"As you know, you go to war with the army you have, not the army
you might want or wish to have at a later time." – Secretary of Defense Donald Rumsfeld, December 8, 2004.
"The facts cited in this article could spur faculty to hold
discussions about building a curriculum for the students we have – not the
students we used to have, or the students we wished we had." Prof. Margaret Moore
Jackson, "Teaching the Students We Have--The Changing Student Body." Blog post. Best Practices for Legal Education, April 16, 2015.
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After
Donald Rumsfeld made the comment quoted above, he was criticized for being a
trifle glib, what with the bloody carnage and all. I don’t accept the premise,
one could respond, you should not go to war until you are ready, and probably
not even then.
However,
Rumsfeld, in his heartlessly pithy style, managed to convey something that I
have noticed about scammers, especially those whose scamming is more or less
lawful, such as politicians, corporate CEOs, too-big-to-fail bank executives, and law
professors. They are often forthright in acknowledging the inadequacy of their
tactics and resources, and their failure to anticipate changing conditions. It
is only when you question the morality of their operation that they become
defensive, if not outright uncomprehending.
I
do not want to be unfair here. Prof Jackson, to her credit, does identify
the moral objection to accepting law students with mediocre or sub-mediocre
academic records and standardized test scores, as law schools are doing now
with increasing and embarrassing frequency. (For instance, at Jackson's own school, the University of
North Dakota School of Law, the 25th
percentile LSAT score for entering law students dropped from 148 in 2011 to 143 in
2014). The following two sentences from her short blog post at "Best Practices in Legal
Education" had my attention: "Why string along students whom we can
predict will have difficulty achieving mandatory milestones like bar passage?
An honest response would include the obvious conflict of interest – law schools
need students in order to survive."
But
Jackson has nothing further to say about the "obvious conflict of interest" and
her very next sentence is an evasive bromide. "But society continues to
need well-educated lawyers too." I suppose the Rumsfeld equivalent
would be if he had articulated a fleeting moment of distress over the
casualties, but then perked up and said something like "But the world
continues to need freedom too."
Prof.
Jackson then offers the following instructive remark, or shall I say, delusion:
"By re-envisioning both teaching methods and programmatic structures, schools can both adapt to changing conditions and help students learn and perform well. Re-focusing a program of legal education to teach the students who are there, not the students who might have attended a decade ago, could invigorate the profession, opening doors that allow less-privileged, more diverse, and otherwise nontraditional students to succeed and excel."
I strongly suspect that what
Jackson means by reinvigorated teaching methods and programatic structures is more remedial reading and writing instruction in law schools, indeed a
lot more. ("Even schools who have long administered healthy academic
assistance programs may need to consider whether changes should be made").
And then hoping for the best.
Maybe it would work, and this army of 143 LSAT-scorers would thrive in our swamped profession, thanks to the programmatic structural innovation and manifest goodwill of law faculty. Doors would swing open, entrenched privileges would topple like statues of enemy dictators, and law professors would be hailed as liberators. I mean, look at Elle Woods, who was cruelly stereotyped as a frivolous dim bulb simply because she constantly spoke and behaved like one, until law school unleashed her hidden potential. Of course, it is just possible that the Elle Woods experience does not generalize in that Elle: (1) got a perfect LSAT score; (2) attended Harvard; (3) came from a rich and indulgent family; and (4) is a fictional movie character.
So let’s say present trends continue, and lower-tier law grads fail the bar in increasing numbers, and that many or even most are unable to carve out a place for themselves in our swamped profession. Will lawprofs then assume responsibility? Or will they instead sigh about unknown unknowns, declare that there is light at the end of the tunnel, and then reenvision themselves some new programmatic structures, collecting their big salaries and perks galore all the while?
Maybe it would work, and this army of 143 LSAT-scorers would thrive in our swamped profession, thanks to the programmatic structural innovation and manifest goodwill of law faculty. Doors would swing open, entrenched privileges would topple like statues of enemy dictators, and law professors would be hailed as liberators. I mean, look at Elle Woods, who was cruelly stereotyped as a frivolous dim bulb simply because she constantly spoke and behaved like one, until law school unleashed her hidden potential. Of course, it is just possible that the Elle Woods experience does not generalize in that Elle: (1) got a perfect LSAT score; (2) attended Harvard; (3) came from a rich and indulgent family; and (4) is a fictional movie character.
So let’s say present trends continue, and lower-tier law grads fail the bar in increasing numbers, and that many or even most are unable to carve out a place for themselves in our swamped profession. Will lawprofs then assume responsibility? Or will they instead sigh about unknown unknowns, declare that there is light at the end of the tunnel, and then reenvision themselves some new programmatic structures, collecting their big salaries and perks galore all the while?
I
actually endorse Johnson’s call for more diversity among law students, but assert that it must be
pursued in a way that is not tainted by exploitation. Do law schools want to recruit more kids from multicultural or
economically disadvantaged backgrounds? Fine, I want that too, but I do not
want these kids to be scammed out of hundreds of thousands of borrowed dollars
in the process.
The
answer is simple: Law schools should offer full-ride scholarships to their "less-privileged, more diverse, and otherwise nontraditional"
recruits. That way, these students will not be forced to subsidize the legal educations of
their more privileged fellow law students and the cushy jobs and elegant
lifestyles of law school professors and top administrators, or
Because
otherwise law school faculty are simply enriching themselves by gambling with
other people’s lives--in fact, with the lives of very vulnerable kids who
trusted them. The noble motives and goals that they profess will then be
perceived as something cheap and obscene, like Donald Rumsfeld talking about
freedom.
