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The Department of Education in the Age of “Hamilton”

June 30, 2017 Leave a comment

I wrote this headline back in December, along with the note “federalism” and a link to an editorial criticizing Donald Trump’s nomination of Betsy DeVos for the position of Secretary of the U.S. Department of Education. Surprisingly, seven months later, those two breadcrumbs were not enough to lead my brain back to the space it occupied at that particular moment. The “Hamilton” connection I had in mind likely will continue to escape me, but I think the basic point probably went something like this:

hamilton chicagoFor those who prefer a smaller federal government, the Department of Education is a popular target. The basic line of thought seems to be that public education traditionally has been the province of the individual state governments, and that it is ineffective to try to set uniform national policies when it comes to public education. Perhaps as a result of that targeting, or perhaps for independent reasons (and likely a combination of both), those who favor a more expansive federal government also favor a strong Education Department, believing it is the best vehicle for preserving and supporting the public school system and for bringing what they see as outdated education policies (particularly in the area of school curriculum) in line with modern standards.

For the latter group, one problem with consolidating power in a single, central office, of course, is that there may come a time when the person who occupies that office does not share that group’s policy preferences. This somehow seems to be a point of cognitive disconnect for this group, which does not appear to have considered the possibility that a political opponent like DeVos might one day occupy the office of the Secretary of the Department of Education and use the substantial authority attached to that office to advance her own policy preferences.

Politics ultimately may be a game of short-term gains, but the cries of those bemoaning Secretary DeVos’ newfound ability to support a deregulated charter school movement and other school-choice plans because they believe those policies will undercut already-struggling public schools ring at least partially hollow; after all, they bear some responsibility for the expanded scope of her authority to do so.

 

Categories: Education, Politics, Privatize

LST Speaks Out On Recent Law School Class Actions

October 12, 2011 3 comments

Plaintiff classes of recent graduates have brought suit against more than a dozen law schools across the country, including Thomas Jefferson School of Law in San Diego, New York Law School in Manhattan, and Thomas Cooley Law School in Michigan (Miami, FL campus coming soon!). The directors of Law School Transparency published a column in yesterday’s New York Post commenting on the suits and the larger state of legal education:

These problems affect more than just the legal profession. This year, ABA-approved law schools will get at least $4 billion in taxpayer support, thanks to the government’s decision in 2010 to directly lend to students. But when graduates can’t find jobs that allow full loan repayment, they either default or sign up for hardship programs. The taxpayers are on the hook for the lost interest income and unpaid loan principal.

In all of this mess, one thing is for sure: Continued pressure from lawsuits, Congress and other reform advocates will push law schools to honestly evaluate the American legal-education model. And reimagining a broken model will take a lot more than simply getting people their day in court.

Kyle McEntee & Patrick J. Lynch, “Do law schools defraud students?,” New York Post (Oct. 11, 2011). Read the full column here. More on LST here. More on legal education here.

Categories: Current, Education, Legal

Stanley Fish and Rejecting the Call for Justification

August 2, 2011 Leave a comment

Following my chance to hear the latest from Michael Sandel last month, I had the opportunity to listen to a lecture by Stanley Fish, currently a professor of law and the humanities at Florida International University and a New York Times columnist. Like Sandel, Fish also has the passing distinction of being someone I read as a part of my undergraduate thesis. Unlike Sandel, this was not the first Fish lecture I had attended, as I also heard him back in the fall of 2007.

The Chautauquan Daily has complete coverage of Fish’s lecture on understanding the role of the arts and of studying the arts in contemporary society. In particular, Fish is concerned with those in and out of higher education who seek to defend the liberal arts approach to education against its critics. In a very well-crafted lecture, Fish rejected the usual arguments of the defenders of humanities education: that it inspires critical thinking, builds oral and writing skills, prepares students for later life, fosters cross-cultural understanding, and generally makes for a better citizenry.

I enjoyed the totality of the lecture, which also included a stanza-by-stanza deconstruction of George Herbert’s 1633 poem, “The Forerunners.” There was one statement from Fish, though, that particularly struck me. When explaining his position in favor of arts education but in opposition to the usual justifications for it, Fish said:

The demand for justification is always a demand that something be justified in terms not its own.

