LB 36: A Shot in the Arm for Lethal Injection
rgerlach
LB 36: A Shot In The Arm For Lethal Injection
On May 28, 2009, the Nebraska Legislature passed LB 36, a statute instituting lethal injection as the method of executing death sentences. The bill was introduced in December 2008 by Attorney General Jon Bruning in response to State v. Mata, a Nebraska Supreme Court case that declared the state’s electrocution procedure via the electric chair unconstitutional in February of that year. The bill suggests a preference for what is commonly known as a three-drug “cocktail” to be used in the execution of death row inmates. The cocktail was originally created in Oklahoma in 1977, and has been widely adopted by several states across the nation. [1]
The first drug, sodium pentothal, is used as an anesthetic to render the inmate unconscious. The second drug, pancuronium bromide, is administered within a few minutes of the first. This drug is intended to paralyze the inmate and halt respiration. It is supposed that the inmate is already unconscious when this notoriously painful drug enters the bloodstream. Finally, potassium chloride is administered to cause cardiac arrest in the inmate and officially stop the heartbeat.
Courts around the country have recognized that there is a significant risk of excruciating pain to the inmate if the drugs are not administered properly—specifically if the anesthetic has not taken effect before the second and third painful drugs are injected.[2] Constitutional considerations have been raised as to possible violations of an inmate’s eighth amendment right to be free from cruel and unusual punishment. Additionally, the cloud of secrecy surrounding the procedures of how some of these drugs are administered has called into question the potentially flawed, and dangerous methods used to carry out executions by lethal injection.
Part I of this article examines concerns raised by state governments and constitutional scholars across the nation, and will analyze how Nebraska’s statute resembles those scenarios. Part II will discuss potential consequences to Nebraska’s law based on what has been held in other states with similar statutes on the books.
Part I: Lethal Injection on a National Stage
Lethal injection has been a contentious issue in many states. Federal courts in California, Missouri and Tennessee have found existing lethal injection procedures to be unconstitutionally dangerous. Meanwhile, executions in Arizona, Delaware, Florida, Maryland, North Carolina, Ohio, Oklahoma, and Virginia have been halted or delayed due to botched executions, administrative reviews, and constitutional challenges.[3]
University of Nebraska College of Law Professor Eric Berger recently published an article outlining the common concerns surrounding lethal injection based on his testimony on LB 36 before the Nebraska Legislature in January 2009. Professor Berger worked closely on the Taylor v. Crawford [4] case in Missouri, where the district court found the state’s unwritten protocol for lethal injection executions to be unconstitutional—largely in part because of the state’s initial failure to adequately consider the protocol. After substantial changes were made, and the protocol was put into writing in 2006, the Eighth Circuit Court of Appeals overruled the district court and held the Missouri protocol no longer violated the eighth amendment.[5]
Professor Berger’s primary concern with Nebraska law was the lack of transparency of the procedure and those involved. He stated that the current system is “undermining open government in Nebraska.”[6] In Taylor, Missouri’s statutes prior to 2006—like Nebraska’s current law—exclusively authorized the director of the department of corrections to create and carry out the lethal injection procedures.[7] However, the director had no medical experience and was simply delegating this task to an incompetent surgeon.[8] There was no supervision of the surgeon as to how he designed and performed the executions.[9] The district court took note of this massive oversight, which, had it been remedied, could have caught the incompetence of the surgeon earlier and prevented improper executions. Ultimately, the court in Taylor was concerned about the amount of secrecy and lack of medical competence connected to carrying out lethal injections. Nebraska Law LB36 presents identical issues. [10]
Other states have had similar concerns with secrecy surrounding the implementation of executions by lethal injection. California’s lethal injection protocol was held unconstitutional because it lacked “professionalism” and an “open, deliberative, and thorough review.” [11] Tennessee’s protocol failed the constitutional test—even though a committee consulted experts and proposed significant changes to the state’s lethal injection method— because the commissioner of corrections for the state ignored the recommendations made by the committee with no valid explanation as to why.[12] Several states—including California, Delaware, Oklahoma and Texas—have since mitigated the state’s concerns by posting their protocols for lethal injection on the internet. [13]
The apprehension surrounding the secrecy of lethal injection protocols would be less severe if what was being kept secret did not harm anyone. Unfortunately, however, the “three-drug cocktail” administered during lethal injection is “generally understood to create a significant risk of excruciating pain, especially if they are not carefully administered in a well-designed procedure by qualified medical personnel.”[14] LB 36, Professor Berger noted, gives no indication of how execution team members may be selected or requirements for their qualifications, competence or training.[15] This lack of any qualified medical personnel, and the nonexistence of supervision during the procedure, greatly increases the risk for mistakes in the administration of the drugs, as the district court noted in Taylor.[16]
The main cause for pain in lethal injection executions comes from an incorrect dose of the first drug, the anesthetic. This drug is supposed to knock the inmate unconscious so he does not feel the painful second and third drugs as they enter his system.[17] However, if not enough anesthetic is given to the inmate, he may regain consciousness before the procedure is complete, or not lose consciousness at all.[18] The second drug is a paralytic. Once administered, the paralyzed inmate has no way to move or communicate with the execution team to let them know if he is awake.[19] If the inmate never lost consciousness, or regains consciousness during the administration of the third and final drug, the inmate will feel everything. The potassium chloride meant to stop the inmate’s heart can feel like fire racing through the veins, causing intense and excruciating pain that the, now-paralyzed, inmate is powerless to stop.[20]
Capital punishment itself is constitutional; however, if the procedure is “sure or very likely to cause . . . needless suffering,” and give rise to “sufficiently imminent dangers,” it can be a violation of the Eighth Amendment.[21] The mere fact, however, that an execution method may result in pain is not enough to violate the eighth amendment, and the Supreme Court has yet to invalidated a state’s chosen execution method due to an eighth amendment violation.[22] Still, whether each state’s protocol is constitutional is highly circumstantial and depends on how the protocol is implemented. This can turn heavily on a number of factors, including training and competence of execution team members and whether the process for determining their qualifications is reasonable and competent.[23] In Taylor, the court held constitutionality was based on “whether the protocol as written would inflict unnecessary pain, aside from any consideration of specific intent on the part of a particular state official.”[24] If the written protocol is not unconstitutional on its face, “any risk that the [lethal injection] procedure will not work as designated in the protocol is merely a risk of accident, which is insignificant in . . . constitutional analysis.”[25]
The Eighth Circuit Court of Appeals has twice upheld the lethal injection protocols of Nebraska’s neighboring states; first in Taylor and then in Nooner v. Norris,[26] which involved Arkansas’s lethal injection statute. In Taylor, as discussed above, the court found the unwritten protocol prior to 2006 unconstitutional on its face for lack of oversight, transparency, and minimum requirements of execution team members.[27] Only after substantial changes were made, and the protocol was put into writing in 2006, was it found to be constitutional.[28] In Nooner, the court did not find similar problems.[29] The court was pleased with the “numerous safeguards” contained in the Arkansas protocol, amended in 2005, to ensure the inmate was completely unconscious before administering the second and third drugs.[30] The protocol lists specific signs for the deputy director to watch for in order to ensure the inmate is unconscious, such as; movement, opened eyes, eyelash reflex, and response to verbal commands and physical stimuli.[31] After a three-minute waiting period, the deputy director can direct the executioners to administer back-up doses of the anesthetic if necessary to render the inmate unconscious.[32] Officials are also required to monitor the IV infusion sites and follow a contingency plan to address infusion problems.[33]
Along with statutory language, the requirements for the personnel carrying out the execution are also spelled out in the Arkansas protocol.[34] The deputy director must be “healthcare trained, educated, and/or experienced in matters related to the establishment and monitoring of IVs.”[35] An IV team member must have at least two years of professional experience as an emergency medical technician, nurse, physician assistant or physician.[36] If the IV team cannot establish access through traditional methods, a “trained, educated and experienced person” must be summoned to establish a central venous line.[37] This person is required to be “a licensed physician who is credentialed to establish such lines.”[38] Any cut-down procedures— cutting through the skin to gain access to the vein in order to administer the drugs— must also be made by a credentialed licensed physician.[39]
The safeguards and requirements found in the Arkansas protocol are similar to the updated protocol passed in Missouri in July 2006. Due to its thoroughness, the protocol in both states has withstood constitutional challenges from the judiciary.[40] Nooner defined the purpose of lethal injection protocol when it held that the protocol was designed “to avoid the needless infliction of pain, not to cause it”[41] and thus, any problems in the procedures would be “merely a risk of accident, which is insignificant in our constitutional analysis.”[42]
Part II: Nebraska Law and Lethal Injection
Despite the potential constitutional violations and room for error, lethal injection was enacted in Nebraska last year.[43] However, several concerns listed by Professor Berger and authorities outside Nebraska remain. Namely, the law’s lack of transparency and its silence on the issue of the three-drug cocktail’s potential for pain.[44] In addition, some constitutional concerns still exist as well.
In his article, Professor Berger noted that a giant flaw in the Nebraska statute is its veil of secrecy.[45] Section 83-965 ¶4 of the statute exempts the execution protocol from the requirements of the Administrative Procedure Act, meaning that Nebraskans are not privy to information about the creation and amendments of the executive protocol.[46] Professor Berger recalled similar problems with the Missouri law in the Taylor case, and the fact that the unwritten protocol was pronounced unconstitutional in the district court partly because the execution procedure was hidden from the public.[47] Similarly, ¶5 of the statute states that execution protocol “shall not be made available” to anyone without express authorization by the director of correctional services or a good-cause order from the Lancaster County District Court.[48]
Professor Berger’s point seemed to fall on deaf ears with the Nebraska Legislature. LB 36 was not amended to allow Nebraskans the chance to review or even see the creation of the execution protocol before the bill was passed. Nebraskans also cannot gain access to the protocol without the express consent of correctional services or the court. As a result, problems with the protocol are more difficult to unearth. Without this express consent or a judicial order, concerned citizens are not able to discover how the protocol for execution is created, who created it, how it is changed, how often it is changed, or reasons for the decisions made in relation to the protocol. This secrecy makes the state of Nebraska appear as though it has something to hide, and suggests that operations within the department of correctional services may not be on the “up and up.” This same lack of transparency has caused problems in other states. Indeed, in Missouri, California, and Tennessee execution protocols have been held unconstitutional, at least in part, due to secrecy.[49]
The upside, for opponents of LB 36, is that this lack of transparency can be used as ammunition in lawsuits challenging lethal injection in Nebraska. As Professor Berger noted in his article, litigants have a right under the Federal Rules of Civil Procedure to obtain full discovery on an execution method—which would include the protocol itself and any related documents or testimony.[50] In addition, Professor Berger argues there is a constitutional due process right for inmates challenging the method of execution as a violation of their eighth amendment rights to see the protocol and how it is administered.[51] Thus, while it appears the statute can be successfully challenged in court based on its lack of transparency, it places a burden on concerned citizens of Nebraska to seek answers through the complicated, lengthy and often expensive gauntlet that is litigation.
Another secrecy concern deals specifically with the identities of the execution team members. The provision in the statute concerning this issue is overly broad and forbids the disclosure of not only the team members’ identities, but also “any information reasonably calculated to lead to the identities” of the team members.[52] Bob Houston, the director of the department of corrections, stated to the Omaha World-Herald in June 2010 that the IV team consists of two members and the “escort” team consists of eight members.[53] He explained that the group had already done some training and would continue to train as executions neared.[54] He also claimed that “nearly half of the execution team” has been involved in executions before, and calls them “a very experienced group.”[55] These few, general statements were the extent of the information Houston provided on the execution team.[56]
While Professor Berger sympathized with the need for confidentiality in relation to the identities of the members of the execution team, he worries that the broad provision prevents holding the state accountable for hiring truly qualified personnel.[57] Information reasonably calculated to lead to the identities of team members could be construed several differently ways, and is, in a sense, a blanket statement covering almost all information related to team members that could be crucial in determining their competency.[58] For example, Professor Berger explained, the state could refuse to disclose if a team member had ever been disciplined or had a medical license revoked on the grounds that it could lead to the identity of a team member, even if no identifying information was released. As a result, this could weaken the state’s incentive to find and properly train competent execution team members.[59]
Another concern for LB 36 is that it failed to address the potential for pain caused by negligent administration of the three drug cocktail. In fact, the bill did not even require qualified personnel to administer the drugs, despite the well-known fact that the three-drug protocol can cause excruciating pain if not administered properly.[60] The statute recognizes that the inmate must be unconscious, but vaguely states that the determination of the level of consciousness must simply be “reasonably sufficient.”[61] Because qualified personnel are not required to administer the drugs, it stands to reason that a non-qualified person is also monitoring the level of consciousness of the inmate.
Professor Berger noted in his article that evidence from many states show written protocols have been implemented in a “careless, unprofessional, and haphazard fashion, thus strongly suggesting the possibility of a constitutional violation.”[62] A similar problem could arise in Nebraska if the protocol is hidden from public review. Professor Berger opined that lethal injection can only be properly performed—and thus avoid a constitutional violation—with; “expert input, a comprehensive protocol, qualified and well-trained personnel, defined contingency plans, careful recordkeeping, and a level of professionalism.” [63]
Essentially, the requirements in the Arkansas and Missouri lethal injection protocols that were factors when the Eighth Circuit Court of Appeals upheld them as constitutional are missing from Nebraska’s statute. Perhaps the biggest concern for LB 36 is that we cannot say for sure whether Nebraska’s protocol avoids eighth amendment violations, because we do not know if the same requirements for verifying unconsciousness or proper IV injections exist. Nebraska lacks professional requirements for personnel involved in the execution. This lack of transparency as to who is performing the execution and how they are qualified is alarming. The director of correctional services has the sole power to create, modify, and maintain a written execution protocol that no one is allowed to see without his authorization or a court order.[64] The director designates his own team, and qualifies them under the terms of the protocol that he himself wrote.[65] He also has the authority to decide who is allowed to witness the execution and where it will be held.[66] With such uncertainty in the protocol, and little supervision overseeing it, it is difficult to ever determine which procedures are proper and which procedures cross the line into constitutional violations.
Conclusion: An Uncertain Future for LB 36
The lack of certainty and clarification on the issues surrounding LB 36 could create trouble for the Nebraska law. While the law is on the books for now, there is plenty of potential for lawsuits challenging it. Professor Berger noted that the nearly certain litigation expected to arise from the implementation of this protocol will delay executions and prove to be very costly to Nebraska taxpayers.[67] Nebraskans Against the Death Penalty has indicated that it intends to challenge the new laws, and the twelve men on death row are expected to file appeals as well.[68]
As of June 30, 2010, the death chamber at the Nebraska State Penitentiary has been remodeled, the drugs for the lethal injection cocktail have been ordered, and the electric chair has been placed in storage. But how soon the chamber and drugs will be used will depend on the outcome of future litigation.[69] The way the Nebraska lethal injection statutes are currently written, it likely would not pass through the Missouri or Arkansas courts. While the Eighth Circuit Court of Appeals has not blocked any lethal injection statutes at this point, it has also not dealt with statutes that are as vague and ambiguous as LB 36. Based on the decisions of other states, Nebraska’s law will require extensive revision and the inclusion of much more detail and transparency if it wishes to withstand a constitutional challenge. If Nebraska has nothing to hide, it has no reason to veil its procedure and personnel from the public in a cloud of secrecy.
Preferred Citation Format: Marshall, L.B. 36: A Shot in the Arm for Lethal Injection, 4 Neb. L. Rev. Bull. 2 (2012), http://lawreviewbulletin.unl.edu/?p=1046 .
FOOTNOTES
1. Eric Berger, Thoughts on LB 36: Problems with the Proposed Bill to Institute Lethal Injection in Nebraska, 1 Neb. L. Rev. Bull. 14 (2009), http://lawreview.unl.edu/?p=405. ↑
2. Id. at 15. ↑
3. Id. ↑
4. Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007). ↑
5. Id. ↑
6. Berger, supra note 1. ↑
7. Taylor, 487 F.3d 1072. ↑
8. Id. at 1076. ↑
9. Berger, supra note 1. ↑
10. Id. at 16 (citing Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007)).↑
11. Berger, supra note 1, at 17 (citing Morales v. Tilton, 465 F.Supp.2d 972, 980 (N.D.Cal. 2006)).↑
12. Harbison v. Little, 511 F.Supp.2d 872, 895-898 (M.D.Tenn. 2007). ↑
13. Berger, supra note 1, at 18. ↑
14. Id., at 15. ↑
15. Berger, supra note 1, at 18. ↑
16. Id.; Taylor v. Crawford, 2006 WL 1779035 at *8 (W.D.Mo. 2006). ↑
17. Taylor, 487 F.3d at 1074. ↑
18. Id. ↑
19. Id. ↑
20. Id. ↑
21. Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 1529, 1531 (2008) (citing Gregg v. Georgia, 428 U.S. 153, 177 (1976) (plurality opinion); Helling v. McKinney, 509 U.S. 25, 33-34 (1993)). ↑
22. Clemons v. Crawford, 585 F.3d 1119, 1125 (8th Cir. 2009); Baze, 128 S.Ct. at 1530. ↑
23. Berger, supra note 1, at 20. ↑
24. Taylor, 487 F.3d at 1081. ↑
25. Id. at 1080. ↑
26. Nooner v. Norris, 594 F.3d 592 (8th Cir. 2010). ↑
27. Taylor, 487 F.3d 1072. ↑
28. Id. ↑
29. Nooner, 594 F.3d 592. ↑
30. Id. ↑
31. Id. at 598. ↑
32. Id. at 601. ↑
33. Id. at 602. ↑
34. Id. ↑
35. Id. at 605. ↑
36. Id. ↑
37. Id. ↑
38. Id. at 604. ↑
39. Id. ↑
40. Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007); Nooner, supra. ↑
41. Id. at 608. ↑
42. Id. at 603. ↑
43. Neb. Rev. Stat. § 83-964 (Reissue 2008). ↑
44. Berger, supra note 1, at 14. ↑
45. Id. at 16. ↑
46. Id. ↑
47. Id. (citing Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007)). ↑
48. Berger, supra note 1, at 17. ↑
49. Id. at 16-18. ↑
50. Id. at 18. ↑
51. Id. ↑
52. Neb. Rev. Stat. § 83-967 (Reissue 2008). ↑
53. Paul Hammel, Lethal Injection Table Ready, Omaha-World Herald (June 30, 2010) http://www.omaha.com/article/20100630/NEWS01/706309915. ↑
54. Id. ↑
55. Id. ↑
56. Id. ↑
57. Berger, supra note 1, at 19. ↑
58. Id. ↑
59. Id. ↑
60. Id. at 18 (citing Mark Dershwitz & Thomas K. Henthorn, The Pharmacokinetics and Pharmacodynamics of Thiopental as Used in Lethal Injection, 35 Fordham Urb. L.J. 931, 931 (2008); Frank Romanelli et. al., Issues Surrounding Lethal Injection as a Means of Capital Punishment, 28 Pharmacotherapy 1429, 1433 (2008)). ↑
61. Neb. Rev. Stat. § 83-965(3). ↑
62. Berger, supra note 1, at 16. ↑
63. Id. ↑
64. Neb. Rev. Stat. § 83-965. ↑
65. Neb. Rev. Stat. § 83-967. ↑
66. Neb. Rev. Stat. § 83-970. ↑
67. Berger, supra note 1, at 16. ↑
68. Paul Hammel, Lethal Injection Table Ready, Omaha-World Herald (June 30, 2010) http://www.omaha.com/article/20100630/NEWS01/706309915. ↑
69. Id. ↑
Response IT’S ALL ACADEMIC: A Response to “Enforcement of Law Schools’ Non-Academic Honor Codes: A Necessary Step Towards Professionalism?” by Nicola A. Boothe-Perry
rgerlach
Response:
IT’S ALL ACADEMIC:
A Response to “Enforcement of Law Schools’ Non-Academic Honor Codes: A Necessary Step Towards Professionalism?” by Nicola A. Boothe-Perry
Jonah J. Horwitz [0]
Copyright © 2012. Jonah J. Horwitz. All rights reserved.
Most can readily agree with Professor Boothe-Perry that lawyers routinely act badly, and that they do so with a regularity that is, alarmingly, on the rise. The question of what to do about it is a more vexing one. Professor Boothe-Perry suggests that the problem can be nipped in the bud, as it were, through the imposition of non-academic honor codes at law schools. [1] In this way, she argues, attorneys-in-training will learn how to behave themselves before they join the bar and will behave themselves ever after. [2]
It is a hopeful vision, and one with the virtue of simplicity: just teach law students about proper conduct while they are in school, and you solve the scourge of unprofessional behavior. [3] Unfortunately, however, the real world is rarely so simple. The fatal flaw of Professor Boothe-Perry’s reasoning is neatly captured by her lament that law students “often carry into society [the] attributes of ‘bad lawyering.'” Young lawyers do not acquire such attributes in law school, and they consequently cannot “carry” them into practice. They acquire them during the course of practice itself. They learn unprofessionalism from the profession.
