Tag Archives: law

Proving Discrimination Is Almost Impossible

Teresa Wagner’s lawsuit
against the University of Iowa law school ended a few weeks ago when a jury
declared that the school did not submit her to political discrimination when it
rejected her application for a job. Wagner made a second allegation–that her
equal protection rights were violated because the law school held her political
activism against her–which was not ruled upon, the judge declaring a mistrial
because the jury couldn’t reach a decision, leaving open the possibility of
future action by Wagner’s attorney. Indeed, the Chronicle reports
that Wagner has filed papers asking for a retrial on all counts.

The first verdict wasn’t unexpected.  Wagner had to
prove that faculty members voted against her for her political views, which run
well to the Right.  But of course, nobody on hiring committees ever
says outright, “She’s a conservative–she’s out!”  They know
better–Schmidt cites one witness who “testified that no faculty member
would ‘be stupid enough’ to cite politics as the reason for turning down an applicant”–and
besides, they don’t have to.  In the hiring process there are so many
stages and variables that it’s easy to drop a conservative candidate for a
dozen other more or less non-political reasons.  “She isn’t a good
fit,” one might say, or “We already have strengths in her area, we need someone
in another field,” another could argue, or “I don’t think she handled questions
very well in the interview” could be the line.  The outcome is
assured and nobody needs to raise delicate matters along the way.

In Wagner’s case, a clear
distinction came up in her qualifications relative the person who got the job: She was one of five candidates chosen from a pool of 50 applicants invited to
present to the university’s faculty.

But that enthusiasm died soon after her presentation. The job
was given to Matt Williamson, a candidate who had never practiced law, had no
published works and was an ardent liberal who frequently criticized
Republicans, according to testimony and court documents presented last week to
the jury.

That a candidate who never practiced law and had no publications
should prevail over Wagner sounds fishy.  The Chronicle story
relates, too, that the person hired resigned a year later for “poor
performance.”  One could also mention the disparate-outcome argument
so beloved by liberals: the law school has one registered Republican and 46
registered Democrats.  Finally, one should note the email
law professor and former associate dean Jon Carlson sent to the law school dean
after the first rejection in which he worried that the faculty would balk at
the hiring of Wagner due to
“her politics (and especially her activism
about it).”

But the faculty had an answer: she botched the
presentation.  When asked about teaching “legal analysis,” an
important part of the job, they say, she declined.  Several witnesses
repeated that criticism, even though Wagner never recalls saying so (she showed
her pre-interview notes in court that displayed her intention to teach the
subject), and a couple of witnesses agreed with her, including Carlson and Mark
Osiel, another professor in the law school. The law school taped Wagner’s
presentation and could have offered the tape to settle the question. However,
the university erased the tape months after the hiring process had ended.

The coda to this story is equally frustrating. Just last week reporter
Jason Clayworth spoke
with four members of the jury who told him that jurors did believe that
political discrimination had taken place, but that they couldn’t hold one
person responsible.
This outcome shows how
far universities are able to fiddle with the hiring process with
impunity.  Here we have a jury convinced that political discrimination
took place, but they can’t convict because they have the wrong defendant. 
But the plaintiff couldn’t pick another defendant; indeed, federal law dictated
that the dean be made the “responsible party.” So people who feel they’ve been
treated unfairly face a Catch-22, and universities can carry on as usual.

Preferred and Prohibited Discrimination

Is the Fourteenth Amendment inferior to the
First? If states are generally prohibited from discriminating on the basis of
political identity, why should they be allowed to discriminate on the basis of
racial identity?

Consider Teresa
Wagner’s much-discussed
lawsuit against the University of Iowa College of Law for not hiring her due to her political convictions. A federal grand jury
believed the law school had indeed discriminated against her but ultimately deadlocked
because “federal law does not recognize political discrimination by

More interesting than this perhaps
provisional result is the Eight Circuit Court of Appeals’ legal reasoning that
made the trial possible. In its decision last
December allowing the trial to go forward, The Court of Appeals relied on a 2006 Supreme Court
holding that Title VII “seeks a workplace where individuals are
not discriminated against because of their racial, ethnic, religious, or
gender-based status.” In short, it seeks “to prevent injury to individuals
based on who they are, i.e., their status.” The Eighth Circuit also
adopted the First Circuit’s holding that, if a plaintiff presents sufficient
evidence of discrimination, the employer was obligated to demonstrate a “nondiscriminatory
basis” for the decision to not hire. Specifically, the employer must show that
they did not consider the applicant’s “political affiliation.”

This raises an obvious question. Why should
courts allow discrimination against an applicant because of her racial identity
but not because of her opinion about abortion?

In an editorial
about the Teresa Wagner case, the Des Moines Register argued that the
University of Iowa “respects the goal of diversity for race, religion and
gender, but it should show the same respect for diversity of political
thought.” Actually, it already does. It discriminates on the basis of political
thought just as it discriminates on the basis of race and ethnicity. More
discrimination — seeking, say, a “critical mass” of conservatives — would
simply compound the discrimination, not cure it.

FIRE Singes the Censors


How time flies. In 1987, a new breed of speech and harassment codes and student indoctrination were unleashed on college campuses across the land. Thus, what Allan Kors
and Harvey Silverglate famously labeled the “shadow university”–the university
dedicated to censorship and politically correct paternalism–is
now at least 25 years old.

The public recognized the consequences
of the new censorship early on. Noteworthy authors began writing articles and books
about the mounting suppression of free speech, academic freedom, and due
process on campus, culminating in the in-depth chronicling of the dark state of
higher education in The Shadow University
in 1998. 
By the end of the 1990s, however, many observers predicted that the repression would eventually run out of steam as the
passions driving political correctness waned with age. And in many respects,
political correctness often did appear to mellow out. More skeptical
observers claimed that it was not disappearing, but metastasizing. Who
was right?

Greg Lukianoff adresses this question in his outstanding new book, Unlearning Liberty: Campus Censorship and the End of American Debate (Encounter Books).  Lukianoff is the president of the Philadelphia based Foundation for Individual Rights in Education, popularly known by its telling acronym, FIRE. Unlearning Liberty is based on cases with which FIRE has dealt over the years.

Continue reading FIRE Singes the Censors

The Perils of Law Schools and Their Rankings

law school professor.jpg

It may be inevitable: “gainful employment” rules for law schools. “Gainful employment” is a term of art coined in the wake of the U.S. Education Department’s regulations last June governing for-profit colleges and similar vocational institutions from which many students emerge with student-loan debt and few prospects for working at jobs they were trained for. It now turns out that America’s law schools have a few things in common with the proprietary sector: Both feature sky-high tuition relative to students’ ability to pay without taking on substantial debt, and many former students of both kinds of institutions have trouble earning enough money to pay back the loans made or guaranteed by the federal government that taxpayers must eventually cover.

The Education Department now plans to limit or deny federal grants and loans to students at for-profit schools that cannot demonstrate that relatively large percentages of their former students are paying off their student debt in timely fashion and in amounts that don’t exceed certain set percentages of their income. That’s what “gainful employment” means. This past fall two U.S. U.S. senators, Barbara Boxer (D-Calif.) and Tom Coburn (R-Okla.), sent a letter to Kathleen Tighe, the Education Department’s inspector general, that appeared to be a first step in subjecting law schools to similar controls. The senators asked the department to provide “transparency” information (presumably to be obtained from the law schools themselves) regarding tuition costs, bar passage rates, job placement rates (including a breakdown as to whether the jobs are full-time or part-time and whether they require a law degree), and the amount of federal and private education-loan debt students carry on graduation. The next step could well be a shutoff of the federal-aid spigot to law schools–the same sanction that for-profit schools face–if substantial portions of graduates aren’t earning enough to pay back their law-school loans.