He went on to explain that even its supporters fail to “acknowledge[] that the arts and humanities might operate according to their own terms or that these terms might be the basis both of the value they have and of the pleasure we take in them.” Although he closed by offering a justification of sorts that seemed to mostly satisfy him (“If the study of the arts and the humanities is to be justified, it will be because it keeps alive and refurbishes glorious human artifacts that might well be lost or less available to future generations if they were no longer taught.”), the thrust of Fish’s view was that continued funding of arts education requires no justification.

Fish’s statement about demands for justification reminded me that those who accept a challenger’s invitation to justify often do a disservice to that which they are attempting to justify. For example, Christians who indulge their critics’ various demands for proof of God’s existence usually don’t especially succeed in advancing the Christian cause. Even if they do present a satisfactory justification, they have cabined their religion to the critic’s imposed terms. The Christian faith surely encompasses the rational– the scientific, the observable, the tangible, the historical– but for adherents, Christianity is broader than that. Jonathan Edwards, the eighteenth century American theologian, recognized that, to the extent humans can know and understand God and the world, that understanding comes through both human reason (a gift from God) and revelation from God. To limit a “defense” of God would be both inadequate and misleading, since Christians do not know God through reason alone.

An examination of Edwards’ epistemological views on reason and revelation could fill its own post. See, e.g., here and here. The simple goal of this post is to highlight the broader application of Fish’s statement as cautioning those who would justify their views and questioning the helpfulness of asking for justifications.

Categories: Discourse, Education

Justice Stephen Breyer: Making Our Democracy Work

November 16, 2010 1 comment

U.S. Supreme Court Associate Justice Stephen Breyer visited Vanderbilt University Law School today to deliver a lecture, teach a class on administrative law (the subject he taught while at Harvard Law School, where he was a professor from 1967 to 1980), and sign copies of his book, Making Our Democracy Work: A Judge’s View. I have yet to read the book, but I have loosely kept up with Breyer’s recent interview tour. My interpretation is that the Justice, very frequently in the the minority in his years on the Court, felt the need to explain and preserve his judicial philosophy in an extrajudicial manner. There is precedent for judges setting out their jurisprudential views in book form, and even though Breyer probably wouldn’t admit it, Making Our Democracy Work feels a little bit like a response to A Matter of Interpretation: Federal Courts and the Law, a 1997 book by Breyer’s colleague, Justice Antonin Scalia. I plan to post a review here once I finish Breyer’s new work, and I am hopeful that it will be more timely than my last book review.

Breyer’s lecture began with an explanation of Alexander Hamilton’s vision of the role of the Supreme Court in the federal government, and, taking this as a launching point, sought to illustrate through examples the ways in which we have tried to answer a practical question the Founders could not: how will the justices navigate their role as unelected officials charged with making decisions that may contravene the actions of the elected branches. Breyer compared Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), Brown v. Board of Education, 347 U.S. 483 (1954), and Bush v. Gore, 531 U.S. 98 (2000) with a focus on the enforceability of unpopular decisions. Following Worcester, President Andrew Jackson refused to adhere to Chief Justice John Marshall’s ruling that Cherokees living in northern Georgia were allowed to stay on their land, instead sending them on the Trail of Tears to Oklahoma. The tumult in Arkansas following the Brown decisions is a well-know part of American civil rights history. This time, though, the presidential use of the military was in obedience of the Court’s ruling. Finally, Breyer observed that, while anger and resentment followed the Bush decision, a peaceful transfer of power in accordance with the Court’s decision took place. Then and today, Breyer said that he thinks Bush was wrong, but he also noted his agreement with Senator Harry Reid’s view that this nevertheless was an appreciable moment in American history for the public’s response. See here. Breyer also commented on two additional controversial cases: Dred Scott v. Sanford, 60 U.S. 393 (1857) and Korematsu v. U.S., 323 U.S. 214 (1944). For Breyer, these two cases illustrate conflict between the Court and the Executive in a war context. Disagreeing with both outcomes, Breyer acknowledged that Korematsu raised the question of which governmental branch should be running a war– placing his theme of democratic deference in a difficult light– but seemed to argue that the facts were such that the Court could have deferred to the Executive without reaching the outcome it did. Despite a supposed attempt by Chief Justice Roger B. Taney to rule in such a way as to avoid a civil war, Dred Scott, Breyer said, is the Court’s worst decision.