How do we know this? Just consider the most pernicious traits of the modern-day lawyer.
As Professor Boothe-Perry acknowledges, such a list must reserve a prominent place for incivility. [4] But incivility in the legal world is a far different beast from civility on the law school campus. Incivility between attorneys (which is indisputably the type of incivility that most plagues the profession) occurs because our adversarial system has run amok. Zealous representation has become wildly over-zealous representation; cordial opposition has become open warfare. [5] Incivility at law schools is far more likely to flow from immaturity, political disagreements, or hyper-competitiveness. The first two have little to do with attorney behavior.
The final category – hyper-competitiveness – is closest to the species of incivility observable in rude courtroom behavior or in nasty messages from one attorney to another, insofar as both are presumably based on a desire to succeed (by beating one’s opponent in the judge’s eyes or one’s classmate in the professor’s, respectively). [6]Nevertheless, students rarely behave as meanly to their peers as attorneys consistently do to theirs. [7] If a student acts rudely to a fellow-student as a result of competitiveness, it is far more likely to be of the passive-aggressive variety, e.g., tearing pages out of a book needed by others to prepare for an exam.[8] By contrast, many lawyers feel perfectly comfortable explicitly conveying their contempt for one another.[9]
This difference flows naturally from the radically different environment that in a law school as opposed to an adversarial setting. In the former, nearly everyone professes (even if without conviction) that they are living and working in a community, with shared values, mutual respect, support and so forth.[10] Indeed, the principle is not so naïve as it may sound. An alum of a law school does have an interest in seeing fellow alumni succeed in the general sense (if not always in the more specific sense of a curved class), because each benefits from the prestige of the institution as a whole, and that prestige depends upon the accomplishments of its graduates.[11] Quite the opposite in the adversarial setting, where the triumph of one attorney is often, though not always, the defeat of the other. If the temptations to behave uncivilly are so different in law school than they are in practice, and if the temptations lead to behavior that is uncivil in such different ways, surely we cannot effectively make law students civil lawyers. For the lessons will all relate to a dynamic they have not experienced first-hand. A student will learn how to be civil in law school and, promptly upon graduation, either become civil in practice or uncivil in practice for the same reasons they would have done so in the absence of Professor Boothe-Perry’s honor code.
To be sure, not all misconduct in law schools is so distinct from misconduct in the legal marketplace. Take another important example. Honesty. Or the lack thereof, as the case may be. The ubiquitous incidence of dishonesty at a law school is plagiarism, cheating, or some other similar variety of academic foul-play. This is a simple phenomenon, with an obvious explanation: a student seeks to obtain a better grade (or publication) while expending less effort.[12] That is not so different from dishonesty in the legal world, which typically surfaces in something like the failure to turn over evidence to another party or the court. Such an act is based on the same basic equation: unethical behavior to save time and energy and increase the chance of personal advancement, and committed at the risk of detection and sanctioning. [13] The question remains, though, as to whether Professor Boothe-Perry’s proposed cure will treat the disease. Alas, it will not.
As an initial matter, it is important to remember that Professor Boothe-Perry encourages the use of non-academic honor codes.[14] Nearly all schools enact rules to protect academic integrity, prohibiting plagiarism, cheating and so on. [15] If such honor codes, directly targeted at the conduct in question, are doing so little to curtail similar misconduct in the workplace, why would a less direct honor code be of any use? There is therefore already cause for concern that Professor Boothe-Perry’s remedy will be of far less utility than she promises outside the confines of the ivory tower.
Set that objection aside. Even if certain types of bad behavior begin in law school (say, dishonesty), there is little reason to believe that it can end there, regardless of how good the moral instruction is. For the young attorney’s motivation to renounce his scruples in practice remains, the bad influences in practice remain, and the risk-benefit calculation in practice remains. Professor Boothe-Perry encourages us to think about “how precedent for behavior is set . . . that will ultimately govern the professional behavior in lawyers.” [16] Good advice. The answer: it is set in and by the profession. We can lecture the student all we want about how he should be honest. At most, he won’t cheat on his exam or submit a plagiarized note to his law review. But when he gets a job at a firm where duplicitousness is encouraged, or at a prosecutor’s office where Brady [17] violations are overlooked, [18] the lesson will be mooted. As Professor Boothe-Perry rightly reminds us, to stem certain behaviors, we must look to where the “precedent” is set. [19] The precedent for a Brady violation or a misleading discovery response is not set in a seminar, and it cannot be re-set there.
Now, one could respond, “yes the bad behavior is set in practice, but we can prepare the attorney to avoid it while in law school.” To this I answer, “absolutely, and are you interested in buying a bridge in the outer boroughs?” Believing that we can adequately prepare a law student to reject the standard behavior at his office immediately upon graduation is a bit like believing that I am qualified to deliver babies because I carried around a sack of sugar in sex education class in high school. A recent J.D. recipient may have the purest of intentions, but when he becomes a junior associate at a firm where all of his superiors demand he adopt dubious billing practices, and all his peers satisfy that demand, he is in no position to act on those pure intentions. In the best-case scenario, he will leave the firm. The same can of course be said for an assistant district attorney at an office where plea negotiations are conducted coercively or under false pretenses, or for any young attorney working for any employer with a culture of bad behavior. Such cultures are shaped by forces far more powerful than that surrounding honor code enforcement: in the case of a law firm, money, and in the case of a government office, re-election or bureaucratic turf-wars.[20]
Some might say that the problem is partially that legal education has little to do with legal practice. I would not. Though there has been much belly-aching over the disconnect between the legal academy and the practice of law, [21] I support such a disconnect. It is the role of a law school to direct the student to the intellectual underpinnings of the law, the big picture. It is the role of an employer to devote itself to practical skills. The grand tradition of legal academia is an important one in American history. It is responsible for inventing great ideas, producing brilliant and influential lawyers and jurists, and ennobling society. Law schools should not forsake the legacy that made them great for the sake of a shallow, anti-intellectual conveyor belt approach to legal education. The law is the foundation of our society, it is something far bigger than a vocation, and a law school should be something far bigger than a vocational school.
At any rate, it matters not to Professor Boothe-Perry’s theory whether law schools become closer to the profession. Even if they do, young lawyers do not shape the culture of the trade——their bosses do. However one looks at the problem, the fact remains that bad behavior emanates from the top down. Once that behavior starts changing, law schools can certainly play a supporting role in solidifying a new mindset. To begin with law schools, however, is to damn the whole endeavor to failure before it gets off the ground.
Everyone hates a critique without a constructive suggestion. That, unfortunately, is what this response is. The task of reshaping the legal profession to discourage poor behavior is a huge and complicated one. One solution may be one of the roots of the problem itself: the market. As law firms grapple with the worst legal recession in living memory, clients may finally have the nerve to stand up en masse to outrageous billing practices, as some appear to already be doing.[22] Other solutions will no doubt be advanced more fully elsewhere. The crucial point to make here is where such solutions should look to be implemented. Professor Boothe-Perry writes that “law schools are the singular institutions with the opportunity, the resources, the institutional capacity, and the leverage to effectuate meaningful training in professionalism.” They are not. In fact, they have none of those things. Meaningful change in the practice of law begins with the practice of law.
Just as the practice of law teaches the practice of law, the study of law teaches the study of law. Professor Boothe-Perry’s article shows why the legal academy is an excellent incubator of big dreams and why it should remain so, and why her own dream will unfortunately never become a reality.
Preferred Citation Format: Jonah J. Horwitz, It’s All Academic: A Response to “Enforcement of Law Schools’ Non-Academic Honor Codes: A Necessary Step Towards Professionalism?” by Nicola A. Boothe-Perry, 4 Neb. L. Rev. Bull. 1 (2012), http://lawreviewbulletin.unl.edu/?p=799
FOOTNOTES
0. BA with honors, 2006, Swarthmore College. JD cum laude, Order of the Coif, 2010, Northwestern University School of Law. The author can be contacted at horwitz.jonah@gmail.com. ↑
1. Nicola A. Boothe-Perry, Enforcement of Law Schools’ Non-Academic Honor Codes: A Necessary Step Towards Professionalism?, 89 Neb. L. Rev. 634, 636 (2011). ↑
2. Id. ↑
3. Id. ↑
4. Id. at 675. ↑
5. See, e.g., Larry R. Spain, Collaborative Law: A Critical Reflection on Whether a Collaborative Orientation can be Ethically Incorporated into the Practice of Law, 56 Baylor L. Rev. 141, 144 (2004) (“[A] number of commentators have criticized the use of the adversarial model . . . because it encourages increased animosity between the parties, exacerbates the underlying conflict, and often results in a polarization of their respective positions.”). ↑
6. See, e.g., Robert W. Gordon, The Ethical Worlds of Large-Firm Litigators: Preliminary Observations, 67 Fordham L. Rev. 716-17 (1998) (observing that from the perspective of law firm associates “[t]here [is] no reward for cooperative behavior”). ↑
7. Compare Sophie Sparrow, Practicing Civility in the Legal Writing Course: Helping Law Students Learn Professionalism, 13 Legal Writing: J. Legal Writing Inst. 113, 124 n.66 (2007) (describing poor law student behavior as including “being unprepared, rude, inappropriately demanding, and offensive”) with Kevin Hopkins, The Politics of Misconduct: Rethinking How we Regulate Lawyer-Politicians, 57 Rutgers L. Rev. 839, 874 (2005) (describing poor attorney behavior as including “evasion, obfuscation, misdirection, loophole lawyering, and a willingness to advance frivolous claims and defenses”). ↑
8. See Erik M. Jensen, Death by Bluebook, 9 Roger Williams U. L. Rev. 207, 208 (2003) (reviewing S. Scott Gaille, The Law Review (2002)) (commenting on this practice). ↑
9. See, e.g., Roger E. Schechter, Changing Law Schools to Make Less Nasty Lawyers, 10 Geo. J. Legal Ethics 367, 378-79 (1997) (noting the widespread view that attorneys are “increasingly prone to behave as combatants, refusing to extend common courtesies to one another”). ↑
10. See, e.g., Charles G. Kels, Free Speech and the Military Recruiter: Reaffirming the Marketplace of Ideas, 11 Nev. L.J. 92, 95 (2010) (remarking on an example of law schools showing commitment “to their expressive right to choose their own members, so as to speak with one voice as a community of shared values”). ↑
11. See generally David B. Wilkins, Rollin’ on the River: Race, Elite Schools, and the Equality Paradox, 25 Law & Soc. Inquiry 527 (2000) (examining the careers of attorneys who benefit from the prestige of elite institutions). ↑
12. See, e.g., Kevin J. Worthen, Discipline: An Academic Dean’s Perspective on Dealing with Plagiarism, 2004 B.Y.U. Educ. & L.J. 441, 444 (2004) (“A student who submits plagiarized work . . . creates the risk . . . that he or she will receive a benefit . . . solely by creating the mistaken belief that the student has done more work or been more creative than is actually the case.”). ↑
13. See, e.g., Bennett L. Gershman, The New Prosecutors, 53 U. Pitt. L. Rev. 393, 438 (1992) (observing that a “prosecutor’s decision to suppress favorable evidence [is] a perfectly rational, albeit unethical, act”). ↑
14. Boothe-Perry, supra note ii., at 637. ↑
15. See Terri LeClercq, Failure to Teach: Due Process and Law School Plagiarism, 40 J. Legal Educ. 236, 236 (1999) (“[M]ost [law] schools . . . offer up a blanket prohibition” against plagiarism”). ↑
16. Boothe-Perry, supra note ii., at 650.↑
17. Brady v. Maryland, 373 U.S. 83 (1963). ↑
18. See, e.g., Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (describing a prosecutor’s office that committed repeated Brady violations). ↑
19. Boothe-Perry, supra note ii., at 650. ↑
20. See Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871, 895-903 (1999) (discussing how the culture of law firms is shaped by money); David Barnhizer, Walking from Sustainability’s “Impossible Dream”: The Decisionmaking Realities of Business and Government, 18 Geo. Int’l Envtl. L. Rev. 595, 669 (2006) (noting the “territorial, turf-protecting culture of bureaucracy”). ↑
21. See, e.g., Christopher Edley, Jr., Fiat Flux: Evolving Purposes and Ideals of the Great American Public Law School, 100 Cal. L. Rev. 313, 320 (2012) (“Those law school academics who believe that our research, even the theoretical genres, can be professionally valuable have largely failed to build bridges to the realm of practicing lawyers.”). ↑
22. See, e.g., Peter Lattman, More Partners Leave Dewey & LeBoeuf, N.Y. Times, March 23, 2012. ↑
White Paper: “School Sponsorship” and Hazelwood’s Protection of Student Speech: Appropriate for all Curriculum Contexts?
rgerlach
by: Adam Hoesing [0]
I. IntroductionIn choosing a research and writing topic for this course, it was made clear that I could select whichever topic I desired,[1] so long as I analyzed any type of education law at any level of education. I knew the ultimate grade did not necessarily depend upon my particular substantive topic of choice, but rather upon my ability to adequately provide the germane rules of law, clearly explain the central thesis, and persuasively argue the particular legal consequence. If I chose a topic that did not easily lend itself to such a task—or if I simply chose a patently inappropriate topic for purposes of my education as an ethically-accountable future member of the bar—I would nevertheless be allowed to discuss my selected topic; a correspondingly poor grade would be the most probable consequence.[2] Yet, even if my choice was largely discretionary, my selected topic could implicate speech on my part, speech which could be protected (at one level or another) by the First Amendment,[3] for the College of Law is a government institution and my selected topic possibly an expression of opinion,[4] whether controversial or not. Ironically therefore, in discussing a topic of education law, this Article addresses whether—and to what extent—the First Amendment protects student speech when students select or discuss a particular topic as part of curriculum[5] that allows students to freely and sovereignly choose their desired substantive topic.[6]
Specifically, this Article addresses the applicability of the First Amendment protection provided by Hazelwood School District v. Kuhlmeier, [7] protection that allows a school to censor speech “in school-sponsored activities so long as [the school’s] actions are reasonably related to legitimate pedagogical concerns.” [8] Part II provides and explains the pertinent federal jurisprudence, obligatorily starting with Tinker v. Des Moines Independent Community School District,[9] continuing with Hazelwood, and ending with Settle v. Dickson County School Board. [10] Part III discusses why Hazelwood’s scope of First Amendment protection is not appropriate for all curriculum contexts, particularly for this context. Part IV then advocates for a heightened scope of First Amendment protection in this context. Part IV also addresses any administrative problems or difficulties with implementing this heightened level of protection, and Part V will add some concluding thoughts and summations.
II. Supreme Court and other Federal Case LawAlthough the Supreme Court has never explicitly articulated the level of First Amendment protection that applies when a student selects or discusses particular subject matter as part of curriculum that allows a free choice of his or her desired topic, the most oft-cited federal decision[11] on this issue appears to be Settle. There, the teacher summarily gave her student a failing grade after the student voluntarily chose Jesus Christ as the topic of a ninth-grade research paper.[12] The Sixth Circuit Court of Appeals found against the student on her First Amendment claim, holding Hazelwood’s scope of First Amendment protection allowed the teacher “broad discretion to give grades and conduct class discussion based on the content of speech.”[13] Before fully examining Settle, however, it is important to discuss two forerunning Supreme Court opinions. Namely, Tinker and Hazelwood, for the sixth circuit essentially decided Settle through these decisions.
A. Tinker v. Des Moines Independent Community School District
On December 16, 1965, John Tinker and Christopher Eckhardt attended their Des Moines high school while wearing black armbands that symbolically protested the Vietnam War.[14] Two days before, the school district adopted a policy that prohibited high school students from wearing armbands during school hours and suspended students from school should they to refuse to remove the armbands.[15] Consequently, when John and Christopher attended school on December 16, the school district suspended them until the armbands were removed.[16]
By and through their parents, John and Christopher brought a § 1983 cause of action against the school district, alleging the school district’s policy violated their First Amendment rights to free speech.[17] Both lower federal courts ruled in favor of the school district and found that the policy “was reasonable in order to prevent disturbance of school discipline.”[18] Yet, on appeal, the Supreme Court disagreed.[19] It held that a student may “express his opinions, even on controversial subjects . . . , if he does so without ‘materially and substantially interfere(ing) with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.”[20] The Supreme Court believed students retain their full First Amendment rights “at the schoolhouse gate”[21] unless their speech actually materially and substantially disrupts the educational setting of the school.[22] Accordingly, under heightened scrutiny and without any real showing of material disruption, the Supreme Court reversed.[23]
But, for purposes of the Article, perhaps more important than Tinker’s holding was its tone. Throughout the opinion, the Court emphasized that schools “do not possess absolute authority over their students”[24] and reiterated this viewpoint by stating students “may not be confined to the expression of those sentiments that are officially approved.”[25] The Court, in essence, endorsed a social reconstructionist model of education, a model that views student rights and responsibilities as meaningless if they are only rights and responsibilities owed to the school.[26] As one commentator has abridged, “the Court’s language in Tinker leaves the reader to understand that there is a line between inculcation and indoctrination—and that the Court can, if called upon, readily distinguish between the two.”[27] Quite simply, keeping in mind a discussion to come later in this Article,[28] the Court’s tone in Tinker espouses broad, probing protection of student speech and bottoms why Hazelwood’s scope of protection should not apply in all curriculum contexts. Before entering that discussion, however, it is necessary to frame Hazelwood.
B. Hazelwood School District v. Kuhlmeier
Throughout the 1982–1983 school year, the students at Hazelwood, a school district near St. Louis, operated a school newspaper that printed every three weeks.[29] The school district funded the newspaper and its operations (although it was partially subsidized from newspaper sales), and the newspaper was an instrumental element of the school’s Journalism II curriculum.[30] The newspaper was sold to the school’s students, but also to the school’s personnel and the public community.[31] Prior to publication, the Journalism II teacher closely monitored each issue and submitted them to an administrator for review.[32] Accordingly, on May 10, the teacher submitted the May 13 issue for review.[33]
Within that issue, one article anonymously detailed the experiences of three pregnant female students at the school, while another article described the effects of divorce on other students.[34] Concerned for the privacy and anonymity of the individuals discussed in the articles, and also concerned that an article discussing birth control and sexual activity was inappropriate in a high school setting, the administrator redacted the pages on which the articles appeared and printed the newspaper in its redacted form.[35] Subsequently, three Journalism II students brought a § 1983 cause of action against the school district, alleging that the principal’s actions violated their First Amendment rights to free speech.[36] The district court ruled in favor of the school district but the Eighth Circuit Court of Appeals reversed, quoting Tinker and finding no showing that the articles caused or would cause a material and substantial disruption.[37]
Despite Tinker and its strong language, the Supreme Court nonetheless reversed in favor of the school district.[38] The Court believed Tinker was philosophically different, because Tinker involved the “question of whether the First Amendment requires a school to tolerate particular student speech.”[39] The facts before it, on the other hand, posed a different question: whether the Frist Amendment required the school to affirmatively promote a particular speech.[40] Recognizing, therefore, the difference between speech tolerance and speech promotion, the Court articulated a rational-basis scope of First Amendment protection when the public can reasonably perceive the student speech bears the school’s imprimatur, stating “that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”[41]
Although the Court spoke in an educational laissez faire tone that belied Tinker,[42] its primary impetus was that school-sponsored student speech does not enjoy full First Amendment protection—a school is free to “disassociate itself” from speech it deems undesirable.[43] Yet, the Court defined “school-sponsored” speech narrowly. The Court could have easily discussed how the Journalism II teacher exercised substantial control in selecting and monitoring the newspaper,[44] thereby resting its scope of protection upon the postulation that school-sponsored speech includes all aspects of curricula because a school inherently promulgates and sponsors all curricula within its programs.[45] But the Court did not emphasize the teacher’s control.[46] Instead, the Court focused on how the speech affected the public perception, i.e., whether the public could reasonably believe the school supported or ratified the speech.[47]
Consequently, in defining school-sponsored speech narrowly, the Court did not articulate a lower standard of First Amendment protection that applies to all aspects of curricula. Rather, the Court articulated a lower standard of protection that applies only when student speech “associate[s] the school with any position other than neutrality” and is “disseminated under it auspices.”[48] Thus, Hazelwood limits student speech that reasonably carries the school’s stamp of approval, as long as censorship is reasonably related to legitimate educational goals.[49] After Hazelwood, however, have lower federal courts inappropriately extended this narrow scope of First Amendment protection to all contexts of curricular speech? Determining this requires a synopsis of Settle, for the answer lies therein.
