Classroom Adversaries

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Student protests at CUNY School of Law shouldn’t surprise anyone. After all, activism has always been part of the curriculum at this New York City institution. The school actually offers a course in civil disobedience taught by professor Dinesh Khosla, himself schooled first-hand in demonstrations in India, where he was arrested more than a dozen times for anti-government protests. His first arrest for civil disobedience was at age 16, after the Ford Foundation gave a grant to help his Delhi high school adopt multiple-choice exams.

Still, it was something of a shock last April when Khosla and a group of nine students went on a hunger strike to protest the school’s handling of faculty member Maivan Lam’s tenure bid.

Lam, acclaimed for her work on the rights of indigenous people and a faculty member since 1992, was also known for incorporating into her classes an approach known as critical legal studies, along with its controversial offshoots, critical race theory and feminist jurisprudence. These doctrines look at legal principles through the lens of injustices done to women and minorities in the name of the law.

For example, when Lam taught her students about a Supreme Court decision invalidating a law banning mixed-race marriages, she also asked them to think about the social pressures that originally led to the law, as well as to consider who might have benefited from it. Though the answer–white men–may be obvious, the context of the law is not. Lam posits that the ban on mixed-race marriage served to protect fathers from the responsibility of supporting mixed-race offspring, and it insulated white sons from estate challenges by mixed-race half-siblings.

When Lam’s tenure application was initially considered, the tenure committee recommended approving it. Then the school’s personnel and budget committee asked CUNY Law’s dean, Kristen Booth Glen, to deny Lam tenure. In accordance with the school’s confidentiality policy, no reason was ever given. (Court papers filed by Lam suggest that the administration had qualms with her administrative duties and her classroom teaching.

Lam’s student supporters began protesting immediately after they learned of the personnel committee’s recommendation. They insisted that the move had everything to do with other recent changes at the school–particularly with curriculum initiatives aimed at making sure students pass the bar exam. The students charged the school was forcing Lam out her because her approach did not further the administration’s goal.

They started a petition drive, garnering an estimated 150 signatures by their count. When that didn’t produce results quickly enough, they staged a sit-in. Though the school agreed to add a student member to the personnel committee, relations between Lam’s supporters and the administration continued to deteriorate. As months went by without a final decision from the dean, the students suspected the administration was waiting until the summer–when they would no longer be on campus–to announce the result.

And so they resorted to the hunger strike, which ended on the fourth day-after one student was taken to the hospital. Finally, several days later, Dean Glen announced that the tenure denial would stand. Lam left at the end of the semester and is now a visiting professor at American University. (She also filed a lawsuit against CUNY, which is pending. In January, the EEOC determined a discrimination complaint could move forward as well.) On the advice of her attorney, Lam refused to comment for this story.

Now, nearly a year later, the students who rallied behind Lam say they’re still affected by the turn of events. “Maivan really played a big role in nurturing us intellectually and emotionally,” says Gordon Kaupp, a polite, earnest third-year student who says he might have dropped out of school were it not for Lam and her views on how racial bias influences the law. “Maivan is fearless in challenging white privilege,” he says. “I’m a white student, and she would talk about race in a way that wasn’t always that comfortable for white students to hear, myself included.” Lam drew on history, political science and sociology in her courses, and encouraged students to deconstruct the laws they were learning, not just memorize them.

Kaupp, who is preparing to move to California and find a job representing low-income clients, is devoted to progressive causes, as are most of Lam’s other ardent supporters. After graduating from Skidmore College, Kaupp spent three years in Colorado lobbying to preserve affirmative action. He chose CUNY Law for its clinics in international women’s human rights and welfare rights advocacy, and because the school’s reputation led him to expect a liberal-leaning faculty that approached all courses from “a very progressive angle.”

For Kaupp and the other protesters, Lam was exactly the type of teacher they anticipated working with at CUNY. “When we came here, we expected every class would have critical theory,” says fellow hunger striker Elsa Christiansen, a Brown University graduate who was drawn to the school for its immigrants’ rights clinic. “We believed each class would be taught with the angle of repression.”

