The Public Responsibilities of a Public Law School 

Rex R. Perschbacher 

 Introduction

             Two years ago, Richard Matasar, then dean at the University of Florida School of Law, wrote that the lines between public and private higher education were blurring and the differences disappearing^[1].  Nevertheless, he concluded that certain essential distinctions – in price, in mission, and in accountability – remain even in a privatizing world.  Although his focus was not on law schools or even graduate education generally, his thesis is a critical one for legal education in the United States.  Has the distinction between private and public legal education blurred so that a distinctive mission for public legal education has been lost?  My answer in this essay is no; despite the accelerating trend toward privatization of legal education and the apparent domination of private law schools, public law schools do and should retain their distinctive mission and role in the advancement of legal knowledge, the education of lawyers, and service to the public and the profession. 

A brief history may be in order.  As long as legal training was dominated by the apprenticeship system, the public-private distinction made no sense.  This was an entirely private world.  The first forms of more systematic legal education were also exclusively private.  Early law schools like the Litchfield school were the private domains of individual lawyers like Judge Tapping Reeve.^[2]  Although legal courses and lectures became a part of both public and private universities as early as the 18th century, no law schools, as we understand the term today, were a part of university education until the mid-19th century.^[3]  It was not until the beginning of the 20^th century that the current version of university-based legal education came into its own, following the famous lead of Christopher Columbus Langdell and the Harvard Law School. Even then there was no obvious distinction between the mission of publicly affiliated law schools and privately affiliated schools.  These distinctions developed largely over the past 100 years.  

What are these distinctions?   In describing public and private universities in general, Matasar looked broadly at economic factors and social factors as distinguishing public from private higher education.  In every area he examined he found convergence: in cost, pricing, purpose, product, services and resources – the economic factors – and in worldview, accountability, focus, work style, and atmosphere – the social factors.  Yet, in the end, he suggested differences should and would remain, and that “even in a privatizing world, public education will maintain its clear difference in price, mission, and accountability.”^[4]  Public universities should remain relatively affordable for state residents; retain missions uniquely tied to their states; and owe a duty of accountability to their states in their financial, personnel and programmatic functions.  In the remainder of this essay, I want to build on these distinctions to begin to sketch a vision of what a public law school ought to be at the beginning of the 21st century.  

In my view, public law schools must take into account public obligations and social responsibilities that purely private law schools and universities are free to disregard.  In United States higher education, as the Kellogg Commission on the Future of State and Land-Grant Universities^[5] recently reminded us, these responsibilities have a very concrete legislative basis.  Justin S. Morrill, sponsor of the land-grant concept that greatly extended public higher education, aimed at the widest possible dissemination of learning, and Abraham Lincoln, who believed that state and land-grant universities should be “the public’s universities,” noted that public universities today and their law schools need to renew their commitment to “wide access, excellent curricula, research of value to people and communities, and public governance and financing.”^[6]  Four elements stressed by the Kellogg Commission particularly resonate for public law schools: (1) genuinely equal access; (2) learning environments that prepare students to lead and participate in a democratic society; (3) engagement – a conscious effort to bring resources and expertise to bear on community, state, national and international problems; and (4) open and public accountability.  

Genuinely equal access.  

Legal education in our state university law schools carries with it an obligation to seek students from the broadest cross-section of the state public.^[7]  Public law schools need to do more than simply implement “color-blind” admissions processes.  Even in places such as California, Texas, and Washington, where legal constraints eliminate traditional forms of affirmative action, admissions guidelines should maximize the opportunity of access to all segments of the state’s population and seek diversity of race, ethnicity, age, gender, occupation, and social and economic background.  Since many in underrepresented racial and ethnic groups view prohibitions on affirmative action as a sign they are not fully welcome at public law schools, we have an added obligation to do everything possible to counteract that perception.  We poorly serve the diverse populations of our states if we myopically declare that the exclusive criteria for admission are grades and test scores and ignore everything else.  Outreach efforts to broaden the applicant pool; to encourage students to consider legal education as early as the high school level; to look beyond a few major feeder schools are all necessary to genuinely equal access.  Our goal should be to create a public environment that welcomes applicants with assurances that each application will receive full and fair scrutiny.  Although a particular student body mix may partly provide that encouragement, it is neither necessary nor sufficient.  Ultimately, ambition and hope for the opportunity to attend our public law schools should reach every corner of our states and their diverse populations.  Public law schools should consider expanded student bodies and educational programs if necessary to provide full educational opportunity.  

