Higher Education’s ‘Smiling Façade’

Wednesday, December 15, 2010

Page 7

IN MY OPINION (Column)

Higher Education’s ‘Smiling Façade’

BY GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Higher education is one gigantic public relations play. It lends credence to the perhaps not entirely truthful remarks of the joker who willed his body to Harvard Medical School because his mother always wanted him to go to Harvard. Yes, Madison Avenue has never been so successful as the fund-raisers of our most prestigious universities.

The purpose of higher education, indeed of all education, is to teach, to instill character, and to assist our pupils to upgrade our society. Isn’t the learning process the most fundamental goal? Of course. Who then most effectively promoted the learning process, the scholarly academician with the mile-long resume, or the instructor at a community college who is gifted with teaching skills, interest-producing presentations and likeability? The obvious response is not designed to denigrate our prestigious institutions, but to enhance the reputation of those learning institutions and teachers who actually promote education.

There is, of course, a need for research and writing. It should not, however, replace the learning needs of the student population.

Case in point is legal education in the United States. The behemoth American Bar Association has propelled itself into the area of teaching law and evaluating law schools. The ABA is not a licensing agency. In California, the State Bar is an arm of the Supreme Court, charged with making recommendations concerning the admissions and licensing of attorneys. The Supreme Court acts on the recommendations of the State Bar. As to new admittees, the Supreme Court acts on the recommendation of the State Bar Committee of Bar examiners, which administers the bar exam. And that is as it should be. In the area of legal education, the ABA’s involvement has been minimal at best and as misleading as the prestigious universities in their pursuit of the public relations they seek.

Then why do graduates of ABA-approved law schools outperform others who take the bar exam? Simple. By and large, they were full-time students and better students. There are no other reasons.

In the Abraham Lincoln log cabin approach, California has allowed a myriad of law schools to be founded in the post-war era. That proliferation occurred throughout the state, but mostly in the Los Angeles area. These were unaccredited schools, not truly recognized by the California Bar Association. Then came John Gorfinkle; scholar, dean and educator. He was appointed by the State Bar to evaluate these institutions, and he did. He single-handedly inspected these institutions and recommended State Bar accreditation. Some of today’s best known law schools fell into this category. Some remained unaccredited, some became State Bar accredited, and others sought and received ABA approval. (They don’t call it accreditation.) Some law schools thereafter joined the prestigious American Association of Law Schools. Hence, today we have unaccredited law schools, California accredited law schools, and ABA-approved law schools.

So why do we read about the high and low Bar passage rates by the different schools in California? Simple. Most, but not all, of California’s ABA schools do not have a night program which enables part-time studies. Further, the more prestigious the law school, the brighter the student population.

Most significant of all the reasons is that the Bar examination is not a true measure of an examinee’s ability to perform as a lawyer. In our generation alone, examinees who became governor, chief justice and dean of one of the most prestigious law schools failed the Bar examination on their first taking.

Behind the smiling façade of public relations, there lies the insults of Professor Charles W. Kingsfield from 1973’s “Paper Chase”—“Here is a dime. Call your mother. Tell her you will never be a lawyer.”—and the gut-wrenching teaching methods displayed in Scott Turow’s “One-L.”