Opinion: Law schools should have to be really honest

Harvard Law School profession Noah R. Feldman weighs in on the law graduate left jobless who is suing her law school.

(Bloomberg View) -- You’ll be forgiven for chuckling at the story that a former law student is suing her law school because she didn’t get a job she liked after graduation. What could be more measure for measure? The Thomas Jefferson School of Law in San Diego taught Anna Alaburda to sue. Now she’s suing it.

Alaburda’s suit essentially alleges false advertising: She says the school misrepresented the employment record of its graduates, inducing her to attend and amass debt.

She probably won’t win any money, especially because it turns out she actually was offered a $60,000-a-year law firm job after graduation, which she turned down because other non-law jobs paid better.

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But it’s significant that a California court is allowing her case to go to trial. It places the spotlight on an important question about how law schools in particular and universities generally recruit students. How accurate must they be in describing their merits and the accomplishments of their graduates? Is a school’s promotional material like advertising for any other product? Or should institutions of higher learning be held to a higher standard?

Start with the employment numbers themselves. The American Bar Association requires accredited law schools to report on their graduates’ employment status. The ABA reports the data, and instantly generates school-specific reports.

This data uses an extremely generous definition of employment: a “graduate is considered to be employed if the graduate has a position in which he or she receives remuneration for work performed.” No doubt that’s technically accurate; but it’s also potentially misleading, since almost anything can count.

But the ABA’s definitions go on to be significantly more specific. They distinguish short-term employment from long-term. Then they break down employment into several categories, including “bar passage required,” which means working as the lawyer; “JD advantage,” which means the juris doctor degree helped get the job but isn’t necessary (think work as a management consultant or in an investment bank); “professional position,” a slightly vague category for which the ABA gives as examples “a math or science teacher, business manager, or performing arts specialist”; and “non-professional,” which is everything else.

When you print out a report for a specific law school, you get a breakdown of the number of graduates who landed in each of these categories. As information goes, the ABA’s reports are pretty good.

Alaburda alleges that Thomas Jefferson employees were cooking the books, intentionally misreporting data to the ABA. If that’s true, then the ABA’s report is not very good.

The law school denies misrepresenting its data. But the court rejected the law school’s motion to dismiss the case before trial, finding that Alaburda had done enough to show a trial is necessary. A former law school employee has said that she was pressured to misrepresent data.

“I routinely recorded currently unemployed students as ‘employed’ if they had been employed at any time since graduation,” the employee declared in a statement submitted as part of the lawsuit. The ABA’s definitions specify that the graduate “must be performing the duties of the position” on the date of the report -- March 15 after graduation – to be counted as employed.

Assume for the sake of argument that Alaburda can prove it’s more likely than not that Thomas Jefferson systematically distorted employment data. In general, if you make a material misrepresentation and someone makes a contract with you because of that, you’ll be liable for damages suffered as a result. Think of a used-car dealer selling cars it knows to be lemons, while representing them as sound. Is this case parallel? Should Alaburda be able to recover damages?

No and yes. She should be able to recover money, I think -- but not because law schools are selling a product like a used car.

Indeed, a law school isn’t selling any product or service at all, or least it shouldn’t be. Universities invite students to enter into a reciprocal relationship of mutual education. Ideally, they shouldn’t be making any promises at all about the future. A university is, at least in aspiration, a community where knowledge is pursued. Admitted students are offered the opportunity to enter into that community, both to study and to share what they know.

In theory, then, ordinary principles of contractual misrepresentation shouldn’t apply in the educational context.

Instead, even higher standards should apply. A law school is supposed to train students to become members of a profession with a code of ethics that prohibits lying.

If a law school actually has lied about its graduates’ achievements, it should be sanctioned. Money is a poor substitute for broad-based moral condemnation. But an award of damages is the tool that the law has to offer, for better or worse.

Technically, Alaburda may not have suffered any damages, given that she was offered work as a lawyer. But if the law school misrepresented data, it would be good for the court to award symbolic damages at least. We law professors teach our students that civil courts aren’t necessary unless a community’s self-policing fails and parties must turn to an outside authority. If law schools are deceiving prospective students, then self-policing has indeed failed and Alaburda was right to sue.

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