Federal regulation of law schools sounds fairly drastic–but so is the current crisis in legal education. Here are some hard facts: Law-school tuition has skyrocketed over the past two decades. During the 1980s the average annual tuition at a private law school was $13,500. Now it tops $40,000. Law-school debt has also risen quickly. Students at private law schools currently borrow an average of $92,000 to finance their three years of legal education, while students at public law schools borrow an average of $59,000. Those amounts dwarf the average $14,000 that students at career colleges borrow to pay for two-year associate degrees. Meanwhile, because of the recession and the growing practice of outsourcing routine legal work to temporary employees, many of them abroad, the number of full-time U.S. legal jobs has declined by 15,000, according to a Northwestern University survey. Meanwhile, the number of U.S. law schools–and law-school graduates–is burgeoning. The American Bar Association (ABA) accredits 200 law schools, and about 20 more brand-new schools are in the ABA’s accreditation pipeline. Altogether the law schools churn out about 45,000 graduates a year, all competing for only 30,000 new job openings annually. That’s 1.5 fledgling attorneys for every available job that actually requires them to use their degree.

Furthermore–and this is what has led to all the cries for “transparency”–law schools have been accused of fudging their post-graduate employment numbers so as to game the U.S. News & World Report rankings. While the ABA operates as law schools’ official accreditor, U.S. News, with its rankings of the schools and its division of them into four “tiers” presumably based on their relative quality, is their unofficial accreditor. Because law schools, along with the universities to which they are attached crave their students’ tuition dollars (law schools, where expensive labs are nonexistent and large lecture courses are the rule, tend to be cash cows for their host campuses), the schools scramble to hoist themselves onto U.S. News’s coveted first and second tiers. One way to do this is to boast a high percentage in this crucial category that counts for one-seventh of the U.S. News ranking: “graduates known to be employed within nine months after graduation.”

Fudging the Facts

The “known” in the phrase “known to be employed” is the operative word. Law schools send their recent graduates surveys using questions devised by the ABA and the National Association for Law Placement. The graduates then self-report their employment, if any, and the school calculates the percentage of those who responded who say they have jobs and submits it to U.S. News. Graduates who fail to respond to the survey or who can’t be located don’t count. Furthermore, any kind of job counts as “employment,” even a job that requires no legal training. In a Jan. 8 story for the New York Times, reporter David Segal wrote: “Waiting tables at Applebee’s? You’re employed. Stocking aisles at Home Depot? You’re working, too.”

Even top-rated law schools seem to engage in this sort of fudging. Segal reported that Georgetown University’s law school, safely in the top tier with a No. 14 ranking, last year sent an e-mail to its graduates who were “still seeking employment” offering them $20-and-hour temporary jobs in the admissions office for the six weeks encompassing Feb. 15, the cut-off date under U.S. News’s nine-month rule. (Georgetown maintained that it did not count those graduates as “employed” for purposes of the survey.) As might be easily predicted from these loosey-goosey controls on survey accuracy, even the lowest-tiered law schools report astonishingly high levels of employment for their graduates. In 1997, the first year that U.S. News adopted the nine-month test, the average employment rate 84 percent, Segal reported. Last year that number had jumped to 93 percent, with some schools reporting 99 percent and 100 percent employment.

Furthermore, many law schools report starting salaries for their graduates that seem unrealistically high, given the current dismal market. In a July 16, 2011 story for the New York Times Segal noted that New York Law School (NYLS), a third-tier institution in lower Manhattan with a U.S. News ranking of No. 134, told the magazine that the median annual salary nine months after its Class of 2009 graduated was $160,000–the same figure cited by Yale and Harvard, which ranked No. 1 and No. 2 for that year. Only the largest and most prestigious law firms pay three-figure salaries to brand-new lawyers, and they hire most of them from top-tier, not third-tier law schools. In an interview with Segal, then-NYLS Dean Richard Matasar stood by the figure but pointed out that on its website the school explicitly points out that most of its graduates find jobs at smaller firms that pay between $35,000 and $75,000 a year. Still, NYLS conceded that only 26 percent of the 300 of its graduates who reported being employed included information about their salaries. So even the $35,000-$75,000 that NYLS cites are less than reliable numbers. Meanwhile NYLS charges around $48,000 a year in tuition, more than Harvard.

Playing the Blame Game

Since it’s estimated that a law graduate needs to earn $65,000 at a bare minimum in order to pay down a student-loan debt in the $100,000 range, there’s quite a bit of anger among unemployed and under-employed young lawyers burdened with staggering loans that, like other federal student loans, can’t be discharged in bankruptcy. Class-action lawsuits alleging fraud and misrepresentation have been filed by graduates of NYLS and the Thomas M. Cooley Law School, based in Lansing, Michigan. Until recently Cooley was on the fourth and bottom tier of the U.S. News rankings, but it now has no ranking at all because of failure to submit sufficient information. (Cooley has at least the virtue of being relatively cheap for a private institution, with tuition for full-time students at around $30,000 a year.) The blog Above the Law reports that the lawyers who launched the NYLS and Cooley suits plan to sue fifteen more law schools that have reported post-graduate employment rates ranging from 88 percent to 100 percent–rates that the lawyers say amount to misrepresentation. Some of the schools are attached to well-respected universities such as Hofstra and Villanova. The average debt load for the 2009 graduates of those schools is $108,829. Another currently unranked but formerly fourth-tier law school, Thomas Jefferson in San Diego, became the subject of a class-action suit for fraud and false advertising filed by 2008 graduate Anna Alaburda last May. Thomas Jefferson reported for U.S. News’s 2011 evaluations that 92.1 percent of its graduates were employed nine months after obtaining their degrees.

If the former law students blame the law schools for allegedly misleading them into mortgaging their futures for nonexistent cushy jobs, the law schools blame U.S. News and the outsize importance that its readers–potential students and potential donors–place upon the rankings, which can mean millions of dollars in gained or lost revenue. Thomas Jefferson, for example, maintains that it has meticulously abided by U.S. News’s reporting guidelines, even though 25 percent of its graduates could not be located in typical surveys. In a July 18 demurrer–a legal document arguing that Alaburda failed to state a case–lawyers for Thomas Jefferson pointed out that U.S. News had also published the school’s honestly reported bar-passage rates, which during the years that Alaburda applied to and attended the school were less than 50 percent (they have substantially increased since then). Any college graduate could do the math and see that numerous Thomas Jefferson alums weren’t practicing law right after graduation during those years, the school’s lawyers argued. Alaburda “pleads that she relied exclusively or primarily on the data in a summary chart published in a popular magazine, misunderstood it, made no further inquiries, and then spent tens of thousands of dollars on her legal education,” they wrote.

U.S. News in turn blames the ABA. In an interview with Segal, Robert Morse, who oversees the magazine’s law school rankings, conceded that his editors could demand better data from the schools. “But we’d have to create a whole new definition of ’employed,’ and it would be awkward if U.S. News imposed that definition by itself. It would be preferable if the ABA took a leadership role in this.” The ABA, for its part, blames law-school applicants themselves, who have known or should have known that the U.S. legal market has been depressed ever since the recession began in 2007–but decided to try to beat the odds anyway and load themselves with debt during the process. ABA president William Robinson, in a Jan. 4 interview with the Chicago Tribune, said, “It’s inconceivable to me that someone with a college education, or a graduate level education, would not know before deciding to go to law school that the economy has declined over the last several years and that the job market out there is not as opportune as it might have been five, six, seven, eight years ago….We’re not talking about kids making these decisions.”