But there are other students who came to feel that there were times when that kind of approach was itself oppressive. Nicole Allen, a second-year student from Rochester who took a seminar with Lam last year, thought Lam could be a harsh critic of students who did not agree with her politics. “She was very opinionated about her views,” says Allen, adding that if students challenged Lam, she might dismiss them by saying they were arguing a “very conservative” position.

Dean Glen declined to comment on the specifics of Lam’s case, but did volunteer that end-of-course evaluations included such vitriolic comments as “the worst teacher I ever had.”

At a school that prides itself on both diversity and a commitment to changing the world through law, there are a lot of different views on what ought to go into the education of public interest attorneys. Lately, that tension has exploded into the open, and into a virtual referendum on the future of one of New York’s great progressive institutions. Eighteen years after its founding by a group of radical lawyers, CUNY Law has found itself torn between two identities, building on its status as perhaps the most activist law school in North America while facing increasing pressure as a public university to provide its graduates with the goods they’ll need to succeed.

Those demands aren’t coming from students alone. In 1997, after just 46 percent of CUNY graduates passed the bar exam on their first try–the current state average is 79 percent–the New York Post editorialized in favor of shutting down the school, and there was some fear that the trustees might do just that.

But these days, the loudest voices in Dean Glen’s ears come from right down the hall. “They’re who I would have been, if I was a student,” she insists of her critics-in-residence. That doesn’t mean she agrees with them. “It’s like because we want our students to pass this bar, we’re reactionary, horrible people,” she says, exasperated. “Politically, we can’t exist if our students don’t pass the bar.”

For all the hurdles facing the school, Glen, a former appellate court judge, has done a remarkable job in helping raise the first-time bar-pass rate, while also quelling any movement to shutter the school. Her initiatives have ranged from inviting local politicians to observe classes to bringing in a consultant to evaluate the way in which courses were taught and suggest changes to improve the bar passage rate. The Community Legal Resource Network, another new project, provides technical assistance and other resources to graduates who launch neighborhood-based practices. Other changes have been more traditional: Students now receive letter grades instead of just passing or failing courses, and the worst performers now flunk out.

But dissenting faculty members insist that Glen’s ambitions for the school have come at a cost. “When I came, we couldn’t care less how we were perceived by the mainstream legal community,” laments Frank Deale, a faculty member since 1989. “Now, the school is in a mindset of mainstreaming. … There is a concern we really need to up the ante in terms of getting accepted by the traditional legal community.”

Khosla, who has butted heads many times with Glen, contends that the new grading practices have created a “climate of fear.” He believes there’s little room in CUNY anymore for teaching that emphasizes critical approaches to the law. “This school used to stand for something,” he says. “Now, there’s no mission. It’s run by people who only want to be managers. This school has lost its soul.”

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CUNY Law was never anyone’s idea of a typical law school. It was founded in 1983 with the purpose of training students to practice public interest law–although from the beginning, there was disagreement over the definition of “public interest.” Some faculty felt that only advocacy work directly on behalf of low-income clients deserved that label.

But while the founders ultimately chose to also train students for government work-even to be criminal prosecutors-it was Haywood Burns, who took over as dean in 1987, who came to define the CUNY way of the law. Burns, a world-famous activist who registered Southern black voters in the 1960s and was counsel to Martin Luther King Jr.’s Poor People’s Project, took over as dean in 1987 and served for seven years. He was still a member of the faculty in 1996 when he was killed in a car crash in South Africa at the age of 55.

Under Burns’ leadership, which coincided with a Democratic mayor and governor, the school’s reputation grew. Although the American Bar Association was never happy with the school’s low first-time bar-passage rate or its pass-fail grades, CUNY did become fully accredited.

Faculty who were on staff under Burns’ leadership still speak longingly of the popular dean’s ability to inspire people to work for social justice. “What drew me to the law school was that it was a place where students would come because they really wanted to change society,” says Deale, who was a staff attorney at the Center for Constitutional Rights when he was first recruited to teach at CUNY in 1989.

