Judith C. Areen Interview 7

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ORAL HISTORY OF DEAN JUDITH AREEN
This interview is being conducted on behalf of the Oral History Project of the
District of Columbia Circuit. The interviewee is Judith C. Areen, Dean of Georgetown
University School of Law, and the interviewer is Timothy Lynch. The interview took place in
Dean Areen’s office on January 23, 2008. This is the seventh interview.
Mr. Lynch: We are here in Dean Areen’s office for another session of this multi-year project.
Ms. Areen: You have my sympathy. Much too many sessions.
Mr. Lynch: We get the benefit of hearing about your life over time. How are you doing?
Ms. Areen: I’m just fine, thank you.
Mr. Lynch: What are you teaching this semester? This is the spring semester.
Ms. Areen: For the year – we think of it in year increments – in the fall, I did Higher
Education and the Law again, and it’s the third time through and I’m thoroughly
enjoying it. I was able to teach it out of the draft of what will be a new casebook
when it’s published this coming fall. I did a seminar on judgment and decision
making. The students in the seminar write a long paper; I find it really interesting
to coach them as they do their first serious legal academic paper. And this
spring I’m doing family law again, which is something I have taught for, well,
since the beginning of my time at Georgetown, so more than 35 years at this
point.
Mr. Lynch: What is the judgment and decision making class about, and what are the materials
that the students study?
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Ms. Areen: It was prompted by a course Paul Brest, when he was still dean at Stanford, began
teaching to encourage law students to think about their work as problem solving.
Too often we tend in law to think about only the legal decisions, but in practice, in
the real world, you’re responsible in private practice to a client who brings
problems to you, some of which are legal, and some not. So in some ways it’s
more like a business school course, and I was intrigued by it I’ve been teaching it
I guess for about ten years now—not every year, but off and on. It’s a mix of
materials, some inspired by Dean Brest, some that I’ve put together over the
years, including some non-traditional material. I give them Ishiguro’s Remains of
the Day. You may know the novel in which you experience the life of a British
butler looking back over a lifetime of service. He worked very hard. In
retrospect, he begins to think too hard, doesn’t go to his father on his death bed,
loses a chance to have a romantic attachment because he’s always working, and it
turns out the lord he devotes most of his life to is part of the British aristocracy
that becomes involved with Hitler, and making a separate peace. In retrospect,
the issue is service, working too hard, and for someone you ultimately do not
respect. My opening question for the students is, what’s the difference between
being a lawyer and being a butler? What I’ve found is sometimes good literature
can elicit discussions about making choices in life in ways that more traditional
legal material does not. So, I love the seminar, we cover a range of materials, and
students do papers based on what we’ve discussed.
Mr. Lynch: We shouldn’t have any more suspense: What is the difference between the two?
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Ms. Areen: Between?
Mr. Lynch: A butler and a lawyer?
Ms. Areen: When it comes to making choices about your life, I think there are not very many.
It is recognizing that there’s a service component to being a lawyer and that it’s
very important therefore to think about these very difficult issues of reserving
enough time for yourself that you have a life outside of your work and also
wrestling with the very difficult issue of ethics. We all know very ethical
outstanding lawyers who may find themselves working in a situation they never
anticipated. I remember seeing a resume a few years ago, someone who worked
for a governor who was terrific when he started and ended up being indicted.
There was sort of this blank space in the resume. How to try to anticipate
problems of that sort and how to handle them?
Mr. Lynch: It sounds like a fascinating course. So are there other problems that you deal
with?
Ms. Areen: There’s a whole literature, fairly mathematical if you will, on the kind of decision
trees that were used in sending a rocket to the moon, if you will, or equally
complex engineering problems. And indeed we do one session and look at the
report that was done on the space shuttle accidents because there’s both the
Columbia accident and the Challenger accident, and there’s remarkably similar
look-backs of what went wrong, but it happens twice. So, what you can do
whether it’s in the public sector or the private sector? There’s a very technical
literature that I bring to everybody’s attention, but we’re not an engineering
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school, and this is not a graduate economics program. We get into that side of it
as well as the more traditional legal and ethical literature.
Mr. Lynch: What kind of papers do you get from students?