C. Settle v. Dickson County School Board
During March 1991, Dana Ramsey, a ninth-grade teacher in Tennessee, assigned a research paper to her students, requesting them to research, synthesize, and write a paper on any topic of their choice (subject to her approval).[50] Her only stated requirement for approval was that the topic be “interesting, researchable and decent.”[51] One of her students, Brittney Settle, originally chose “Drama” as her topic, but then selected a new topic after she realized “Drama” was too broad.[52] Brittney’s new topic was Jesus Christ; specifically, the life of Jesus Christ from a scientific and historical perspective.[53] Dana Ramsey refused to accept Brittney’s outline on Jesus Christ, informing her that she needed to select a new topic.[54] Brittney did not select a new topic and submitted her research paper on Jesus Christ, at which point Dana Ramsey summarily gave Brittney a zero grade.[55]
Brittany consequently brought a § 1983 cause of action against the school district, alleging Dana Ramsey’s actions violated her First Amendment right to free speech.[56] The district court dismissed the case on summary judgment, citing Hazelwood as precedent for its decision.[57] Brittney appealed to the Sixth Circuit Court of Appeals, arguing that (1) Dana Ramsey’s actions violated her First Amendment right as a matter of law, or (2) a genuine issue of material fact existed as to whether Dana Ramsey predicated her actions on a legitimate pedagogical concern.[58] On appeal, the sixth circuit affirmed. The appellate court believed that a school may limit or grade speech in the classroom so long as a teacher does so “in the name of learning and not as a pretext for punishing the student for her race, gender, economic class, religion, or political persuasion.”[59]
In making the analysis of pretext, the court then listed the six “pedagogical” reasons Dana Ramsey put forth in support of her decision: first, that Brittney failed to receive permission on her second chosen topic;[60] second, that it would have been difficult to grade or write the paper objectively because she knew Brittney had “a strong personal belief in Christianity;”[61] third, that the school did not “deal with personal religion” because it was “just not an appropriate thing to do in a public school;”[62] fourth, that Brittney’s personal knowledge of Jesus Christ would allow Brittney to produce a paper without conducting research;[63] fifth, that the law did not allow her to deal with religious issues as a teacher;[64] and sixth, that Brittney would be unable to produce a paper that included the requirement of four original sources.[65] But without inquiring into the legitimacy of Dana Ramsey’s assertions, the sixth circuit concluded that her stated reasons for censorship fell “within the broad leeway of teachers to determine the nature the curriculum and the grades . . . .”[66] In essence, notwithstanding the fact that the sixth circuit proclaimed it would factually examine pretext, the court felt Dana Ramsey’s censorship was reasonably related to her “legitimate” pedagogical concerns.[67]
In doing so, the court applied nothing more than a simple, face-value, rational-basis review. Indeed, as Judge Batchelder noted in his concurrence,[68] Dana Ramsey’s justifications would probably not have passed muster under an even slightly more stringent examination. For instance, by explaining that it would be difficult to write objectively on such a subjective topic,[69] Dana Ramsey completely failed to consider whether she should have first read Brittney’s paper in order to judge its objectivity, choosing instead to summarily give Brittany a zero grade.[70] If, after truly examining the paper, Dana Ramsey felt the paper did not objectively meet the criteria of the assignment, the First Amendment would not prohibit Dana Ramsey from giving Brittney a zero grade, for her actions would not be predicated upon Brittney’s opinionated speech but rather upon her failure to fulfill the curriculum.[71]
Or, by explaining that Brittney’s personal knowledge would allow her to produce a paper without conducting research,[72] Dana Ramsey failed to address how her curriculum also required students to incorporate at least four original sources.[73] Thus, if Brittney truly did produce a paper without using more than her own knowledge, would not the failure to satisfy the source-requirement sufficiently warrant a zero grade?[74] Clearly, even under a standard that slightly probes the facts, summary judgment would not have been appropriate, as there would have been a genuine issue of material fact concerning the existence of Dana Ramsey’s pretextual intent.[75]
Although Settle does not extensively cite or quote Hazelwood, its scope of First Amendment protection appears directly borne from Hazelwood’s reasonable basis, face-value review. Because there was a reasonable basis (albeit hardly reasonable) connecting Dana Ramsey’s censorship with her educational concern, the school district did not violate Brittney’s First Amendment right; a further review of the record was not required.[76] Thus, as illustrated by Settle, lower federal courts apply Hazelwood’s scope of First Amendment protection when a student discusses particular subject matter as part of curriculum that allows the choice of topic.[77]
Other federal cases exhibit Hazelwood’s adoption as well. In DeNooyer v. Livonia Public Schools,[78] for example, a federal trial court held in favor of a school district on a second-grader’s § 1983 cause of action. There, the school prohibited a second-grader from presenting a videotape of herself singing a worship hymn to Jesus Christ.[79] The presentation was part of a discretionary show-and-tell program developed to promote self-esteem and oral communication.[80] The school district believed the videotape would not advance that educational goal, claiming the student would not speak directly to the class nor would the other students’ level of maturity enable them to understand the message.[81] Yet, the school district failed to consider whether it should have allowed the student to recite or sing the hymn in class, and it failed to address how the same message is routinely given—during a Sunday-school service—to children often younger and less mature than second-graders.[82] The court nevertheless heavily cited Hazelwood to find in favor of the school district, stating “[t]he school wanted to avoid a situation where other students and their parents would . . . infer the school’s endorsement . . . .”[83]
Clearly, Hazelwood has spilled over its factual setting. Federal courts apply Hazelwood’s scope of First Amendment protection when schools censor student speech as part of curriculum that allows students to sovereignly choose their desired topic of discussion.[84] Whether that is appropriate, however, is an entirely other question. Next I will argue the propriety of Hazelwood’s application in this context is doubtful, particularly when considering (1) the rationale of Hazelwood, (2) the actual inquiry routinely made by lower federal courts, and (3) the compulsory setting wherein this student speech occurs.
III. Hazelwood’s First Amendment Protection appears Inappropriate for this ContextTo begin, it is helpful to clearly define the curriculum context this analysis addresses. It is not meant to address illicit or unacceptably harmful student speech,[85] nor is it meant to address student speech that does not fulfill clearly defined curricula,[86] nor is it meant to address student speech heard outside the classroom.[87] The analysis addresses student speech in the context of students who freely discuss a topic as part of curriculum that gives the student almost sovereign discretion in the selection of their topics, but is nonetheless summarily censored or graded because of its non-illicit subject matter rather than its inability to satisfy the curricular criteria.
Within that context, Hazelwood’s scope of First Amendment protection is not appropriate for three reasons. First, Hazelwood addressed student speech that—through the public’s eye—reasonably carried the school’s stamp of approval.[88] This context presents very little risk the public will view the speech as being school-sponsored.[89] Second, Hazelwood calls for very little probing of the facts.[90] But some lower federal courts already apply a more probing inquiry within this context,[91] thereby making citation to Hazelwood relatively inconsistent. Third, adopting Hazelwood’s scope of First Amendment protection ignores Tinker’s precedential weight without our compulsory education system.[92]
A. This Curriculum Context Presents Little Risk of Erroneous School Sponsorship
As discussed above,[93] Hazelwood could have easily focused on how the Journalism II teacher substantially controlled and monitored the school newspaper, yet the Court focused almost primarily on how the student speech affected public perception, i.e., whether the speech could be seen as carrying the school’s imprimatur.[94] In doing so, the Court created a scope of First Amendment protection separate[95] from Tinker, for it was reasonable to assume that “a school [could] refuse to lend its name and resources to the dissemination of student” speech that it deemed undesirable.[96] Hazelwood’s categorical exception therefore was not based upon a school’s ability to control all aspects of student speech within curricula, but upon the right of a school to avoid the supposition of sponsorship.[97]
In this context, however, there is very little risk that student speech would carry the school’s imprimatur. The teacher gives the assignment, the student chooses his or her desired topic, and the discourse primarily occurs between the teacher and the student. By approving the topic, the teacher no more accepts its premise than its contradiction, for the teacher’s ultimate interest is merely to examine whether the final product exhibits adequate research, clear writing, and a logically-sound conclusion. No reasonable member of the public would suppose the teacher mandated such a topic upon the student, or upon the class for that matter. Moreover, “[t]hough other students may hear about the topic from the student author, it . . . seems unlikely that those students [would] attribute the author’s message to the school.[98] To think otherwise would belie the very fact that the teacher gave the students broad discretion in selecting their own desired topics.
Therefore, because Hazelwood’s exception to Tinker was intended to apply in curriculum contexts that meaningfully risk the erroneous supposition of school-sponsorship,[99] and because this context presents very little indicia of school-sponsorship, Hazelwood’s application is inappropriate. In short, schools are not “entitled to exercise greater control” over student speech when the views of the student cannot be “erroneously attributed to the school.”[100]
B. Citation to Hazelwood is Inconsistent with the Actual Protection Provided by Lower Federal Courts
Sometimes, lower federal courts truly adopt Hazelwood’s rational-basis review. In O’Neal v. Falcon,[101] for example, a federal district court held that a university did not violate the First Amendment when its teacher prohibited a classroom presentation concerning abortion. The teacher believed a controversial, overly-subjective topic such as abortion was too disruptive to the curriculum goal: improving the students’ effective communication skills.[102] The student, on the other hand, argued that (1) the university allowed other equally controversial topics to be presented, and (2) the teacher did not produce any actual evidence of disruption.[103] Without examining the students’ assertions,[104] the district court granted summary judgment for the university, citing Hazelwood and Settle [105] while stating:
The fact that perhaps not all potentially disruptive topics are banned does not mean that banning this particular topic is not legitimate. It is not the place of this Court to evaluate whether [the teacher or the university] made the best decision in banning the topic of abortion; it may only determine whether they have advanced a valid pedagogical reason, and they have.[106]
However, despite Settle and other federal decisions that have employed an extremely deferential standard, there exists a significant body of federal case law that applies a more probing standard of review. In Axson-Flynn v. Johnson,[107] the Tenth Circuit Court of Appeals cited Hazelwood and Settle, but remanded a grant of summary judgment because it felt there was a genuine issue of material fact concerning discriminatory intent. There, an acting student refused to recite profanity during assigned performances—substituting the profanity for language she deemed in consort with her religious views—and the university eventually threatened to expel her if she continued her refusal.[108] She then brought a § 1983 cause of action against the university, alleging the university violated her First Amendment right to free speech.[109]
The university put forth two legitimate pedagogical reasons for its decision: first, that using profanity teaches acting students to step outside of their comfort zone and “convincingly portray an offensive” character; [110] and second, that using profanity teaches acting students the value of preserving an author’s work.[111] In addressing the legitimacy of these goals, the tenth circuit heavily favored the university, stating: “[a] more stringent standard would effectively give each student veto power over curricular requirements, subjecting the curricular decisions of teachers to the whims” of a particular student.[112] In essence, the university’s pedagogical reasons were legitimate on their face. But the court reversed the grant of summary judgment, believing that material facts existed to find a discriminatory pretext.[113] Yet, under Hazelwood’s scope of protection, why?
Could it be the court did not necessarily accept Hazelwood’s application even if its rhetoric proclaimed otherwise? As stated above, a true application of Hazelwood does not require any real probing of the facts. If the stated reason for censorship is reasonable, a school’s censorship passes First Amendment muster.[114] Here, the university clearly had a legitimate pedagogical concern under that analysis. A university can decide which simulated characters provide students an optimal educational experience.[115] Nonetheless, the court remanded,[116] favoring a more inquisitive scope of First Amendment protection. As such, some lower courts apparently view Hazelwood’s application as inappropriate in this context, thereby inconsistently applying a heightened scope of First Amendment protection.[117] Judge Batchelder’s concurrence in Settle even forewarned this judicial self-contradiction: “If there were a First Amendment issue here, it would fall somewhere in between Hazelwood and Tinker as a form of student expression allowed under the school curriculum but not sponsored . . . by the school.”[118]
Consequently, notwithstanding the federal courts’ lip service to Hazelwood, at least some federal decisions implicitly deem Hazelwood’s scope of First Amendment protection inadequate in this context, given the heightened need to protect student speech that does not implicate school sponsorship.
C. Hazelwood’s Scope of Protection Inadequately Addresses Students’ Rights, Particularly when Considering Tinker and the Compulsory Education System
Without any true concern for erroneous school-sponsorship,[119] many espouse another differentiation between Hazelwood and Settle: a classroom is a purely nonpublic forum and therefore schools may “impose reasonable restrictions”[120] on student speech that occurs within that forum.[121] In other words, a rational-basis scope of First Amendment protection applies in this context, not because of Hazelwood’s particular concern for unintended school-sponsorship, but because a classroom is a nonpublic forum where probing First Amendment protection is never provided.[122] Consequently, it’s possible the Hazelwood Court felt compelled to analyze school-sponsorship because the school newspaper arguably created a designated public forum,[123] a forum where greater First Amendment protection is provided.[124] Given this forum-differentiation between Hazelwood and Settle, is the concern for Hazelwood’s adoption legitimate, since the same scope of protection theoretically applies anyway?
Yes, the concern is legitimate. With Tinker’s validity still intact,[125] and with our compulsory system of education, rational-basis protection in this context is inadequate regardless of the vehicle through which such protection applies. In Tinker, the Court clearly adopted a social reconstructionist approach,[126] giving speech full First Amendment protection in the school setting and self-creating its first exception to that full protection (speech that materially and substantially disrupts).[127] That Justice Stewart authored a concurrence in Tinker which explicitly criticized the majority’s expansive protection[128] supports this conclusion.[129]
Moreover, after combining Tinker’s expansive (and still valid) precedent with our current compulsory education system,[130] it appears rational-basis protection—regardless of its rhetorical vehicle—is inappropriate in this curriculum context. Must students attend school, must they take particular course-work, must they complete all assignments necessary for graduation, and then must they speak only in consort with the school even when (1) the school initially gives them free discretion to select a topic for discussion, and (2) they meet the criteria regardless of the discussion’s subject matter? Certainly, where topic-criteria is prescribed, rational-basis protection is more justified, for the teacher already espouses an educational objective concerning particular subject matter, and the Free Exercise clause [131] protects the compulsion, rather than the censorship, of speech. Likewise, where the government institution is a university, rational-basis protection is more justified, for the student voluntarily attends the chosen curricular program.[132]
But where the topic of discussion is wholly unprescribed, where the attendance is compelled, where the assignment’s completion is mandatory, Hazelwood’s First Amendment protection is inappropriate and inadequate, for rational-basis protection eviscerates the First Amendment when schools can censor any speech by summarily declaring it non-educational. Are we truly willing to take Settle’s language [133] to its fullest extent and proclaim that students may only speak what they are told? If yes, then perhaps this Article should discuss Tinker’s forthcoming judicial abrogation.[134] If not, then Hazelwood’s scope of First Amendment protection is indeed inadequate in this context.
IV. A Heightened Scope of First Amendment ProtectionThis curriculum context is not the same as Tinker’s. Tinker involved speech that was not remotely associated with coursework assignments.[135] But, as explained above, this context is inappropriate for Hazelwood’s scope of First Amendment protection. How, therefore, should the First Amendment apply? One could argue an exception to Tinker has not been judicially created and thus Tinker’s full protection applies, allowing censorship in situations only where student speech materially and substantially disrupts,[136] implicates school-sponsorship,[137] or advocates an illicit position.[138] Tinker’s scope of protection, though, might create an unreasonable incentive for students to challenge any grade, regardless of whether the grade was fairly deserved. As such, without Tinker or Hazelwood being applicable, Judge Batchelder’s concurrence [139] in Settle provides the seed for the applicable scope of protection: it must fall somewhere between Tinker’s full protection and Hazelwood’s rational-basis protection. Thus, some form of intermediate protection, perhaps?
If so, a modified version of the protection articulated in United States v. O’Brien [140] appears helpful, although O’Brien involved speech in a wholly different context. There, the Court articulated an intermediate scope of First Amendment protection for content-neutral speech, requiring that (1) censorship be within the government’s power, (2) censorship further an important governmental interest, (3) the governmental interest be unrelated to censorship of free expression, and (4) censorship be narrowly tailored.[141] Here, O’Brien’s fourth requirement appears undesirable in this context; narrowly-tailored censorship may create an unreasonable incentive for students to challenge a specific grade, possibly even demanding an A- rather than a B+. Similarly, requirement three appears inapplicable in this context; problems usually arise only when free expression actually affects pedagogical concerns. Nonetheless, the remaining elements are helpful.
First, if the protection required that censorship be substantially within the governmental interest, a school could clearly espouse a governmental interest, because “education of the Nation’s youth is primarily the responsibility of . . . state and local officials.”[142] Moreover, because irrational censorship of protected speech is not substantially within the government’s interest,[143] this requirement would encompass any pretextual inquiry currently applied by lower federal courts.[144] Second, if the protection required that censorship legitimately further the governmental interest, a school could simply show that the selected topic legitimately inhibited the pedagogical goals of the assignment; namely, that the topic legitimately did not allow for adequate research, clear communication, and persuasive conclusions. What’s more, by requiring censorship be legitimately related, the irrational problems associated with reasonable-basis protection would likely disappear, for courts could no longer take schools at their word.
Would this standard induce frivolous litigation? Would it take too much discretion from those who have teaching expertise? In all likelihood, probably not. Censorship that is substantially within the government’s pedagogical interest and that legitimately furthers the government’s pedagogical interest leaves open a large opportunity for teachers to give poor grades based upon the topic’s inability to lend itself to such an educational assignment. It also leaves open the opportunity for teachers to clearly prescribe curricula. Moreover, this scope of protection appears no more restrictive than the pretextual examination currently applied by many courts, for any pretextual inquiry essentially asks the same questions, i.e., given the facts, was the censorship truly because of a pedagogical concern.
V. ConclusionLower federal courts have routinely applied Hazelwood’s scope of First Amendment protection when students select, discuss, or present a particular topic as part of curriculum that allows students to freely and sovereignly choose their substantive topic of desire. Hazelwood’s adoption, however, is inappropriate in this context. Hazelwood involved student speech that reasonably implicated school sponsorship, yet sponsorship implication is improbable in this context. Also, although courts rhetorically rely upon Hazelwood, the analysis of some lower federal courts actually belies Hazelwood’s application. Finally, the existence of compulsory education laws—when combined with Tinker’s precedential validity—requires a more probing, inquisitive scope of protection.
Thus, in this context, an appropriate scope of First Amendment protection requires that the school’s actions (1) be substantially within the government’s educational interest, and (2) legitimately further the government’s educational interest. This scope of protection would eliminate the need to stretch Hazelwood beyond its intended limits. It would be in accord with the protection currently given by some lower federal courts. And it would leave intact the precedential tone of Tinker while also considering the different context Tinker addressed.
Preferred Citation Format: Adam Hoesing, White Paper: “School Sponsorship” and Hazelwood’s Protection of Student Speech: Appropriate for all Curriculum Contexts?, 4 Neb. L. Rev. Bull. 2 (2012), http://lawreviewbulletin.unl.edu/?p=989 .