With the motto “Law in the Service of Human Needs,” the law school has an impressive track record of graduates who have dedicated themselves to public service in New York City. Notable alumni include Housing Court judges Pam Jackman-Brown, Margaret McGowan, and Schlomo Hagler, City Council Member Larry Seabrook, and state Assembly Member Jeffrey Klein. Another graduate, Miguel Negron, won the American Bar Association’s prestigious pro bono award last year for work on behalf of immigrants and other low-income people.

CUNY graduates work in many of the institutions where the people of New York find their representation–at Legal Aid, the District Attorney’s office, government agencies and in numerous small firms.

“I feel blessed to have gone to CUNY,” says Edwina Richardson Thomas, a fiercely loyal CUNY grad who is now a referee in Queens Family Court. “There was this true sense of community. … They put it into our heads constantly: law in the service of human needs. Whatever you do, use the law to help people.”

Although CUNY Law is classified by U.S. News & World Report as a bottom quadrant, “fourth-tier” law school, admissions are exceptionally competitive, with only around one in three applicants accepted.

In part, the school draws so many applicants simply because it is affordable. New York state residents pay tuition of only $5,700 a year; out-of-state residents, approximately $9,000. At Brooklyn Law School and New York Law School, by comparison, tuition is about $25,000 a year.

CUNY Law has also always attracted the best and brightest from all over the country who could have gone anywhere but chose CUNY because of its progressive reputation and vaunted clinical programs, which are ranked fourth in the country by U.S. News. In the mandatory clinics, students represent domestic violence victims, criminal defendants, immigrants and other low-income clients. Clinical programs are now de rigueur at elite law schools, but they weren’t when CUNY started its programs; CUNY set the example that they later followed.

The student body, although small at only around 150 per class, is in no danger of being called monolithic, either in viewpoint or background. Glen says her vision for CUNY is for it to be a public interest training ground as well as “the most diverse law school in the country.” This year, students of color made up an impressive 46 percent of the entering class, a slight increase over last year.

The one thing all students are supposed to have in common is a commitment to public interest law. About half of the class of 2000 ended up in a public interest or public service job.

To help the admissions committee decide which prospective students are truly committed to public interest work, applicants must write a personal essay describing their aspirations and interests. But some with more mainstream goals inevitably get in. Others come to realize they have priorities other than working for a cause. Third-year student Hilda Quinto says she wants to create her own financial security after she graduates this May, as opposed to taking a low-paying public interest job. A 26-year-old Peruvian immigrant who settled in Florida at the age of 16, Quinto now plans to do securities work for an investment firm–a career path that has been met with condemnation from some of her classmates.

“Some students have perspectives totally alienated from what I think,” says Quinto. “There was division here since the first day I arrived.” She has no patience for the hunger strikers, whom she calls “the revolutionaries.”

Second-year student Amy Wasserman entered CUNY with the goal of becoming a criminal defense lawyer, but after taking one year of classes she realized the work wasn’t for her. Although active in the Public Interest Lawyering Association, which raises scholarship money for students to work at nonprofits, she now intends to work in real estate after graduation, for reasons she can’t explain other than that she enjoys it.

Wasserman, a Rockland County native, did not get involved in last year’s protests, saying she didn’t want to be distracted from her studies. “In a lot of aspects you’re consumed with law school,” she says. “You try to disregard anything that is not going to be beneficial to passing your finals.”

Located in a former junior high school in Flushing, CUNY Law is open and unpretentious for a law school. There’s on-site child care for students, and yoga classes for the community. People here tend to be friendly, and to pride themselves on it. Students’ voices have long been heard here, largely because the founders deliberately tried to do away with the hierarchical institutional structure followed by other law schools, where the faculty and administration wield near-absolute authority.

“When we started, we had as our goal a radical experiment in legal education,” says Victor Goode, a specialist in affirmative action cases and former executive director of the National Conference of Black Lawyers who has been on the CUNY faculty since the beginning. “We thought we might stand as a beacon of how things might be done differently.”

From the start, however, there were political problems, with both the larger CUNY administration and the American Bar Association. In 1986, only 43 percent of the first graduating class passed the bar on their first try, leading to embarrassing press attention. The following year, the CUNY Chancellor fired two original faculty members, even though their colleagues had recommended them for tenure; a lawsuit soon followed.

