Category: Education

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Law School Capture

My blogging schitk is grousing about legal education. I do this mainly on moneylaw and classsbias and serve as a technical advisor to privilegelaw – a blog that must be read starting earlier and moving to more recent. In many respects I think legal education has been captured by and run for the convenience of faculty who are far more often than not the children of privilege. (If you are already preparing to comment, I ask that you skip it if the comment is about a law professor who is not a child of privilege.) As I blog along this month these themes will become more developed. First, here is a test to examine your own school for its level of capture.

Before taking the test there are some clarifications. There is good and bad capture. I can imagine a law school captured by the faculty and, with or without help from the administration, run for the benefit of stakeholders. This would be faculty that is constantly asking “What should we be doing”? and matching it against what it is doing. On the other hand, capture can mean that a faculty runs the law school for its convenience with only modest limitations imposed by others and even here observing the limits are part of a pattern of self-interested behavior.

Second, from time to time I get an email that carries with it the assumption that all my grousing is about my own School. Wrong! The examples are not all taken from my School, and if you really called my bluff I would not bet that my school is any different than the average. So how does your school stack up on the capture quiz: (you can give your school partial points)

1. Are classes scheduled mid week and mid day even though it means conflicts that limit student choices? (1 point for a yes.)

2. Has you school seriously reviewed any of its foreign programs, centers, institutes or degree programs in the past two years? (1 point for a no.)

3. Does your school depend on adjuncts to teach mainline courses while offering small enrollment specialized courses taught by full time profs? (1 point for a yes)

4. Does your school have a high curve that is sometimes defended by not wanting to hurt the feelings of the students or other justifications that amount to “I do not want to actually have to evaluate someone?” (1 point for a yes)

5. Do colleagues propose programs that are needed even though they will not actually be teaching, traveling, or receiving a reduced teaching load if the program is adopted? (1 point for a no)

6. Can students graduate and take half or more of their classes on a pass/fail basis. (See question 4) (1 point for a yes)

7. Does your school encourage massive, barely supervised, externships that generate tuition dollars, provide free labor and, by the way, mean less teaching ? (1 point for a yes).

8. Does your administration mass mail glossy reports listing every conceivable thing faculty submit as reportable? (1 point for a yes).

9. Does your dean appear to be afraid to suggest that the School should do better and then hold people accountable? (1 point for a yes)

10. Is the norm that just about everyone is gone by 11 AM on Friday? (1 point for a yes)

If you scored a 10, it’s best to go into receivership and start from scratch.

If you are in the 7-9 range you will probably be a 10 soon.

If you are 4-6, I think you are average and a few hires could move you either way.

If you are 3 or less, congratulations.

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Shunning Duke’s Faculty

listening_statement_p.jpgA little while back, former Judge, and law school Dean, Joseph Bellacosa (St. John’s) proposed that members of the public shun the 88 Duke faculty members who sponsored an advertisement in the early days of the Nifong investigation implicitly condemning the accused lacrosse players. Bellacosa argued that

[A]lthough the group [of faculty members] can’t technically be charged with crimes – though abandoning your young and endangering youth sure do come close to real definable crimes – there are ways these professors can be held accountable. The identities of the 88 professors should be posted in significant ways and places, including in the media and on the Internet, so that they may be known for what they have done.

The likely howls of protest from the tenure police, university guild apologists and free-speech absolutists notwithstanding, the professoriat should not be shielded from appropriate public condemnation for their misconduct. Their dormant consciences and sensibilities should be reawakened to the abhorrent nature of the actions they inflicted on their own students.

I am regrettably late commenting on Judge Bellacosa’s article, and so this post may be stale. But still. What the heck is going on here?

Finding the original ad put up in 2006 isn’t so easy. A follow-up statement by Concerned Duke Faculty member has dead links, and Duke’s African-American studies department has removed the page from its server. Fortunately, this blog post pdf’d the ad, which I’ve copied to the right. Unfortunately, Bellacosa doesn’t say, and I don’t understand, exactly what was so wrong about this statement. There are some rumors that the students whose voices are being spotlighted are composites. That would be bad, but not a deadly sin. And the heart of the ad – the statement by the professors themselves – seems to me to consist of a set of vague generalities that verge on truisms, and aren’t objectionable:

“Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday.”

Regardless, we’re supposed to shame and shun the signatories to the ad. Why?

Three Views of Education as an Associative Good

The Posner-Becker blog had a good discussion of education rankings 2 months ago. I was particularly struck by Posner’s observations on the self-fulfilling prophecy aspect of rankings:

The effect of college ranking on the education industry is unclear, but my guess is that it is negative. . . .Given the high costs of actually evaluating colleges, employers and even the admissions committees of professional and graduate schools are likely to give weight to a school’s rank, and this will give applicants an incentive to apply to the highest-ranking school that they have a chance of being admitted to (if they can afford it). The result will be to increase the school’s rank, because SAT scores and other measures of the quality of admitted students are an important factor in a college’s ranking. That increase in turn will attract still better applicants, which may result in a further boost in the school’s rank. The result may be that a school will attract a quality of student, and attain a rank, that is disproportionate to the quality of its teaching program.