Genuinely equal access also includes commitments beyond the admissions process.  It must include a supportive learning environment for students after they arrive, one in which all persons are nurtured, and supported, and all perspectives welcomed both within and beyond the classroom.  Public schools should make special efforts to develop financial aid packages that keep costs down and competitive with private schools that often have resources that more than equalize the (generally) lower costs of public legal education.  All students should arrive with the expectation that they will be able to complete their studies in a timely manner, will be given the chance to participate in all curricular and extracurricular activities, will pass the bar examination (if they wish to seek a legal professional practice), and will have the opportunity to compete as fully as their efforts and talents allow for the range of job and career opportunities.  

2.                  A learning environment that prepares students for democratic leadership  

            This democratic learning environment begins with access – bringing to the law school students with as broadly-based and broadly-shaped perspectives as our processes allow.  This helps guard against undue isolation of our classrooms from the full range of social, economic, political and legal concerns that exist within the political realm.  It also helps prepare law students for leadership, both as lawyers, and in business, politics, community participation, and their private lives, with a rich sense of the larger community of which they are a part.  In the learning environment, public law schools have a special responsibility to seek a diverse faculty and staff as well, reflecting the public in which its graduates will practice and participate.  Faculty can, through teaching and discussion of professional and academic work, provide models of behavior and lawyering for students.  Public law schools should make a special effort to attract faculty members with diverse professional and academic backgrounds that emphasize interaction between legal and economic, social, and political processes.  

        A public law school curriculum should emphasize professional responsibility courses and other classes that give students the opportunity to develop leadership skills and tools to bring to bear on persistent public policy issues.  Programs within the law school should do more than simply meet the ABA minimums for clinical opportunities; the law school should seek to make connections that link with state government, state agencies, and the major public interest groups and organizations within reach of the law school.  In particular, public law schools should consider supporting programs in which the law school and its larger university may directly assist state governments in providing helpful expertise, research, and legal support. 

3.                  Engagement with public needs             

This element fits so closely with the second element that the two are not easily separated.  Part of the engagement process is one that all law schools naturally participate in – bringing members of the bench and bar to the law school as speakers, guest lecturers, visiting faculty members, and participants in skills and other courses.  Because lawyers themselves are deeply engaged in the larger community and responsive to public as well as private needs, we have a natural affinity for this type of outreach and public service.  But there are ways to go beyond these typical linkages.  How seriously do we accept the ABA’s claim in the Preamble to the Model Rules of Professional Conduct that “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice”?  And how do we treat the legal profession in our classrooms?  Carrie Menkel-Meadow once asked, “Can a Law Teacher Avoid Teaching Legal Ethics?”^[8]  Her point was that we constantly create images of lawyers and legal practice and in doing so profoundly influence our students’ attitudes about the law, lawyers, good practice, and models of professionalism.  All law teachers have an obligation to reflect on the many messages we relay in the classroom; but public law school teachers and administrators should be particularly careful about their images and models, because they speak, however attenuated the connection may seem, on behalf of the public.   

In more concrete ways, public law schools should be leaders in presenting to our students opportunities in government and public interest work.  We should actively support pro bono programs for our students; public interest links like the Public Interest Clearinghouse here in Northern California, and public interested clinical programs.  At UC Davis our in-house clinical programs all have a public interest bent.  We also have active public interest externships and numerous links to the local legal services offices.  Our students have a long-standing tradition of leadership in the California Rural Legal Assistance program.  Our fully-funded public interest loan forgiveness program provides help to balance salaries in the private and public interest sectors.  A distinct curricular emphasis may also be in order for public law schools.  The Ad Hoc Planning Study Committee for Professional Education in Law created by the University of California Office of the President in its “Analysis of Graduate Legal Education at the University of California” wrote: “As publicly financed law schools, UC law schools have an obligation to devote greater effort to centering their curricula more around the problems of the poor and less around the problems of the corporate elite.”^[9]  

4.                  Accountability.  

Finally we come to one of our truly more burdensome responsibilities – public accountability.  This is a burden we should shoulder with as much grace as we can muster.  It is difficult living in the glare of public scrutiny as those of us at law schools in California, Texas, Michigan, and Washington must regarding our admissions programs.  Here in California there is a well-known and powerful website devoted solely to scrutinizing the admission practices of the University of California law and medical schools for signs of banned affirmative action.^[10]  Each fall the local and state newspapers await the admission statistics to see how well or poorly we have done in attracting certain minority students, boiling down years worth of work in attracting an admissions pool, making admissions decisions, and enrolling admitted students to a sentence about “minority admissions” and their decline or increase.  These most visible efforts are but a part of the accounting we must do to the UC system on admissions each fall.