Ms. Areen: There’s a full range. One of the key people in the field of decision making is
Herbert Simon, who in some ways helps launch the field of behavioral economics
and wins the Nobel Prize early on for it. He also goes on and does a lot on
artificial intelligence. I’ve had some very thoughtful papers looking specifically
at Herbert Simon’s work. I’ve also had very interesting papers on what are the
implications of this literature such as how people make decisions on a jury. It
may be that training judges a little bit more in some of the pitfalls of group
decision making might help with jury instructions. For example, there’s a pretty
clear pattern in the technical literature that there’s a bias called “anchoring,” so
that if I start out and say, “Well let’s negotiate for a price on this car starting at
$15,000,” you’re not going to argue for $5,000. Anchoring pulls the negotiation
to that number that’s been put out there. Perhaps judges should caution juries not
to take a poll when they first go into the jury room, that you want to first go
around and have discussion before you take a straw poll because otherwise that
anchoring bias will shut down more of the discussion.
Mr. Lynch: I think that may be a pretty common instruction. At least I’ve heard an instruction
to the effect of “when you go in, be sure not to take a too-strong position because
you may out of pride not want to move from that position.” So there is some
consciousness of this anchoring effect and the attempt to avoid it or counteract it.
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Ms. Areen: Exactly, but I think there’s more we could build on and that’s just one example
that comes to mind. So, as people wrestle with, and we certainly have made
progress in, I think, advising juries, thinking about juries, I do believe the
literature on decision making brings to bear interesting material. The students, I
think, find it empowering to take this body of material and try to apply it in new
and interesting areas of law.
Mr. Lynch: I think sometimes the empirical studies on juries, when they’ve been tried to be
put into place by judges, often involve reversals by appellate courts.
Ms. Areen: A trial court can’t do it alone, but it seems to me one pattern, and we see some of
this going on, is you get the appropriate levels of the court to look at issues of jury
reform. There have been trials in some jurisdictions of allowing jurors to take
notes. Now this is not new in many places.
Mr. Lynch: Can law students write?
Ms. Areen: Some.
Mr. Lynch: Tell us about the range of writing you see and what if anything could be done to
make it better.
Ms. Areen: There’s a huge range that comes in first year. At Georgetown, there is a legal
research and writing program we’ve invested in increasingly over the years.
There’s now a body of literature that’s developed, some very thoughtful ideas
about how to teach legal research and writing. Those of us who never had any of
the training, I’m sure I did this when I first started teaching, would go in and
simply edit the way you would as an editor, literally every page. If you think
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about it, that’s actually not the best way to teach someone to improve his or her
writing because it isn’t about this piece, it’s about his or her writing style. For
example, we’ve reduced the size of those classes and we’ve put more money into
bringing in people who have experience, they not only graduated from law school,
they’ve practiced law, maybe at an agency or a firm, and bring that experience in
to work with very small groups of law students, because we all know the best way
to improve writing is to write more and have someone who is a better writer
advise you. What we’ve learned is there are some people who come in who aren’t
ready even for that, and so we’ve built connections with our undergraduate
program at the university – the advantage of being at a university – and they have
a writing skills program and workshop that really is basic writing problems as
opposed to legal writing. On the other hand, we have people who come to the
Law Center and they’ve had a career as a writer or a journalist before they come
and so their basic writing is very strong. They only need to learn the particular
conventions of legal analysis. And in an academic setting, that means you learn
advocacy skills but you also learn academic skills where you’re trying to be the
neutral analyst not simply advocating for one position in the writing.
Mr. Lynch: Writing a brief is much different than writing a paper for a seminar.
Ms. Areen: Exactly. And we want to make sure over the course of their time in law school
that students are exposed to both. So when I said “some,” there are some people
who already write the English language well and easily begin to adapt their
writing style to this new profession. Others are struggling even at the first level,
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so it’s a real challenge. One more challenge I can add. We’ve got a growing
group of LLM students here who are in classes with JD students and who are
lawyers in countries around the world, I think we’ve got students from more than
40 countries at the moment, and a certain number of them enroll in the JD
program, so they add to the challenge of writing in a language that is not their
native language.
Mr. Lynch: Have you noticed any correlation between undergraduate major and quality of
writing?
Ms. Areen: No. We’ve looked, and no.
Mr. Lynch: Are you able to identify anything that predicts whether someone’s going to be in
that group that is not ready?
Ms. Areen: I don’t know if our legal research and writing instructors have asked that question.
It would be a very good question to ask as someone looking at it as a faculty
member. I have not seen those patterns. People can come out of very good
schools and have weak writing skills and vice versa.
