The wars on universities & law schools

Fight, flight, and everything in between

An intriguing post here on potential threats by Trump administration actions against law schools. This of course lies currently in the shadow of the vigorous battles being fought against Harvard especially, Columbia, and other universities presumably to be named as events unfold. There is much to say about the contours of such battles, but this small post focuses on law schools in particular, and adds one addendum to the post linked above and a broader point which is merely food for thought.

As to what risks law schools face by federal actions that take away benefits (entitled or merely a privilege, as ultimately courts will need to sort out), let me add one important additional risk and that is employment by federal and even state governments. Many law graduates seek employment by federal agencies and key cabinet departments (e.g., the Dep’t of Justice); some as well look for opportunities in the U.S. military. And a critical mass aspire to clerkships with one or another federal judge. All of these opportunities, even judicial clerkships are in great peril if the presidential administration makes it clear that graduates from certain schools are not welcome. Acknowledging that there may well be some legal problems with fed decisions that are inexplicable except as retaliation for viewpoint, as has been pointed out by leading scholars, we can imagine a persistent reticence at the very least by federal officials to make employment decisions favorable to graduates of X or Y school during the pendency of conflicts between the administration and their universities. To put it in blunter terms, disfavored law schools will face a steep climb to compete on acceptable terms with law schools not in harm’s way, perhaps in the long term and almost certainly in the short term.

Moreover, we need just a dash of paranoia to see these baleful effects bleeding over to state governments, as (presumably Red) states work to keep in good graces with the present administration and its priorities. True, there are much the same legal risks for state actions that come to be seen as viewpoint based, but the same point looms large, and that is that all it takes is a bit of strategic ingenuity to put state officials in a position to act in ways that are disfavorable (which is not to say “discriminatory”) to grads of certain law schools whose universities are on the naughty list. Suffice is to say that this employment predicament can be enormously impactful for law schools whose graduates traditionally seek opportunities in federal and state governments, either for a short or long stint. So let this be added to the poster’s parade of horribles.

And to the broader point, which I say with a large amount of reluctance and even sadness: Universities and their law schools are not in a great position to weather the blistering storm of a determined presidential administration for long periods of time. Harvard has scored one victory; there are good reasons to believe that they will score at least some more. But when the dust settles in many months’ time, will POTUS be truly defanged in their ability to target and tackle with universities who have incurred his (their) ire? Few universities have the resources of Harvard; and the press and public’s attention span will be limited, such that attacks on, say, another ten or twenty or fifty universities and law schools may prove fairly resilient. Our legal ecosystem is not fully equipped (I don’t want to go so far to say ill-equipped) to truly deal with the impact of a full-throated attack by the White House on their actions and activities. Moreover, the bad odor emerging from relentless threats, even if such threats meet with mixed legal success, will undoubtedly have negative reputational effects. Students and faculty can and will vote with their feet, and enrollment and broader considerations connected with reputation and prestige can be impacted in ways that might become difficult for a university to sort out tactically.

Events are rapidly unfolding and we should be cautious about making clear predictions or state profound platitudes about the state of affairs. But with that caveat in mind, let me just say (again with reluctance, given how deeply I believe that President Trump’s present war against Harvard is so utterly misguided and even immoral) that law schools should work diligently with their university leadership to stave out attacks and broker some compromise, insofar as this work is consistent with the fundamental mission and objectives of these institutions. The battles not fought will be the ones that may well sort out law schools that will continue to thrive from those who become long-term casualties in a war that is waged between parties with unequal resources.

To be sure, I have elided the harder questions of how to think constructively about the best uses of political and institutional capital to find some common ground. These are difficult matters, especially in a world in which some of the attacks rest on such profoundly dubious and egregious assumptions and beliefs about higher education’s purpose and centrality to our civil society. But distinguished academics who have been speaking about the imperative of inter-institutional reform, including efforts at enhancing ideological diversity, transparency, inclusiveness upon multiple dimensions, and combating insularity, should be heeded, especially by those in positions of leadership and institutional power. Alongside the admirable efforts of Harvard and other vulnerable institutions to fight for what is right and to speak truth to power, we should also be working hard in our law schools and universities to implement concrete steps to address real and long-festering inter-institutional problems. We should do it because it makes good political sense; and we should do it because, as stewards of long-term progress in the development and transmission of knowledge to present and future generations, it is very much the right thing to do.