FOOTNOTES
0. Adam Hoesing is in his third year at University of Nebraska College of Law. He is also an Executive Editor for the Nebraska Law Review. ↑
1. Id. at 154 (majority opinion). ↑
2. See id. at 157–58 (Batchelder, J., concurring) (stating that “I would agree that some of Ms. Ramsey’s after-the-fact reasons are not very convincing”). ↑
3. Cf. Neal H. Hutchens, A Delicate Balance: Faculty Authority to Incorporate Professionalism Standards into the Curriculum versus College and University Students First Amendment Rights, 270 Ed. Law Rep. 371, 384 (2011) (“If academic and professional requirement are made clear . . . and actions taken against a student on academic grounds reflect the exercise of legitimate pedagogical concerns, precedent suggests that public colleges and university possess considerable legal autonomy in dismissing students for academic reasons.”). ↑
4. Settle, 53 F.3d at 154. ↑
5. Id. ↑
6. Cf. Hutchens, supra note 71, at 384. ↑
7. Judge Batchelder hinted at such a conclusion, but ultimately decided that Dana Ramsey’s rather irrational reasons were not intentionally discriminatory, but errors in judgment instead. Settle, 53 F.3d at 157 (Batchelder, J., concurring). If, as Judge Batchelder believed, Dana Ramsey’s stated reasons for censorship were indeed irrational, would not the determination of intent be one for a jury and not for a judge. See Axson-Flynn v. Johnson, 356 F.3d 1277, 1293 (10th Cir. 2004) (“Viewing the evidence in a light most favorable to [the student], we find that there is a genuine issue of material fact as to whether [the school’s] justification for the [censorship] was truly pedagogical or whether it was a pretext for religious discrimination. Therefore, summary judgment was improper.”). ↑
8. Settle, 53 F.3d at 156 (“The argument that Ms. Ramsey was untruthful in expressing her real reasons has no basis in the record, as both the School Board and the District Court found, and arises from an unfortunate tendency in lawsuits for parties to cavil at their opponents through unsupported accusations. There is no basis for finding a real dispute of fact about Ms. Ramsey’s motives, and the District Court was therefore correct in disposing of the case on summary judgment.”). ↑
9. 799 F. Supp. 744 (E.D. Mich. 1992). ↑
10. Id. at 746. ↑
11. Id. ↑
12. Id. at 746–47. ↑
13. See, e.g., Sunday School Songs, Squidoo, Inc., http://www.squidoo.com/sunday-school-songs (last visited December 2, 2011) (providing a multitude of worship hymns often song by children as young as five or six). Of course, unlike a private church, a school would legitimately have an interest in viewing this speech as being educationally irrelevant and therefore not worth-while in the classroom, but the school’s rationale—that the students were not mature enough to understand the message—seems shaky, for students of a younger age are clearly deemed mature enough to understand the message. ↑
14. DeNooyer, 799 F. Supp. at 751. Unlike Settle, the district court in DeNooyer cited Hazelwood multiple times, apparently building most of it analysis from an extension of Hazelwood, even though school-sponsorship of the speech was much more in question than it was in Hazelwood. ↑
15. See also, e.g., Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617 (2nd Cir. 2005) (applying Hazelwood’s First Amendment protection); Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) (same); Brown v. Li, 308 F.3d 309 (9th Cir. 2002) (same); Ward v. Members of the Bd. of Control of E. Mich. U., 700 F. Supp. 2d 803 (E.D. Mich. 2010); O’Neal v. Falcon, 668 F. Supp. 2d 979 (W.D. Tex. 2009); Curry v. Sch. Dist. of the City of Saginaw, 452 F. Supp. 2d 723 (E.D. Mich. 2006). ↑
16. See, e.g., Morse v. Frederick, 551 U.S. 393 (2007) (allowing school censorship of speech that promoted illegal activity but did not reasonably carry the school’s imprimatur or cause a material and substantial disruption). ↑
17. Cf. Brown, 308 F.3d at 952 (stating the student “prepared an assignment that did not comply with the stated criteria” and the teacher’s decision was “reasonably related to a legitimate pedagogical objective: teaching [the student] the proper format for a scientific paper”). ↑
18. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (censoring speech in a newspaper funded and printed by the school). ↑
19. See id. at 271–72. ↑
20. See Roy, supra note 6, at 658 (opining that this speech cannot reasonably be associated with school sponsorship). ↑
21. See Hazelwood, 484 U.S. at 273 (requiring only a reasonable relation between the pedagogical concern and the school censorship; see also Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 156 (6th Cir. 1995) (relying upon Hazelwood to give an almost non-existent probing of the facts); O’Neal v. Falcon, 668 F. Supp. 2d 979 (W.D. Tex. 2009) (citing Hazelwood and stating “that other topics that are also potentially disruptive are discussed in class even if they did not end up being disruptive in fact, does not mean that abortion is not a potentially disruptive topic”). ↑
22. See, e.g., Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 631 (2nd Cir. 2005) (“[W]e think that there are at least disputed factual questions, which may not be resolved on summary judgment, as to whether [the student’s] poster offers a ‘religious viewpoint,’ and whether, if the poster had depicted a purely secular image that was equally outside the scope of [the] environmental lessons, it would similarly have been censored.”); Axson-Flynn v. Johnson, 356 F.3d 1277, 1293 (10th Cir. 2004) (“[W]e find that there is a genuine issue of material fact as to whether Defendant’s justification for script adherence requirement was truly pedagogical . . . .”); see also Ward v. Members of the Bd. of Control of E. Mich. U., 700 F. Supp. 2d 803 (E.D. Mich. 2010) (requiring further factual inquiry of intent); Curry v. Sch. Dist. of the City of Saginaw, 452 F. Supp. 2d 723 (E.D. Mich. 2006) (same). ↑
23. See Settle, 53 F. 3d at 158 (Batchelder, J., concurring) (“If there is a First Amendment issue here, it would fall somewhere in between Hazelwood and Tinker as a form of student expression allowed under the school curriculum but not sponsored or endorsed by the school.”). ↑
24. See supra section II.B. ↑
25. See Hazelwood, 484 U.S. at 271–72. Of course, to the extent the teacher’s control helped structure the public’s perception, that fact was still relevant, but the Court failed to address the teacher’s control in that manner. See id. ↑
26. Although Justice Thomas refuses to accept the concept of First Amendment rights in the school setting, for he believes students possess almost no First Amendment rights, Justice Thomas succinctly recognized that many view Hazelwood as an exception to Tinker, stating that in Hazelwood “the Court made an exception to Tinker for school-sponsored activities. . . . [F]or school-sponsored activities, the Court created a new standard that permitted school regulation of student speech that are ‘reasonably rated to legitimate pedagogical concerns.’” Morse v. Frederick, 551 U.S. 393, 418 (2007) (Thomas, J., concurring) (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)). ↑
27. Hazelwood, 484 U.S. at 272–73. ↑
28. See also Morse, 551 U.S. at 423 (Alito, J., concurring) (stating Hazelwood “allows a school to regulate what is in essence the school’s own speech, that is, articles that appear in a publication that is an official school organ”). ↑
29. Roy, supra note 6, at 658. ↑
30. Hazelwood, 484 U.S. at 270–71 (“The question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. . . . The latter question concerns educators’ authority over school-sponsored publications . . . that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”). ↑
31. Id. at 270. ↑
32. 668 F. Supp. 2d 979 (W.D. Tex. 2009). ↑
33. Id. at 985. ↑
34. Id. ↑
35. Indeed, the record disclosed evidence that the censorship decision was actually not motivated by pedagogical concerns. After first asking if she could speak about abortion, the complaint alleged that the teacher refused, stating “every already knew what they thought about the tissue, he was pro-choice, and [the presentation] was not going to change his mind . . . .” Id. If this factual allegation was treated as true, even a more slightly probing scope of protection would not have permitted summary judgment. See supra note 75 and accompanying text. ↑
36. Before articulating its ruling on the summary judgment motion, the district court took three pages to analyze Hazelwood, Settle, and other similar federal court decisions. See id. at 983–85. ↑
37. Id. at 987 (emphasis added). ↑
38. 356 F.3d 1277 (10th Cir. 2004). ↑
39. Id. at 1282–83. ↑
40. Id. at 1283. ↑
41. Id. at 1291. ↑
42. Id. I would have also added a third pedagogical reason: that the teachers viewed the role as being educationally valuable. Unlike other scenarios discussed in the Article, the acting student was not given a free, discretionary choice of topic or subject matter. See id. Rather, the teacher saw educational value in the character and explicitly assigned the character for that reason. In essence, the acting student did not question censorship of her free topic-selection, the acting student challenged the educational propriety of the assigned subject matter. See id. As stated above, however, a teacher is free to judge performance based upon the fulfillment of the stated academic criteria. Thus, in and of itself, I believe this pedagogical reason—if promoted—would have been sufficient to censor the acting student’s speech. Cf. id. at 1292. ↑
43. Id. ↑
44. Id. at 1293. ↑
45. See supra notes 76–82 and accompanying text. ↑
46. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (“This standard is consistent with our oft-expressed view that the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.”). ↑
47. Axson-Flynn, 356 F.3d at 1293 (“Thus, we may override an educator’s judgment where the proffered goal or methodology was a sham pretext for an impermissible ulterior motive.”). ↑
48. See id.; see also Ward v. Members of the Bd. of Control of E. Mich. U., 700 F. Supp. 2d 803 (E.D. Mich. 2010) (remanding, even in light of some clearly applicable pedagogical concerns, so that the district court could conduct a more probing analysis of the university’s intent); Curry v. Sch. Dist. of the City of Saginaw, 452 F. Supp. 2d 723 (E.D. Mich. 2006) (finding a First Amendment violation even with evidence that the student speech in the grade-school setting disrupted at least one other student’s learning environment). ↑
49. Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 158 (6th Cir. 1995) (Batchelder, J., concurring) (emphasis added). ↑
50. See supra section III.A. ↑
51. Hazelwood, 484 U.S. at 267. ↑
52. See, e.g., Settle, 53 F.3d at 155; Axson-Flynn, 356 F.3d at 1285 (“We thus find that the . . . classroom constitutes a nonpublic forum, meaning that school officials could regulate the speech that takes place there ‘in a reasonable manner.’” (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270 (1988))). ↑
53. See Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37 (1983). ↑
54. See Hazelwood, 484 U.S. at 271–72. Although the Court stated it did not view the case as being a designated public forum case, its analysis seemingly contradicted this premise. If rational basis review was the standard, would not the fact that the “anonymous” students could be easily identified, id. at 274, be a reasonable basis for the censorship? I believe so. And, if so, why discuss school-sponsorship and the public supposition thereof? In my view, the Court was concerned that the newspaper was arguably a designated public forum—rather than a nonpublic forum—and that rational-basis review was not quite appropriate outside the Court’s school-sponsorship exception. ↑
55. Id. at 267. ↑
56. See Morse v. Frederick, 551 U.S. 393, 422 (2007) (Thomas, J., concurring) (noting Tinker’s validity in the face of enumerated judicial exceptions that better define Tinker’s scope of First Amendment protection). ↑
57. See supra notes 24–30 and accompanying text. ↑
58. See Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503, 513–14 (1969). ↑
59. See id. at 514–15 (Stewart, J., concurring) (“I cannot share the Court’s uncritical assumption that, school discipline aside, the First Amendment rights of children are co-extensive with those of adults.”). ↑
60. Also supporting this conclusion is the Court’s extremely strong wording:
[S]tate-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect. . . . [S]tudents may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.
Id. at 511 (majority opinion). ↑
61. See, e.g., Neb. Rev. Stat. § 79-201 (Reissue 2008) (requiring school attendance for all children under the age of eighteen who have not received parental permission to discontinue enrollment at the age of sixteen). ↑
62. See, e.g., Axson-Flynn v. Johnson, 356 F.3d 1277, 1293–94 (10th Cir. 2004) (analyzing the compulsion of speech under the First Amendment Free Speech clause and the First Amendment Free Exercise clause). ↑
63. See id. ↑
64. “Teachers therefore must be given broad discretion based on the content of speech. Learning is more vital in the classroom than free speech.” Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 156 (6th Cir. 1995) (emphasis added). ↑
65. Cf. Morse v. Frederick, 551 U.S. 393, 422 (2007) (Thomas, J., concurring) (“I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.”). ↑
66. Tinker, 393 U.S. at 510. ↑
67. See id. ↑
68. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272–73 (1988). ↑
69. See Morse, 551 U.S. at 409–10. ↑
70. Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 158 (6th Cir. 1995) (“If there were a First Amendment issue here, it would fall somewhere in between Hazelwood and Tinker as a form of student expression allowed under the school curriculum but not sponsored or endorsed by the school.”). ↑
71. 391 U.S. 367, 376 (1968). ↑
72. Id. (“[I]f it furthers an important or substantial government interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”). ↑
73. Hazelwood, 484 U.S. at 273. ↑
74. See, e.g., Curry v. Sch. Dist. of City of Saginaw, 452 F. Supp. 2d 273 (E.D. Mich. 2006) (finding a First Amendment violation in this context even under a lesser scope of protection). ↑
75. See, e.g., Peck v. Baldwinsvill Cent. Sch. Dist., 426 F.3d 617 (2nd Cir. 2005); Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004). ↑
76. Settle, 53 F.3d at 156 (“The argument that Ms. Ramsey was untruthful in expressing her real reasons has no basis in the record, as both the School Board and the District Court found, and arises from an unfortunate tendency in lawsuits for parties to cavil at their opponents through unsupported accusations. There is no basis for finding a real dispute of fact about Ms. Ramsey’s motives, and the District Court was therefore correct in disposing of the case on summary judgment.”). ↑
77. 799 F. Supp. 744 (E.D. Mich. 1992). ↑
78. Id. at 746. ↑
79. Id. ↑
80. Id. at 746–47. ↑
81. See, e.g., Sunday School Songs, Squidoo, Inc., http://www.squidoo.com/sunday-school-songs (last visited December 2, 2011) (providing a multitude of worship hymns often song by children as young as five or six). Of course, unlike a private church, a school would legitimately have an interest in viewing this speech as being educationally irrelevant and therefore not worth-while in the classroom, but the school’s rationale—that the students were not mature enough to understand the message—seems shaky, for students of a younger age are clearly deemed mature enough to understand the message. ↑
82. DeNooyer, 799 F. Supp. at 751. Unlike Settle, the district court in DeNooyer cited Hazelwood multiple times, apparently building most of it analysis from an extension of Hazelwood, even though school-sponsorship of the speech was much more in question than it was in Hazelwood. ↑
83. See also, e.g., Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617 (2nd Cir. 2005) (applying Hazelwood’s First Amendment protection); Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) (same); Brown v. Li, 308 F.3d 309 (9th Cir. 2002) (same); Ward v. Members of the Bd. of Control of E. Mich. U., 700 F. Supp. 2d 803 (E.D. Mich. 2010); O’Neal v. Falcon, 668 F. Supp. 2d 979 (W.D. Tex. 2009); Curry v. Sch. Dist. of the City of Saginaw, 452 F. Supp. 2d 723 (E.D. Mich. 2006). ↑
84. See, e.g., Morse v. Frederick, 551 U.S. 393 (2007) (allowing school censorship of speech that promoted illegal activity but did not reasonably carry the school’s imprimatur or cause a material and substantial disruption). ↑
85. Cf. Brown, 308 F.3d at 952 (stating the student “prepared an assignment that did not comply with the stated criteria” and the teacher’s decision was “reasonably related to a legitimate pedagogical objective: teaching [the student] the proper format for a scientific paper”). ↑
86. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (censoring speech in a newspaper funded and printed by the school). ↑
87. See id. at 271–72. ↑
88. See Roy, supra note 6, at 658 (opining that this speech cannot reasonably be associated with school sponsorship). ↑
89. See Hazelwood, 484 U.S. at 273 (requiring only a reasonable relation between the pedagogical concern and the school censorship; see also Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 156 (6th Cir. 1995) (relying upon Hazelwood to give an almost non-existent probing of the facts); O’Neal v. Falcon, 668 F. Supp. 2d 979 (W.D. Tex. 2009) (citing Hazelwood and stating “that other topics that are also potentially disruptive are discussed in class even if they did not end up being disruptive in fact, does not mean that abortion is not a potentially disruptive topic”). ↑
90. See, e.g., Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 631 (2nd Cir. 2005) (“[W]e think that there are at least disputed factual questions, which may not be resolved on summary judgment, as to whether [the student’s] poster offers a ‘religious viewpoint,’ and whether, if the poster had depicted a purely secular image that was equally outside the scope of [the] environmental lessons, it would similarly have been censored.”); Axson-Flynn v. Johnson, 356 F.3d 1277, 1293 (10th Cir. 2004) (“[W]e find that there is a genuine issue of material fact as to whether Defendant’s justification for script adherence requirement was truly pedagogical . . . .”); see also Ward v. Members of the Bd. of Control of E. Mich. U., 700 F. Supp. 2d 803 (E.D. Mich. 2010) (requiring further factual inquiry of intent); Curry v. Sch. Dist. of the City of Saginaw, 452 F. Supp. 2d 723 (E.D. Mich. 2006) (same). ↑
91. See Settle, 53 F. 3d at 158 (Batchelder, J., concurring) (“If there is a First Amendment issue here, it would fall somewhere in between Hazelwood and Tinker as a form of student expression allowed under the school curriculum but not sponsored or endorsed by the school.”). ↑
92. See supra section II.B. ↑
93. See Hazelwood, 484 U.S. at 271–72. Of course, to the extent the teacher’s control helped structure the public’s perception, that fact was still relevant, but the Court failed to address the teacher’s control in that manner. See id. ↑
94. Although Justice Thomas refuses to accept the concept of First Amendment rights in the school setting, for he believes students possess almost no First Amendment rights, Justice Thomas succinctly recognized that many view Hazelwood as an exception to Tinker, stating that in Hazelwood “the Court made an exception to Tinker for school-sponsored activities. . . . [F]or school-sponsored activities, the Court created a new standard that permitted school regulation of student speech that are ‘reasonably rated to legitimate pedagogical concerns.’” Morse v. Frederick, 551 U.S. 393, 418 (2007) (Thomas, J., concurring) (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)). ↑
95. Hazelwood, 484 U.S. at 272–73. ↑
96. See also Morse, 551 U.S. at 423 (Alito, J., concurring) (stating Hazelwood “allows a school to regulate what is in essence the school’s own speech, that is, articles that appear in a publication that is an official school organ”). ↑
97. Roy, supra note 6, at 658. ↑
98. Hazelwood, 484 U.S. at 270–71 (“The question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. . . . The latter question concerns educators’ authority over school-sponsored publications . . . that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”). ↑
99. Id. at 270. ↑
100. 668 F. Supp. 2d 979 (W.D. Tex. 2009). ↑
101. Id. at 985. ↑
102. Id. ↑
103. Indeed, the record disclosed evidence that the censorship decision was actually not motivated by pedagogical concerns. After first asking if she could speak about abortion, the complaint alleged that the teacher refused, stating “every already knew what they thought about the tissue, he was pro-choice, and [the presentation] was not going to change his mind . . . .” Id. If this factual allegation was treated as true, even a more slightly probing scope of protection would not have permitted summary judgment. See supra note 75 and accompanying text. ↑
104. Before articulating its ruling on the summary judgment motion, the district court took three pages to analyze Hazelwood, Settle, and other similar federal court decisions. See id. at 983–85. ↑
105. Id. at 987 (emphasis added). ↑
106. 356 F.3d 1277 (10th Cir. 2004). ↑
107. Id. at 1282–83. ↑
108. Id. at 1283. ↑
109. Id. at 1291. ↑
110. Id. I would have also added a third pedagogical reason: that the teachers viewed the role as being educationally valuable. Unlike other scenarios discussed in the Article, the acting student was not given a free, discretionary choice of topic or subject matter. See id. Rather, the teacher saw educational value in the character and explicitly assigned the character for that reason. In essence, the acting student did not question censorship of her free topic-selection, the acting student challenged the educational propriety of the assigned subject matter. See id. As stated above, however, a teacher is free to judge performance based upon the fulfillment of the stated academic criteria. Thus, in and of itself, I believe this pedagogical reason—if promoted—would have been sufficient to censor the acting student’s speech. Cf. id. at 1292. ↑
111. Id. ↑
112. Id. at 1293. ↑
113. See supra notes 76–82 and accompanying text. ↑
114. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (“This standard is consistent with our oft-expressed view that the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.”). ↑
115. Axson-Flynn, 356 F.3d at 1293 (“Thus, we may override an educator’s judgment where the proffered goal or methodology was a sham pretext for an impermissible ulterior motive.”). ↑
116. See id.; see also Ward v. Members of the Bd. of Control of E. Mich. U., 700 F. Supp. 2d 803 (E.D. Mich. 2010) (remanding, even in light of some clearly applicable pedagogical concerns, so that the district court could conduct a more probing analysis of the university’s intent); Curry v. Sch. Dist. of the City of Saginaw, 452 F. Supp. 2d 723 (E.D. Mich. 2006) (finding a First Amendment violation even with evidence that the student speech in the grade-school setting disrupted at least one other student’s learning environment). ↑
117. Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 158 (6th Cir. 1995) (Batchelder, J., concurring) (emphasis added). ↑
118. See supra section III.A. ↑
119. Hazelwood, 484 U.S. at 267. ↑
120. See, e.g., Settle, 53 F.3d at 155; Axson-Flynn, 356 F.3d at 1285 (“We thus find that the . . . classroom constitutes a nonpublic forum, meaning that school officials could regulate the speech that takes place there ‘in a reasonable manner.’” (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270 (1988))). ↑
121. See Perry Educ. Ass’n v. Perry Local Educator’s Ass’n, 460 U.S. 37 (1983). ↑
122. See Hazelwood, 484 U.S. at 271–72. Although the Court stated it did not view the case as being a designated public forum case, its analysis seemingly contradicted this premise. If rational basis review was the standard, would not the fact that the “anonymous” students could be easily identified, id. at 274, be a reasonable basis for the censorship? I believe so. And, if so, why discuss school-sponsorship and the public supposition thereof? In my view, the Court was concerned that the newspaper was arguably a designated public forum—rather than a nonpublic forum—and that rational-basis review was not quite appropriate outside the Court’s school-sponsorship exception. ↑
123. Id. at 267. ↑
124. See Morse v. Frederick, 551 U.S. 393, 422 (2007) (Thomas, J., concurring) (noting Tinker’s validity in the face of enumerated judicial exceptions that better define Tinker’s scope of First Amendment protection). ↑
125. See supra notes 24–30 and accompanying text. ↑
126. See Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 503, 513–14 (1969). ↑
127. See id. at 514–15 (Stewart, J., concurring) (“I cannot share the Court’s uncritical assumption that, school discipline aside, the First Amendment rights of children are co-extensive with those of adults.”). ↑
128. Also supporting this conclusion is the Court’s extremely strong wording:[S]tate-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect. . . . [S]tudents may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved.Id. at 511 (majority opinion). ↑
129. See, e.g., Neb. Rev. Stat. § 79-201 (Reissue 2008) (requiring school attendance for all children under the age of eighteen who have not received parental permission to discontinue enrollment at the age of sixteen). ↑
130. See, e.g., Axson-Flynn v. Johnson, 356 F.3d 1277, 1293–94 (10th Cir. 2004) (analyzing the compulsion of speech under the First Amendment Free Speech clause and the First Amendment Free Exercise clause). ↑
131. See id. ↑
132. “Teachers therefore must be given broad discretion based on the content of speech. Learning is more vital in the classroom than free speech.” Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 156 (6th Cir. 1995) (emphasis added). ↑
133. Cf. Morse v. Frederick, 551 U.S. 393, 422 (2007) (Thomas, J., concurring) (“I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so.”). ↑
134. Tinker, 393 U.S. at 510. ↑
135. See id. ↑
136. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272–73 (1988). ↑
137. See Morse, 551 U.S. at 409–10. ↑
138. Settle v. Dickson Cnty. Sch. Bd., 53 F.3d 152, 158 (6th Cir. 1995) (“If there were a First Amendment issue here, it would fall somewhere in between Hazelwood and Tinker as a form of student expression allowed under the school curriculum but not sponsored or endorsed by the school.”). ↑
139. 391 U.S. 367, 376 (1968). ↑
140. Id. (“[I]f it furthers an important or substantial government interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”). ↑
141. Hazelwood, 484 U.S. at 273. ↑
142. See, e.g., Curry v. Sch. Dist. of City of Saginaw, 452 F. Supp. 2d 273 (E.D. Mich. 2006) (finding a First Amendment violation in this context even under a lesser scope of protection). ↑
143. See, e.g., Peck v. Baldwinsvill Cent. Sch. Dist., 426 F.3d 617 (2nd Cir. 2005); Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004). ↑
144. See, e.g., Peck v. Baldwinsvill Cent. Sch. Dist., 426 F.3d 617 (2nd Cir. 2005); Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004). ↑
White Papers
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Regulators, Mount Up
mrick101
Ben Trachtenberg[0]
Since I began circulating drafts of an article arguing that certain law school officials have exposed themselves to professional discipline by engaging in dishonest marketing tactics,[1] responses have varied considerably. Everyone seems to agree, however, that law school officials should not lie in their pursuit of students. There also appears to be broad consensus that misleading (albeit not intentionally false) marketing—such as systematically skewed salary statistics—is an unfortunate phenomenon, although disagreement remains on just how serious a problem it is and what level of corrective effort is appropriate. In their recently-published response pieces, Kyle McEntee of Law School Transparency (“LST”) and Professor Jeffrey Stake offer two new avenues for improving the accuracy of law school marketing. Stake explains a theory under which law schools could be held liable for publishing inaccurate information through lawsuits filed by students who—but for the inaccuracies—would have either spent less on their legal education or avoided law school entirely.[2] If successful, such lawsuits would both provide justice to misled tuition payers and deter future misconduct by law schools. McEntee proposes a certification program under which LST would verify the accuracy of law school marketing materials, allowing schools to advertise that their numbers have been blessed by third-party auditors.[3]
I will begin my reply with a free suggestion to would-be plaintiffs encouraged by Professor Stake’s legal theory. Hurry. You will certainly feel foolish if your rankings fraud suit is dismissed because of a statute of limitations.[4] With respect to the merits of the theory, I am especially intrigued by the idea of plaintiffs who turned down scholarship money offered by a lower-ranked school so they could attend a higher-ranked school.[5] These potential plaintiffs could avoid one problem facing the actual plaintiffs who have sued various law schools, the highly speculative nature of their alleged damages. For the actual plaintiffs, the complaint boils down to something like the following: (1) I was not sure if I should attend law school, and in the event I decided to attend, I was not sure about what law school to attend. (2) Relying upon certain representations, I matriculated at Defendant Law School (“DLS”). (3) I later learned that these representations were false. The rest is commentary.[6] A big problem with this theory of liability is that even if one accepts the plaintiff’s claims at face value, one can dispute whether attending DLS actually harmed the plaintiff. Just how terrible is the plaintiff’s post-law school life? Is she malingering, or is she working as hard as possible to find well-paying work? Will her law degree prove valuable one day, or is it worthless? Would her life have turned out differently if she had attended some other law school, or is she so incompetent that even with a Yale Law School degree she would be jobless?[7] And if she had skipped law school, what would she have tried instead, and how would she have fared? Lawyers for various DLSs have so far mostly avoided reaching this stage of analysis by winning at the motion-to-dismiss stage. Supporters of these suits should realize, however, that if judges allow law school alumni lawsuits to proceed, and if juries then find the defendant law schools liable, the plaintiffs face real challenges at the damages stage.