Today, students still call professors by their first names, although other early practices have faded away. For instance, students and faculty no longer meet in small groups, called “houses,” to do a postmortem on the week’s courses.

But more than any other single event, it was the 1997 bar exam results that altered CUNY Law’s priorities. That July, only 46 percent of CUNY grads passed the New York state bar the first time they took it that year.

While the bar passage rate had dipped low before, the city was in a less forgiving mood in the late 1990s. For one thing, the law school no longer had the excuse that it was feeling its way through uncharted territory. What’s more, a growing paradigm shift in higher education made standardized test scores a defining measure of a school’s success. With a Republican mayor and governor, and with CUNY board members promoting performance standards for colleges, the school no longer had the luxury of downplaying bar exam results.

“With the Board of Trustees and the state legislature breathing down your neck, you have to sacrifice,” says Frank Deale, who is also an officer with the CUNY faculty union.

Pressure in the form of editorials by the city’s tabloids, combined with the perceived threat that the Board of Trustees might close the school, left the administration desperate to boost its students’ test success.

To that end, a host of changes were instituted. For one, the admissions committee put an increased importance on the Law School Admissions Test (LSAT), a multiple-choice exam designed to assess logical reasoning skills. A student who scores high on the LSAT has a better chance of later doing well on the bar; like the LSAT, the bar exam is a timed, closed-book test. Now, following a strict quota, the school admits no more than one-fourth of each class with an LSAT below the 25th percentile. Just two people with a score ranking below the 15th percentile have been admitted in the last two years.

At the time of the change, members of the administration knew they would be locking out some nontraditional students. “One of the things the school did was insist on higher LSATs,” says Sylvia Law, a professor at New York University Law School, a leading figure in health law and women’s rights, and herself a MacArthur Prize recipient. She was on the school’s Board of Visitors, an advisory body, until 1999. “That was a painful, painful decision. When you have someone who’s been a social worker for 20 years, or a cop, it’s a painful thing to say, ‘We can’t afford to admit you.’“

But the tighter admissions policy has indeed helped the law school boost its first-time bar passage rate. In 2000, CUNY hit its highest rate ever, with 74 percent of graduates succeeding on their first try-almost the exact same percentage as the much higher-ranked Brooklyn Law School. This past year, the rate dipped to 69 percent, 10 percent lower than the state average.

Of course, students can take the test repeatedly, like John F. Kennedy Jr. famously did. But retaking the test can be demoralizing as well as quite expensive, with bar review prep courses alone running around $1,000; then there are lost wages while people take time off to study.

Notes professor Sharon Hom, “It’s not us who are humiliated and mortified and have to go through the painful process of having to go take it again.”

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But there’s an ultimate irony in the numbers game. No one–not the professors, not the administration–believes the bar exam is a good measure of ability to practice law. If anything, it tests the one thing lawyers are never supposed to do in the real world: give advice from memory.

This tension between teaching students to memorize principles and to deconstruct them poses challenges to all legal educators. “Every dean struggles with that balance between teaching how to be a good lawyer and how to pass the bar,” observes Sylvia Law, who refuses to give closed-book exams to her students at NYU. “You should be teaching people to be good lawyers, not just teaching to the test. On the other hand, if you can’t pass the bar, you can’t be a lawyer.”

To pass the bar, students need to memorize “black letter law”-the rules and principles that come out of prior cases or statutes. Closed-book tests are the rule at CUNY, a practice Dean Glen defends as necessary to give students practice with timed exams to get them in shape for the bar-”the most intense test there is.” A typical question might involve asking whether employment contracts must be in writing to be valid.

Not surprisingly, teaching these rules is as dull for professors as learning them is for students. But legal education does not have to be that way-and tends not to be at the top-rated elite law schools, where tests are open-book essay exams and where students are routinely asked to think and analyze. Black letter law only comes front and center during intensive bar review courses just before the exam; after all, students will be taking their bar exams in many different states, each of which has its own distinct legal codes.

