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.

I dealt at great length with the problems in the underlying arguments of those who claim law schools are a failure or a scam here. This style of rhetorical attack is, in my experience however, evidence not of an interest in understanding and tackling a difficult problem but of the presence of an altogether different agenda. Thus, it is important to consider the implications of their position for the future structure of the law school.

A key goal of the “fail/scam” group appears to be the return of the law school to the era when these schools were not subject to modern regulatory standards and accreditation, or at least to the point where the heart of such standards are weakened so that an entire new class of schools can appear. On the one hand, this seems a very odd approach to take when at the same time many in this group are appealing to courts of law for much stronger policing, to the point of micro-managing marketing brochures, the behavior of law schools.

On the other hand, however, and more importantly, the idea of weakening standards risks returning law schools to an era that would indeed resemble Jim Crow. Today, after many decades of effort, collectively, the ABA, the AALS, the AAUP, the law schools and their home universities have created a model that insures that tenure track faculty protected by standards of academic freedom are central to the system of legal education. This is more than a system of regulation that can easily be “de-regulated.” It is not a cartel, it is not even a union. It is a system devised to protect the pursuit of knowledge in the interest of solving social problems and educating the next generation who will have to implement those solutions and then find new problems that need solving.

We do not outright, at least in several states like California, prevent people from becoming lawyers without going to law school. In fact, one of the best lawyers I know did not go to law school – he apprenticed with an experienced lawyer and passed the bar and has gone on to have a successful career. But it is clear that for most people law school adds important value and that law schools themselves make important contributions to society, including, for example, educating the lawyers who overturned Jim Crow.

In my view, establishing a secure environment to pursue research and knowledge, which is what the tenure based university does, is an “unqualified human good,” to borrow the phrase of historian E.P Thompson who famously described the rule of law in the same terms. In fact, I think maintaining the law school as a part of the university is important to the ability of society to produce the kinds of lawyers who do things like figure out the research needed to convince the Supreme Court to adopt progressive views on racial discrimination. In the case of the Brown decision in 1954 for example academic research was an important part of the legal case made by the NAACP. This is why Dr. King thanked social psychologists expressly in the wake of Brown. (King is pictured here with my son’s uncle, Thich Nhat Hanh, a buddhist monk and peace activist, whom King nominated for the Nobel Peace Prize in 1967.)

However, a proposal to allow law schools to “differentiate” as the “fail/scam” group sometimes puts it is a dangerous proposal and must be scrutinized for its likely inevitable impact on tenure and academic freedom. Such a model would allow new schools to develop that are called “teaching schools” but would be in fact what used to be called “diploma mills.” Faculty at such schools would have little or no time for research, would have weak or no tenure protections and would likely never develop a sense that they are protected by academic freedom.

Where would that lead? It would lead to a dissolution of the barrier between the university and the marketplace itself. That would mean a school that teaches more and more in response to the demands of that marketplace. Of course, to a certain extent that is inevitable and desirable. Twenty years ago few schools were offering courses related to bio-ethics whereas with the rise of biotech industries that area is now very popular. I think it is fair to say that on my own faculty I am more aggressive than most in pushing our school to be responsive to changes in the outside environment. But it is incumbent on universities to approach new ideas for teaching, research and other programming based on whether or not it truly advances human knowledge, not simply the pursuit of private gain.

That balance would be lost in an environment where schools were not just allowed but encouraged to engage solely in teaching. In fact, teaching would soon become training. At some point such institutions would cease to be graduate schools in any meaningful sense. Professor Tamanaha, a leading advocate of the “law schools have failed” idea, contends that these types of schools were what enabled excluded groups to become lawyers before the ABA and university-based law schools created the modern tenure based law school (most recently in an interview, unsurprisingly, at the Cato Institute.) This reminds me of people who advocate lowering the minimum wage and age of employment because child labor provides an entry into the workforce.

That there were discriminatory barriers against entry of minorities, ethnic groups and women into law schools a century ago is true; but it does not follow that we have to destroy the quality and standards established over the last hundred years in order to provide access to more potential lawyers. The proof of this lies in the presence today of law school classes that are half women and half men and with much greater racial and ethnic diversity than in days of Kingsfield.

Ironically, many of Professor Tamanaha’s fans are apparently out of work lawyers who think many law schools should be shut down in order to reduce the training of more competitors. However, the greatest irony, or perhaps tragedy, of Professor Tamanaha’s perspective is that his proposal would undermine the very academic culture that enabled him to produce his most important work on the rule of law itself.

Of course, these types of schools might be able to be run at lower cost as it is time consuming and costly to develop the human capital of an effective modern university. In fact very quickly the goal of such schools would be to advertise their lower cost in order to attract students. And inevitably the students who would be attracted to such schools would be those with fewer resources, from the very communities that we know today are already at a disadvantage. In other words, tearing apart the standards built over the last century would encourage a new two tier system of legal education, one where minorities, immigrants, women and other groups with fewer resources and less successful backgrounds would be ghettoized. These individuals would be denied the opportunity to participate in the culture of a genuine university setting. We would be on the road back to the era of “separate but equal” which, of course, was anything but.

This is not to say, of course, that there are not and should not be alternative models to the way the law school works today. In fact, law schools already attempt to reduce costs and improve exposure of students to new ideas by using adjunct faculty, establishing clinical and experiential learning opportunities, and are experimenting with alternatives to the three year degree. But the critical point is that today the law school remains grounded by the principles of academic freedom and tenure because it is the tenure track faculty who have a central role in a system of shared governance with the school’s administration as well as the administration and trustees of the university in which the law school is housed.

The value of this kind of institution can seem minimal to those who must face the reality of searching for a job in a depressed labor market but it is precisely at such points in time that we should not forget how far we have come. That we still have far to go is not a reason to turn back now.