Not so with Professor Stake’s potential plaintiffs, whose complaints can be summarized as follows: (1) I was admitted both to Truth-Telling Law School (“TTLS”) and to Defendant Law School (“DLS”). (2) I considered attending TTLS because it would have cost me less money than attending DLS, where I ultimately did matriculate. (3) I chose to pay more at DLS because that school was ranked above TTLS. (4) As it turns out, DLS was ranked above TTLS in part because of its fraudulent publication of false information.[8] Here, if one accepts a plaintiff’s premises, calculating damages is simple. The defendant owes the extra money the plaintiff spent to attend DLS instead of TTLS,[9] a figure one can calculate after consulting the nominal tuition and fees charged by each school along with the scholarship offers, if any, presented to the plaintiff.[10]
Further, compared to the actual plaintiffs law schools have faced so far, Professor Stake’s potential plaintiffs should have an easy time proving reliance. The actual plaintiffs have faced the tricky task of convincing courts that they truly read law school employment statistics and that the statistics genuinely affected the plaintiffs’ decisions to enroll. Even the most honest plaintiff must overcome the suspicion that his memory is colored by bias; his incentive to recall himself relying on rosy statistics is immense. And even if a court assumes reliance when considering a motion to dismiss, the judge can deem the reliance unreasonable, as some plaintiffs have learned.[11] But under the new rankings fraud theory, allegations of reliance become quite credible. Indeed, it would be difficult to overstate the importance of law school rankings to prospective students.
With the next set of Professor Stake’s potential plaintiffs, those who would not have attended law school at all but for misleading employment statistics,[12] the difficulty of calculating damages returns with full force. Like the actual law graduate plaintiffs, this class of hypothetical litigants must somehow prove that their law school educations were not worth their price.[13] The value of a law school degree is the subject of some controversy. I have read serious suggestions that for some alumni, law degrees have negative economic value; they not only failed to provide legal jobs but also hinder the search for non-legal employment. On the other hand, two scholars suggest in a forthcoming paper that the median value of a law degree is around $1 million.[14] For now at least, I will stay out of the law degree valuation debate, other than to note the tremendous uncertainty surrounding any projection about the economic value of a course of study, particularly decades into the future.[15] In addition, even if economists can offer a fair estimate of the median value of a law degree (that is, the median lifetime earning premium obtained by attending law school, compared to a similarly situated college graduate who does not), real lawsuits require the calculation of damages suffered by a specific person, whose life outcomes may not resemble projected medians.[16]
In any event, I am pleased to have Prof. Stake on board the anti-dishonesty bandwagon, and I appreciate his plain statement that “the lying in which law schools have engaged is plainly deplorable behavior deserving severe punishment.”[17] Further, while he raises a few concerns about potential problems associated with subjecting law school officials to professional discipline for dishonest marketing (for example, someone who participated in dishonesty might be discouraged from blowing the whistle by fears of personal punishment),[18] he does not dispute my conclusion that dishonest law school marketing—if committed by lawyers—can violate existing regulations governing lawyers and can accordingly justify professional sanctions.[19] McEntee agrees that professional discipline is appropriate.[20]
So far, I have yet to see anyone respond to my article by arguing something to the effect of: “Under current law governing lawyers, a law school dean may brazenly lie to prospective students about matters material to their choice of where (and whether) to matriculate without fear of professional sanctions.” The closest I have seen might be this comment of Prof. Andrew Perlman:
I’m also a little bit concerned about interpreting Rule 8.4(c) as expansively as [Trachtenberg] suggests. If a lawyer could be disciplined for making misleading statements on matters of public import, I wonder how many politicians (many of whom are lawyers) would be subject to disciplinary proceedings under this understanding of Rule 8.4(c)?[21]
I think, however, that important distinctions can be made between dishonest law school marketing and dishonest political speech. First, the very term “political speech” signals the important First Amendment concerns that would be presented should bar counsel seek to punish a politician who, say, falsely accused an opponent of cutting Medicare benefits. Second, even I would not recommend applying Rule 8.4(c) to the kind of nonfalsifiable puffery common in educational marketing. Claims like “students receive useful hands-on practice experience in our clinics” ought to be beyond the scope of “dishonesty” charges—unless, of course, such statements were uttered concerning a school with no clinics at all. The misrepresentation and deceit that I believe worthy of bar counsel’s attention is quite different from statements like “we have a collegial environment.”[22]
Recall that my article begins with stories of two American law schools whose officials engaged in knowing deceit—for years—about the credentials of their incoming students (their standardized test scores and undergraduate grade point averages).[23] They intentionally sent this false information to the American Bar Association, to prospective students, and to U.S. News & World Report, which used the bogus data to give the schools inflated rankings. As Prof. Stake has documented (and as is understood intuitively by those who pay attention to law school admissions), these rankings significantly affected matriculation decisions and likely caused at least some students to pay tens of thousands of extra tuition dollars to attend the offending schools. Will anyone state directly that the deans responsible for those falsifications cannot properly be punished by the bar? Would such punishment really start us down the path to sanctions against United States Senators who break campaign promises?
If we can accept that brazen falsehoods in the service of “rankings fraud” are properly punishable, then deciding what other misleading law school marketing can justify bar discipline becomes an exercise in line drawing. Reasonable minds may differ about just how sloppy a school’s alumni salary statistics may be before a lawyer responsible for their publication should be accused of “dishonesty, fraud, deceit or misrepresentation.” For those who disapprove of suddenly punishing law school officials for conduct common in legal education, advisory bar opinions can provide fair notice that certain forms of marketing will no longer be tolerated.
Although much of the response to my article has concerned the propriety of punishment, McEntee helpfully directs his attention to how we might avoid misleading marketing in the first place. Yes, punishing wrongdoing deters future misconduct. And formally announcing the disapproval of the community has its own value.[24] But as I mentioned near the end of the article, constructive solutions will largely help law schools do the right thing instead of reacting to those that do wrong.[25] One’s heart must be truly hardened to prefer that colleagues stray and be chastised rather than reform and prosper.[26]
McEntee essentially argues that existing regulatory bodies cannot repair the damage law schools have inflicted upon their own reputations.[27] In particular, he deems the American Bar Association (“ABA”) slow moving and lacking in credibility. (As an aside, I will note that if McEntee is correct, then he has severely weakened one of the more plausible arguments against using bar discipline to curb misleading law school marketing. Prof. Stake, for example, writes that “tailoring and clarification of the ABA standards will be more important than increasing the personal punishment lawyers face for being involved in misreporting.”[28] Prof. Perlman predicts “that the solution is better ABA/AALS standards rather than lawyer discipline.”[29] These responses lose force if the ABA cannot handle its responsibilities.) McEntee raises fair criticisms. While the ABA has made recent statements indicating that it takes seriously its role in the fight against deceptive law school marketing,[30] the organization spent years doing little-to-nothing about the chicanery now widely understood (at least by those who care about such things) to have been common practice among American law schools. For example, salary statistics touted by law schools misstate the economic reality of recent law graduates because of their tendency to oversample the best paid alumni,[31] and ABA action has been anemic.[32] Even if the ABA Section of Legal Education and Admissions to the Bar becomes a dynamic force for accurate marketing of legal education, at least some potential law students may discount the value of ABA approval, if only because reputations once tarnished are slow to repair.
To supplement the accreditation work of the ABA, McEntee offers the services of Law School Transparency, of which he is the executive director and a co-founder. Although I cannot speculate about the value of LST’s inspection program,[33] I am pleased to see LST offer some form of constructive services. It is easy, in a sense, for someone like me to criticize law school administrators and regulators. After all, I neither run a law school nor regulate those who do, and I accordingly will not face the challenge of meeting my own proposed standards. In addition, a prospective law student who reads my article might acquire some appropriate skepticism concerning statistics presented in law school websites and viewbooks. That skepticism, however, does not easily translate into the ability to discern which law schools are more and less trustworthy. If prospective law students know which schools disseminate shady statistics, then those schools should (if my introductory economics instructors told me the truth) be slapped by the invisible hand. If the wrongdoers can evade detection in a sea of “everyone does it” cynicism, market discipline will arrive more slowly, if at all.
To help honest schools earn the credit they deserve, LST proposes to review law school marketing materials and certify their trustworthiness. Perhaps LST would also help law schools produce accurate marketing materials if hired to do so. While the devil remains in the details, I commend LST for offering what could be a valuable service, and I wish McEntee and his colleagues all success. If other organizations can offer competing third-party certification—ideally without creating so much confusion as to undermine their purpose—so much the better. Efforts like the proposed LST program will be useful regardless of how the ABA performs. If the ABA response to misleading marketing remains inadequate, then outside auditors can concurrently provide well-behaved law schools with a credible seal of approval while also arming the ABA’s critics with important data. If the ABA performs well, then additional third-party certification can offer incentives to schools who wish to attain accuracy above the regulatory-mandated minimum.
In the end, however, school-selected third-party number crunchers are no substitute for effective accreditation. Profs. Stake and Perlman are correct that whatever one’s opinion of using bar discipline to discourage malfeasance by law school officials, an active ABA possesses tools far better calibrated for quickly influencing the behavior of law schools. When the ABA tells law schools to jump, they may not ask “how high,” but they eventually get their feet off of the ground. Even Prof. Brian Tamanaha, by no means an unquestioning fan of ABA accreditation standards,[34] recognizes their power to effect changes desired by those who draft the regulations. Any law school dean will tell you that if an ABA site visit report identifies some apparent shortcoming, a law school is usually better off addressing the problem than arguing.[35] As far as I know, however, site visit teams do not include an assessment of law school marketing in their reports.[36] In a world without any intentional falsification in law school marketing, it would still be useful for ABA reports to advise law schools on how they might better comply with Standard 509.[37] (As a point of comparison, I will note that in one recent ABA report I have had the chance to review, the site visit team found space to address the rigor with which teachers enforce attendance requirements, the level of administrative support for the externship program, the number of academic credits awarded to various journal editors, the number of linear feet of library shelving, and the square footage of co-curricular activity space. While the report did mention some areas related to Standard 509, it did not assess the accuracy of the school’s published employment statistics.)
As it happens, we do not live in a world in which intentionally deceptive law school marketing is some “scamblog” fantasy. Further, while only a few examples of brazen deceit have thus far come to light, misleading statistics pervade law school publications. For the ABA to combat misleading law school marketing with any chance of success, it must envisage itself more like the Securities and Exchange Commission and less like the Chamber of Commerce. Both organizations have a place in American economic and political life, but only one is a regulator.
American legal education enjoys tremendous privilege. The federal government lends our customers whatever it takes to pay our tuition, along with living expenses, all while asking pretty much no questions. If the student later cannot pay back the money, that is a problem for the borrower and the lender; the law school has no skin in the game. Concurrently, many law schools receive state funding through public university systems, and even nominally private law schools benefit from tax law provisions designed to promote education, such as the income tax deduction for charitable donations and the exemption of schools from local real property taxes. These legal benefits are not enshrined in the Constitution of the United States. Federal and state governments have given them to us, largely in the form of legislation, and those governments can take them away if we exhibit sufficiently bad behavior.
Lawsuits against deceitful law schools may be useful. The same is true of third-party certification of honest law schools. And bar discipline may too have something to offer, if only a chance for the legal profession to condemn injustice perpetrated by its own members. Yet without a good regulator, law schools will continue to mislead consumers, and eventually the public that so generously funds legal education may run out of patience.
Preferred Citation Format: Ben Trachtenberg, Regulators, Mount Up, 5 Neb. L. Rev. Bull. 22 (2013), http://lawreviewbulletin.unl.edu/?p=1150 .