Applicants and Accreditation

Robinson is certainly correct in one respect: There has been no shortage of applicants to law schools during the current recession–although the Law School Admissions Council did report a modest but significant drop-off in law-school applications during 2011. Only 78,900 people applied to ABA-accredited law schools this past year, in contrast to 87,900 in 2010. Perhaps some college students are finally getting the word that a legal career is not a sure thing. But the push is on for some private or public regulatory body to tamp down on the glut of graduates emerging every year from law schools with their sky-high debt and dismal employment prospects. The ABA has been urged to refuse to accredit any more law schools in the future–a step that the ABA, citing antitrust concerns, declines to take. That leaves the federal government. It’s clear that the transparency data sought by Boxer and Coburn could be only the prelude to some sort of regulatory regimen to be imposed by the Education Department, whether it’s cigarette pack-style warnings or gainful-employment rules that would deny federal student loans to schools with poor job-placement histories.

During the first week in January the Association of American Law Schools (AALS) held its annual meeting in Washington. The oversupply of jobless and debt-ridden fledgling lawyers was not on the AALS’s official agenda, but at a reception I attended for alumni of my own law school, the University of Southern California, the talk was of little else. I chatted with USC’s dean, Robert K. Rasmussen, about the problem. Rasmussen insisted that graduates of USC, a top-tier school (it’s No. 18 in the U.S. News rankings), have not been affected by the shrinking legal market. “Over 90 percent of our graduates get jobs within nine months after graduation–and they’re legal jobs,” he said. “Our graduates have a loan-default rate of close to zero. But it’s clear that some of those third- and fourth-tier schools are going to have to shut down.”

The question is: Who is going to do the shutting? And will law schools go the way of the for-profit colleges, under a level of federal scrutiny and suspicion that they have never known before?

Update: The Chronicle of Higher Education reports that an ABA committee has recommended that law schools be required to report detailed information about their graduates’ salaries to applicants and the public as a condition of accreditation. The salary lists would include breakdowns for 15 different categories of employment (such as large law firms, public-interest firms, and so forth), and three different percentiles of salary figures. The new recommendations will go before the ABA’s Council of the Section of Legal Education and Admissions to the Bar in March.

A Law Professor Takes on the Victimhood Industry


The Supreme Court.jpg

Keeping quiet can seal your fate if you are a professor facing a campus kangaroo court after being accused of racial “harassment” over your classroom speech. Free-speech advocates use adverse publicity to save wrongly-accused professors from being convicted and fired. They put to good use Justice Brandeis’s observation that publicity cures social evils, just as sunlight is a disinfectant.

But as the plight of Lawrence Connell at Widener University illustrates, if an accused professor speaks up, resulting in possible adverse publicity for his accusers, he risks being punished for “retaliation” against them, even when harassment charge is baseless. Connell was convicted of “retaliation” because he and his lawyer denounced meritless racial harassment charges against him over his classroom teaching. Retaliation charges have become a growing threat to academic freedom, fueled by court rulings that provide murky and conflicting guidance as to what speech can constitute illegal “retaliation.”

Connell, who is white, was charged with racial harassment and removed from Widener’s campus because he discussed hypothetical crimes in his criminal law class, including the imaginary killing of the law school dean, Linda Ammons, who happens to be black. (He was also accused of harassment because he “expressed his philosophical concerns about the fairness and utility of hate crime” laws).

But there was never any evidence that Connell used the dean in these hypotheticals because of her race. (Comments are not “racial harassment” unless they target a victim based on her race, and are severe and pervasive, according to Caver v. City of Trenton, a ruling by the appeals court that has jurisdiction over Widener.) Far from being a racist, Connell had spent 15 years successfully working to save the life of a black man who had been sentenced to die after he was convicted of murder by an all-white jury.

Leading law professors submitted affidavits in support of Connell pointing out that discussing hypothetical crimes against law deans was standard practice in criminal law classes. George Washington University’s Orin Kerr noted that “one of the common ways that law professors keep students mildly entertained in class is by posing hypotheticals involving their professors and the Dean. . . . students just love it. If you teach first-year criminal law,” “that means you spend a lot of time imagining your colleagues meeting horrible fates.” In Bauer v. Sampson, a court ruled that depicting a college official’s imaginary death was protected by the First Amendment.

After Connell was exonerated by a committee of law professors, the charges against him were resubmitted to a disciplinary panel including Dean Ammons herself, another Widener administrator, and a professor hand-picked by Ammons.

While even this panel was forced to concede that Connell had not committed racial harassment, it found him guilty of two acts of “retaliation”: the first was an email protesting his innocence after he was suspended and banned from campus, and the second was his lawyer’s public statement that he was preparing to sue over the unfounded allegations. The email called the accusations against him “preposterous” and said that they were made by “two unnamed students from my Criminal Law class of spring 2010” who “falsely” quoted and took “out of context” his classroom “remarks.” The panel deemed the email to be illegal retaliation, even though the email did not even name the accusers, because the email supposedly had the “foreseeable effect of identifying the complainants.” (The email led to students speculating about who the complainants were, and a complainant suspected that others “believed that she was one of the complaining students.”). Connell was then suspended for a year without pay. As a condition of reinstatement, he must undergo psychiatric treatment, and be deemed sufficiently “cured” before he is allowed to return to his classroom.

Connell’s email did not constitute “retaliation” under controlling legal authority. But Widener was able to claim otherwise with a straight face, by cherry-picking language from court rulings it selectively cited. First, it recited the vague, broad definition of retaliation from the Supreme Court’s decision in Burlington Northern v. White (2006): conduct that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The email, it suggested, could dissuade complaints by making complainants uncomfortable or inciting ostracism against them.

But Widener ignored language in that court ruling saying that mild expressions of hostility in response to a complaint do not rise to the level of “retaliation.” The Supreme Court declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a complaint do not rise to the level of retaliation, since they would not be “material” enough to dissuade a “reasonable” person from complaining. If actual snubbing is not retaliation, Connell’s email can’t qualify based on Widener’s speculation that it could lead to snubbing. The Supreme Court also said that only “significant” rather than “trivial harms” constitute retaliation, and that “sporadic” “abusive language” or “occasional teasing” does not qualify.

Second, Widener cited a ruling from a Midwestern appeals court (which has no jurisdiction over Widener), that rejected a challenge to a professor’s discipline for publicly criticizing a harassment complaint. That disturbing ruling, Bonnell v. Lorenzoessentially held that bans on “retaliation” trump the First Amendment, menacing academic freedom.

In doing so, Widener ignored other First Amendment rulings limiting the reach of retaliation law. For example, in BE&K Construction Co. v. NLRB (2002), the Supreme Court held that an employer’s reasonable, but unsuccessful, lawsuit was protected by the First Amendment’s petition clause even if it had a “retaliatory motive.” In Bain v. City of Springfield (1997), the Massachusetts Supreme Court ruled that a mayor was entitled to publicly denounce a sexual harassment complaint against him, even if that could dissuade the filing of harassment charges, since retaliation prohibitions are limited by “constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Similarly, in Brooks v. City of San Mateo (2000), the Ninth Circuit held that “retaliation” could not be found based on “mere ostracism” or employees’ refusal to associate with an employee after she brought an unsuccessful harassment complaint, citing a potential clash with the “First Amendment freedom of association.”

In short, contrary to what a Florida trial judge recently suggested, there is no blanket exception to the First Amendment for speech that is “discriminatory” or “retaliatory.” In DeJohn v. Temple University (2008), the federal appeals court with jurisdiction over Widener invalidated a college sexual-harassment policy that restricted academic speech, noting that “there is no ‘harassment exception’ to the First Amendment’s Free Speech Clause,” and “no categorical rule . . . divests `harassing’ speech as defined by federal anti-discrimination statutes, of First Amendment protection.” Similarly, White v. Lee (2000) rejected liability for speech that allegedly incited discrimination, holding that the anti-discrimination provisions contained in the Fair Housing Act did not override free speech protections. That appeals-court ruling held that citizens could not be investigated under the Fair Housing Act, even if their speech was bigoted, and led to a city blocking a housing project for the disabled. If the First Amendment protects speech that incites actual discrimination, it certainly protects speech that merely unintentionally incites snubbing of a discrimination complainant. In Rodriguez v. Maricopa County Community College (2010), an appeals court, citing the First Amendment, dismissed a racial harassment lawsuit against a white professor over his racially-charged anti-immigration emails.

