The Future of the Land Grant Law School

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The Future of the Land Grant Law School The Future of the Land Grant Law School

Johanna Kalb

University of Idaho College of Law

, [email protected]

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the

Advocate • September 2021

e Future of the Land Grant Law School

Dean Johanna Kalb

Featured Article

his summer, I had the great honor of

taking over the helm of the Univer-

sity of Idaho College of Law. In so

doing, I joined a small and special group

of deans who have the privilege of leading

land grant law schools. In my preparation

for the transition, I was surprised at how

little has been written about the distinctive

identity and mission of these institutions.

In my view, this represents a missed op-

portunity, particularly in this challenging

moment in legal education.

In this essay, I provide a brief overview

of the unique history of land grant institu-

tions and then describe the ways in which

our founding mission should inform our

vision at land grant law schools. I close by

highlighting the ways in which we are liv-

ing our land grant identity at the Univer-

sity of Idaho College of Law and describe

some of our plans for the future.

The past and present of

land grant law schools

Despite the signicance of our land

grant institutions, their history is not wide-

ly known.

In 1862, Congress passed the

Morrill Act which gave each state 30,000

acres of land per federal representative for

the purpose of creating public universi-

ties.

At the time, “a college degree was

largely obtainable only by wealthy, white,

urban males.”

us, the goal of these new

land grant institutions was to begin to de-

mocratize access to education “to promote

scientic farming, produce skilled labor,

foster technological innovation, bolster

transportation, and inculcate civic knowl-

e d ge .”

Because of the Morrill Act’s emphasis

on agriculture and engineering, land grant

institutions, including the University of

Idaho (“UI”), have been leaders in farm-

ing innovation and are signicant contrib-

utors both to our national economy and to

managing the world’s food supply.

Our success in the agricultural space

has sometimes masked the broader mis-

sion of the land grant institutions. e

Morrill Act was adopted in the early years

of the Civil War when the future of the

American democratic experiment was

very much in doubt. By making a uni-

versity education more broadly accessible,

Republicans in Congress hoped that these

institutions would lay the foundation for

more representative, and therefore more

eective, leadership for the nation.

should not be surprising, therefore, that

universities like ours viewed the opening

of law schools as key to their mandate.

Fast forward to the present day, and

there are now just under 200 accredited

law schools in the United States, a small

fraction of which are part of land grant

universities.

e world of legal educa-

Photos courtesy of the University of Idaho.

the

Advocate • September 2021 15

As I see it, our role in this moment is to model

ways to ofer a quality education at a price

that makes a law degree a smart investment.

“

”

tion, and higher education more generally,

is a challenging place these days. We have

faced years of declining nancial support

and relatedly—a public that is increasingly

questioning the value of what we have to

oer.

We are being pushed by our accredi-

tors (rightly in my view) to be more ac-

countable for our students’ success on the

bar exam

and in the job market.

And

the tyranny of national rankings means

that we face growing pressures to compete

on a variety of standard metrics, some of

which are of questionable value, and none

land-grant institutions were radical not

just in their orientation toward “the indus-

trial classes,”

but also in that they were

among the earliest co-educational univer-

sities in the United States.

In 1890, the second Morrill Act banned

racial discrimination in land grant institu-

tions but allowed states to meet this ob-

ligation by creating “separate institutions

‘of like character’.”

e result was the es-

tablishment of a new group of colleges and

universities, primarily in the South, aimed

at educating Black Americans.

In 1994, land grant status was extend-

e average cost of law school tuition

nationally has reached approximate-

ly $47,000 per year in tuition and fees

alone for out of state students at public

and private universities.

For students

without personal or family resources, the

law school debt burden can easily reach

$200,000.

As I see it, our role in this moment is

to model ways to oer a quality education

at a price that makes a law degree a smart

investment. We can draw on our experi-

ence as the original colleges and universi-

ties of access to build stronger and more

eective pipelines into law school and into

the profession. And we can share our his-

tories, as a way of highlighting the trans-

formative eect that democratizing access

to education has, not only on our students

and their families, but on the leadership

and economies of our states.

ese commitments do not come with-

out a cost. For example, there is a strong

and unsurprising correlation between so-

cioeconomic status and standardized test

performance.

at means law schools

need to make choices between ensur-

ing access and succeeding in the national

rankings. Dollars spent (or foregone) to

make tuition aordable or to provide ad-

ditional tutoring and bar preparation as-

sistance cannot be used to support faculty

scholarship or upgrade our buildings.