FOOTNOTES
0. Associate Professor, University of Missouri School of Law. I thank Kyle McEntee and Jeff Stake for their thoughtful responses to my article, as well as the Nebraska Law Review for soliciting and editing their commentary and my own reply. I also thank Scott Norberg, Andrew Perlman, and others who have taken time to discuss legal education with me over the past year.↑
1. Ben Trachtenberg, Law School Marketing and Legal Ethics, 91 Neb. L. Rev. 866 (2013).↑
2. See Jeffrey Evans Stake, Improving Law School “Transparency,” 5 Neb. L. Rev. Bull.9 (2013). For some discussion of lawsuits already filed by disappointed law school alumni, see Trachtenberg, supra note 1, at 912–13.↑
3. See Kyle P. McEntee, The Evaporating Trust in American Legal Education, 5 Neb. L. Rev. Bull. 1 (2013). For some other ideas concerning third-party verification of law school marketing materials, see Trachtenberg, supra note 1, at 917–18, 921–22.↑
4. While this should go without saying, as a teacher of professional responsibility, I feel compelled to add the following disclaimer: Nothing herein should be construed as legal advice. This is legal scholarship addressed to the general public, not an attorney-client communication.↑
5. See Stake, supra note 2, at 13. To be precise, potential plaintiffs need not have turned down a scholarship offer, so long as the price of the lesser-ranked school would have been lower. For example, imagine a who student attended the #30 ranked Private U. Law School (at $40,000 tuition per year) instead of the #35 ranked State U. (at $20,000 in-state).↑
6. Like Hillel, I will note that the rest, despite being commentary, is important and worthy of study. Complications include, among others, proving reliance, deciding what level of scienter is necessary before liability may attach (e.g., are negligent statements sufficient, or must plaintiffs prove knowing falsification), whether caveat emptor can serve as a defense (e.g., should reasonable would-be law students have known better than to trust the notorious exaggerators who promote law schools, as New York courts have concluded).↑
7. Cf. Eugene S. McCartney, Themistocles and the Seriphian, 4 Classical J. 225 (1922) (recalling that when provincials informed Themistocles that certain of his honors would not have been won were he not from Athens, he would reply that his critics would be obscure even if born Athenians).↑
8. Many plaintiffs could also add a fifth point: Now that the truth has been revealed, DLS is ranked below TTLS. ↑
9. In theory, the damages might be even higher, if the plaintiffs can win the equitable remedy of rescission, in which case they ought to be able to unwind the contract completely—by returning their law degree in exchange for every tuition and fee dollar paid. While the concept of returning an academic degree (not to mention returning the education provided) may seem odd, readers of law school “scamblogs” will be familiar with the expressed desire of certain law school alumni to return to the status quo ante of their pre-law school days. I will leave to contract law experts the question of whether rankings fraud (i.e., false statements leading to inflated rankings) is the sort of thing that allows an innocent party to void a contract, as well as what limitations to the remedy might exist. ↑
10. The calculation is not without some uncertainty. If a scholarship offer was limited to the first year, with renewal conditioned on certain academic performance, a court might need to assess the odds that the plaintiff would have maintained the foregone award at TTLS. The plaintiff’s performance at DLS would be probative. ↑
11. See, e.g., Gomez-Jimenez v. N.Y. Law Sch., 943 N.Y.S.2d 834, 856–57 (N.Y. Sup. Ct. 2012), aff’d, 956 N.Y.S.2d 54 (N.Y. App. Div. 2012); MacDonald v. Thomas M. Cooley Law Sch., 880 F. Supp. 2d 785, 794-97 (W.D. Mich. 2012), aff’d, No. 12-2066, — F.3d —- (6th Cir. Jul. 30, 2013). ↑
12. See Stake, supra note 2, at 16. ↑
13. At least if they plead the more traditional causes of action. Certain modern statutes, such as consumer protection laws, may allow recovery on the basis of false statements absent proof of monetary damages. ↑
14. See Michael Simkovic & Frank McIntyre, The Economic Value of a Law Degree (forthcoming) (formerly titled “The Million-Dollar Law Degree”), draft available at http://ssrn.com/abstract=2250585. ↑
15. See Nassim Nicholas Taleb, The Black Swan 136 (2d ed. 2010) (quoting Yogi Berra, “It is tough to make predictions, especially about the future”); see also Ben Trachtenberg, Health Inflation, Wealth Inflation, and the Discounting of Human Life, 89 Or. L. Rev. 1313, 1351–52 (discussing how cost-benefit analysis figures used by federal agencies “resemble random guesses”). ↑
16. The idiosyncratic experiences of law graduates also complicate the efforts of counsel to bring suits against law schools as class actions. See Fed. R. Civ. P. 23(a); Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011). The principles of res judicata, however, might well allow many alumni of the same school to benefit from a single plaintiff’s court victory against a law school. ↑
17. See Stake, supra note 2, at 9. ↑
18. See id. at 11. ↑
19. See generally Trachtenberg, supra note 1, at 900–07 (describing liability under state equivalents of Model Rule of Professional Conduct 8.4(c)). ↑
20. See MeEntee, supra note 3, at 3. ↑
21. Andrew Perlman, Comment to Ben Trachtenberg’s Article on Deceptive Law School Marketing, Legal Ethics Forum (Dec. 27, 2012, 6:00 PM), http://www.legalethicsforum.com/blog/2012/12/ben-trachtenbergs-article-on-deceptivelaw-school-marketing.html.↑
22. My focus on true dishonesty—as opposed to mere boasting—explains the article’s focus on Rule 8.4(c) over Rule 7.1, which regulates lawyer advertising. I devote a long footnote to a comparison of lawyer advertising rules (which, at least on paper, are quite strict) with the lax attitude toward law school marketing. See Trachtenberg, supra note 1, at 906 n.206. ↑
23. See Trachtenberg, supra note 1, at 867–69. ↑
24. See Henry M. Hart, Jr., The Aims of the Criminal Law, 23 L. & Contemp. Probs. 401 (1958). ↑
25. See Trachtenberg, supra note 1, at 920–22. ↑
26. See, e.g., Deuteronomy 30:11–20. ↑
27. See McEntee, supra note 3, at 5–7. ↑
28. See Stake, supra note 2, at 11. ↑
29. See Perlman, supra note 21. “AALS” refers to the Association of American Law Schools. ↑
30. See, e.g., Martha Neil, “ABA looking for ways to better monitor employment stats for law graduates,” A.B.A. J. (Feb. 22, 2013), at http://www.abajournal.com/news/article/aba_to_mull_audit_procedures_for_employment_data_re_new_law_graduates (“[T]he American Bar Association is seeking bids for what the National Law Journal calls a law school data cop.”). The Feb. 1, 2013 request for proposal covered in the article, titled “Development of a Protocol for Reviewing Law School Graduate Employment Data,” is available here: http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/march_2013_council_meeting/2013_rfp_employment_data_protoccol.authcheckdam.pdf. ↑
31. See Trachtenberg, supra note 1, at 890–92. ↑
32. See id. at 893. ↑
33. Much will of course depend on the precise suite of services eventually offered, as well as on the price. ↑
34. See Brian Z. Tamanaha, Failing Law Schools 11–36. (2012) (cataloging various changes to American legal education wrought by ABA regulations). ↑
35. Neophytes unfamiliar with ABA and AALS site visit reports (which are prepared separately after a joint visit to a school by representatives of the ABA and AALS) may not realize the level of detail with which the ABA sees fit to write its recommendations. For example, it turns out the ABA has an opinion on how many power outlets belong in lecture halls of various sizes. Once a “shortage” has been identified, a law school might as well install the outlets instead of debating the merits of laptops in the classroom. ↑
36. To be fair to the ABA, I should note that in its guidance for site visit teams, it mentions Standard 509 and encourages site visit reports to “[d]escribe any areas in which consumer information published by the law school is incomplete, inaccurate or misleading,” along with other more specific items related to consumer information. See ABA Office of the Consultant of Legal Education, “The Format for an ABA Site Team Report” 24 (Fall 2012), available at http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/governancedocuments/2012_2013_format_memo.pdf. Unless a school’s posted employment statistics or salary data are false on their face, however, a site visit team is unlikely to uncover chicanery. The “data cop” mentioned above, see supra note 30, may help site visit teams become more effective in this area. ↑
37. See ABA Standards and Rules of Procedure for Approval of Law Schools 2012–2013, Approval Standard No. 509 (2012) (requiring publication of accurate “consumer information”), available at http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2012_2013_aba_standards_and_rules.authcheckdam.pdf.↑
The Evaporating Trust in American Legal Education
mrick101
Kyle P. McEntee [0]
I once overheard a non-lawyer tell a popular lawyer joke. How can you tell that an attorney is about to lie? Without missing a beat the jokester quipped. The attorney’s lips begin to move. The group found it funny, while I began to wonder what happened to my sense of humor. I smirked, sure, but more than anything the familiar joke diverted my attention from comedy to comity.
Attitudes about lawyers follow an odd dichotomy. On the one hand, lawyers are esteemed. They play an essential role in a society built on the rule of law. Parents want their kids to grow up to be the next Atticus Finch or Sandra Day O’Connor. On the other hand, lawyers are reviled as opportunistic, morally deficient, and—perhaps worst of all—liars. For a profession predicated on trust, these colorful descriptions undermine, even if subtly, the rule of law.
Lawyers have long had a trust problem (an important topic for another discussion). Now, the legal profession combats a new assault on trust. Law schools have lost much of the trust they’ve traditionally enjoyed. Through a combination of ever-increasing and unfair costs,[1] disturbing self-dealing,[2] and—most widely publicized—deceptive marketing,[3] law schools now (justly) face historic skepticism about the services they provide and their methods of promoting those services. Persistent doubts about educational quality supplement concerns about law school economics.[4] The result: total LSATs administered, total applicants, and total enrollees are each down for the third year in a row.[5]
Media attitudes are another proxy for changing societal attitudes. Broad coverage of law schools aside, my experience with journalists has completely changed since LST began its public affairs strategy in April 2010. The journalists providing early coverage understood that law schools went to great lengths to influence the data inputs of the U.S. News & World Report rankings, but they knew little of the specifics. Many were shocked to learn that law schools were not upfront with what they knew about post-graduation employment outcomes.
The focus of early conversations, accordingly, was shedding light on how the American Bar Association’s Section of Legal Education and Admissions to the Bar (“ABA” or “Section of Legal Education”) and law schools published deceptive employment data. Widely distributed employment rates counted any job in the tabulation; salary figures were not accompanied by their often low response rates.[6] Whether intentional or reckless or negligent, these marketing norms fed a widely held belief that law school is a ticket to financial prosperity. In this way, schools promoted attendance with misleading data.
Eventually, I spent almost no time explaining that what schools were doing was wrong—even to journalists writing on law schools for the first time. The conversation, both with journalists and within their stories, shifted to why schools and the ABA were not moving more quickly to better inform prospective students about their expensive investment. United States Senators questioned how well the ABA regulated law school marketing[7]; the Department of Education also publicly shamed the ABA for its inattentiveness.[8] The conversational swing was significant.
It matters that lawyers and law schools be trusted. A society of laws depends in part on the legal profession’s credibility: If the society doesn’t trust lawyers, it doesn’t trust the legal system. In creating that trust, we do not operate in silos. The actions of each of us affect the public’s trust of the profession as a whole. For that reason, all lawyers must recognize a duty to build trust through good behavior and continued enforcement of professional rules of conduct. Law schools harm the whole profession when they breach those duties, especially when they make misrepresentations while recruiting new members to the profession.
This brings me to Ben Trachtenberg’s article, Law School Marketing and Legal Ethics. Professor Trachtenberg argues that deceptive marketing should open law school administrators to professional liability. He’s right, and his conclusion about professional obligations extends quite far. Accountability is essential to building and keeping trust in the legal profession. Exceeding the minimum regulatory standards and voluntarily participating in creating new norms is equally if not more important for healing the law school image.
Trust-Building Efforts
The ABA and law schools have long collected and furnished consumer information. But laudable intentions aside, the questionable quality of that information caused today’s need to reclaim the public’s trust. Leaders at the ABA and schools all owe a duty to improve the trust in our profession, regardless of each individual’s culpability.
As it pertains to post-graduation employment information, trust-building requires schools to provide excellent substance. It also requires that people believe that schools are open, honest, and fair. Accordingly, schools must find a way to convey their transparency—consumers need reassurance due to the public’s declining trust. Compounding that challenge, schools must find ways to help the public understand the new, higher quality information they are providing.
Contemporary consumers are likely to harbor at least two types of skepticism about the quality of law school disclosures. One, some people question data integrity, i.e. the accuracy of the data underlying the statistics. Accuracy refers to not just whether data are true, but also to whether data collection procedures are likely to produce true results. Two, some people question the presentation of those data. That is, they question whether information is misleading or incomplete.
The Section of Legal Education has attempted to tackle both sources of skepticism. In August 2012, the Section revised Standard 509[9]. Standard 509 forbids law schools from publishing any consumer information that is inaccurate, incomplete, or misleading to a reasonable prospective student.[10] It also requires that law schools disclose certain consumer information on their websites and in scholarship offer letters.[11]
The Section has also begun more closely scrutinizing compliance with Standard 509. As of early 2013, LST reported in the annual Transparency Index that 156 of 199 law schools (78.4%) were non-compliant with Standard 509, despite being ABA-approved. [12] After we worked with law schools to achieve full compliance, 80 schools (40.2%) were non-compliant, an improvement of 76 schools. Following LST’s report and the coverage it received in the press,[13] the Section’s professional staff reviewed law school materials for violations of Standard 509. Consistent with our report, the Section found many law schools were non-compliant.
The Section’s initial compliance check in April found problems at 60 schools (30.2%). By the time the professional staff reported to the Council of the Section of Legal Education in June 2013, just 24 schools (12%) were non-compliant.[14] Despite the troubling reality that there are so many non-compliant ABA-approved schools, the compliance statistics show a marked improvement in data presentation over the six month period.
Finally, the Section has produced a request for proposals (“RFP”) to protect employment data integrity. [15] The RFP asks that a third party produce a statement of requirements for collecting, maintaining, and reporting post-graduation employment data to the Section in compliance with the schools’ accreditation responsibilities (the “Statement”).[16] The RFP also requires that third party to develop a protocol of policies and procedures for reviewing the integrity of post-graduation employment data reported to the Section (the “Protocol”).[17] The Protocol will be written so that a team of volunteers can effectively and efficiently audit whether law schools follow the Statement and whether employment data reflect outcomes[18]
The hope is that, combined with enforcement of Standard 509, creating, administering, and enforcing data collection procedures will provide the public and other legal education stakeholders with justifiable and documented reasons for having confidence that post-graduation employment information is accurate, complete, and can be relied upon. Indeed, if the ABA enforces Standard 509 and utilizes sound data collection and auditing procedures, the information will be trustworthy. But will the information be trusted?
The Section of Legal Education’s efforts are an essential foundation, but it’s not apparent that the ABA seal is enough to earn back trust. Four factors indicate that more than ABA-approval is needed to restore trust: timing of the ABA’s data integrity program, the complexity of the employment information landscape, execution of the ABA requirements by schools, and the stickiness of ABA-approval.
- Timing. At best, the ABA’s data integrity program will be in effect in two years. The more likely scenario, however, is that data published in March 2016 will be the first batch of data collected and reported under the program.[19] The first full admissions cycle to benefit from the program would therefore be in 2016–2017. The further removed schools are from the time they were trusted, the more challenging it will be to undo that problem.
- Complexity. Consumers rarely know the best practices for data gathering and publication. Even if they do, it’s difficult for them to assess whether the school has followed those best practices. Many law schools today want to provide more information than the standardized charts required by Standard 509, but that’s dangerous in the current era of mistrust. Unless a third party assures consumers that schools are following best practices, those consumers may distrust the additional information.
- Execution by Schools. Schools by and large have not met or exceeded the minimum standards in a timely fashion. Despite the Section’s efforts in revising Standard 509, it was not sufficiently effective. With some schools still not complying with Standard 509, a minority of schools continues to provide fodder for negative media coverage, while some other schools and the ABA attempt to restore the public’s trust. For the schools doing well, their positive efforts may be overlooked because of the harsh reality that negative stories receive traction and imply pervasiveness.
- Stickiness of ABA Approval. The ABA seal of approval is the only outward signal for law schools—a mark few schools have ever lost for any reason and one that schools will likely never lose for violating Standard 509. Somehow, law schools maintain accredited status despite widely covered and acknowledged violations. This devalues ABA approval and means that trustworthy schools must seek other indicators of their integrity.
Against the backdrop of distrust, affirmative efforts beyond the minimum standards combined with an additional outward signal may prove to be an effective strategy for rebuilding vital trust. Efforts to restore trust need to begin now and require that law schools take an active role outside the scope of the ABA. Indeed, Professor Trachtenberg suggests that state authorities may supplement ABA accreditation with “another organization capable of evaluating law school advertising for honesty and trustworthiness.[20] Whether or not state authorities demand one, an additional signal for trustworthiness would help move the trust-building process along.
Third-Party Efforts to Improve Trust
Consider the lawyer joke from earlier. Had a lawyer chimed in to defend himself, he might respond that he’s no liar. But what else would a liar say? His words aren’t persuasive. Instead, he may need time to prove his trustworthiness, or he may rely on a third party to step in and lend credibility. Presentations of good faith aren’t enough when you have several strikes against you, deserved or not.
Now consider LST’s Transparency Index again. The project analyzed school actions on two occasions. First, we analyzed school marketing materials without notice around the first of the year. We measured not only whether law schools met the requirements of Standard 509, but also whether schools met voluntary transparency standards. Second, we re-analyzed schools using the same criteria after sharing our findings with administrators. Every ABA-approved law school dean, career services office, and admissions office received a copy of our report. We invited each school to consult about our findings and informed them that our findings would be published several weeks later. Schools were receptive and appreciative; over 100 schools took the offer, with almost all of those schools improving performance by the end of February.[21]
The Transparency Index delivered dueling messages. On the one hand, more law schools than ever before were open and fair with the information they possessed about post-graduation employment outcomes. This makes those law schools more trustworthy. On the other hand, strikes continue to pile up against law schools with respect to employment information. These strikes make it more difficult for all law schools to be trusted.
For example, it’s fair to ask what the responsive schools would have done without the implied threat of negative press. Our reviews occurred many months after schools first had the opportunity to choose to publish relevant data. Only after we raised specific problems did many schools elevate the priority of Standard 509 compliance. Additionally, even though almost all law schools are compliant now, many still withhold pertinent employment information not required by the standard, reducing the ability of prospective students to make informed decisions.
Law school administrators say all of the right things. They value transparency; they value honesty; and they want to enroll informed student bodies. These have become necessary talking points for legal educators. Yet excellent substance is required in addition to recitations. The Transparency Index provided empirical data about public availability of information, and unflattering results for non-transparent schools invade attitudes about the schools that do meet expectations.
The Transparency Index was very effective in nudging non-compliant schools to improve, but it was less successful in recognizing schools that had met the highest levels of transparency. Several schools sought press about good results in local papers; others boasted in tweets and in alumni magazines; and some wrote about their performance on blogs.[22] Schools could positively associate with LST’s recognition of their achievement, and they did so, but there was no easy way for them to signal their success.
This gap prompted LST to create a certification program that will label schools that meet our criteria as “LST Certified.” LST Certification will increase the quality and consistency of consumer information (employment, financial aid, etc.), and it will allow individual schools to assure prospective students that they are committed to best practices. The certification builds on the foundation set by the Section of Legal Education to reignite the trust that the legal profession needs law schools to hold.
Critically, the program is a partnership between LST and all law schools that want to participate in rebuilding that trust. Applicant schools will receive free consultation and web services to help them receive certification.[23] Once certified, law schools will be able to use the certification mark unless the school violates the terms of certification. We will monitor LST Certified schools and ensure that their desire to present compelling information remains fair and straightforward so that consumer information will evoke trust from applicants and the public.
Certification is a simple, efficient way for schools to build individual reputation while helping rebuild public trust in the profession. Especially if some schools continue to shirk the requirements of Standard 509—or, worse, engage in the sort of fraudulent actions that Professor Trachtenberg documents—other schools will need a proactive way to signal their integrity. Certification can help individual schools accomplish that end, promote greater trust in the profession, and attract a new generation of lawyers inspired by the commitment to fairness and accuracy displayed by the law schools recruiting them.
Preferred Citation Format: Kyle P. McEntee, The Evaporating Trust in American Legal Education, 5 Neb. L. Rev. Bull. 1 (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290858.
FOOTNOTES
0. Executive Director, Law School Transparency. Law School Transparency (“LST”) is a nonprofit legal education policy organization. LST seeks to hold law schools and the ABA accountable, make access to the legal profession more affordable and fair, and provide quality and consistent information to prospective students and the public. I would like to thank Patrick J. Lynch and Deborah Jones Merritt for their valuable feedback on this essay. I would also like to thank a number of anonymous law school deans for their candor about the moral dilemmas they face in their leadership roles. Their insights have affected LST’s general direction over the years for the better. ↑
1. Law schools are abusing both their position as professional gatekeepers and as federal student loan beneficiaries. Since 1985, inflation has been a factor in rising law school prices. According to the Bureau of Labor Statistics, inflation has been 103.2% over this period. CPI Inflation Calculator, Bureau of Labor Statistics, http://www.bls.gov/data/inflation_calculator.htm. But legal education inflation far exceeds the inflation rate. In 1985, the average private school tuition was $7,526 (1985 dollars), which would now cost a student $15,733 (2011 dollars). Instead, the average tuition is $39,184 (2011 dollars), so tuition grew about 2.5 times the inflation rate. For public school resident tuition, the average grew 5.27 times the inflation rate. Tuition Tracker, Law School Transparency, http://www.lawschooltransparency.com/reform/projects/Tuition-Tracker. ↑
2. See Mathew D. Staver & Anita L. Stayer, Lifting the Veil: An Expose on the American Bar Association’s Arbitrary and Capricious Accreditation Process, 49 Wayne L. Rev. 1 (2003); Reeve Hamilton, UT Law’s Forgivable Loans to Faculty “Not Appropriate”, Texas Tribune (Nov. 13, 2012), www.texastribune.org/texas-education/higher-education/ut-law-forgivable-loan-program-deemed-not-appropri/; Joe Patrice, NYU Law’s Secret Slush Funds, Above the Law (June 10, 2013), http://abovethelaw.com/2013/06/nyu-laws-secret-slush-funds/; Michael Rezendes and Christina Pazzanese, New England Law head draws scrutiny for his pay, Boston Globe (Jan. 13, 2013), http://www.bostonglobe.com/metro/2013/01/13/law-school-dean-salary-may-nation-highest/r59QMPRZANUkeJOkxhne1K/story.html. ↑
3. For an extensive discussion of some tools prospective law students use, see Kyle P. McEntee and Patrick J. Lynch, A Way Forward: Improving Transparency at American Law Schools, 32 Pace L. Rev. 1 (2012) (originally published in May 2010). Also see Ben Trachtenberg, Law School Marketing and Legal Ethics, 81 Neb. L. Rev 866 (2013). ↑
4. The problems pushed ABA leadership to create a task force on the future of legal education. Press Release, American Bar Association, ABA President Names Task Force on the Future of Legal Education (July 31, 2012), available at http://www.abanow.org/2012/07/aba-president-names-task-force-on-the-future-of-legal-education/.↑
5. LSATs Administered, Law School Admission Council, http://www.lsac.org/lsacresources/data/lsats-administered.asp; LSAC Volume Summary, Law School Admission Council, http://www.lsac.org/lsacresources/data/lsac-volume-summary.asp. ↑
6. McEntee, supra note 3. ↑
7. Senators Barbara Boxer (Minnesota), Chuck Grassley (Iowa), and Tom Coburn (Oklahoma) have publicly criticized the ABA and law schools.↑
8. Victoria Szymczak, An Intervention: ABA Violates 17 Department of Education Accreditation Regulations, Law Librarian Blog (June 13, 2011), http://www.lawprofessors.typepad.com/law_librarian_blog/2011/06/an-intervention.html. ↑
9. See the American Bar Association House of Delegates Resolution on Standard 509 (Aug. 6, 2012), available at http://www.abanow.org/2012/06/2012am103/.↑
10. Id.↑
11. Id. In particular, Standard 509 requires that law schools publish employment information in a certain form. ↑
12. Transparency Index Statistics, Law School Transparency, http://goo.gl/yNRO6. ↑
13. Winter 2013 Transparency Index Report, Law School Transparency, available at http://ssrn.com/abstract=2227508. A representative story can be read in the National Law Journal. Karen Sloan, Problems persist with law school jobs data, watchdog says, National Law Journal (March 4, 2013), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202590850252. For additional details on the methodology, see Transparency Index Statistics, infra note 13 (click on “methodology” section).↑
14. Memo from Barry Currier to the Council of the ABA Section on Legal Ed. & Admission to the Bar (May 29, 2013), http://goo.gl/tgjHR.↑
15. Request for Proposal, American Bar Ass’n, Development of a Protocol for Reviewing Law School Graduate Employment Data (Feb. 1, 2013), http://goo.gl/RYrjE.↑
16. Id.↑
17. Id.↑
18. Id.↑
19. The most aggressive timeline puts the data integrity program in effect for the class of 2014, which would have its employment outcomes measured as of February 15, 2015 and published by the end of March 2015. But the class of 2014 includes graduates from September 1, 2013 – August 31, 2014. As of the end of June 2013, the ABA has not contracted with RFP’s winning bidder. So, the most likely scenario is that the program goes into effect for the class of 2015.↑
20. Trachtenberg, supra note 3, at 918.↑
21. Index Statistics, supra note 12.↑
22. See Highlights, Florida State University College of Law, available at http://www.docstoc.com/docs/148953276/Highlights—Florida-State-University-College-of-Law (excerpt from an Florida State alumni magazine); Texas Tech law school named one of nation’s most transparent, Lubbock Avalance-Journal (March 6, 2013, 1:33 AM), http://lubbockonline.com/education/2013-03-06/texas-tech-law-school-named-one-nations-most-transparent (newspaper article on Texas Tech); Spring 2013, University of Baltimore School of Law Accolades (March 29, 2013), http://ublawaccolades.wordpress.com/2013/03/29/spring-2013/ (blog of University of Baltimore); University of Baltimore College of Law, Twitter (March 5, 2013, 10:55 AM), https://twitter.com/ubaltlaw/status/309014365821095936 (Twitter account of University of Baltimore); University of Colorado (press release), Press Release, University of Colorado, Class of 2012 Employment Numbers Released (April 13, 2013), http://www.colorado.edu/law/2013/04/01/class-2012-employment-numbers-released (University of Colorado); University of Memphis (Twitter), Memphis Law School, Twitter (Mar. 6, 2013, 9:14 AM), https://twitter.com/memlawschool/status/309351321864118272 (Twitter account of University of Memphis Law School); Boyd Identified as “Fully Transparent” in Reporting Employment Information, UNLV Law Blog (Mar. 6, 2013) (blog of University of Nevada–Las Vegas), http://unlvlawblog.blogspot.com/2013/03/boyd-identified-as-fully-transparent-in.html; Wayne State (CBS Detroit), Matt Rousch, Awards And Certifications From March 18, CBS Detroit (Mar. 18, 2013), http://detroit.cbslocal.com/2013/03/18/awards-and-certifications-from-march-18/ (media report on Wayne State University Law School).↑
23. Note, however, that we will charge a licensing fee for the certification mark. There are administrative costs involved in monitoring law schools. The fee also enables a necessary layer of accountability and ensures real participation in the certification process.↑
Improving Law School “Transparency”
mrick101
Jeffrey Evans Stake[0]
Given their central role in the training and socialization of lawyers, law schools are uniquely obliged to present themselves honestly to the public and to their prospective students. In recent years, law schools have failed to live up to that simple standard. As Ben Trachtenberg documents in detail,[1] some law schools have lied or deliberately presented misleading information. More broadly, all law schools have followed the ABA mandate to report employment statistics that, until recently, were defined in ways that would have surprised many law school applicants. The ABA has taken steps to improve the flow of information from law schools to the public. It has punished perpetrators and reformed reporting rules. What more should be done?
