The issue of the creation, administration and termination of substantive academic programs in law schools is complex. It may involve issues of policy, firection, resources, and mission. As these change, substantive programs sometimes change as well. At times, those changes require terminating otherwise useful programs that no longer serve the Law School. It In the context of faculty governance, it is always a good exercise for faculties to take stock of a Law School's programs from time to time. But sometimes, there is a temptation to substitute process for substantive concerns in considering whether an academic program ought to be terminated. It is to that issue that I devote this sort essay.
When programs termination is sought for process reasons, it is sometimes an indication that an administrator has determined that a program ought to go, but is concerned about discussion on the merits. This concern may arise from any number of factors: fear of an adverse faculty determination, a wish to minimize faculty consideration of the issue for fear that a wider discusison migth ensue, one whose timing is sought to be controlled in other quarters, a need to find ways to control individual faculty from time to time, or a reassessment of the administrative distribution of burdens come to mind. There are other reasons no doubt.
Process based arguments for program termination usually fall into two categories:
1. The programs mislead students;
2. The programs can be abused by students.
The arguments are related. Both suggest a strategic behavior approach to program analysis. One starts from a presumption that students are incapable of understanding the nature and character of the program as a result of which they misapprehend (and perhaps misapprehend to third parties) the character of nature of the program they have (successfully) undertaken.
The other starts from the opposite presumption, that students are not only quite capable of understanding the nature and character of the program, but understand both well enough to use the substance or procedures available through the program to effect strategic behavior having little to do with a desire to attain the substantive benefits made available through the program.
While inconsistent, it might even be possible for a student to know both too much and too little. My guess is that the apocryphal student is one who mistakenly believes that the program (for example a Certificate Program in International, Comparative and Foreign Law, or a Certificate in Critical Race Studies) has a greater substantive effect than it has in reality (perhaps even equating it with the substantive benefits of an advanced law degree) and (so the argument might go) would not have undertaken the course of study had she only known the reality of the limits of the ‘benefits’ of the certificate. As a consequence, this student (or even better one who is induced to register for the certificate (let's say) for purely strategic purposes) uses such registration to move up the queue for limited enrollment registration for which program participating students receive a preference (thus denying ‘more deserving’ students a coveted slot).
I suggest here that the arguments, should they be made, have no merit for the purpose for which they are deployed (termination of the programs) even if they might have merit from a more appropriately limited administrative perspective (minimize misapprehension and avoid abuse). Let me explain:
Assuming that there is a problem relating to information, it seems to me that the solution is not to eliminate the program with respect to which a descriptive ambiguity or misapprehension exists, but to cure the ambiguity or misapprehension. Thus, the answer to the first argument is this: provide more and better information. To choice any other alternative suggests a very bad precedent—that any program with respect to which ambiguity might be present is subject to a risk of termination on that score. Surely, if that is the case, there is hardly a program that is currently run that might not be fodder for elimination on that basis alone. I can’t imagine that is the sort of argument that might be raised in good faith. Having said this, substituing one program for another to comport program quality to expectations is not unreasonable. But that is a substantive argument rarther than one in which the only response to an information disjunction is: terminate the program!
Assuming there is a problem of abuse, the solution is similar: manage the abuse better. Virtually every program administered through a typical Law School is subject to abuse. I don’t think that, on that basis alone, we would consider eliminating the Law School’s programs (though that would certainly and definitively end the possibility of abuse). Abuse, standing alone, provides little basis for considering eliminating an otherwise substantively positive value program. Thus, the mere existence of abuse ought not to produce a strong presumption of terminability.
Moreover, the criticism of abuse really masks two questions (1) does the conduct complained of actually constitute abuse? and (2) are there methods to manage or eliminate the conditions leading to an excessively high level of abuse? With respect to the first, I am not sure that the use of a course preference option ought necessarily to constitute abuse. I believe that in the minds of some, it might constitute abuse only when coupled with bad intent. But, who can look with any confidence into the hearts of students. Students say lots of things we discount; students purport to provide rationales for doing things that we discount. To raise this possibility (in some students—I would be suspicious of any argument suggesting a 100% ‘bad motive’ rate) simply means that the administrator is uncomfortable with the preference system in general or as applied to the certificate programs. Well, if that is the case, then the focus of the discussion ought to be on the preference rather than on the termination of the program as a whole. More generally, it is not clear that abuse can be defined as any use of strategic thinking in designing a course of study, when the basis of a Law School education includes rigorous training in the utilization of strategic decision making for clients in every conceivable legal context. And I am unconvinced that strategic thinking in deciding to participate in a substantive program can ever rise to the level of unethical conduct.
That brings me to the heart of the issue—an issue of management. Do our administrators have the tools they need to manage any abuse that they believe, reasonably and appropriately, to exist? The answer, I believe is that they already possess the tools they need to adequately manage this ‘problem.’ A combination of mandatory student counseling and oversight at the early stages of program completion would provide significant control. Counseling all students about the evils of strategic thinking in course or program selection by the administrators who feel strongly about this (I don’t) may be a way to alert students to the culture of course and program selection that we appear to be moving toward (though this also might be a subject well suited to faculty discussion and approval).
What are left with? From my perspective very little that cannot be cured by appropriate and traditionally available techniques of program management. And that brings us back to where every faculty ought to begin--to a discusison of the substantive value of a program.
When programs termination is sought for process reasons, it is sometimes an indication that an administrator has determined that a program ought to go, but is concerned about discussion on the merits. This concern may arise from any number of factors: fear of an adverse faculty determination, a wish to minimize faculty consideration of the issue for fear that a wider discusison migth ensue, one whose timing is sought to be controlled in other quarters, a need to find ways to control individual faculty from time to time, or a reassessment of the administrative distribution of burdens come to mind. There are other reasons no doubt.