Mr. Lynch: When you were going around to various law firms as part of your role in
fundraising for the school and whatever other reasons, did you get any feedback
from lawyers or partners?
Ms. Areen: Enormous. On just this point. It’s interesting. I learned that transparency,
accountability, mattered in all institutions and the most effective fundraising is not
to be there fundraising but to both explain to people what the law school is about
right now, because it may be doing things a little differently than it did when they
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were here, but to make it a conversation and in turn ask people based on their
experience in life, “what did you not have in law school that you wish we were
doing?” Then it becomes a conversation. I would say that weak writing was the
strongest, most consistent theme. It’s not only a Georgetown problem, moreover.
We had a gathering of the top 15 law schools a few years back, and one of the
discussions was on this point; and it was the consistent theme of all the most
selective law schools that the leading law firms would say, “You do a terrific job
of getting people to begin thinking like lawyers, that is, they have analytic skills,
they can read cases, they can analyze cases, they can put it in context, but they do
not write well. So we don’t want you worried about teaching them how to be
lawyers, that’s our job, and the analytic part is fine, but the writing skills are
weak, so if there’s anything you need to spend more time on, it’s writing.” And
those are graduates of very good law schools going into very good firms, so it is a
challenge.
Mr. Lynch: Are there still two writing requirements, an A paper and a B paper, or has that
changed?
Ms. Areen: No, it’s down to one. But what we’ve done is we’ve expanded and strengthened
the first-year program rather than having two upper class requirements. So it’s a
first year with this professional faculty with their discipline and experience and
significant investment in terms of number of legal research and writing faculty.
And then in addition, a scholarly paper with a faculty member. The B writing,
most people felt, which was eliminated, just didn’t do very much. You’d write a
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paper, you’re not learning anything other than going through the mechanics of
writing. The faculty writing requirement used to be the so-called A paper, is that
there are stages so you’ve got to have – it’s more like doing a thesis – you’ve got
to have approval on a topic, you’ve got to do a first draft that really is the best
paper you can write, a faculty member then reviews it in detail, and you rewrite it.
So both the student and the faculty member are given an extra credit hour to
emphasize that it’s this process of planning, rewriting.
Mr. Lynch: Every student has to complete that paper?
Ms. Areen: Every student must do that, and I think there’s a requirement too you have to
receive at least a C+, so a bad paper will not qualify, or you do not graduate. And
there are people who’ve been held back over a semester for not completing that
writing part.
Mr. Lynch: How do faculty assign?
Ms. Areen: Our belief, and it’s true in the curriculum in general, is that people are best at
what they’re passionate about, so we tie papers to a seminar. So that’s why my
seminar on judgment and decision making is a writing seminar – so a faculty
member picks the topic. From the student point of view, it’s partly for the topic,
but it’s also for, gee I really want to take a seminar with Steve Goldberg. Fulltime
faculty automatically can do it. We have some adjunct faculty. It’s a big
commitment to take on, so they’re closely reviewed to be able to do an A paper
seminar.
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Mr. Lynch: Last time we were here was I believe February of 2007 and we talked briefly
about your son’s experience as a 1L at Harvard. I think you said he was going to
be an intern at the U.S. Attorney’s Office in Baltimore? He must have had a good
time.
Ms. Areen: It was a terrific summer. We could not have imagined a better experience for
him. I gather, I don’t know your office, but there’s a fairly large number of
summer interns who come in, and it’s true in some of the other offices, but there
were only 10 or 11 interns in Baltimore. So while it’s a good office with a great
range of cases, it’s quite a small group. Everybody, our impression is, had just
the best experience. The office was very good about letting them know when one
of the attorneys in the office had a particular argument and they were physically
located there so they could go over and hear the arguments. He participated in
drafting briefs, and his name went on to a couple of them. I didn’t know that
could be done. He participated in at least one conference with the lawyer from
the U.S. Attorney’s Office, a lawyer for the defendant, and a judge, and the paper
that was the basis for the discussion was something our son had prepared, so he
got to actually listen in on the conference. So you go from just doing a research
paper to seeing the attorney in the office use it as they negotiated whatever the
matter was in that instance. I could go on, but it was just a terrific summer.
Mr. Lynch: Do your husband’s partners at Williams & Connolly approve of your son working
for a prosecutor?
