When law schools place dollars over debate

I recently published an article entitled "Law Schools Should Stop Misleading Prospective Students in Pursuit of their Desperately Sought Tuition Dollars" in a journal at my law school, the Arkansas Journal for Social Change and Public Service. I discussed how law schools need to be brutally honest to potential students about their chances for success, even if doing so hurts the school's bottom line. In addition, I pointed out the obvious notion that schools should never affirmatively lie, as did the University of Illinois and Villanova Law School when they falsified admissions data to make themselves appear more selective — a quality metric used by law schools in recruiting.

Illinois and Villanova were transparently motivated to put above all other concerns, including the truth, soliciting students to attend their institutions. Even when not affirmatively lying, however, schools heavily engaged in marketing and advertising efforts in pursuit of tuition revenue, unfortunately, often are not fully candid. That creates problems. For example, schools might not adequately convey students' chances to graduate and pass the bar; or schools might try to prevent students from transferring, even when doing so is in the students' best interests.

Another result of these dogged solicitation efforts is the desire by some administrators to create an atmosphere free of controversial topics or controversy itself, so as to not offend any potential revenue sources, be they students or benefactors. The preeminent goal for the school in this case becomes money, through student recruitment and fundraising — many times a result of dire economic circumstances.

The problem with a dollars-over-debate philosophy is that universities, and intellectual activity, only flourish when competing ideas are permitted to clash. A solvent Stepfordesque school is actually no better than financial bankruptcy, because the latter is simply replaced with moral bankruptcy. The University of Chicago recently reaffirmed this notion in a policy statement describing how it is not the province of administrators to limit discourse.  The response to academic speech that is viewed by some as offensive, they recognized, is counter-speech. Indeed, the Chicago Statement captured this view well by emphasizing that vigorous debate and deliberation is a seminal — indeed, definitional — component of a university’s purpose.

I personally experienced the intersection of these forces when I published an article here on the proliferation of so-called professionalism oaths for incoming students at law schools, including mine. I described therein how I believe that these loyalty oaths (which is how they're better characterized) serve to stifle independent thinking, as well as legitimate and healthy dissent. Indeed, these oaths, created out of whole cloth, foster group think and conformity rather than creativity and individuality. Little did I know at the time, however, that my concern about free thinking by students would ironically result in the limitation on the dissemination of my own ideas.

After the National Jurist published my article, I forwarded the link to the school administrator who handles uploading them to the section of my school's website dedicated to faculty news quotations and publications in newspapers and periodicals — as I had done with previous articles and news appearances. (That section of the website apparently has gone dormant, as the last entry was in March.)

After some time, however, the administration informed me that the link to my National Jurist article would not be posted on my school's website. The reason: because my article would not help with student recruitment, i.e., money.

I'm not sure how many publications would actually fit that requirement. How well does a piece on, say, Bolivian bankruptcy law, encourage student recruitment? Moreover, an article discussing contemporary issues facing law students and schools might actually excite prospective law students. But that's a secondary question at best.

Far more importantly, even if my National Jurist article didn't stimulate student enrollment — or if it actually offended some prospective customers away — university administrators should not eschew its dissemination on my school's website. That's anti-intellectual censorship.

When I questioned the administration, I was told, inter alia, that the non-inclusion wasn't, in fact, censorship because: (1) the article would, obviously, remain published in the National Jurist, and I could send it to whomever I wanted; (2) the administration reserved the right to screen faculty publications from the website; and (3) the website wasn't a public forum.  

Unfortunately, the administration's response was simply a non-sequitur. The censorship was always from the school's website not anywhere in which the administration couldn't exercise its dominion. That censorship isn't omnipresent, doesn't make it non-existent.  

The second "explanation" was, in fact, a posited (and tautological) justification for imposing censorship, not an exegesis as to why it didn't occur. That one claims a basis to censor (circular or otherwise) doesn't transform the act into something else.

And, third, there was never a dispute as to whether the webpage is a public forum. This is a factor simply not relevant to whether my work was withheld from the section of my school's website indisputably dedicated for, inter alia, faculty publications in periodicals. 

Indeed, in describing the authority to screen publications from the website, the administration stated that it would also not publish an article about a professor who was arrested for murder. That's some juxtaposition — not to mention that such an article would neither be a press quotation by a faculty member nor a publication authored by him. The administration must have really disliked my article.

After a colleague of mine intervened, the administration unceremoniously posted the link. I was copied on the notice.  I received, however, no explanation as to (1) why my article now met the administration's "recruiting" standards for publication on our website, (2) whether the "rules" for what would be included on the webpage had changed, and (3) whether I would be subject to further censorship in the future.  To be clear, if the school were to continue to pre-screen faculty publications (or, at least mine) for inclusion on the website based on whether they assisted in recruiting, or for some other so-far unstated reason, that is censorship, regardless of whether any particular article "passes" the administration's mercurial fiat. Indeed, the academic literature refers to such intellectual gatekeeping as "prior review." And it is eschewed by advocates of free speech near universally.

I'm no longer interested in having my articles included on my school's webpage because I will not abide censorship.  It's a sad outcome, but better than the alternative. The broader question, however, is more important: what values are schools willing to sacrifice in the name of income?  (And does it matter whether the school is economic crisis?)  

To me, higher education must pursue truth and stimulate intellectual growth. This can only happen in an environment that welcomes, indeed fosters, divergent views. This foundational principle is inviolable, even at the expense of solvency. There are plenty of schools that achieve this goal — the University of Chicago amongst them. If a school won't allow for a vibrant marketplace of ideas, it has no place in the marketplace for students.


Robert Steinbuch is a Professor of Law at University of Arkansas at Little Rock, Bowen School of Law and Fulbright Scholar.