Teaching as a Soapbox: Ideology in Law School

By Brian Beattie

What is the role of ideology in the law school classroom? Are students entitled to a evenhanded discourse on the law, or is it acceptable for a professor to teach through the lens of that professor’s ideology and political beliefs? Do students have a role in this discussion? Should they?

The Effect of Tenure

A bright hallmark in any law professor’s career is achieving tenure. Before this has been achieved, the non-tenured law professor, is of course less protected, and the university’s administration, other faculty, and to a unknown degree the students can have a substantial impact of their futures. John D. Copeland & John W. Murry, Jr., Getting Tossed from the Ivory Tower: The Legal Implications of Evaluating Faculty Performance, 61 Mo. L. Rev. 233, 312 (1996). The wide deference courts have given universities in the evaluation process of professors combined with the current ABA accreditation requirements for law schools have allowed law schools to grow more autonomous, and thus arguably better adaptable to their particular circumstances, but the independence has also increased the chance of insularity, provincial self interested decisions, and incompetent instruction. John S. Elson, The Governmental Maintenance of the Privileges of Legal Academia: A Case Study in Classic Rent-Seeking and a Challenge to our Democratic Ideology, 15 St. John’s J. Legal Comment. 269, 272 (2001); See generally Rudolph C. Hasl, Legal Education and Accreditation, N.Y.L.J., Aug. 1996, at 2.

The possibility that tenured law professors will be removed for teaching through the lens of their own ideology rather than from a more objective perspective is slim to none unless they are egregiously incompetent. See Chung v. Park, 514 F.2d 382 (3d Cir.), cert. denied, 423 U.S. 948 (1975)(dismissal of tenured biology professor upheld for negative faculty ratings, bad student ratings, and his refusal to cooperate with his colleagues to resolve problems). Whatever weight given to faculty or student evaluations is up to the individual institution, and the allocation of weight in the decisional processes is usually entitled to confidentiality. Copeland & Murry, supra, at 312. As tenure has been held to be a property interest, the tenured professor is entitled to due process under the Fourteenth Amendment, which includes the right to be fully informed and the right to a hearing in which the professor is given an opportunity to challenge the charges before any adverse employment action can be taken. Cleveland Board of Education v. Loudermill, 488 U.S. 946 (1988).

Lack of Tenure Allows for More Student Input

However, non-tenured professors do not ordinarily have the same assurance. Conway v. Pacific University demonstrates the potential effect poor student evaluations might have despite a dean’s promise to the contrary as the court upheld the professor’s dismissal after students gave him two consecutive terms of negative evaluations. Conway v. Pacific University, 324 Or. 231, 924 P.2d 818 (1996).

First Amendment Protections for Professors’ Speech

While the courts are reluctant to use lack of due process or denial of liberty or property interests as reasons to interfere with actions taken against non-tenured professors, the ousted professor may have a First Amendment or discrimination claim, e.g., Title VII or the ADEA. Copeland & Murry, supra, at 273-311. The First Amendment protects professors when they are outwardly compelled to change their speech in their role as teachers. Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 683 (1967). Striking down actions taken against a professor’s choice of instruction is usually adequately defended by language in Keyishian that such actions would damage a “wide exposure to that robust exchange” in the classroom’s function as the “marketplace of ideas.” Id.; citing U.S. v. Associated Press, D.C., 52 F. Supp. 362, 372 (1943); Cf. J. Peter Byrne, Academic Freedom: A “Special Concern of the First Amendment”, 99 Yale L.J. 251, 288-311 (1989) (discussing the concept of “academic freedom” as vaguely developed in case law as an overbroad response to legislation aimed at Communist subversives in the 1950s and affecting those in academia suspected of advocating overthrow of the government by force or unlawful means).

First Amendment Applicability to Student Grades

The courts have not reached consensus on the scope of First Amendment protection of professor-student interaction after the classroom lecture. The Sixth Circuit in Parate v. Isibor extended First Amendment protection to a grade given by the professor as “symbolic communication intended to send a specific message to the student, the individual professor’s communicative act is entitled to some measure of First Amendment protection.” Parate v. Isibor, 868 F.2d 821, 827 (6th Cir. 1989). However, a professor’s abusive conduct towards a student, which lead to the chancellor ordering a demotion and grade change, was upheld when the Seventh Circuit in Keen v. Penson did not endorse the reasoning in Parate, labeling the statement on First Amendment protection in grading “broad.” Keen v. Penson, 970 F.2d 252, 258 (7th Cir. 1992). Keen held that a professor’s letter trying to extract an apology from a student in after-class communications was not entitled to First Amendment protection as it did not sufficiently implicate a matter of public concern. Id.

ABA Accreditation as Leverage

The ABA accreditation requirements for law schools apply additional other pressures that may undercut a sufficient legal education. Elson, supra at 273. One law professor and critic, while recognizing that reform is improbable, persuasively argues the current ABA accreditation requirements de-emphasizes the importance of ensuring the best quality education as scholarship pressure in the tenure track is detracting from what should be the main goal of competently preparing students. Id.

Cost-Benefit Pressures Affect Reforms

As a business must make cost/benefit decisions to survive, so must law schools make cost/benefit decisions to survive. Restructuring the current incentives for law schools and professors to maintain quality while reducing the cost of entering into the legal profession, which inertia has built into an intangible investment nearly comparable to that of a home mortgage for most individuals, would be as mammoth and extensive an enterprise as redirecting the Yangtze River. Cf. Elson, supra at 284. Although critics of the current traditional route to becoming a lawyer identify valid concerns of creating untouchable professors, students are the main ones bearing the growing risk of being improperly prepared, and the public is likely safe as state bar exams hopefully act as a final filter catching most tainted classroom instructions before market entry. Cf. Elson, supra at 286.