I enjoyed Breyer’s remarks, and I liked how he incorporated rule of law and civic discourse and dispute resolution themes into the Hamiltonian framework he referenced throughout his talk. I also found helpful the way he presented the three cases in chronological order to highlight a developing answer to the question the framework implied. It was good to see the Justice, age seventy-two, in strong form, and I am looking forward to reading his book.

UPDATE: VULS has made available a video of the entirety of Breyer’s lecture:

Blogging About Blogging (at Law School Transparency), Vol. II

October 26, 2010 1 comment

As mentioned, I am doing some blogging for Law School Transparency (LST), and my latest post there now is available. It discusses recent comments by Steven Zack, president of the American Bar Association:

Mr. Zack’s statements were exciting because they signaled to me the spread of the sort of discussion LST has been working to develop regarding the nature of the employment data reporting problem and the steps necessary to resolve it. While LST is working towards a solution on multiple fronts, including encouraging schools to comply with our Standard, the furtherance of a discourse of transparency serves to advance our cause.

I found Mr. Zack’s comments heartening because they showed his recognition of the more nuanced aspects of this conversation. When it comes to prospective students, he said that “there’s a total lack of awareness” about earning potential and career options. He suggested that law schools have an incentive to present their employment data in the best possible light to attract applicants.

You can read the full post at: http://www.lawschooltransparency.com/2010/10/new-player-same-goal-more-progress.

In Memoriam

October 10, 2010 1 comment

It was with great surprise and sadness that I learned of the sudden and unexpected passing of Vanderbilt University Law School’s Professor Richard Nagareda this weekend. Perhaps the Law School’s top professor, he was a leading expert in complex litigation (e.g., class action lawsuits), and was widely published and quoted on that and related topics. He was peerless in the classroom and demonstrated a care for and interest in students and life beyond the classroom as well.

In recent years, Professor Nagareda taught a class called Complex Litigation, which dove deep into the world of class actions, mass settlements, and other forms of aggregate dispute resolution with the goal of understanding what was happening in this constantly evolving area as a matter of constitutional rights, statutory development, and business interests. He also directed the Cecil D. Branstetter Litigation and Dispute Resolution Program, which included his leadership of the Civil Litigation Capstone Seminar for third-year law students.

In an official notice, Chris Guthrie, Dean of the Law School, said:

Richard was a personal friend as well as an esteemed colleague, and those of us who were fortunate enough to know him and work with him for the past several years are devastated by his death. The legal academy has lost a gifted scholar, and our students an extremely talented teacher. Our faculty members have lost a good friend and exemplary colleague, and his family a beloved husband, father and son.

More early reaction is available here, here, here, here, here, here, here, and here.

I had the extremely good fortune to study under Professor Nagareda. Time spent in his courses is among the most valuable of my last three years. (A summary of the work I did in his seminar is available here.) For everything he taught us about law and legal practice– things that significantly advanced and changed the way I understand the law– he was always careful to remind us that what matters more than work or anything else is the opportunity to spend time with loved ones.

Categories: Current, Education, Legal

Blogging About Blogging (at Law School Transparency)

October 8, 2010 Leave a comment

As mentioned, I became a member of the Law School Transparency Advisory Board earlier this fall. My latest post, which explains that all law schools have an interest in complying with the LST Standard, is now available on LST’s site:

LST recognizes that there is much more to the placement discussion than employment in the nation’s largest law firms and federal Article III clerkships. In fact, only 15-18% of 2009 graduates were employed by these firms or as Article III clerks. While many prospective law students want these jobs, other students want to attend law school because they want to work in a particular community or region, or because they want to pursue a particular career in a district attorney’s office or an environmental advocacy position for example….Prospective students are interested in comparing these employment opportunities. It should be surprising, then, that the current reporting standards do not emphasize placement with the government, regional and local law firms, and state and local clerkships….

You can read the full post at: http://www.lawschooltransparency.com/2010/10/a-big-tent-with-lst-compliance-everyone-wins.