Prof. Trachtenberg argues for increasing the penalties for individuals involved in deceptive representations. One of the admirable attributes of Trachtenberg’s approach is that it focuses punishment on the key actors. When law schools lie, they set a terrible example for law students and lawyers, undermining the norms of the profession. If law schools, the very places that teach professional responsibility and legal ethics, somehow see fit to lie when the benefits outweigh the costs, law students and lawyers may take to heart the apparent lesson that it is acceptable to deceive in order to advance the interests of one’s self or one’s employer or one’s client. Beyond that, it is not implausible that lying by law schools erodes public confidence in the justice and integrity of the legal system and undermines its ability to coordinate behavior by setting social norms. In any case, the lying in which law schools have engaged is plainly deplorable behavior deserving severe punishment. But the lies of law schools start with individual employees; it is their behavior that needs to be constrained. If society punishes only the schools and leaves the punishment of individuals up to the schools, the penalties that the individuals face, typically loss of job, may be inadequate to create an efficient system of deterrence. Trachtenberg’s approach avoids that limitation by punishing the liars directly and in ways that are not available when schools do the punishing.
On the flip side, Trachtenberg’s proposal avoids punishing the innocent, as can happen when the ABA sanctions schools or when peers kick them in the reputation. After lies at the University of Illinois College of Law came to light, the U.S. News and World Report (USN&WR) peer assessment score for Illinois fell from 3.5 to 3.1. That drop contributed to Illinois’s plummet in overall rank from 23 in 2012 to 35 in 2013 and to 47 in 2014. If the teachers and administrators evaluating Illinois were merely responding to the new LSAT and UGPA information and changing their assessment accordingly, then the new reputation score should not be seen as inflicting punishment on Illinois but rather as putting Illinois where it should have been all along. But if the peers lowered their reputation assessments beyond what was justified by the new statistics, then the new reputation score includes an element of punishment. If that is in fact what happened, the peers have punished the victims, the very students who were deceived into attending Illinois by the false numbers.[2]
Despite these, and other, advantages of Trachtenberg’s approach, I am not yet convinced that punishing lawyers in law school administration will enhance what is often called “transparency,” which I take in this context to be a fair presentation of the facts. I do not doubt that an increase in punishment will diminish the likelihood that any lawyer will make a misleading statement. However, as Trachtenberg points out,[3] many of a law school’s reporting tasks that are now being performed by lawyers could be done by non-lawyers. If the increase in the threat of punishment makes the expected cost substantially greater for lawyers than for non-lawyers, jobs that need not be assigned to a lawyer will become relatively more attractive to non-lawyers. Over time, such tasks will tend to be allocated to non-lawyers whose behavior will not be subject to bar discipline and might even be less likely to conform to desired standards. It is not a certainty that the gains from improving the behavior of lawyers outweigh the losses from shifting some of those tasks to non-lawyers.
There is another problem as well. Subjecting lawyers to personal punishment for failure to alert bar authorities might align their interests in secrecy with the interests of their employer. If employees face punishment, they have more to gain from keeping information from the ABA, which will reduce the chances that they will blow the whistle on their employers. Misreporting by law schools might be more likely to remain hidden if the employees think they could be punished for failing to alert authorities at an earlier date.
Finally, although there is no doubt that some law schools have deliberately lied in the past, many (if not almost all) schools have tried to report honestly.[4] And now that Illinois and Villanova have been punished by the ABA and their reputations have been blackened, the chances of misreporting must have fallen still further. The ABA can increase the odds of truthful reporting by making sure that the standards for reporting are clear and practicable. Recently, the ABA has taken important steps to improve the utility of the numbers being reported by dividing the employment into groups. If that dis-aggregation is adequate for law schools to honestly promote their programs and the lines drawn are workable, schools should be happy to comply and will not need to make up their own categories of employment. With regard to the accuracy of information reported by almost all law schools, tailoring and clarification of the ABA standards will be more important than increasing the personal punishment lawyers face for being involved in misreporting.
My skepticism about the effectiveness of punishing members of the bar should not be interpreted to mean that I condone any ethical lapses of law schools and their employees in their releasing of information. More can and should be done to reduce the harms from law school misreporting. To examine this issue, it might be helpful to divide the harms into three groups. The first kind of harm, perhaps the most important, is the harm to social expectations and professional norms that attends deliberate fabrications and falsifications. I mentioned this above, and will not elaborate any further here.
The second kind of harm is the harm befalling individual students when law schools, whether intentionally or not, publish inaccurate information. For example, a lie or mistake in reporting LSAT and UGPA statistics might have increased the rank of a school in the USN&WR ranking, which might in turn have misled individual students into matriculating at that law school. Those students may have been harmed by the misinformation. What is that harm? I do not believe that the overall educational and employment differences between the law school chosen and the school forsaken in each case would have been large, if indeed they existed at all. This is so because inaccurate information about LSATs and UGPAs in most cases would not make a large change in rank, and there is little difference in the overall quality of schools ranked closely by USN&WR. As far as we can tell, no school has lied on many criteria, and until such a school is identified, we can be reasonably confident that few schools if any have lied their way to a rank far above their true quality. The lies and mistakes that have been made have probably made little difference to the quality of legal education received by deceived students.
But a loss of educational opportunity is only one of the harms students could have suffered from misreported statistics. By increasing the rank of some schools, bad LSAT and UGPA numbers may have caused some students to pay more to attend law school than they would have otherwise paid. For example, a student might have been offered a scholarship of $100,000 by school A (rank 40) and a scholarship of $60,000 by school B (rank 38), where both schools have the same nominal tuition. The student might have then chosen to attend school B, based on its higher rank. But suppose also that school B would have been ranked 42 if USN&WR had known its real numbers. Had this student known that, he would have chosen school A and paid $40,000 less for law school. In such cases, the difference in price represents a clear loss to the student.[5]
Is this realistic? Are students willing to pay a higher price to attend a school with higher rank? Anyone in law school admissions would probably say, yes. And the applicants themselves report the same thing. Brian Broughman and I are analyzing the importance of price compared to rank to students choosing between law schools.[6] In our preliminary analysis, we have found that price and rank both matter, but that rank matters more and cost is only a secondary consideration for most students choosing a law school. Of all the participating applicants in our study who had a choice between two schools and who reported their preference, over sixty percent attended the highest rank school at which they were accepted, compared to only twenty-six percent who chose in favor of the law school with the lowest cost. This sensitivity to rank should come as no surprise. After all, rankings sell magazines and it would make no sense for students to buy the magazines and carry them around to forums and then ignore that information. These preliminary findings are consistent with a June 2012 Kaplan Test Prep survey in which thirty-two percent of the respondents said that rank was the most important factor in their decision and, in response to a separate question, eighty-six percent said that rank was very important or somewhat important.[7] According to another study by Amanda Griffith and Kevin Rask, students are also sensitive to rank when they choose an undergraduate college and this sensitivity is independent of other measures of quality.[8] Given that applicants favor rank over price more often than otherwise, it seems likely that in a few of these cases the higher rank school chosen would have been the lower rank school if it had reported accurate numbers.
For the students in those situations, the financial losses may have been large, due in part to the rankings themselves. Over the last two decades, in order to improve their position in USN&WR, law schools have attempted to attract students with high LSATs and UGPAs by dramatically increasing scholarship grants to the point that many students have been offered a scholarship of $45,000 per year or more. At the same time, many schools offer next to nothing to other students. The result is that any given student may receive wildly differing scholarship offers, and of course tuition itself also varies across schools. According to our preliminary analysis based on applicant reports, some students gave up tens of thousands of dollars in net tuition to buy into a school ranked higher by USN&WR. Twenty-five percent of the participants gave up more than $50,000 to attend a higher rank school, and nine percent sacrificed more than $100,000 to attend a school of higher rank. At the extreme, three percent gave up $20,000 per rank place to go to a law school that USN&WR said was better. Perhaps law schools and the responsible employees should be liable for the direct financial losses of students that acted in reliance on their misrepresentations.[9] An award of damages would shift losses from the deceived students to law schools and their employees, creating an additional disincentive for lying.
When the false number is a published employment rate, a more direct argument might be made that the inaccurate number misled a student. About five percent of the matriculants in our study chose to attend the school with the highest reported employment rate over a law school that was less expensive or higher ranked. Similarly, eight percent of the students in the Kaplan survey said that employment rate was the most important factor, and others respondents probably also considered it important. Perhaps some of these students paid extra to attend a school with a higher employment rate when in fact the school had a lower rate than a school the student chose not to attend.[10] If so, they might deserve compensation for acting to their detriment in reliance on a fabricated employment figure. But it will be hard for them to show damages. The choice of school often makes no big difference to subsequent employment. Some students obtain jobs and are none the worse for having attended a school with a lower employment rate. Some students do not find jobs for a while, but would not have done so after attending the other school either. The students harmed, of course, are those in the middle, who failed to find jobs, but who would have landed jobs if they had gone to the school with the higher true employment rate. This must have occurred at least a few times, but it is hard to prove in any individual case. Proof is especially difficult because employment rates are positively correlated with LSAT medians and thus the school with higher employment would generally also have a more competitive classroom environment for students in it. For that reason, the students who did not obtain employment will be in the difficult position of showing that they would not have ended up lower in the class at the school with higher employment. To put it another way, it is not clear that employment prospects for any given student improve by attending a school with a higher employment rate.
Students may have suffered another injury, however, from misleading employment numbers. As in the case of inaccurate LSAT and UGPA medians, students may have given up scholarship money to attend a school that looks like it has a better employment rate. This loss from paying a higher price for purportedly higher employment odds is easily quantified for those students who can show that they chose their school based on employment numbers. The hard part is showing that they did in fact choose based upon published employment figures. However, if they can show that they turned down a school with higher rank and lower cost for a school with higher published (but not actual) employment, they should have a claim for damages in the amount of the difference in net tuition.
So far, the discussion has been about schools harming students by reporting inaccurate numbers to the ABA, where the discrepancies end up making a difference to student choice, either on the basis of the numbers themselves or on the basis of USN&WR rank.[11] Next, consider the harm done when nearly all schools reported misleading numbers, as the ABA instructed them to do by defining graduates as employed if they had any sort of full-time job, even if it was wholly unrelated to the training received in law school. It is not clear whether any law schools gained a ranking advantage from the ABA’s definition of employment. The reporting system was defective, but all schools were evaluated on that same defective system.[12] As long as employment as defined by the ABA correlated highly with the kind of employment that students cared about, the fact that ABA-defined employment was not law-related employment had no effect on the rankings and little effect on student choice among law schools. If the correlation was insufficient and some schools were ranked too high as a result, the harms discussed above might obtain, but at least some of the blame for that should be placed on the ABA.
Even if no school’s rank was changed by the ABA’s reporting rules, the numbers reported under those rules may have done some harm. Which law school to attend was not the only important choice the applicants faced. They also had to decide whether to go to law school at all. By inflating the employment numbers, the ABA reporting requirements probably led some students to go to law school who otherwise would not have attended. Assuming that some students were enticed to law school by the misleading employment numbers, were they harmed? That is not easy to determine. Of course, they expended time and effort, and money too; law school does impose costs. The question is whether the outcome is worth those costs. A draft of a study presented at the 2013 meeting of the American Law and Economics Association indicates that law school is not a bad deal for the majority of law students. Michael Simkovic and Frank McIntyre estimated that the mean pre-tax lifetime value of a law degree is in the neighborhood of one million dollars.[13] Even at the 25th percentile, the earnings attributable to the law degree justified the expense of law school, compared to not going to law school. They also found that the law degree premium has varied over the years, and that the current premium is within historical norms. It is important to note that the study did not address the cost of forgoing other graduate educational opportunities, and had limited controls for ability. Nevertheless, the study casts a skeptical eye on the claim that law school pays off only for those attending the top 14 schools.
It is possible that for most students law school was not a waste of their money or time, even if they were drawn to school by overly optimistic employment numbers. But it is also worth considering whether inflated employment numbers did in fact cause over-attendance at law schools. In our study, across all participants, Broughman and I did not find that employment numbers had a substantial effect on choice of law school. One might think that this would mean that employment figures could not have drawn many to law school, but that does not follow. Students could pay attention to employment percentages when choosing whether to go to law school but then pay no attention to employment in choosing which law school. For a number of years, many schools published nine-month employment rates above 90 percent. A potential student might not care about the difference between 91 and 94 percent employment, but might be drawn to law training by the fact that both numbers are in the nineties. In addition, there is a group of students that might have cared about employment numbers in both contexts, whether to attend law school and which school to attend. Students with low LSAT or UGPA numbers are often denied admission by schools of high rank. Broughman and I found that students choosing between schools of lower rank were less sensitive to rank and more sensitive to employment rate than students choosing between schools of higher rank. The students choosing between schools of lower rank might also be the students most easily dissuaded from going to law school at all. So, it is possible that published employment numbers made a difference to that decision.
Were large numbers of students influenced in this way? Each of the lines in the two figures shows a change over time, compared to the baseline in 1985. The wavy line is the number of applicants to law schools in the US. Why does it fluctuate so dramatically? The supply of potential applicants to law school does not explain it. From Figure 1, we see that the number of BA degrees conferred by American schools each year has increased steadily, with essentially none of the variation seen in the number of applicants. The correlation between JD applicants and BA degrees from 1985 to 2012 is .07, and from 1999 to 2012 is -.14. Thus, since 1999, the number of actual JD applicants has not tracked the number of potential American applicants. Switching attention from the potential supply of students to the demand for law graduates, note from Figure 1 that the total population has increased fairly steadily, which ought to have increased demand for legal services, but the number of applicants has not increased in the same way. The correlation between JD applicants and US population from 1985 to 2012 is .10, and from 1999 to 2012 is -.03. Of more immediate relevance, observe from Figure 2 that employment rates for law school graduates have a varying relationship with applications to law school depending on the time period chosen. The correlation between application rate and employment rate from 1985 to 2012 is -.37, and from 1995 to 2012 is essentially zero. However, if we limit our view to what has happened since 1999, the correlation from 1999 to 2012 is .28. Of course employment rates only tell a part of the story, and potential applicants to law school should care about salary as well. According to Simkovic and McIntyre, however, the premium to be gained from a law degree is about the same in 2011 as it was in 2006, 2001, and 1996,[14] so the variation in applicants over time seems not to be closely tethered to the potential value of a JD degree in the market.
At the present time, it is unclear how much weight applicants place on various factors when they make their choices between law schools. Underlying that uncertainty is a deeper uncertainty about the value of a law school education. We do not know how much harm a student suffers by going to one law school instead of attending another, or by pursuing law instead of some other profession. But those uncertainties provide no excuse for the failure of law schools to present accurate information to applicants and the public, i.e., to paint a fair picture of themselves. Justice and incentives for accurate reporting would be served by awarding students compensation for the direct financial losses they have suffered as a result of a law school’s publication of inaccurate information.
Preferred Citation Format: Jeffrey Evans Stake, Improving Law School “Transparency”, 5 Neb. L. Rev. Bull. 9 (2013), http://lawreviewbulletin.unl.edu/?p=1120 .
