Tuesday, September 15, 2015

Op/Ed: Students’ Responsibilities for Improving Law Schools

By Roni A. Elias

     There is an old assumption that academic leadership comes only from faculty and administrators. This assumption must change. Students, faculty, and administrators all must work together to improve law schools. The ultimate leadership must come from students, though, because they are the ones law schools serve and because they have a unique ability to recognize how changes in the legal profession are working out on the ground.

    In both a business and institutional sense, law schools exist to serve their students. From a business perspective, law schools are enterprises selling an education, and students are their consumers. The institutional perspective is similar. Law schools are nonprofit organizations designed to serve a public good ― the improvement of students’ lives and the development of a better legal profession.

    Businesses enjoy their greatest success when they focus on meeting the needs, expectations, and preferences of their customers. For example, when Lou Gerstner turned around IBM in the 1990s, one of his first steps in reforming the company was to require his top executives to meet with a certain number of customers every week and file reports about customers’ needs, wants, and issues. Those executives soon got the message about the centrality of consumer needs and understood that “message” was a crucial part of turning IBM’s fortunes around. When businesses focus on their own internal expectations, giving customers what they think customers should want instead of what customers actually want, they drive customers to their competitors.

    Like every other part of the university, law schools are businesses (which is especially true for the for-profit law schools). As Mark Taylor, chairman of the religion department at Columbia, has pointed out, “It is ludicrous not to acknowledge that colleges and universities are businesses, and higher education is one of the most important domestic and international industries.” They sell a product ― an education ― and they sell it at a high price. In 2012, the average annual tuition at a private law school was about $40,500; public law school tuition was $23,600. To cover both tuition and living expenses during law school, the average student will borrow about $140,000. Those prices not only reflect an extensive financial commitment, they also reflect an enormous personal commitment of time and energy.

    Even if one disagrees that law schools should operate like businesses, there is still a reason for schools to put students’ interests first. Law schools have a moral, if not a legal, duty to do so. These schools profess to have expertise on preparing students for successful legal careers, and students have placed their trust in law schools for this purpose.** The students’ reliance gives law schools a duty to repay that trust by putting student interests above the institution’s interest in prestige or rankings or in the professors’ interest in scholarship. At the very least, law schools must act as stewards of the students’ interests, and stewardship with a back-and-forth dialogue is paramount for everyone’s success.

    Of course, it would be possible to put the students’ interests first while reserving the leadership role for faculty and administrators. There is an argument to be made that students should follow the lead of the faculty and administration, as the children in a family follow the lead of their parents/elders. This argument depends on the premise that students lack information and experience about what a legal career requires, the direction of their legal education, or the direction of the institution in which they will spend only three years. From this point of view, the students’ only role in shaping the direction of an institution seems to be filling out course evaluation forms. 
     But the 21st century legal profession faces challenges and changes that require something profoundly different from a legal education and the law schools that provide it. For one thing, practicing lawyers increasingly complain about a lack of personal satisfaction in their professional lives. Bethany Rubin Henderson, Asking the Lost Question: What Is the Purpose of Law School, 53 J. Leg. Educ. 1 (2003). In particular, they complain that law school did not prepare them to cope with the realities of practice or to learn how to make a meaningful social contribution through their legal careers. Id. As a result, some law school graduates find their careers frustrating or pointless, and they wonder whether there was something they missed during law school. See id.

    Another problem for law students entering the profession in the 21st century is the changing economic realities of law practice. Despite a recent small uptick, private firms have been hiring fewer lawyers since the recession of 2008, leading to intense competition for employment. Moreover, even for those who do find employment, the prospects for advancement and long-term career security are much dimmer than they were even 10 years ago. See id; see also Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 Stanford L. Rev. 1867 (2008).

    To respond to these emerging problems, law schools must make changes, and more student involvement in administrative decisions is one of the first steps. With the legal profession evolving so rapidly, faculty and administrators must appreciate the nature and extent of the changes. Students are in a better position to understand what will be required of them upon graduation and to communicate those requirements to the faculty and administration. The students’ success is the school’s success.

     The faculty and administration must take an active role in shaping the information that comes from students, filtering it through their experience and adapting it to the needs of the institution. But the impetus must first come from the students. There is precedent for student leadership in determining the direction of educational institutions. During the student rebellion of the 1960s, students took an active and leading role in shaping substantial reform in higher education. Student protests challenged entrenched ideas about what colleges should teach, research, and the relationship between higher education and other social institutions and groups. Many of the changes that shaped the current direction of higher education were the product of these protests. One of the most notable reforms took place at Brown University, revolutionizing the curriculum and the identity of the school, where a group of students proposed a radical curriculum reform, eliminating all course requirements and allowing students the option to take all classes on a pass/fail basis.  Not only was this reform adopted, but it was the impetus for a long period of success for the university, in attracting better students, more donations, and in producing more illustrious graduates. 

    Student leadership can be, and should be, more than just putting notes in a suggestion box or coloring in circles on a course evaluation form. If given the opportunity, students can tell their schools what they want and need, and that communication can be the basis for profound changes that improve the institution in every respect.

    A law school is entirely composed of the individuals who belong to it, including faculty, administrators, current students, and alumni. But the overwhelming majority of individuals associated with a law school are the current and former students. If the law school is conceived as a body, that body comprises the people who study and who have studied there. These are the people who truly have a concern for the school. Id. 
    Thus, the students must take the first step in bringing about change for the better. Together, all parties can help their institutions develop in a way that is better for the schools, the legal profession, and the community they both serve.

**Note: There is some reason to think that the law schools’ duty to their students is akin to a fiduciary duty, which arises when one person relies on the special skills or expertise of another and therefore reposes trust and confidence in the other. The New Hampshire Supreme Court held that a public university has a fiduciary duty to its students. See Schneider v. Plymouth State College, 744 A.2d 101, 105-06 (N.H. 1999).