Will “separate but equal” return to the American law school?

racism3It is instructive to listen to or read one of the many eloquent speeches of Martin Luther King today and recall how important it was to the progress of civil rights to overturn the view that separate schools for blacks and whites could be considered in any reasonable fashion “equal.” That lawyers played such a prominent role in ending Jim Crow style racism in America is an achievement that we can justly applaud today, even in the face of the continuing reality of other less overt forms of discrimination in education.

Thus, it is all the more poignant to realize that there is an attack underway on American law schools that threatens access to legal education for those who lack the resources and opportunities that belong to the very wealthy and powerful in our society. The heart of the attack is based on exploiting the unfortunate fall out of the recent financial crisis on employment prospects for law students once they graduate. The crisis caused a sudden, unpredictable and large drop in jobs for new lawyers. The market has recovered somewhat, stronger in a few areas like IP, but remains far from robust.

This one hundred year storm in the macroeconomy is now being used as the basis of a claim that the modern law school itself has “failed” and is, in fact, nothing more than a scam. These critics persist in a series of claims that defy common sense. They focus obsessively on nominal tuition rates when those rates are greatly impacted by the availability of financial aid and repayment plans as well as significant variation in students own resources, abilities and opportunities.

They blame optimistic sounding law school marketing materials and cherry pick certain aspects of detailed employment statistics. These are said to have a powerful impact on convincing college graduates to go to law school in certain years such as 2009 and 2010. Yet, they are unable to explain why those same materials are ignored in those years when law school applications decline significantly as in the period from 2004-2008.

They insist that law schools themselves opportunistically “created” the mismatch between the macroeconomy and law school graduates giving law schools a power that the Federal Reserve itself would envy (one is reminded of the claims that Italian seismologists are responsible for the damages caused by earthquakes they failed to predict.) Yet they ignore the fact that in years like 2003 when law schools could have easily hiked admissions in response to increased applications admissions barely moved.

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