did employment come into it?

A: Actually, it was all part of the same piece. It turned out that a lot of Pete’s higher education clients with whom I started working had employment-related work as their main focus for outside counsel. Whether it was a faculty member having a dispute with the administration, a tenure battle, contract issues or discrimination [claims], somewhere in the neighborhood of 70 percent of the work became employment-focused.

Generally, the other 30 percent was student-focused. So maybe a student is disciplined for doing something wrong, or flunks out and claims they weren’t given enough accommodation for a disability. There were certainly lots of student issues that came up during that time frame, but most of it was employment-related.

 

Q: What did you learn about the job from Pete?

A: Pete was a true Renaissance lawyer. He—it sounds like I’m giving an obituary. He’s still alive and a wonderful guy, still a friend. He's retired from the practice of law. As a general counsel at Washington University he had to know a lot about a lot of different kinds of legal issues because you triage everything that comes your way. At the time, I think he was the only lawyer at Washington University. He was the whole show. Which just shows you how things change. They now have an impressive in-house staff of maybe seven or eight lawyers.

One of the things I learned from him was how beneficial it was to have a broad understanding of the law. He understood a smattering of intellectual property and real estate and commercial law, student rights and responsibilities, and the widest possible array of kinds of things.

I learned quite a bit about how institutions work—how it is that administrations work with faculty and vice versa. I learned about the nature of the academic relationship between an institution and a student, which is unique in the law.

 

Q: What was it about this sort of work that you connected with?

A: Having grown up around a dinner table where my dad would talk about what was happening in his professional life and career, and seeing faculty come over for parties at the house, I connected with the law of higher education on a personal level. It seemed very comfortable to me, and it seemed very worthwhile to me. The mission of educational institutions is different than the missions of for-profit businesses. That's not to say great things can’t be done by for-profit companies, but educational institutions have a special purpose in serving our communities.

 

Q: Your family must have been excited to see that you were getting involved in the academic world in some respect.

A: I think they were. Unfortunately, Mom and Dad are no longer living, but the fact I was getting involved in higher ed law and there was some connection between my work and my father's work [made it] a worthwhile thing to pursue. Certainly my sister and I joke about it all the time, because she's on the faculty side of things and I'm often representing the institution against faculty. I often get asked for free legal advice, as all lawyers do with their families. [laughs]

 

Q: What interesting issues have you encountered?

A: One issue that came up was: Can the university require a student organization on its public campus to admit members of its organization that don't necessarily agree with the fundamental tenet of that organization?

The example that I dealt with was a religiously based student organization that had as part of its set of principles that marriage should only be between a man and a woman. It was part of the orthodoxy of the organization. That particular creed came into conflict with the university’s nondiscrimination policy, which included sexual orientation as a protected classification of people. So when a student who was gay wanted to be in that organization, that created the conflict.

 

Q: How did that turn out?

A: We, the university, prevailed at the trial court level. The court said it’s not discriminatory under the First Amendment to simply require all organizations to do the same thing. It’s a viewpoint neutral kind of assessment. The 7th Circuit Court of Appeals said not so fast. Its view is essentially that the First Amendment trumped the university's right to regulate its student organization—that the student organization was an expressive association under the First Amendment and it should be able to pick its own members and officers.

A couple of years later, the same issue came before the 9th Circuit involving the University of California Hastings College of Law. The issue at the trial court went the same way. Summary judgment for the university. And then the 9th Circuit affirmed. So you had a circuit split that went to the United States Supreme Court. So I can thank myself for losing that case and actually getting it to the Supreme Court. [laughs]

In a closely divided opinion, the Supreme Court held that the Hastings College of Law’s nondiscrimination policy did not violate the First Amendment under the particular facts of that case, which was unusual because in that case, Hastings had what’s called an all-comers policy. All student organizations had to admit all students as members.

Now, one might think that sounds crazy. In other words, the Young Democrats would have to admit Republicans and the Young Muslims would have to admit Jews and on and on. But that was the policy.

So the Supreme Court said under those circumstances, it’s clearly a viewpoint neutral policy to require all organizations to admit all students as members. Ergo, it doesn’t violate the First Amendment.

 

Q: A pretty narrow ruling.

A: Pretty narrow ruling. Not many universities probably have that, or did at the time. It may have changed since then. But that's an example of a wider societal issue that plays out in a very specific context on a college campus.

 

Q: It has to be fun to sink your teeth into these big legal questions that end up being national concerns.

A: Absolutely. Part of it is because these institutions are often really significant employers in their regions. I represent Washington University and Southern Illinois University, and both of those institutions are some of the largest employers in their regions.

Institutions of higher education are incubators for ideas, and students are testing out those ideas. They’re challenging the norm and pushing the envelope to see how people will react, so you see all kinds of First Amendment and expressive association issues.

 

Q: How have these issues changed since you started your career?

A: The one common factor among all the issues is the consistency of change. In every area of law affecting higher education, it seems that the law changes and changes rapidly.

A great example of that is Title IX. When the statute was first passed, people thought of it as you had to have the same number of sports for men and women. It is clearly a much broader statute than that, and various government agencies have issued all kinds of guidance to institutions about compliance for Title IX.

Now every institution of higher education has something called a Title IX coordinator just to make sure that the institution is complying with Title IX’s requirements. Which may mean the way you train students about gender equity, gender fairness and violence against women and all those kinds of things.

 

Q: Do you have a particular courtroom style?

A: I try to be informed, knowledgeable, measured. If I can hopefully maintain that kind of measured and careful and thoughtful approach, it carries over when I’m in front of a judge or jury.

 

Q: How do you deal with losing a case?

A: In order to stay at this for 30 years, you have to have an understanding that you do what you can given the particular facts and circumstances you’re confronted with. I imagine it’s the way a surgeon deals with surgery. You do the absolute best you can, but there are some patients that have a lot of difficulty.

 

Q: What advice would you give young lawyers?

A: Try and find an area of the law you can be passionate about, that you really love and want to devote your energies and professional time to. Lawyers, it goes without saying, tend to spend a lot more time at our desks with our clients, with our careers, than we do with our families. So we have to hope that it's really fulfilling work to sustain us for a long career.

The second bit of advice: Never sell yourself short. Try to always treat your opponents fairly, your clients with great respect and the court with all possible respect. Maintain credibility and your integrity no matter what and make that a foundation of your career.

 

This interview was edited and condensed.

Photo by: Don Ipock

Photo by: Don Ipock

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