Ms. Areen: Oh absolutely. [Laughter]
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Mr. Lynch: I don’t know the clerkship process now, has it moved from –?
Ms. Areen: Fortunately it’s moved so he doesn’t have to think about that until the beginning
of his third year.
Mr. Lynch: We’re in the midst of a very interesting political campaign, and as someone who’s
a trailblazer for women in the academy, do you have any particular thoughts about
this very historic primary season?
Ms. Areen: I join with the group that have said “I feel proud.” It’s something I think very
good about where the United States is in 2008 to have an African American and a
woman leading in position for one of the two major party nominations. I’m sorry
it didn’t happen sooner, but I’m very glad it happened now. I share some regret
that it’s producing the kind of conflict that it is on the campaign trail, so I’m
hopeful we can get through that without it getting too nasty.
Mr. Lynch: Are you involved in any of the campaigns?
Ms. Areen: I have contributed to one of the campaigns, but I’m not active in a campaign.
Mr. Lynch: We talked in a prior session about your time working in the Carter administration.
Have you any thoughts about whether you’d like to go back to government?
Ms. Areen: Oh I think I’ve had – I was fortunate. I had a very good experience doing that,
but no. I’m excited about the scholarship I’m doing on higher education. Just to
bring it back, and I do think our conversations have been a little bit of this, that is
it helped me to begin to focus, because we started while I was still Dean and
going through this transition, on things that have persisted in my life. You don’t
usually look back in that way, or I have not, and it made me realize that my
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interest in education has always been there and what it has meant in my life. I
mean the opportunities that have been provided to me both because of the
education I was fortunate enough to have and my being involved with a
university. And I continue to find them fascinating. Colleges and universities,
they’re really different kinds of human creations. They’ve persisted for centuries
through different kinds of governance regimes. We’re doing something right in
American higher education. Any list you see of the best universities in the world,
we dominate. Whatever else is going on with our reputation, internationally, I
think the Bush administration has hurt us for years to come, but one part that’s
still respected and admired is higher education because people are still sending
their sons and daughters here in huge numbers. We do it right. But I’m struck
that very little attention has been paid to how American higher education became
what it is. How these colleges and universities developed as they did, why they’re
as good as they are – not all of them are, but a number of them are – what’s the
relationship between their quality and our being a democracy. I’m understanding
there’s a very important relationship that hasn’t been talked about.
Mr. Lynch: Why hasn’t it been talked about? Why hasn’t there been this focus?
Ms. Areen: I can’t imagine. It’s so interesting. As I’m pulling these things together, why
hasn’t more of this been looked at? So if you say something about colleges and
universities, you’ll get a reaction. People are either worried about their own kids
getting in, or they’ll have a view about they’re too expensive or they’re
inefficient, but there is, even if only begrudging, recognition that they’re doing
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some things right. And yet we really don’t have this historic view or this
structural understanding, and it’s a problem because without it, you really can –
and I worry that some of the views out there, you really could – hurt them. You
could tear it down just as we’ve seen things go wrong with our reputation in the
world. I think there are things underway that could be very very disruptive.
Mr. Lynch: Like what?
Ms. Areen: My immodest goal in all of this is to get some articles out there. It’s probably
more than one book at this point, to give people a better understanding of the
relationship between democracy and higher education.
Mr. Lynch: What are these threats?
Ms. Areen: There’s a piece just this week that Steve Trachtenberg, who has just stepped down
as president at G.W., has done. The legislation pending in the reauthorization for
the Higher Education Act, which is the big Act, listed, I think, 280 new reporting
requirements that would be imposed on colleges and universities. Now, I’m not
saying they don’t need regulation—they do—but we seem to have really gone
pretty far on the pendulum swing in expecting reporting to the federal
government.
Mr. Lynch: What kind of reporting?
Ms. Areen: You name it. On students. On admissions. We’ve seen because there was clearly
inappropriate behavior in financial aid, but again maybe are we pushing too far in
terms of the level of detail we’re now going to expect of everyone. And yet
historically one of the things that’s distinctive, and this is an example that people
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don’t know, most countries have a Ministry of Education, and the Ministry of
Education sets standards and imposes them; that’s the quality control. Well there
are good things about a centrally regulated system, but there are bad things, too.