FOOTNOTES
0. Robert A. Lucas Chair of Law, Indiana University Maurer School of Law. I thank Brian Broughman, Eric Rasmusen, and Michael Alexeev for helpful comments. And I thank Ben Trachtenberg for inviting me to comment on this important issue. ↑
1. See Ben Trachtenberg, Law School Marketing and Legal Ethics, 81 Neb. L. Rev. 866 (2013).↑
2. I doubt that the Illinois drop in peer assessment can be explained purely as a matter of the actual quality of the University of Illinois College of Law as a research or teaching organization. However, information regarding the Law School Admission Test (“LSAT”) is probably a component of peer evaluations. Michael Alexeev and I have found that peer scores seem to respond to changes in LSAT’s. See Jeffrey Evans Stake & Michael Alexeev, Who Responds to U.S. News & World Report’s Law School Rankings? (Ind. Univ. Mauer Sch. of Law Legal Studies Res. Paper Series, Research Paper No. 55), available at http://ssrn.com/abstract=913427. The median LSAT for Illinois was 167 (tied for 16th with 7 other schools) in 2012, and 163 in 2013 (tied for 38th with 8 other schools). The peer assessment for Illinois was 3.5 (tied for 22nd) in 2012, and 3.1 in 2013 (tied for 39th). (The years in this case are USN&WR years, which are a year ahead of the year of publication.) Since the peer rank did not drop as much as the LSAT median rank, these numbers are ambiguous as to whether peers punished Illinois or merely considered LSAT numbers to be that important. (I am not suggesting that, in this case, the peers responded to the LSAT information published in USN&WR because they do not publish the medians and because the peer assessments dropped before USN&WR published the new LSAT numbers. If peers were responding to the change in LSAT’s, they would have to have been responding to other reports of the degree of cheating).↑
3. Trachtenberg, supra note 2, at 920.↑
4. I am writing here of the facts presented to the ABA. I am less confident about law school honesty in other contexts. For example, a number of law schools have enticed students with renewable scholarships without telling the students that it was impossible for all of them to do well enough to renew their scholarships. This is, in my view, an unethical omission.↑
5. A defendant school might argue that the student got what he paid for, namely rank, and not the qualities that rank is supposed to summarize. However, the student might be able to convince the finder of fact that he was attempting to buy the quality indicated by rank, not mere rank itself.↑
6. Brian Broughman & Jeffrey Evans Stake, Law School Tuition: How Much Does Price Affect Choice of School? (work-in-progress as of July 22, 2013) (available soon on SSRN). Our initial draft is based on student- reported data presented on LawSchoolNumbers.com for students matriculating between 2006 and 2012. At this stage, our findings are only preliminary because we intend to extend the database to include entries from the applicants in 2013.↑
7. Press Release, Kaplan Test Prep, Kaplan Test Prep Survey: Despite an Uncertain Employment Landscape, Law School Applicants Still Consider School Rankings Far More Important than Job Placement Rates When Deciding Where to Apply (June 19, 2012) (available at http://press.kaptest.com/press-releases/kaplan-test-prep-survey-despite-an-uncertain-employment-landscape-law-school-applicants-still-consider-school-rankings-far-more-important-than-job-placement-rates-when-deciding-where-to-apply).↑
8. See Amanda Griffith & Kevin Rask, The Influence of the U.S. News and World Report Collegiate Rankings on the Matriculation Decision of High-Ability Students: 1995-2003, 26 Econ. of Ed. Rev. (Issue 2) 244-255 (2007). Their regression included variables for student-faculty ratio and expenditures per student, and fixed effects for the schools themselves.↑
9. A defendant school might argue that the scholarship offer that the applicant declined would have been lower if that school had not had to compete with the defendant, so the loss to the student was less. Perhaps that argument should be ignored on principle. But even if it is not, it may be possible for a student who gave up a scholarship to find out from the school that offered lower tuition how much the net tuition would have been if the student had not had the offer from the defendant school.↑
10. A student could similarly argue that he relied directly on a reported LSAT or UGPA statistic, as opposed to the USN&WR rank to which it contributed. A student might want to attend a school with low LSAT’s because the competition for first year grades would be easier, or because the closely-ranked school with lower numbers must have other, more-important, factors in its favor. Or a student might want to attend a school with high LSAT’s because it would be easier to learn from classmates, or because employers might assume the student had a higher LSAT, or because the LSAT numbers reflect student decisions, which is a form of crowd-sourced information on the quality of law schools. It is not clear, however, that many students could make a convincing case that they made their decision on the basis of the median LSAT or UGPA, as opposed to the rank of the school, or its reported employment rate. There is a lot of buzz on the web when USN&WR publishes and new ranking and the vast majority of it relates to the ranks, not to the LSAT’s reported by USN&WR at the same time.↑
11. It may be the case that students at other law schools are harmed when a school gains a ranking advantage from reporting inaccurate numbers. The rank of their school might sink a bit, but it seems unlikely that many suffer substantial financial harm.↑
12. It should be noted that the reporting requirements were not necessarily misleading when they were adopted by the ABA for the purpose of accreditation.↑
13. Michael Simkovic & Frank McIntyre, The Economic Value of a Law Degree Presented at the 2013 Annual Meeting of the American Law and Economics Association (April 23, 2013), available at http://ssrn.com/abstract=2270175.↑
14. Id., at slide 39, Fig. 5. The premium reached lower points around 1999 and 2002 and a higher point around 2007.↑
Response Series: Ben Trachtenberg’s “Law School Marketing and Legal Ethics”
mrick101
Issue 91 of the Nebraska Law Review features an article by Professor Ben Trachtenberg of the University of Missouri School of Law which details a recent and controversial topic within legal education: the release of misleading employment statistics by law school administrators. In Law School Marketing and Legal Ethics,[1] Professor Trachtenberg advocates a novel approach to combating this deceitful practice through the use of professional liability under Model Rule 8.4(c). As part of a special series of responses from other notable academics in the area, the Nebraska Law Review Bulletin is proud to publish the thoughts of Kyle McEntee of Law School Transparency and Professor Jeffrey Stake of Indiana University’s Mauer School of Law. In their responses, each author will detail his respective take on professional liability as advocated by Mr. Trachtenberg and offer an alternate approaches to combating the release of misleading employment statistics by law schools. Finally, Professor Trachtenberg will again offer his thoughts in a final response. Due to the unique nature of this series, the usual emphasis on word length for Bulletin submissions is downplayed in order to best retain the full substance of the contributing authors’ response.
FOOTNOTES
1. Ben Trachtenberg, Law School Marketing and Legal Ethics, 91 NEB. L. REV. 866 (2013).↑
Bull****!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause
rgerlach
Colin Miller [0]
In State v. Kibbee, Eddie Kibbee brought an Ex Post Facto Clause challenge to his convictions for first-degree sexual assault and felony child abuse.[1] Kibbee was convicted for sexual acts committed against a sixteen year-old,[2] and if his ex post facto claim had been that the legislature rose the age of consent from sixteen to seventeen after his alleged crimes, he would have had a viable claim. He also would have had a viable claim if his conduct was classified as second-degree sexual assault at the time of his alleged crimes or if he was sentenced to fifty years’ incarceration, but the maximum punishment for his crimes was only forty years at the time of commission.
Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed”[3] by Congress while Article I, section 10 places a similar limitation of state legislatures.[4] In its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with these ex post facto clauses:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.[5]
The three hypothetical laws referenced above are the first three types of laws recognized in Calder. The law raising the age of consent criminalized conduct (sexual intercourse with a sixteen year-old) that was innocent when done. The law turning behavior that was previously second-degree sexual assault into first-degree sexual assault aggravated an existing crime, and the law allowing for fifty years’ incarceration inflicted a greater punishment than the laws in place at the time of the crime.
Kibbee did not, however, raise any of the above objections. Instead, his claim was that the trial court violated the state ex post facto clause by retroactively applying a rule of evidence that was not codified at the time of his alleged misconduct.[6] That rule, Nebraska Rule of Evidence 414(1) provides that
In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense or offenses of sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant.[7]
Nebraska Rule of Evidence 414(1) is thus similar to Federal Rules of Evidence 413 and 414, which allow for the admission of prior acts of sexual assault and child molestation by criminal defendants.[8] Kibbee claimed that Rule 414(1) was clearly a law that alters the legal rules of evidence, meaning that it was the fourth type of law that cannot be applied retroactively consistent with the ex post facto clause. Like every defendant before him challenging the retroactive application of Federal Rules of Evidence 413 and 414 as well as state counterparts, Kibbee was unsuccessful.[9] This essay argues that every court that has considered the issue is wrong and that these rules should be classified as the fourth type of law that cannot be applied retroactively.
Carmell v. Texas, Rules of Evidence, and the Ex Post Facto Clause
In Carmell v. Texas, Scott Carmell appealed from his convictions for various sexual crimes that he allegedly committed against his stepdaughter.[10] The only evidence supporting some of those convictions was the stepdaughter’s testimony, and, at the time of Carmell’s offenses, Texas had a so-called “outcry or corroboration” requirement.[11] Under this requirement, a defendant could not be convicted of certain sex crimes unless, inter alia, the victim’s testimony was corroborated by other evidence.[12] Texas amended this “outcry or corroboration” requirement after Carmell’s alleged crimes but before his trial.[13] Under the amended requirement, the stepdaughter’s testimony did not have to be corroborated for the jury to convict Carmell, and, after he was indeed convicted, Carmell brought a successful ex post facto clause challenge.[14] In granting Carmell’s challenge, the Supreme Court found that the “outcry or corroboration” requirement fit comfortably in the fourth Calder category because “[a] law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof….”[15]
In reaching this conclusion, however, the Court indicated in a footnote that “[o]rdinary rules of evidence…do not violate the Clause.”[16] Instead, “[r]ules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in a given case.”[17] Moreover and “[m]ore crucially, such rules, by simply permitting evidence to be permitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.”[18]
Given this language, it is easy to understand the opinion of the Supreme Court of Nebraska in Kibbee and similar decisions by courts in states across the country. In Kibbee, the court cited to the language of the above Carmell footnote and found that the retroactive application of Nebraska Rule of Evidence 414(1) did not violate the ex post facto clause because it “is an ordinary rule of evidence which relates to admissibility and simply provides that evidence of prior sexual misconduct may be admitted to prove propensity.”[19]
A Rule Less Ordinary: Rule 414(1)’s Pro-Prosecution Approach
Contrary to the Court’s conclusion, Nebraska Rule of Evidence 414(1), like Federal Rules of Evidence 413 and 414, is not an ordinary rule of evidence. Federal Rule of Evidence 404(b)(1) states that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”[20]
Congress, however, was dissatisfied with the low conviction rates in sexual assault and child molestation cases and decided to float new rules of evidence in the Violent Crime Control and Law Enforcement Act of 1994.[21] These rules would have been contrary to the general propensity character proscription and allowed for the admission of evidence of a defendant’s prior crimes, wrongs, or acts to prove, “once, a rapist, always a rapist,” “once a child molester, always a child molester,” or any other relevant matter. These new rules were sent for public comment to judges, lawyers, law professors, and legal organizations, with the “overwhelming majority” of respondents opposing the new rules.[22] Given this response, Congress decided to bypass the typical rulemaking process to enact what are now Federal Rules of Evidence 413-415 (with Rule 415 applying in civil cases).[23] A number of states followed suit in the ensuing years, with Nebraska joining their ranks in 2010.[24]
Thus, Federal Rules of Evidence 413-415 are not ordinary rules of evidence because Congress circumvented the formal rulemaking process to enact them. This feature makes these Rules irregular but not singular. Instead, Congress also bypassed the rulemaking process to enact Federal Rule of Evidence 704(b) in the wake of the assassination attempt on Ronald Reagan.[25] In response to the public outrage that stemmed from the jury finding John Hinckley not guilty by reason of insanity, Congress pushed through Federal Rule of Evidence 704(b), which states that
In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.[26]
As this language makes clear, while the passage of Rule 704(b) was extraordinary, the operation of the rule is quite ordinary in the sense that it may benefit either the State or the defendant in a given case. The Rule prevents a criminal defendant from calling an expert to testify that his mental disease or defect prevented him from appreciating the wrongfulness of his actions, but it also precludes the prosecution from presenting an expert to conclude that the defendant was sane. The Rule prevents a criminal defendant from calling an expert witness to testify that the defendant lacked the mens rea of the crime charged, but it also precludes the prosecution from presenting an expert to conclude that he possessed the requisite mens rea, which has rendered inadmissible testimony that police officers “routinely offered” prior to adoption of the Rule.[27]
Conversely, Federal Rules of Evidence 413 and 414 solely benefit the State. The Rules permit the prosecution to present evidence of the defendant’s prior acts of sexual assault and child molestation for any relevant purpose while vesting no similar right in the defendant’s hands. This was a point partially recognized by the dissent in Carmell. The Carmell dissent observed that the logical extreme of the majority’s reasoning was that Rule 413, as a rule that solely benefits the prosecution, “would be ex post facto as applied to offenses committed before its enactment.”[28] In reaching this conclusion, however, the dissent treated Rule 413 like it was not aberrational and cited Federal Rule of Evidence 412(b)(1)(B) as another Rule that could only benefit one party: the criminal defendant.[29]
Rule 412(b)(1)(B) is an exception to Federal Rule of Evidence 412(a), the Rape Shield Rule, which generally prevents a defendant from presenting evidence of the alleged victim’s other sexual behavior or sexual predisposition in a civil or criminal proceeding involving alleged sexual misconduct.[30] Rule 412(b)(1)(B) provides an exception in criminal cases for “evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor….”[31] As the italicized language makes clear, the Carmell dissent was clearly wrong in characterizing Rule 412(b)(1)(B) as a Rule that solely benefits the defendant because the prosecution could use it to present evidence that the defendant and victim used to engage in consensual sexual acts until, say, an act of violence changed the relationship, which is why the sexual act at issue was nonconsensual. Indeed, Rule 412(b)(1)(B) opens the door for the prosecution to present such evidence for any purpose while defendant may only use the Rule to prove consent.
Even if this were not the case, Rule 412(b)(b)(1)(B) is merely an exception to Rule 412(a), which is designed to prevent defendants from presenting sexual propensity character evidence regarding their victims. In this sense, the Rule 412 as a whole is no different from any number of other Federal Rules of Evidence, such as Rules 407-411, which each deem a certain category of evidence per se inadmissible subject to certain exceptions.[32]
In this regard, Federal Rule of Evidence 412, viewed as a whole, is similar to every other Federal Rule of Evidence, save three or four, in that it could be used to benefit either side in a given case. As noted, three of the aberrations are Federal Rules of Evidence 413-415. The other anomaly is Federal Rule of Evidence 404(a)(2)(C), which allows the prosecution to present evidence of the victim’s character for peacefulness when a homicide defendant claims that the victim was the first aggressor.[33] The rest of Rule 404(a)(2), however, makes clear that, subject to the limitations of Rule 412, a defendant in any type of criminal trial can always present propensity character evidence concerning the victim (as well as himself).[34]
Conversely, under Rules 413 and 414, a prosecutor can present evidence of the defendant’s other acts of sexual assault and child molestation while Rule 412 generally precludes a defendant from presenting evidence of his victim’s other sexual acts. Thus, Rules 413 and 414 (and 415 in the civil context) are an island unto themselves. They are not ordinary rules of evidence, and they are extraordinary in precisely the way that subjects them to Ex Post Facto scrutiny according to both the majority and dissenting opinions in Carmell. So, why have courts categorically upheld these Rules and state counterparts against ex post facto challenges?
Presumed Innocent: The Presumption of Innocence and the Propensity Character Evidence Proscription
The Carmell majority regarded most rules of evidence as “ordinary” in a second regard in that they do not at all subvert the presumption of innocence. As support for its conclusion in Kibbee, the Supreme Court of Nebraska characterized Nebraska Rule of Evidence 414(1) as one of these ordinary rules.[35] But once again, Federal Rules of Evidence 413-414 and state counterparts are the one anomaly in a constellation of evidentiary rules that otherwise do not subvert the presumption of innocence.
On numerous occasions, courts have noted that Federal Rule of Evidence 404(b), the propensity character evidence proscription, is in place to maintain the presumption of innocence.[36] If the prosecution were able to present evidence of a defendant’s prior robberies to prove, “once a robber, always a robber,” evidence of a defendant’s prior arsons to prove, “once an arsonist, always an arsonist,” or evidence of a defendant’s prior rapes to prove, “once a rapist, always a rapist,” the presumption of innocence would be eviscerated. As the United States Court of Appeals for the Third Circuit cautioned in Government of the Virgin Islands v. Toto, when evidence of a defendant’s prior crimes reaches the jury, “it is most difficult, if not impossible, to assume continued integrity of the presumption of innocence” because “[a] drop of ink cannot be removed from a glass of milk.”[37] Therefore, Federal Rules of Evidence 413 and 414 do subvert the presumption of innocence unless Congress is asking courts to assume the impossible.
The point, though, is that Congress clearly did not ask courts to assume the impossible. Instead, subverting the presumption of innocence was the goal of Federal Rules of Evidence 413 and 414 and not merely their result. As noted, Congress proposed Rules 413-414 because it was dissatisfied with the conviction rates in sexual assault and child molestation cases and wanted prosecutors to be able to use the new rules as a tool to increase these rates of conviction.[38]
This is the crux of the argument for why Federal Rules of Evidence 413, 414, and state counterparts should be treated as the fourth type of law that cannot be applied retroactively consistent with the ex post facto clause. These rules are not ordinary rules of evidence that can favor either side, nor are they rules that the prosecution can only use to prove a discrete part of its case. Rather, the rules are a naked attempt by Congress (and now state legislatures) to allow prosecutors to achieve convictions through sexual propensity character evidence when they would otherwise be unable to prove guilt beyond a reasonable doubt.
As noted, both Federal Rule of Evidence 413 and Nebraska Rule of Evidence 414(1) allow a prosecutor to present evidence of a defendant’s act of sexual assault “for its bearing on any matter to which it is relevant,” and this “any purpose” language appears in Rule 414 as well.[39] Therefore, under these rules, the jury could use evidence of a defendant’s prior sex crime(s) as the sole evidence to find that the defendant satisfied both the actus reus and mens rea of the sexual crime charged. Moreover, such a result would not be surprising given courts’ extreme reluctance to use Federal Rule of Evidence 403 and state counterparts to exclude or circumscribe the use of sexual propensity character evidence.[40] Federal Rules of Evidence 413 and 414 and state counterparts thus squarely qualify as “law[s] that alter[] the legal rules of evidence, and receive[] less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. As such they cannot be applied retroactively consistent with the ex post facto clause.
Preferred Citation Format: Colin Miller, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause, 4 Neb. L. Rev. Bull. 3 (2012), http://lawreviewbulletin.unl.edu/?p=1060 .
FOOTNOTES
0. Associate Professor, University of South Carolina School of Law, Blog Editor, EvidenceProf Blog: http://lawprofessors.typepad.com/evidenceprof/. I would like to thank Cassidy Evans for her research assistance. ↑
1. State v. Kibbee, 815 N.W.2d 872, 879 (Neb. 2012). ↑
2. See id. ↑
3. U.S. Const., art. I , § 9. ↑
4. U.S. Const., art. I, § 10. ↑
5. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). ↑
6. Kibbee, 815 N.W.2d 872, 883. ↑
7. Neb.Rev.Stat. § 27–414. ↑
8. See Fed.R.Evid. 413 & 414. ↑
9. See Kibbee, 815 N.W.2d at 86-90 (cataloging cases across the country upholding such rules against Ex Post Facto Clause challenges). ↑
10. Carmell v. Texas, 529 U.S. 513 (2000). ↑
11. Id. at 517. ↑
12. See id. ↑
13. See id. at 518. ↑
14. See id. at 532. ↑
15. Id. ↑
16. Id. at 1633 n.22. ↑
17. Id. ↑
18. Id. ↑
19. State v. Kibbee, , 284 Neb. 72, 90 ,815 N.W.2d 872, 888 ↑
20. Fed.R.Evid. 404(b). ↑
21. Report of the Attorney General on the Admission of Criminal Histories at Trial, 22 MICH. J. L. REFORM 707, 723-27 (1989). ↑
22. See Federal Rule of Evidence 413 advisory committee’s note. ↑
23. See Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule of Evidence 403, 90 CORNELL L. REV. 1487, 1488 n.1 (2005). ↑
24. State v. Kibbee, 284 Neb. 72, 81, 815 N.W.2d 872, 883. ↑
25. See Daniel J. Capra, A Recipe for Confusion: Congress and the Federal Rules of Evidence, 55 U. MIAMI L. REV. 691, 691-93 (2001). ↑
26. Fed.R.Evid. 704(b). ↑
27. Michael Teter, Acts of Emotion: Analyzing Congressional Involvement in the Federal Rules of Evidence, 58 Cath. U. L. Rev. 153, 191 (2008). ↑
28. Carmell v. Texas, 529 U.S. 513, 563 (2000) (Ginsburg, J., dissenting). ↑
29. See id. ↑
30. Fed.R.Evid. 412(a). ↑
31. Fed.R.Evid. 412(b)(1)(B) (emphasis added). ↑
32. See Fed.R.Evid. 407-411. ↑
33. Fed.R.Evid. 404(a)(2)(C). ↑
34. See Fed.R.Evid. 404(a)(2)(A)&(B). ↑
35. See State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872, 888. ↑
36. See, e.g., United States v. Crowder, 141 F.3d 1202, 1212 (D.C. Cir. 1998). ↑
37. 529 F.2d 278, 283 (3rd Cir. 1976). ↑
38. See supra note 20 and accompanying text. ↑
39. See Fed.R.Evid. 413; Neb.R.Evid. 414(b). ↑
40. See Orenstein, supra note 22, at 1491 (noting that courts, and especially the Eighth Circuit, have rendered Rule 403 toothless and ineffectual in such cases). ↑
Keystone XL and Nebraska’s Judicial Supermajority Clause: A Brief Introduction
bhildebrand
Many are familiar with the Keystone XL due to the political controversy surrounding the pipeline. Of central relevance to Nebraska, it is difficult to open a newspaper, scroll through a Twitter feed, or discuss environmental issues without the topic rising to the forefront of conversation. However, what many people are unaware of is Nebraska’s judicial supermajority clause. This affects not only LB 1161, which changed the pipeline permitting process in Nebraska, but any state statute challenged on constitutional grounds. Kathleen Miller, J.D. Candidate, 2016, offers insight into this often forgotten area of particular peculiarity in Nebraska and its effect on Keystone XL. Katie’s article, may be found here and directly linked to from the Bulletin. The Bulletin welcomes any response, counter or commentary which may be forwarded to the Online Editor.