Yet, if we in the land grant law schools

give up on these students as too costly to

recruit and educate, we are, in my view,

losing sight of our special purpose that

distinguishes us from all other institutions

of higher education and that has made us

so transformative in the lives of our stu-

dents and in the progress of our nation.

Community engagement

is brings me to the second guid-

ing value: community engagement. Land

grants, unlike their private counterparts,

were designed to provide education and

build research capacity in ways that would

provide direct and practical benets to the

nation’s economy. Declining public sup-

port for our institutions reects, at least

at some level, a failure either to build ef-

fective community partnerships or, more

likely, to communicate their successes to

key stakeholders and the public.

which focus on our relationship with the

communities in which we are embedded.

e 21

century law school is being asked

to be all things for everyone. e chal-

lenge for us is to nd and follow a vision

that meets the many competing demands

of the present moment. But a particular

strength of land grant law schools is that

our founding mission oers key principles

to guide us, even as we learn from and

contribute to the national dialogue on le-

gal education.

Access

e rst core principle for land grant

law schools is access. e mission of the

land grant institution was to make higher

education available outside of urban elite

communities, an inspiring vision that is

still being realized. Many of the earliest

ed to 25 tribal colleges and universities, a

small step toward providing Native com-

munities with access to the educational

system that their ancestral land was used

to house and to fund.

Subsequent legis-

lation has included funding for some pro-

gramming at Hispanic-serving colleges

and universities.

With formal de jure discrimination no

longer a barrier to educational access, the

work for land grant institutions has turned

to smoothing the path for students who

are the rst in their families to attend col-

lege, and for those from under-represent-

ed communities. And this work is more

crucial than ever. e complexity of the

application process and the skyrocketing

costs of tuition have recreated some of the

barriers to access that the land grants were

founded to overcome.

the

Advocate • September 2021

Fortunately, the trend in law schools

over the last few decades has been toward

an emphasis on practical or “experiential”

education.

Law schools are now required

to ensure that students build their lawyer-

ing skills in addition to learning doctrine,

oen by representing real clients under

faculty supervision in clinics or through

externships with legal and business em-

ployers. Relatedly, law school faculty are

also increasingly engaged in public schol-

arship, designed to leverage legal theory to

solve real-world problems.

Land grant law schools have real

choices to make about how to support and

structure these kinds of opportunities, giv-

en the wide range of engaging work of in-

terest to students and faculty. In my view,

our land grant mission again provides us

with guidance about where to invest our

resources. Idaho, like most other states, is

experiencing a legal services crisis. Half of

Idaho’s 44 counties have fewer than 10 at-

torneys, including those who work for the

government. Five of those counties have

no private counsel and three have no at-

torneys at all.

For many Idahoans look-

ing to adopt a child, start a business, invest

in a piece of land, or dra a will, legal ser-

vices are simply inaccessible.

Under these circumstances, our

founding ideals would suggest that we pri-

oritize providing critical legal services to

communities in need in our state, while

working with our partners in the bench

and bar to develop creative ways to build

capacity over the longer-term.

Public accountability

A nal principle that should inform

our direction is public accountability,

which dovetails with the ideas of access

and community engagement. As schools

compete for tuition dollars, many students

are treated increasingly as consumers

rather than beneciaries of higher educa-

tion, even at public colleges and universi-

ties.

Together with the growing nancial

burden, this sends the message to students

that their investment in higher education

is a personal, rather than societal one.

is orientation shapes, in both pragmatic

and philosophical ways, the decisions that

graduates make about how to use their de-

grees. Paying it back makes it harder to

pay it forward. And if the public does not

see the graduates of their universities en-

gaged in work to better the lives of people

in the state, its support declines, and the

cycle continues.

As land grant law schools, our success

depends upon reversing these trends and

repairing the relationship between our-

selves, our students, and the people of our

states. Our students should understand

the charge and responsibility that comes

with being graduates of our special insti-

tutions. And, as professional schools, we

should work actively to facilitate connec-

tions between our graduates and commu-

nities in need around the state, so that the

public can see the direct benets of their

investment in us.

the

Advocate • September 2021 17

The future of legal

education in Idaho

Fortunately, much is happening in

land grant law schools, and particularly

at the University of Idaho College of Law,

that supports these goals. As an access

institution, we have remained committed

to controlling tuition prices, with the re-

sult that Idahoans can attend the College

of Law at half the price of the average law

school. With your support, we are work-

ing to further defray these costs, most

recently through the launch of the Tribal

Homeland Scholarship Program, which

provides a $10,000 scholarship to success-

ful applicants who are members of feder-

ally recognized tribes.