While Widener’s claim that Connell’s email was “retaliation” was a tortured reading of the law, it reflects what retaliation ought to mean to some left-leaning lawyers who counsel universities. (Other academics, like Richard Osborne at Mesabi Community College, have also been punished for “retaliation” for speaking out vigorously in their own defense; Osborne’s punishment was rescinded only after he brought a free-speech lawsuit.) To these lawyers, current legal rules privilege white male faculty at the expense of minority complainants, giving them insufficient protection.

When law professors at the Volokh law blog condemned Widener’s treatment of Connell, most of its lawyer readers disagreed with Widener’s “retaliation” finding in the comment thread. But a liberal employment lawyer who represents universities disagreed, arguing that Widener was not only permitted but legally “compelled to punish” Connell for “retaliation.” Brushing aside the arguments of many other lawyers pointing out that Connell’s email did not legally amount to “retaliation,” that commenter, who represents employers, argued that simply proclaiming your innocence without even mentioning the name of your accuser can be retaliation. He claimed that Connell, who had received high marks for his teaching (and successfully handled high-profile cases in court), was a “warped,” “underachieving white male” who should have been fired. People wrongly accused of harassment, he said, should just keep their “mouth shut and let the process” work, “not contact” potentially helpful witnesses, and “say nothing to anyone.” He argued, “when you are accused of race and sex discrimination, it is best to be silent . . . And you should keep silent unless and until you have been exonerated.” (That is a prescription for disaster in dealing with a campus kangaroo court, or in getting sympathetic witnesses to come forward to rebut a claim that a professor’s classroom remarks created a racially-harassing “classroom climate”). Exuding racial grievance against whites, he depicted those who disagreed with him as racists, and called the conservative Connell an “anti-black bigot,” citing the alleged existence of “OBVIOUS historical antipathy between conservatives (especially white male ones) and minorities” — even as he claimed that jurors were legally “required” to find O.J. Simpson not guilty. As a commenter observed in response, lawyers like this are “part of the whole victimhood industry, . . . ‘advising’ clients to genuflect before the gods of political correctness, lest they be harmed.”

Employment lawyers are a lopsidedly liberal lot. In my employment-law class at Harvard Law School, my classmates were overwhelmingly hostile to employers in harassment and retaliation cases. Ironically, some of those classmates now have jobs representing employers and advising them on their legal responsibilities. Their advice may well be colored by their ideology, and may lead to their clients firing innocent employees as “harassers” or “retaliators.” Moreover, broad legal definitions of “harassment” and “retaliation” create more lawsuits, and thus more demand for these lawyers’ services, benefiting them financially.

There is a final reason why Widener’s finding that Connell engaged in illegal retaliation was erroneous: the complainants’ allegations were legally unreasonable and thus not protected against “retaliation.” Retaliation against a harassment complainant is not legally prohibited if the complaint was based only on trivially-offensive speech, as the Supreme Court made clear in Clark County School District v. Breeden (2001). Thus, a complaint about a single racist utterance was not protected against retaliation, according to an appeals court in Jordan v. Alternative Resources, because it could not reasonably be perceived as illegal harassment. No reasonable person would think that Connell’s perfectly-defensible classroom remarks were illegal racial harassment. (Note that while unreasonable charges are not protected if made to an employer, they are protected if made to a civil-rights agency; agency complaints are generally protected even if false).

What’s Wrong with the Law Schools

By Frank J. Macchiarola and Michael C.

Lady Justice.jpgAs law schools have come under fire
on many fronts, the growing cost of tuition has drawn the most attention.  This
is not surprising, given the shrinking job market for lawyers and tuition
increases that have far outpaced the general cost of living for more than two
decades.  Put directly, one of us, a pre-law advisor (Frank), tells
students that if they can’t afford the cost of a legal education, without
loans, they should think about other careers.  This is generally a painful
conversation, but we strongly believe it is an honest one, particularly given
the lower-middle-class economic status of most of our students.  Debt is
choking too many recent law graduates, bringing
anger and unhappiness into their lives.  Further, the monopolistic
structure surrounding access to the legal profession, largely a result of the ABA’s law school approval
process, denies many the chance to become lawyers.  Within the last week, another law school was denied
provisional accreditation, for reasons unspecified publicly, but probably due
to the failure to meet standards that would have required greater financial
investment (and hence higher tuition) in the enterprise.

Continue reading What’s Wrong with the Law Schools

Honor Codes and Affirmative Action

I recently posted an essay here about a racial hoax at the University of Virginia Law School that quickly became an issue implicating the University’s honor code. Briefly, Johnathan Perkins was an attractive third year UVa law student from what could be described as a civil rights family inasmuch as both his father and grandfather wrote civil rights books. A few weeks before graduation Perkins sent a letter to the Virginia Law Weekly describing in vivid detail an offensive and frightening case of racial profiling and abuse he had suffered at the hands the UVa police. Or it would have been offensive and frightening abuse if it had actually happened, but it didn’t. Perkins made the whole thing up, he confessed after an investigation had been launched, to “bring attention to … police misconduct.” The police and the commonwealth’s attorney declined to bring charges, arguing in effect that charging someone for inciting a riot by shouting Fire! in a crowded theater would discourage others from reporting real fires.

At most places the refusal to bring charges would have been the end of the matter, but the University of Virginia is decidedly not most places. It has one of the most ancient and honorable Honor Codes in the nation, a code that most members of what “Mr. Jefferson,” in local parlance, referred to as the “academical village” take very, very seriously, and the honor code has a “single sanction” for those who lie, cheat, or steal: expulsion. Whatever happens with Perkins — his degree has been withheld pending an honor council investigation — his fraud has focused attention not on imagined police misconduct but on a long simmering dispute over what can be described as the “disparate impact” of the honor code on minorities at UVa.

Various explanations have been offered for the “overrepresentation” of those accused and convicted of honor violations, among them the SPOTLIGHTING of black students — they stand out in a mass of white students (they all look different?) — and the “DIMMING” of whites in a white crowd (they all look alike?). Really. No one at UVa  seems to take very seriously the idea that the “overrepresentation” represents  disproportionate actual honor violations. Whatever the explanation, however, the disparate impact of honor codes on minorities is not a phenomenon limited to Mr. Jefferson’s University. 

Continue reading Honor Codes and Affirmative Action

Diversity, Honor and Double Standards at UVa


The University of Virginia Law School held its commencement on May 22, and not a moment too soon. “Not since Teddy Kennedy was speeding through town and picking up reckless driving tickets in the late 1950s,” The Hook, a Charlottesville weekly, reported, “has UVA Law School seen so much scandal.” Since those scandals involved race it was altogether appropriate that the commencement speaker was Eric Holder, Attorney General of perhaps the most race-conscious Justice Department in history, a department whose civil rights division officials have been accused in sworn testimony by two former members of that division (one of them, Christopher Coates, formerly head of that department’s voting rights section) of systematically refusing to enforce voting rights in the race-neutral manner required by law.

In his address Holder referred to UVa’s segregated past and to the controversial role a graduating 3L sixty years ago, Robert Kennedy, played in producing an integrated audience for a commencement address by Ralph Bunche, congratulating UVa and his audience by noting that “Sixty years later, I believe that Robert Kennedy would be proud to see this diverse, and extremely talented, group” of 372 JDs about to graduate. However, one name of a graduating 3L was conspicuously missing from the list of degree recipients: Johnathan Perkins, an omission that almost certainly means his degree was held up pending the outcome of an honor committee investigation of a police harassment hoax he admitted to perpetrating.