Henry Hansmann wrote an interesting piece on this phenomenon, calling education an “associative good,” since, “when choosing which producer to patronize, a consumer is interested not just in the quality and price of the firm’s products, but also in the personal characteristics of the firm’s other customers” (emphasis added). Hansmann concludes by wondering if “the increasing technological sophistication of our society, which is fueling the trend toward stratification among the elite educational institutions, will someday produce technologies that make it less important for elite higher education to be a residential experience, and hence remove much of the associative character of higher education.” Franklin Snyder offers evidence that blogging is one such technology.

But don’t underestimate dominant interests’ passion for rankings, cautions McKenzie Wark (whose bookpage for the source I’m quoting interestingly fails to mention it was published by Harvard University Press). He claims that “Education is organized as a prestige market, in which a few scarce qualifications provide entree to the highest paid work, and everything else arranges itself in a pyramid of prestige and price below. Scarcity infects the subject with desire for education as a thing that confers a magic ability to gain a ‘salary’ with which to acquire still more things.” In other words, the rankings are the purest form of artificial scarcity. . . . a precious commodity in an era when the diminishing scarcity of resources that meet basic needs limits their contribution to economic growth. Wark worries that education will “split[] into a minimal system meant to teach servility to the poorest workers and a competitive system offering the brighter workers a way up the slippery slope to security and consumption.”

I’ll expressly disclaim endorsement of any of these three theories. I just find it interesting how the staid and sober observations of a Posner can resonate with Wark’s radical theory, once we interpose the “associative goods” concept.

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Greetings, Salutations, and Current Events Questions on Exams

Greetings, everyone, and thanks to Dan, Dave, and the rest of the Concur-ers for the invite to spend some time guesting over here (and for the warm introduction). I guess, if nothing else, my guest stint will provide some anecdotal data about just how many blog-readers read both Concurring Opinions and PrawfsBlawg, my permanent home…

Anyway, I thought I’d start with a practical question: Whether, and to what extent, folks think that is a good idea to put current-events-based questions on a final exam? Borrowing (shamelessly) from my soon-to-be-former colleague Michael Froomkin, my con law final exam included a Morrison v. Olson-based question about the Office of the Special Counsel (for details on the issue, see Michael’s posts here and especially here).

Leaving aside the merits of this particular question, it strikes me that we as profs have a temptation to write current events-based questions, both because reading the news triggers our own intellectual curiosity, and because it’s a way to keep the substance “fresh” from year-to-year. But are there reasons not to? I consider a couple below the fold:

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Fiduciary Duty and Financial Aid

loan.jpg

The financial aid scandal, sparked by NY Attorney General Andrew Cuomo’s investigation (and possibly a shut-out competitor) has already led to some settlements with lenders and universities. The basic thrust of Cuomo’s investigation is that if lenders pay administrators referral fees (whether direct or indirect) to steer students to take certain loans, that conduct is a deceptive trade practice, “in violation of New York Executive Law ‘ 63(12) and General Business Law 349 and 350 and other relevant state law.”

Universities are falling over themselves to settle with NY, as is the lending industry, in light of some bad facts: the companies have sought to influence financial aid administrators with stock, Broadway tickets, and other goodies. So this question is, literally, academic: is the alleged conduct by the university employees a violation of a fiduciary duty (loyalty) owed to students?

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Politics and Alumni at Dartmouth

Today’s Boston Globe carried an interesting story about an upcoming board of trustees election at Dartmouth College. According to the story, the upcoming election has become a heated battle over direction of the university. On one side is the alumni council, which nominates candidates for open seats on the board. On the other is a group of alumni dissatisfied with the university’s direction, a group that is apparently willing to spend tens of thousands of dollars to nominate and elect their own candidates to the board.

This year’s independent candidate, Professor Stephen Smith of U. Virginia Law School, says he is running to support smaller classes and stronger athletic teams. One of his opponents, San Diego Padres executive Sandy Alderson (an attorney himself as well as a former Marine sergeant), claims that Smith is the hand-picked candidate of “a well-funded, disciplined political organization” with a conservative political agenda. Alderson claims that he was interviewed by two other independent trustees with conservative ties who concluded that they couldn’t support him. Smith, for his part, asks “”What is conservative about class size or athletics?” while acknowledging that alumni donations have funded the $60,000 he has spent on mailings for his campaign.

The story closes with a quote from Peter Robinson, one of the independently elected Dartmouth trustees. Addressing all colleges and universities, he says, “”The alumni are coming. But they won’t sack your institutions, just reconnect them with American life.”