We know too that cost is only one of

the challenges that face rst-generation

and minoritized law students. is year,

we have grown our academic success and

bar preparation program with the hiring

of three new faculty to help ensure that all

our students are successful in law school

and in their transition to the practice.

Our community engagement priori-

tizes the needs of Idahoans and our dual

campus structure allows us to be present

in more ways around the state. Our fac-

ulty continues to research solutions to the

issues facing our state, from the challenges

posed by growth in Boise, to the regula-

tion of teacher certication, to the man-

agement of our water resources.

is fall, we will launch our grant-

funded Housing Clinic, which will work

to address the pressures of rising home

prices on Idahoans. is brings us to

a total of ve in-house clinics, which is

impressive for a public law school of our

size. We also have a growing externship

program, supervised by clinical faculty in

Boise and Moscow.

Our new faculty hires arriving this fall

will strengthen our Business Law program,

which is training lawyers to support our

state’s growing economy, and our Native

American Law Program, which prepares

our students, both Native and non-Native,

to serve the tribes’ work in economic de-

velopment, environmental restoration,

and the provision of social services.

Finally, we continue to nd ways to be

in relationship with the people of Idaho, to

highlight our gratitude for their sustain-

ing support, and to instill in our students

a commitment to the community that has

invested in their education. As part of

our mission through the Idaho Law and

Justice Learning Center, we host training

institutes for teachers and for journalists.

We also, in partnership with the Idaho Su-

preme Court, continue to house and serve

the State Law Library in service to the

public. And every student who graduates

from our law school is required to com-

plete 50 pro bono hours, which helps lay

the foundation for a lifetime of service.

Of course, we can and will strive to do

better. We will continue to explore new

ways to reach rst generation students

around the state, and facilitate their access

to law school, including through expand-

ing our partnerships with Idaho’s other

public and private institutions. We hope

to expand our presence to better meet the

needs of Idaho’s rural communities, guid-

ed by students and recent graduates in our

Agricultural Law Society. I have heard

from so many of you already about your

desire to welcome our students into your

towns and counties and your willingness

to share with them the challenges and the

tremendous rewards of lawyering in these

places. A goal for me is to nd summer

funding for students to pursue these op-

portunities as a way of building their con-

nections with all you.

And we will continue to provide a fo-

rum for discussion and debate on issues of

interest to Idahoans, fullling our unique

role as an intellectual community for the

residents of our state, and modeling for

our students the leadership we expect

them to exercise as graduates. For those

of you who are alumni of our institution,

expect to hear from me – we hope that you

will return to our campuses oen to share

your stories with us and our students.

One of the most attractive qualities

of this deanship is the strong connection

between the law school and the bench

the

Advocate • September 2021

and bar. I understand our status as a land

grant law school to mean that your role in

visioning the future of Idaho’s legal edu-

cation is at least as important as mine. I

look forward to many conversations and

collaborations in the months to come.

Johanna Kalb was appoint-

ed to serve as the Dean of the

University of Idaho College

of Law in May 2021. She is

the rst woman to serve in

this role. Prior to her dean-

ship, Dean Kalb was the

Associate Dean of Administration and Spe-

cial Initiatives and Edward J. Womac Jr.

Distinguished Professor of Law at Loyola

University New Orleans School of Law.

Her research and teaching interests include

constitutional law, federal courts, and the

law of detention and democracy. She is a

co-author, with Martha F. Davis and Risa

Kaufman, of the rst law school textbook

focused on domestic human rights, Human

Rights Advocacy in the United States (West,

2014). Her recent scholarship appears in

U.C. Irvine Law Review, the Yale Journal of

International Law, the Yale Law and Policy

Review, and the Stanford Journal of Civil

Rights and Civil Liberties, as well as the

Washington Law Review Online, the NYU

Law Review Online, and the Yale Law Jour-

nal Forum.