In late April Perkins, whose father and grandfather were noted civil rights authors, wrote an impassioned letter to the editor of the Virginia Law Weekly claiming that he had been the victim of racial profiling and harassment by the UVa police. “When race is brought up,” he wrote,  “white people are accused of being prejudiced, insensitive, and out of touch, while black people are accused of having chips on their shoulders, playing the victim, and race-baiting.” 

Continue reading Diversity, Honor and Double Standards at UVa

A Sad Performance by Two UVA Law Professors


Below, Mark writes about the remarkable case of Jonathan Perkins, the third-year law student at the University of Virginia who fabricated an incident of racial profiling–and, at least as it now appears, has faced no consequences for doing so.

Shortly after Perkins spun his tall tale, and before the UVA police had verified that an incident of any sort had even occurred, two UVA law professors decided to speak out regarding the student’s allegations. Given their positions, might they have called for a reasoned evaluation of the evidence? Or urged UVA students to avoid a rush to judgment before all the facts had been gathered? Or–at the very least–framed their conclusions as in some way conditional on facts to emerge?

Professors Anne Coughlin and Kim Forde-Mazrui chose to take a different path. Forde-Mazrui–whose website describes him as a specialist in such politically correct topics as affirmative action, race and the law, and slavery reparations–denounced the “cavalier attitude” of the officers, who failed to show Perkins sufficient respect. Again, at the time Forde-Mazrui opined about the officers’ “attitude,” he didn’t know if any incident had even taken place. Is this the sort of “cavalier” approach he recommends for prospective lawyers when commenting on legal issues?

Continue reading A Sad Performance by Two UVA Law Professors

No Punishment for the Crime

A psychiatrist once told me, “When people do something wrong, you’ve got to tell them.”  She meant it not as a moral point, but a psychological one.  If people don’t hear somebody else say, “That’s wrong,” an essential element of psychological advancement is missing.  

The principle bears upon a case in Virginia reported today by Inside Higher Ed.  A student at University of Virginia law school, Johnathan Perkins, alleged last month that while walking home from a bar review session, UVA cops pulled him aside, interrogated him, taunted him, frisked him, then followed him home.  He made his claims in a letter to the student newspaper, adding notes about his humiliation and his hopes that “sharing this experience will provide this community with some much needed awareness of the lives that many of their black classmates are forced to lead.”

Police responded to the letter by conducting an investigation, then issuing an announcement last Friday that, according to Inside Higher Ed, “Perkins had made up the story.”  In a written statement, Perkins admitted, “I wrote the article to bring attention to the topic of police misconduct.”

That’s not all.  Police have decided not to press any charges.  The chief states, “Pressing charges in this case might inhibit another individual who experiences real police misconduct from coming forward with a complaint.”

Continue reading No Punishment for the Crime

The Law Professor Versus the Thin-Skinned Feminist

The year was 1996. Bill Clinton was serving his first term as president. Barack Obama was a civil-rights attorney in Chicago who had yet to hold any public office. It was that long ago. According to J. Patrick Kelly, vice dean of the Widener University School of Law, 1996 was the year that Professor Lawrence J. Connell embarked upon an alleged “ongoing pattern of behavior” involving “statements and characterizations about minorities and women” that might have not only violated the school’s Discrimination and Harassment Code but raise “issues of safety and your fitness to teach,” as Kelly put it in a Dec. 10 letter to Connell.
That sounds ominous and very serious. Connell, a tenured professor with 20 years at Widener, has been on administrative leave and barred from campus since Dec. 20 pending a law school investigation that could result in his firing. Let’s look at what he is supposed to have done way back when. According to Kelly’s letter, Connell had admitted in 1996 to having “made inappropriate statements about the dress and appearance” of a female student in one of his classes. Then-dean Arthur Frakt had apologized to the student on behalf of the law school. There was a second allegation that Connell had made “demeaning remarks” about the same student that year while drinking in a bar, but according to Kelly’s letter, Connell had disputed that charge.
Those were Incidents #1 and #2 in Connell’s “ongoing pattern of behavior,” as hinted at in Kelly’s letter. So what was Incident #3? It was a series of 2010 classroom hypotheticals involving a supposed shooting of Widener Law School Dean Linda Ammons—a full fourteen years later! In short, Connell is being asked to defend himself against allegations that are now more than a decade and a half old (and that at the time were not viewed as warranting disciplinary action), but is obliged to disprove a “pattern” consisting of incidents widely separated in time whose only resemblance to each other is that their supposed victims were female (the “minorities” thrust of Kelly’s letter apparently stemmed from the fact that Ammons in black and Connell is white). To fill in the yawning gap between then and now, Kelly wrote that he had looked at Connell’s student evaluations over several years and “found similar complaints” about “the violent scenarios of last spring.” Student evaluations are by their very nature anonymous (and often motivated by dissatisfaction with grades), and are thus impossible to defend against.

Continue reading The Law Professor Versus the Thin-Skinned Feminist

“You will cheer and smile! And you will like it!”

Cheerleaders-from-the-back-nfl-cheerleaders-802861_580_504.jpgThe first remarkable aspect of the case intriguingly captioned John Doe, Father of Minor Daughter H.S. v. Silsbee Independent School District, are the facts: Administrators at a public high school in Texas threw a female student off of the cheerleading squad because she refused to cheer for one particular member of the basketball team—a fellow student who, she claimed, had sexually assaulted her at a party. Cheer when the rest cheered, she was told, or else be kicked off the cheerleading squad for the rest of the year. She refused, and was dismissed from the squad, court records show.
But reading closely the legal briefs and court opinions produces a second, equally remarkable fact: Neither the lawyer for the dismissed cheerleader, nor the three judges of the federal Fifth Circuit Court of Appeals (sitting in New Orleans), bothered to cite, much less follow, arguably the most famous and fundamental Supreme Court opinion ever written interpreting the scope of the First Amendment in protecting public school students: West Virginia Board of Education v. Barnette. It is an opinion that Professor Alan Charles Kors and I discussed in considerable detail in our 1998 book, The Shadow University: The Betrayal of Liberty on America’s Campuses. I’ll return to this momentous opinion below.
How can it be that everyone (including three appeals court judges on a level just one step below the Supreme Court) appears to have missed the one high court opinion that would quickly and neatly resolve the case in the exiled cheerleader’s favor? The answer, it seems to me, lies in the fact that, when it comes to litigation concerning the civil liberties of public school students, nearly everyone reflexively thinks in terms of the politically correct concepts—and shibboleths—of the day. Because our thinking about issues of free speech and independent thought in the academic world are so off-kilter, it becomes more difficult to see tyranny over public school students as precisely what it is—tyranny—rather than simply as par-for-the-course administrative control over the lives, words, and even thoughts and attitudes of students.

Continue reading “You will cheer and smile! And you will like it!”

Dean Minow’s Superiority

Awhile back, I wrote about Dean Martha Minow of Harvard Law School, highlighting (with Peter Bercowitz’s help) her misrepresentations of a student email that raised questions about racial differences in intelligence. There, I concluded that Minow “disregarded what may be the first principle of academic discussion: to represent the words and ideas of others accurately and fairly.”

In the Boston Globe on August 8, once again addressing a racial issue, Minow committed the same dishonesty. It’s an op-ed on the Elena Kagan confirmation hearings, and it chides Republicans for attacking Justice Thurgood Marshall and hints that “some want to appeal to and perhaps feed anxieties of some whites about desegregation.”