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Students sue Turnitin

I saw on a listserv that two high school students have sued Turnitin, a service that identifies plagiarism, for copyright infringement. The apparent basis for the suit is that Turnitin archives papers it reviews for purposes of comparison against future papers. The Washington Post story about this suit contains opinions suggesting that the plaintiffs (who seek $150,000 in damages) have a good case.

While Turnitin does appear to violate the copyright holders’ right of reproduction, I think fair use clearly applies. Even if one considers the use commercial (couldn’t one also characterize the use as for purposes of criticism?), there is, in my opinion, no way that the use affects the marketplace for the copyrighted work. Turnitin’s archiving results in no distribution of the works. There is simply no way that this use injures any of the financial incentives associatd with copyright. What person writes a paper thinking “Hmmmm. Maybe one day I’ll get royalties when my paper gets submitted to Turnitin.”? This case reminds me of the one against Google Print, but I think it’s a lot weaker.

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March Madness

Mike Jarvis, former men’s basketball coach at Boston University, St. John’s, and George Washington, writes in his Yahoo! column about the academic costs of division 1 basketball, particularly at tournament time. He recounts his GW team’s run in the NCAA tournament and the classes his players had to miss, along with the assistance provided by the univerisity (tutors, advisers, and administrators) to ameliorate the problem. He candidly admits that these measures were not full compensation for missed class time. He suggests having internet connections to live classes and class archives as solutions to the problem. He then laments that measures like this will not be taken because of money: “The rationale usually given is that it will cost too much, and if we do it for the men, then we have to do it for the women. What a great idea. Why not do it for both?”

I hope that colleges would take steps like this. It doesn’t seem that hard or costly. It would be really bad if colleges wouldn’t do it because they don’t want to do it for women, too.

That having been said, Jarvis points to money as the problem in the wrong way. The problem isn’t the cost of helping athletes keep up with their classes. The problem is the desire of the NCAA and its member institutions to earn money from weekday TV broadcasts. According to cnn.com, CBS pays about $545 million per year to televise the NCAA tournament games. That’s serious money, enough to pull some excellent academic institutions into athletic schedules that not only take athletes away from class, but also make it effectively impossible to study certain subjects (particularly lab science classes).

Real remedies for this problem go way beyond the Internet solution proposed by Jarvis. It would be naive to think that the NCAA and its members will give up this cash flow anytime soon, so athletes will continue to miss classes and find it impossible to take others. College athletes therefore ought to get extra guaranteed years of scholarship assistance (including room and board) after eligibility expires so they can take classes that were impossible during their playing years. Alternatively, they could receive money that could be spent on tuition (or something else – maybe grad school?) after their playing days. Sports Illustrated proposed an athletes’ bill of rights in a recent story on college sports (particularly Ohio State).

I’m not optimistic that reforms like this will happen soon. For all the good that they do, the NCAA and its member institutions seem bent on growing the commercial enterprise of college sports. As self-professed educators first, they ought to do more to ensure the academic success of the talent that makes all that money possible.

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A One Sport Only Rule

A story that has stuck in my mind is the recent misfortune of a swimmer/hockey player at Latin Academy in Boston. According to the Boston Globe, the freshman athlete competed in both swimming and hocky, thereby violating a Massachusetts Interscholastic Athletic Association rule restricting students to one sport per season. The penalty is loss of eligibility for the season and forfeiture of all games in which the athlete played. Latin Academy and the athlete appear to have suffered those penalties.

I am not ordinarily someone who thinks that penalties against athletes are too light. Star athletes get a lot of preferential treatment in our society. But this one struck me as quite a pity. The young woman in question is a freshman and had no idea she was violating a rule. Her school missed it.

According to an MIAA spokesperson, the rule exists to protect athletes from injury and to “allow adequate time for academics.” Fair enough. However, if the MIAA were really concerned about sports taking up too much time, they’d have rules about how many hours a week students can spend in practice for a single sport. Or, perhaps Massachusetts should have a limit on time spent for ANY extracurricular school related activity. They presumably don’t stop children from playing in both the school musical and a sports team, and the hours spent could be comparable. And, of course, if the student had been a figure skater, she could easily have spent more hours doing that while playing hockey. Indeed, if she competes for a swim club, she would spend the same amount of time training even though she didn’t swim for her school team.

The partial disconnect between the rule and its stated purpose makes me wonder if there aren’t other reasons for the rule that better justify it. For example, the limitation of one sport per season preserves roster spots for other students to participate.

In the end, I don’t know if I really think the outcome here was a gross miscarriage of justice, but I do think the young woman and her school suffered a pretty harsh penalty for violating a rule that seems not to serve its stated purpose too well. Quick perusal of the MIAA rules indicates that the suffered penalties are roughly the same (ineligibility and forfeiture of games) as if she had taken money to compete. Anyway, it seems to me that rethinking of this rule and/or its penalties is warranted.