From 2014 to 2016, Kalb served as Vis-

iting Associate Professor of Law and Direc-

tor of the Arthur Liman Public Interest Pro-

gram at Yale Law School. Dean Kalb is a

graduate of Yale Law School and the Johns

Hopkins University School of Advanced

International Studies where she completed

her M.A. in International Relations with a

focus on African Studies. Aer law school,

she served as a clerk for the Honorable E.

Grady Jolly of the United States Court of

Appeals for the Fih Circuit and the Hon-

orable Ellen Segal Huvelle of the District

Court of the District of Columbia. She is

admitted to practice in the States of Missis-

sippi and New York.

Endnotes

1. I received helpful feedback on this essay from my

colleagues Michele Bartlett, Don Burnett, Wendy Cou-

ture, Aliza Cover, Benji Cover, Teresa Koeppel, Richard

Seamon, and Jodi Walker. Tenielle Fordyce-Ruﬀ and

the Advocate Board provided excellent editorial assis-

tance. My views here were informed by conversations

with the Justices of the Idaho Supreme Court and the

leadership of the State Bar. I am grateful for their time

and support of the College. This essay draws on the

work of Professor Stephen M. Gavazzi of Ohio State

University and President E. Gordon Gee of West Virgin-

ia University, whose passion for land grant institutions

has helped to inspire my own.

See

stePheN m. gavazzi & e. gordoN gee, laNd graNt

uNiversities for the future: higher eduCatioN for the Pub-

liC good 29 (2018).

3. u.s. CoNgressioNal researCh serviCe, the u.s. laNd-

graNt uNiversity system: aN overvieW 5 (R45897; Aug.

29, 2019), by Genevieve Croft (hereinafter “

U.S. Land-

Grant University System

”).

See

gavazzi & gee,

supra

note2, at 43.

5. Margaret A. Nash,

The Dark History of Land-Grant

Universities

, Wash. Post (Nov. 8, 2019), at https://

www.washingtonpost.com/outlook/2019/11/08/

dark-history-land-grant-universities/.

See

gavazzi & gee,

supra

note 2, at 38.

7. the hartford guNN iNstitute, eduCatioNal teleCommuNi-

CatioNs: aN eleCtroNiC laNd graNt for the 21st CeNtury,

CurreNt (Oct. 22, 1995),

available at

http:// www.cur-

rent.org/pbpb/articles/morrillgunnpaper.html.

See

also

Clifford W. youNg, baCkgrouNd for develoPiNg a sys-

tem of hisPaNiC-serviNg laNd-graNt Colleges 3 (undated

manuscript prepared for the Hispanic Association of

Colleges and Universities),

available at

http://www.

hacu.net/images/hacu/young.pdf (last visited July

11, 2021).

See

ABA,

List of ABA-Approved Law Schools

https://www.americanbar.org/groups/legal_educa-

tion/resources/aba_approved_law_schools/ (last

visited July 11, 2021).

See

gavazzi & gee,

supra

note 2, at 61-62.

10. Andrew Kreighbaum,

Persistent Partisan Break-

down on Higher Education

, iNside higher ed (Aug.

20, 2019), https://www.insidehighered.com/

news/2019/08/20/majority-republicans-have-nega-

tive-view-higher-ed-pew-ﬁnds.

11. Janelle McPherson,

ABA changes law school ac-

creditation standard because of COVID

, NatioNal Ju-

rist (Dec. 17, 2020) https://www.nationaljurist.com/

national-jurist-magazine/aba-changes-law-school-

accreditation-standard-because-covid

12.

See

ABA Standard 509, https://www.americanbar.

org/content/dam/aba/publications/misc/legal_edu-

cation/Standards/2018-2019ABAStandardsforAppr

ovalofLawSchools/2018-2019-aba-standards-chap-

ter5.pdf (last visited July 11, 2021) (requiring public

disclosure on the law school website of consumer in-

formation including employment outcomes).

13. Act of July 2, 1862 (Morrill Act) § 4, PL 37-108 (codi-

ﬁed as amended at 7 U.S.C. § 301).

14.

See generally

aNdrea g. radke-moss, bright ePoCh:

WomeN aNd CoeduCatioN iN the ameriCaN West (2008).

15. u.s. laNd-graNt uNiversity system,

supra

note ii at 6.

16. Stephanie Y. Brown,

Land Grant Universities and

Access in the Millennium: A Mandate to Re-Capture

Service Opportunities in Under-Represented Com-

munities

, 13 u.d.C. l. rev. 219, 222 (2010).

17.

See

Nash,

supra

note iv.