Continue reading Dean Minow’s Superiority

Make-Believe Grades for Real Law Students

Almost every morning, after taking a shower, I get on the scale to see if I have lost some of the extra weight that I do not want or need. I have tried many ways of shedding the pounds, with diet and exercise at the top of the list. The pounds refuse to disappear. After reading Catherine Rampell’s piece, “In Law Schools, Grades Go Up, Just Like That,” in the New York Times, I realized that there is a simpler way. A slight adjustment to the scale, so that the measuring starts at minus 15 pounds rather than zero, could bring instant relief. I could truthfully — if not honestly — say that according to the scale, I was now less than 175 pounds.
This droll reverie faded to disappointment as I pondered the implications of adjusting law school grades in the fashion recounted in the Times. Grades entered on students’ transcripts at law school were adjusted upward several semesters later. The article told of law schools abandoning traditional grading standards to give their students an edge in the tough job market. Thus, each school’s scale was adjusted to give the appearance that students did better than they actually did. The schools named were Loyola, Georgetown, NYU, Tulane and Golden State Universty. When I thought further about these modifications, I was reminded of other instances where expected objectivity gave way to subjective judgments. The New York State Board of Regents, for instance, has begun the practice of determining acceptable grades by assigning a passing grade to a raw score. The raw score required for passage is only arrived at after the tests are rated. Such a system allows the Board of Regents to crow about an 80% passage rate, notwithstanding the fact that the classification was entirely contrived. It has the feel of issuing traffic citations on the basis of a quota and claiming there is an epidemic of bad drivers.
The fact that this practice of grade adjustment has developed in law schools is, I believe, a much more serious matter. The rule of law, when properly applied, embodies honesty, fairness and impartial justice. The behavior of adjusting grades to conceal the truth does damage to our expectation of the rule of law. That the law itself is made to yield to the dollar is particularly troublesome. As a professor quoted in the Times article put it, “if somebody’s paying $150,000 for a law school degree, you don’t want to call them a loser in the end. So you artificially call every student a success.” The result is a perverse version of the golden rule: “he who has the gold rules.”

Continue reading Make-Believe Grades for Real Law Students

Minow’s Whale of a Mistake

The controversy at Harvard Law School over last month’s email about racial intelligence seems to have died down. The basic facts of the case are these: a Harvard law student who is an editor of the Harvard Law Review sent an email to two friends as a follow-up to an earlier conversation. In it she wrote: “I absolutely do not rule out the possibility that African-Americans are, on average, genetically predisposed to be less intelligent.” The email circulated among the students after one of the friends turned against her and passed it along to damage her reputation. The message infuriated the Black Law Students Association and compelled Dean Martha Minow to issue a denunciation of the statement. The original author apologized profusely.
John Leo wrote about the affair here, among other things highlighting the background of the author. (She was a sociology major at Princeton, where she studied how the campus atmosphere affects different racial groups.) John also pointed out the disproportionate nature of the consequence: a private email to friends turns into a public humiliation of a graduate student.
There is another aspect of the story worth pondering further. It comes up in a recent summary of the affair by Peter Berkowitz at The Weekly Standard.
Berkowitz focuses on the words of Dean Minow. Yes, we all have seen how swiftly university administrators respond to racial incidents, how frantically they wish to demonstrate that they will, indeed, tolerate no hate speech and honor all peoples. But this action was somewhat different. Minow delivered a judgment of a text written by a student. The student was not brought forward on any charges, and no disciplinary procedure was in play. It was the student’s words that mattered, and Minow’s words would oppose them.
Here’s the problem, in Berkowitz’s rendering: “Dean Minow’s statement, moreover, failed to honor the scholar’s duty to restate accurately a view one is criticizing. According to Minow, the student’s email ‘suggested that black people are genetically inferior to white people.’ That’s an incendiary revision.”
In truth, the email was much more tentative and hypothetical. She wrote that she couldn’t “rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent.” This is the posture of the scientist, not the racist, the latter of whom would assert inferiority without hesitation. Indeed, the fact that Minow scrambled the student’s words indicates that the words themselves weren’t enough to justify Minow’s denunciation.
That isn’t the dean’s only crime. She also neglected the rest of the email, which further belies the charge of racism. Berkowitz again:

in the very next sentence, [the student] entertained the possibility that there is no genetic variation in intelligence between the races: ‘I could also obviously be convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances.’ The student went on to speculate that ‘cultural differences’ are probably ‘the most important sources of disparate test scores.’ And the student elaborated at length an argument from Harvard Law School professor Randall Kennedy that in the student’s judgment deftly showed, despite the absence of ‘quantifiable data,’ that racial disparities for violent crimes were rooted in culture. In sum, the student clearly expressed the desire to set aside conclusions of the heart, and instead examine the scientific data and consider reasoned analysis concerning the genetic basis of intelligence.

This is a reasonable discussion, and while the history of social science into intelligence contains some awful episodes of racism, it is still proper to inquire into racial differences in cultural, geographical, and other terms, including genetic ones.
Not in the dean’s office. Not only did Minow violate the student’s privacy and encourage the rest of Harvard to “regard the student as a pariah,” as Berkowitz notes. Not only did Minow encourage students who feel aggrieved or offended to run to authorities and complain. She also demonstrated little understanding of the norms of scientific inquiry. And worse, perhaps, she disregarded what may be the first principle of academic discussion: to represent the words and ideas of others accurately and fairly.

A Racial Flap at Harvard Law

Stephanie Grace, an editor at the Harvard Law Review, has been outed as the third-year student who emailed to two friends her opinion that “I absolutely do not rule out the possibility that African-Americans are, on average, genetically predisposed to be less intelligent.” That triggered yet another racial flap at Harvard Law, with the school’s Black Law Students Association meeting with Dean Martha Minow, as the Boston Globe put it, “to discuss the hurt caused by Grace’s email.” Now there are efforts to head off her clerkship in California with Ninth Circuit Court Judge Alex Kosinski.
Casual comments about group inferiority are rightly denounced as repugnant, but in context, Grace’s words still look crude, but a bit less stark. She holds a sociology degree from Princeton, where, according to a campus website there, she conducted research on how the racial composition of one’s freshman year roommates influences behaviors, attitudes and perceptions during one’s college years. So she has been studying what happens to members of various racial groups in higher education. Presumably her research, and the dinner conversation with her two friends that preceded the emails, addressed affirmative action and the issue of why many African-Americans do relatively poorly in college. The Journal of Blacks in Higher Education had this to say on the subject: “Nationwide, the black student college graduation rate remains at a dismally low 43 percent. But the college completion rate has improved by four percentage points over the past three years. As ever, the black-white gap in college graduation rates remains very large and little or no progress has been achieved in bridging the divide.”
Many explanations have been offered—prejudice, lack of faculty role models, stereotype threat, poor high schools, a mostly Western curriculum and so forth. From Grace’s email, it seems that at dinner the three women were sifting through these explanations, one of the women suggested a genetic interpretation that Grace rejected and then followed up with a you-might-be-right email saying that genetic differences are possible . Writing to her friends, she is certainly crude and stumbles into brief mentions of women and math, blacks and violence (no genetic connection there, she says) and the likelihood of the Irish to produce redheads. But she adds the comment that “I would just like some scientific data to disprove the genetic position.”
Is this racist? Maybe so, but different people will judge it differently. The fact is though that Grace has been publicly tarred as a racist and probably will be for the rest of her life. This is for private off-the-cuff comments to two friends, one of whom fell out with her and sent the email around in an effort to destroy her. The major lesson: Pick better friends and never count on private emails remaining private. Another lesson is that if you attend a famous law school, assume that any aggrieved fellow students will run to the dean complaining of hurt feelings instead of confronting and, if necessary, denouncing you. Law professor and blogger Ann Althouse made this point: “Why does the dean even get involved with something one student said in private email? If the answer is because the Black Law Students Association came to her and demanded a response, then maybe the question should be why did the Black Law Students Association go to the dean for help? … Why go to the nearest, biggest authority figure? Stephanie hurt me!”

Shall We Rank Law Schools for Diversity?