In CUNY Law’s early years, when all classes were driven by theory, there was little emphasis on the black letter rules. Even the course names reflected the philosophical approach to law: Contracts was called “Law and a Market Economy,” while torts and criminal law went by “Responsibility for Injurious Conduct.”

The classes are still subtitled with those names, although the names today just end up puzzling students. “People who come to school now wonder, ‘Why does this course have this crazy name?’ It’s turned itself on its head,” says Goode.

An increasing number of provocative courses have gone into retirement. One of the hunger strikers’ complaints was that the catalogue listed electives-such as “AIDS and the Law” and “Native American Law”-that weren’t offered. “When I read that catalogue, I was like in tears,” says Kaupp. “It only took three weeks for me to realize what was going on. … I moved here from Colorado. I uprooted my life. I was really disappointed.”

“The range of elective offerings that we provide is pitiful,” agrees Frank Deale.

Last year, the school’s catalogue was revised; it now no longer includes classes that haven’t been offered in the last three years. The 2002 catalog lists a total of 42 elective classes and seminars, down from 62 in the 2001 catalog. Among those no longer offered are “Feminist Jurisprudence,” “Gender and the Law” and “Critical Race Theory.”

The administration says enrollment was too low to justify retaining them. “We can’t offer a class for only three people,” notes Glen. Many (though not all) of the students demanding the courses’ return agree with her reasoning, but they complain that the administration has done everything it can to discourage students from taking them. In their three years at CUNY, students have room for about seven elective courses in addition to the required classes. For the last seven years or so, the administration has issued students a list of courses “recommended” for the bar, in real estate, practice, domestic relations, criminal procedure, wills and estates, business associations, and the Uniform Commercial Code.

“The recommended curriculum asks students to focus on courses that will be on the New York State bar examination,” explains Goode. It was implemented after administrators took a close look at who was passing and who was failing the bar exam; it found that some who failed the bar had steered clear of the business-related courses.

As for the deceased courses, many of them derive from critical legal studies. Some students say this is what they came to CUNY for: to deconstruct and recognize the value judgments underlying legal arguments. Without an immersion in critical legal studies, “I might miss legal issues in talking to clients,” contends Elsa Christiansen. “There are power issues I might not be cognizant of. I won’t be looking for the things I won’t have had my eyes opened to.”

Recognizing “power issues” may or may not be helpful in the trenches of Family, Housing or Criminal courts, where lawyers tend to focus on applying law to facts, but the ability to see big-picture issues is important for lawyers who want to bring class action suits or do other impact litigation.

Glen emphasizes that all CUNY classes incorporate critical legal studies, including a focus on race and gender, making it unnecessary to “ghettoize” the subjects the way she had to when she taught a class in “women and the law” at New York University in 1970. But other students say that has not been their experience. “They’ll say all our classes are taught from a critical perspective,” complains Robin Lutz, who came to CUNY as a community organizer “expecting a good radical, or at least progressive, education” (she never intended to practice as a lawyer). In fact, Lutz says, race and gender were “just not addressed” in her classes. She dropped out at the end of December after completing three semesters, and now attends the Hunter School of Public Health.

Not all students complain when electives disappear from the curriculum. Nicole Allen says she can’t spend any more time on classes that aren’t going to be on the bar exam. “I took human rights this year. It’s obviously not going to be tested on the bar exam,” she says, adding that all her future classes will be more practical. This summer, Allen will be working at the same real estate firm as her friend Wasserman.

For his part, Antioch College graduate Barry Klopfer is a little perplexed as to why his fellow CUNY Law students are pouring so much activism into defending the teaching of legal theory. “I didn’t want to go to law school and be inundated with readings that were less practical,” says Klopfer, who was living in Texas when he decided to attend CUNY. Last year, Klopfer started an ACLU chapter on campus, and he now works part-time at the Attorney General’s office, but he’s not yet sure where he’ll end up after graduation. One thing he does know is that he’s eager to leave behind academia’s ivory tower. “In a legal education, theory is less important than the vocational tools necessary to go out there and get dirty and start doing legal work.

“In the end, I just want to be prepared,” says Klopfer. “I don’t want to be a scholar. I just want the tools.”