In the Press

Cooper Union Tuition Battle Centers on Founder's Flowery Words

By: Mike Valinsky

Elder Law Associates Newsletter dated August 25, 2014

The interpretation of a more than 150-year-old document ensconced in a Greenwich Village library is causing a furor in academia as its author's intention is battled over in court.

The document outlines the trust that established Cooper Union for the Advancement of Science and Art, the Manhattan arts-and-engineering college—and is at the heart of a legal fight over the decision by the school's administration to charge undergraduate tuition this fall for the first time in the school's history.

Plaintiffs seeking to block the tuition, including students, alumni and faculty, say requiring students to pay is illegal and violates the school's charter.

Defendants say it doesn't and that there have been vast changes in the school's financial circumstances since the charter was written in 1859.

Because of Cooper Union's status as one of the last free institutions of higher education, the issue has garnered the attention of attorneys and scholars across the country, sparking questions about just what an institution owes to its founder more than a century later.

"This is a critical issue," said Richard Epstein, a law professor at New York University. "First, there is an issue of linguistic interpretation—the question of if that interpretation has been consistent—and then the argument that times have changed since it was written."

The stakes are high. In April 2013, the chairman of Cooper Union's board of trustees, Mark Epstein, announced the school would begin charging more than $19,000 a year to avoid financial insolvency, calling the change "necessary."

Sept. 2 marks the first day of the first school year when undergraduate tuition will be charged.

Complicating matters is that Peter Cooper, who died in 1883, wrote the charter in lofty, less-than-precise language.

In the charter document, he said he was leaving his considerable funds and property to "regular courses of instructions, at night, free to all who shall attend the same, under the general regulations of the trustees, on the application of science to the useful occupations of life."

School officials say the intent is clear, even if the language is flowery: Mr. Cooper wanted night courses to be free, not necessarily all courses.

But the school has used the language in other ways, too. In 2006, during litigation seeking to maintain a tax exemption on a school-owned building, the administration in court documents quoted the line this way: "Cooper Union must provide 'regular courses of instruction…free to all who shall attend.' " The right was granted.

And a plaque deeming Cooper Union's Manhattan campus as a city landmark reads: "Peter Cooper…founded this institution, offering free education to all."

The original charter is housed at Cooper Union's East Village library and can be read online.

Estate attorneys say judges are likely to be sympathetic to an institution's needs, even if that means going against a late founder's wishes.

"If there's not enough money in a trust to keep an institution going, you can't get blood out of a stone," said Howard Krooks, aNew York-based estate-planning attorney and president of the National Academy of Elder Law Attorneys.

"If you're dealing with a trust that's 100 years old, it's generally understood [by judges] that whatever it took to run a school back then is drastically different than today," he added.

In 2008, Hamilton College in Clinton, N.Y., successfully sought to change the terms of its endowed professorships that applied to religious courses that were no longer taught at the school.

In late August, the Corcoran Gallery of Art and its College of Art & Design got the green light from a Washington, D.C., court to change the terms of its charter and merge with the National Gallery of Art and George Washington University—though the judge called the decision "painful."

But, said Mr. Krooks, the "judge will also want to get into questions about how did we end up here? Who's been managing this?"

Dan Kurtz, an attorney at law firm Skadden, said while Cooper might have checked the legality of its tuition increase relative to the trust document before proceeding, its chances are now good: "Courts often give weight to what the organization's administration believes," he said.

The New York State Supreme Court judge has set no timeline on her decision and can seek a court accounting into school spending.

At the handful of other schools that still offer free tuition, faculty is paying close attention to the case.

"We're going to stick with [free tuition] as best as we can," said Rick Neilson, a dean at the Webb Institute, a Long Island engineering college, where tuition is free for all.

If Cooper does charge, he said, "I expect it will continue to be a fantastic educational institution," but Webb "is dedicated to keeping our admissions a meritocracy and we work hard to maintain our full-tuition scholarship policy."

State Sen. Brad Hoylman, a Democrat representing the Cooper Union area, said that no matter how the court rules, there could still be "an investigation by a government entity" into the administration's spending.