Two law-school professors, Vikram David Amar and Kevin R. Johnson, recently published a piece in FindLaw.com on “Why U.S. News and World Report Should Include a Diversity Index in its Ranking of Law Schools.” Early on, the piece notes a research finding that, by including in its law-school index the LSAT scores and undergraduate GPAs of the students admitted and enrolled, the USNWR ranking “creates disincentives for schools to admit and enroll applicants from underrepresented groups that have not – as groups – fared particularly well in grades or on standardized tests.”

The good news is that Amar and Johnson don’t suggest what many on the Left would immediately demand, namely that the index and, for that matter, law schools themselves simply ignore test scores and grades if they have a politically incorrect disparate impact. The bad news is that the authors instead embrace the “welcome development” that Bob Morse, USNWR‘s “point person for law school ratings,” has “recently expressed openness to thinking about incorporating a ‘diversity index’ into the rating methodology.”

Amar and Johnson then agree with Mr. Morse that “measuring diversity is a very complicated issue,” since after all it requires deciding which racial groups “should be included in the definition of diversity, and determining the extent to which the diversity index should go beyond race and ethnicity – to include socio-economic class, gender, sexual orientation, geography, age, and perhaps religion and other characteristics ….” True enough (and probably a good reason to rethink the wisdom of the whole undertaking).

Continue reading Shall We Rank Law Schools for Diversity?

The Failure Of For-Profit Schools

Why do our for-profit colleges seem so disappointing? Why are they plagued by high levels of student debt, high loan-default percentages, dismal graduation rates, and third-rate reputations that lead some employers to reject their graduates automatically? Sure, back in the old days there were plenty of commercial schools whose sole raison d’etre was apparently to separate students from their money: those correspondence law schools that advertised on matchbooks and the art academies that would accept you if you could doodle a stick figure onto a restaurant napkin. But today the situation seems exponentially worse. Commercial colleges, which enroll 2 million out of America’s 17 million college students, now seem to be not so much diploma mills as non-diploma mills, where the vast majority of enrollees pay tuition bills comparable to those at four-year public universities but never manage to graduate. Katherine Gibbs, for example, limped along for decades trying to offer alternate career training after the market for private secretaries dried up during the 1970s, then permanently shut its doors in 2009 amid complaints to state regulatory agencies about unqualified faculty members, shoddy and inadequate course offerings, and four-year schools unwilling to accept Gibbs transfer credits. The chain’s redoubtable foundress must be turning over in her grave.
What happened? How did a for-profit college model morph into today’s basement-reputation for-profit model, exemplified by Saturday Night Live’s fictional “University of Westfield,” where the students mainly learn how to fudge the fact that their degree are from the University of Westfield? I blame the corrupting influence of federal money, the easily available Pell grants and guaranteed loans that began to flow with the passage of the Higher Education Act of 1965. Easy federal money has contributed to a vast growth in enrollments at both non-profit and commercial institutions, a ballooning of tuition costs, and, in the for-profit sector, a focus not on the academic outcomes that might build a school’s reputation as a selling point but upon getting as many bodies as possible into their classrooms.
Let’s take the enormous—and vastly profitable–University of Phoenix, with its nearly 400,000 students in 39 states as well as online. Phoenix is regarded as one of the more reputable commercial schools, and it has gained respect over the last two years for issuing fairly candid reports about its strengths and shortcomings. Still, Phoenix and its parent company, Apollo Group, have had their troubles during the last decade—and recently entered into a $78.5 million settlement regarding allegations that Phoenix illegally paid cash bonuses and other gifts to recruiters based on the number of young people they signed up for classes. Phoenix derives an ever-increasing amount—more than three quarters during its 2008 fiscal year, according to a March article in Business Week–of its $3 billion-plus annual revenue from federal student aid. Ii’s the biggest recipient of Pell grants in the nation. Yet Phoenix’s graduation rates seem abysmal. According to the U.S. Education Department, only 4 percent of Phoenix’s students who entered four-year-programs as freshmen graduated within six years, compared with 55 percent of students at non-profit four-year schools. And an executive-search company specializing in financial services told Business Week that a Phoenix degree didn’t “add any value” to a graduate’s resume.

Continue reading The Failure Of For-Profit Schools

Does U.S. News Make Law Schools More Expensive?

By Frank J. Macchiarola and Michael C. Macchiarola
Why do law schools charge higher and higher tuitions that keep outrunning the cost of living? In the two decades ending in 2007, according to the American Bar Association, the cost of attending the average private law school (including tuition and fees) more than tripled–increasing from $8,911 a year to $32,367. Unsurprisingly, the average amount borrowed by law students has risen just as dramatically. Last year’s average private law student graduated with more than $87,000 in law school debt.
In trying to understand this phenomenon, many have blamed the American Bar Association’s Standards for Law Schools. The ABA accredits 200 American law schools that adhere to the Standards and, by doing so, permit their graduates to sit for the bar examination in every state. These standards govern student’s course of study, the law school’s administration, the faculty’s rights and obligations and the adequacy of the physical plant. Among other things, law schools are reviewed in a comprehensive three-day site visit with several visitors every seven years to maintain their accreditation.
Others, particularly law school deans, who face competitive pressures from other law schools, have blamed the U.S. News and World Report rankings of law schools. These critics believe the rankings spark a tournament of law schools to compete on the magazine’s terms, often at great costs and at the expense of more student-centered activities. In a December 2009 report to the Congress, the General Accounting Office dealt, in part, with concerns that have been raised about how some of the accreditation standards of the ABA may affect the cost of law school.

Continue reading Does U.S. News Make Law Schools More Expensive?

Where Not To Be A Federalist Society Member

Last Sunday, the New York Times’ “Ethicist” column featured a letter from a lawyer loath to hire internship applicants that belonged to the Federalist society. Randy Cohen, the “Ethicist” suggested that disqualification on the grounds of their membership was unfair. The lawyer went ahead and rejected all applicants who were members anyway.
Ilya Somin, at the Volokh Conspiracy notes that, while this case is blatantly unfair, the legal world seems to feature little political discrimination against applicants. Not so in other fields, he continues:

By contrast, both liberal and conservative law professors warned me not to put the Fed Soc on my CV for the academic job market, where ideological discrimination is likely to be greater because the academia is far more ideologically homogenous than the law firm world, (see also here), there is little or no equivalent to the constraint imposed by the profit motive, and academics tend to care about politics far more than practicing lawyers do.
These personal experiences aren’t necessarily typical. Only systematic data can really settle the issue. But they are similar to those of other Fed Soc members I know in the law firm and academic worlds (and I know a great many in both). It’s not unusual for people to put Fed Soc membership on their law firm resumes, while the conventional wisdom is strongly against doing so on academic CVs.

Who Is the Real “Fascist Bastard”?

The case of Jonathan Lopez, the Los Angeles Community college student who allegedly was called a “fascist bastard” by his speech professor for delivering a Christian speech, has indeed touched a nerve, as his lawyer, David French of the Alliance Defense Fund said.

Once again the mainstream press got a few things askew. The Los Angeles Times, reporting Lopez’s suit over the issue, said the student was delivering a speech against gay marriage. Other news outlets, from UPI to MSNBC, picking the story up from the Times, said so too. But there’s no evidence on the table for that. Lopez cited Romans 10:9 and Matthew 22:37-38, which don’t deal with marriage at all. Maybe Lopez did refer to gay marriage somewhere in his speech. We don’t really know what set the professor off. Legal papers filed by Lopez say the speech was about God and miracles.

The Times reporter also thought the Lopez lawsuit raised a difficult issue “testing the balance between First Amendment rights and school codes on offensive speech.” Some reporters, conditioned by campus orthodoxy, think constitutional rights and unconstitutional speech codes somehow have equal weight. But “balance” is not an issue here and there is no evidence so far that Lopez did anything wrong. According to his court papers, he was asked to give a speech on any subject of his own choosing and did so, but the teacher didn’t like the topic, called him a “fascist bastard” and refused to give him a mark. Lopez says the teacher said, “Ask God for a grade.” What made Lopez a “fascist bastard”? If voting for a referendum opposing gay marriage does it, then California contains more than seven million “fascist bastards.” If belief in Christianity is the test, then the state is probably home to 20 million or so FBs.