Process based arguments for program termination usually fall into two categories:
1. The programs mislead students;
2. The programs can be abused by students.
The arguments are related. Both suggest a strategic behavior approach to program analysis. One starts from a presumption that students are incapable of understanding the nature and character of the program as a result of which they misapprehend (and perhaps misapprehend to third parties) the character of nature of the program they have (successfully) undertaken.
The other starts from the opposite presumption, that students are not only quite capable of understanding the nature and character of the program, but understand both well enough to use the substance or procedures available through the program to effect strategic behavior having little to do with a desire to attain the substantive benefits made available through the program.
While inconsistent, it might even be possible for a student to know both too much and too little. My guess is that the apocryphal student is one who mistakenly believes that the program (for example a Certificate Program in International, Comparative and Foreign Law, or a Certificate in Critical Race Studies) has a greater substantive effect than it has in reality (perhaps even equating it with the substantive benefits of an advanced law degree) and (so the argument might go) would not have undertaken the course of study had she only known the reality of the limits of the ‘benefits’ of the certificate. As a consequence, this student (or even better one who is induced to register for the certificate (let's say) for purely strategic purposes) uses such registration to move up the queue for limited enrollment registration for which program participating students receive a preference (thus denying ‘more deserving’ students a coveted slot).
I suggest here that the arguments, should they be made, have no merit for the purpose for which they are deployed (termination of the programs) even if they might have merit from a more appropriately limited administrative perspective (minimize misapprehension and avoid abuse). Let me explain:
Assuming that there is a problem relating to information, it seems to me that the solution is not to eliminate the program with respect to which a descriptive ambiguity or misapprehension exists, but to cure the ambiguity or misapprehension. Thus, the answer to the first argument is this: provide more and better information. To choice any other alternative suggests a very bad precedent—that any program with respect to which ambiguity might be present is subject to a risk of termination on that score. Surely, if that is the case, there is hardly a program that is currently run that might not be fodder for elimination on that basis alone. I can’t imagine that is the sort of argument that might be raised in good faith. Having said this, substituing one program for another to comport program quality to expectations is not unreasonable. But that is a substantive argument rarther than one in which the only response to an information disjunction is: terminate the program!
Assuming there is a problem of abuse, the solution is similar: manage the abuse better. Virtually every program administered through a typical Law School is subject to abuse. I don’t think that, on that basis alone, we would consider eliminating the Law School’s programs (though that would certainly and definitively end the possibility of abuse). Abuse, standing alone, provides little basis for considering eliminating an otherwise substantively positive value program. Thus, the mere existence of abuse ought not to produce a strong presumption of terminability.
Moreover, the criticism of abuse really masks two questions (1) does the conduct complained of actually constitute abuse? and (2) are there methods to manage or eliminate the conditions leading to an excessively high level of abuse? With respect to the first, I am not sure that the use of a course preference option ought necessarily to constitute abuse. I believe that in the minds of some, it might constitute abuse only when coupled with bad intent. But, who can look with any confidence into the hearts of students. Students say lots of things we discount; students purport to provide rationales for doing things that we discount. To raise this possibility (in some students—I would be suspicious of any argument suggesting a 100% ‘bad motive’ rate) simply means that the administrator is uncomfortable with the preference system in general or as applied to the certificate programs. Well, if that is the case, then the focus of the discussion ought to be on the preference rather than on the termination of the program as a whole. More generally, it is not clear that abuse can be defined as any use of strategic thinking in designing a course of study, when the basis of a Law School education includes rigorous training in the utilization of strategic decision making for clients in every conceivable legal context. And I am unconvinced that strategic thinking in deciding to participate in a substantive program can ever rise to the level of unethical conduct.
That brings me to the heart of the issue—an issue of management. Do our administrators have the tools they need to manage any abuse that they believe, reasonably and appropriately, to exist? The answer, I believe is that they already possess the tools they need to adequately manage this ‘problem.’ A combination of mandatory student counseling and oversight at the early stages of program completion would provide significant control. Counseling all students about the evils of strategic thinking in course or program selection by the administrators who feel strongly about this (I don’t) may be a way to alert students to the culture of course and program selection that we appear to be moving toward (though this also might be a subject well suited to faculty discussion and approval).
What are left with? From my perspective very little that cannot be cured by appropriate and traditionally available techniques of program management. And that brings us back to where every faculty ought to begin--to a discusison of the substantive value of a program.
A certificate program does lead the student into thinking that attainment of this certificate is a specialization. Generally, specializations tend to make jobseekers more marketable in fields other than law. However, in law, the best education is one of a general nature to equip the student to apply logic and develop good lawyering skills.
ReplyDeleteTake, hypothetically, a university that has a certificate program in dispute resolution. It would not serve the student well to specialize in such a field, using up all of his credits in that area and missing out on multiple others. Classes like Negotiation, Mediation, and Arbitration are very valuable, but in moderation. Ask any practicing lawyer and he'll tell you he learned those skills along the way.
Ask the university why they initiated such a certificate program, and they'll say, "Why not, we had the resources (and it looks great to be ranked high in the Dispute Resolution specialty, if not in the general area.)" Students, who don't have the benefit of experience, are lured by the "certificate" and think that they will be more desirable in the sea of job applicants. And the employers just snicker.
I say, Down with the Certificate Program! It's an exercise of aggrandizement on the university's part.