As usual when some aspect of the dominant campus belief system is challenged, the first reaction is to condemn and punish, not to tolerate or discuss. Ordinarily, a quick appeal is made to a broad and vague speech code. Since speech codes are unconstitutional at public colleges, speech-control rules are often embedded in sexual harassment regulations or disguised as a code of behavior. The code of Los Angeles Community College bans “verbal, visual or physical conduct” that “has the purpose or effect of having a negative impact upon the individual’s work or academic performance.” What, exactly, is a “negative impact”? No one really knows, but anyone formally accused of having one, even unintentionally, is in danger of being found guilty. But every so often, word gets out about these Star Chamber proceedings, and if the publicity is high enough and the student threatens to sue, the college has to back down. That seems to be the scenario here. Campus restrictions on free speech are still suffocating, but sometime dissenters win.

A Candidate Worth A Vote

The inestimable Harvey Silverglate has launched a candidacy for Harvard’s Board of Overseers, and quickly, the relevance of his effort is being noted. The student-run Harvard Law Record is scaling back its publication schedule in the face of several difficulties, notable among them being Harvard’s reduction of alumni distribution. As they write:

[T]he replacement of the Record as the school’s official mailout with the glossier, less critical eye of the Harvard Law School Bulletin – an issue pointed to by Harvard Board of Overseers candidate Harvey Silverglate ’67 as a manifestation of the “corporate” university – has reduced dependence on the paper among alumni. Still, we believe that independent, student produced content is a necessary, particularly at an institution that sometimes falls short of embodying the lofty principles it teaches in its classrooms. Demand for the Record has never been higher, it’s just that this demand is not appearing in print form. We are seeing our highest traffic totals ever on the hlrecord.org website.

Silverglate, right again. And take a look at his worthy endorsements, from Steven Pinker to Stuart Taylor Jr.

New Questions About The LSAT Validity?

A just-released study from the University of California-Berkeley’s law school points out that the Law School Admissions Test, a sort of SAT for applicants to law school, focuses lopsidedly on takers’ cognitive skills while overlooking key non-cognitive traits possessed by successful lawyers. And no, that doesn’t mean an aptitude for ambulance-chasing or filing phony class-action suits.
Instead, the 100-page report, prepared by former Berkeley law professor Marjorie Schultz and Berkeley psychology professor Sheldon Zedeck, asserts that the LSAT, which includes sections on reading comprehension and legal reasoning, “does not measure for skills such as creativity, negotiation, problem-solving or stress management.” Schultz and Zedeck pointed out that while one’s score on the LSAT correlates well with success as a first-year law student, it doesn’t correlate well with one’s future success as a lawyer. They had earlier identified 26 different non-cognitive traits that they said did correlate with future success in the legal profession: “negotiating skills, problem-solving and stress management,” as the Wall Street Journal’s law blog summed them up. After identifying those traits, in interviews with thousands of successful California lawyers, the pair’s research team developed methods for measuring them in law school applicants, via biographical, personality, and “situational judgment” modeled on employers’ personality tests for prospective employees.
There is little doubt that good lawyering can depend as much on how lawyers interact with their clients and argue in courtrooms as on the grade they got in first-year constitutional law. Obviously lawyers need more than sheer cognitive facility to deal with ill-tempered judges or hold troubled clients’ hands—and testing people skills may well be a useful supplement to testing cognitive skills. Still, it’s hard not to conclude from leafing through the Schultz-Zedeck study that its authors have overemphasized the softer side of law. Jeffrey Brand, dean of the University of San Francisco School of Law, delivered a touchy-feely anti-LSAT manifesto in this vein to the Recorder, a legal newspaper in San Francisco: “We need lawyers with the kind of skill sets that the world needs — like empathy, persuasiveness and the willingness to have the courage to do the right thing — which the LSAT does not measure.” This ignores the fact that lawyers are also expected to win their cases—which means knowing something about the law.

Continue reading New Questions About The LSAT Validity?

Accepted To Harvard Law? You Don’t Need Grades.

If you think that student life at an ultra-elite law school is a page ripped out of The Paper Chase—one long, frighteningly competitive grade grub under the icy eye of a clone of the movie’s fictional Prof. Charles W. Kingsford Jr.—think again. At Yale Law School, grades have been strictly optional since the 1960s (students can opt to take classes for credit/no credit), and if you do choose to have your professor award you a symbol of your academic achievement or lack thereof, it’s neither a letter grade (A, A-, B+, etc.) nor a number based on a scale of 1-1-100 that can be easily translated into a letter. Instead, thanks to a student rebellion during the Age of Aquarius, there are only four grades at Yale: H for honors (for the top 30 percent or so of the class), P for pass (for almost everyone else), LP for low pass (for those who spent more time sampling the beer selection at Rudy’s than the readings in their casebook), and F for failure (for those who never made it out of Rudy’s to class).
And now, both Stanford Law School, in an announcement in May, and Harvard Law School, in an announcement on Sept. 28, have decided to follow Yale’s lead—with a few minor modifications–in vague and minimalist grading. Never again at Harvard will a Kingsford fix his withering gaze upon a hapless student who gave a less-than-brilliant performance and intone, “Here is a dime. Take it, call your mother, and tell her there is serious doubt about you ever becoming a lawyer.”
The idea at Yale Law School seems to be of the same general justification that has underlain rampant grade inflation over the past few decades for undergraduates at the Ivies and other elite colleges. If you’re smart enough—or maybe even just interesting enough—to get into our top school, why should you have to worry about grades? You’re already brilliant! Fine-tuned, competition-focused law school grades, the thinking goes, are for second-echelon institutions whose students have to demonstrate on paper that they’re as qualified as Yalies to compete for high-paying jobs at prestigious law firms or coveted clerkships on the U.S. Supreme Court and elsewhere. As the Yale Law School admissions office states on its website: “People do not get into Yale solely because of their GPA and LSAT combination. People get into Yale because of who they are and what they have done. The students bring such diverse backgrounds to the law school that one learns from them and benefits from their existence just as much as one does from the faculty.” Yale proudly declares that not only are grades optional, but it has eliminated class rankings.

Continue reading Accepted To Harvard Law? You Don’t Need Grades.

No Letter Grades At Harvard Law School?

The Harvard Crimson today reports that, beginning in 2009, Harvard Law School students will no longer receive letter grades, and will instead be evaluated simply on a modified pass-fail system, consisting of “Honors” “Pass” “Low Pass” and “Fail”. Yale and Stanford have similar grading systems.

An obvious point of objection was raised:

According to Richard H. Fallon, a professor at the Law School, the faculty raised concerns over the extent to which the new system will blur academic distinctions among students. Since Harvard is more than twice the size of both Stanford and Yale, many more students will graduate with similar-looking academic records.

More interestingly, objection to the change has come from surprising grounds – those of women and minorities:

But first-year law student Elizabeth P. Benton said that some students felt the simplified grading system could disadvantage women or minorities in the job hunt—both those applying for jobs at law firms and those who are seeking clerkships for judges—since objective comparisons of job candidates will become more difficult.

Well of course. It’s always seemed that the most strident defenders of strict metrics of evaluation, from the SAT to letter grades at Harvard Law School, should be talented women, minorities, the poor, or any others who, rightly or wrongly, feel themselves disadvantaged by “systems of privilege” at schools. If you enter Harvard Law School with the assumption that it’s designed to reward affluent white males, wouldn’t the worst possible outcome be the dismantling of means by which you could demonstrably prove your academic abilities?