In the United States, by contrast, from the beginning, well, in the beginning there
were no accrediting agencies, but early on, back in the 19th century, we developed
private accrediting agencies in different regions of the country that were made up
of volunteers, most of whom, not all of whom, were themselves academics; so,
they basically shared this notion that, you know, we will go around and, depends
on the kind of school , but every seven years or every ten years, and inspect.
We’ll go and visit, and it’s not to put a report card out there, but it’s to work with
the institution and say your own goal is more diversity in the faculty but here’s
how you’ve fallen short. So that system of private voluntary accreditation is part
of what’s produced this quite amazing sector we have. Related in an important
part is we’ve got both public and private institutions, and I really think the
competition that that set up over time is again what’s produced quality. You can
see if you move in the direction of having the Department of Education become
more like a Ministry of Education, top-down telling everybody how they must
operate and report on everything that they do, it would start to move us to the
model that dominates in other parts of the world where there aren’t nearly as
many quality institutions.
Mr. Lynch: At this point, is there more than reporting or is the view that that is the stepping
stone to —
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Ms. Areen: Well both things are going on. The Trachtenberg report this week or article refers
simply to the reporting requirements. But it has been the case for the last two
years now that the Department of Education has clearly moved in the direction of
telling the accreditors what they must do. One example that you may have read
about just in the last couple of months is they have held up the reaccreditation of
the ABA to accredit law schools because of the objections to a reporting
requirement on diversity in the ABA accreditation standards.
Mr. Lynch: Is that in opposition to efforts to keep track of diversity? To make diversity a part
of accreditation?
Ms. Areen: Yes. The ABA has made it part of accreditation, and because of political
opposition to diversity as a goal, the ABA’s approval to be an accreditor has been
held up. And there’s been a clear effort to reach out to regional accreditors and
tell them what their standards should be, which would come close to federalizing
these previously private volunteer organizations. Big change. Maybe we need to
go there, but I don’t think the case has been made, and most people aren’t aware
it’s even underway.
Mr. Lynch: Are there other areas other than the issue of diversity where the Education
Department has been trying to either directly mandate or through this
accreditation process —
Ms. Areen: Yes. The biggest one with the regionals, they’re focused on undergraduate
education primarily, is accountability. Now we’re all for accountability, but you
know the debate that’s gone on with K-12 or No Child Left Behind, with many
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people feeling that the focus on test scores and the need for teachers to teach to
the test has actually in some cases undermined the teaching that goes on in the
school. There has been a push – it hasn’t happened yet – but a push coming out
of the Department of Education to have a similar system for higher education. So
from the idea of no child left behind we have no freshmen left behind. The
concern is it might cause even greater problems in higher education in part
because one of the good things about American higher education is we have such
a range of colleges and universities and it would necessarily force them to be
more like each other. It seems to many of us that that’s what at risk, the quality
we’ve achieved, because diversity of institutional mission is one important kind of
diversity.
Mr. Lynch: Would that have an impact primarily on relatively resource-poor schools, or
would it just serve to —
Ms. Areen: The accreditation would affect everyone. It would always be hardest on the
schools with the fewest resources. But to say that the wealthier schools could
afford to comply with all these requirements doesn’t justify imposing them if
they’re not actually going to lead to students having a better education. I mean
that’s what we’re all for, and by imposing almost simplistic kinds of
measurements – I mean, what test is it that you would give to every college
graduate, whether you’re a chemistry major or a literature major? I don’t know.
Maybe for 12th grade, although even for 12th grade I think it’s a little hard.
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Mr. Lynch: I’m just going to throw something out. What about a requirement that all college
students be able to write?
Ms. Areen: I think it would be a wonderful requirement, but I can’t imagine how you’d begin
to measure it. As you know, the SAT has been expanded just in the last couple of
years to include a writing section, but my understanding is people are still really
struggling with how to measure, how to evaluate.
Mr. Lynch: We talked a little bit about your work on the American Association of Law
Schools. This is probably a good time to talk about what you’ve been up to lately.
Ms. Areen: As I mentioned to you just as we were starting, there are three major
organizations that have shared responsibility for thinking about legal education
broadly. So the AALS, the easiest way to describe it, is the ABA for law
professors. Then there’s the section of the ABA on legal education which is this
accrediting group, so they literally have the legal responsibility to accredit law
schools. And then there’s LSAC which is a separate non-profit organization
responsible for producing and evaluating the LSAT.
Mr. Lynch: What are the initials LSAC?
Ms. Areen: Law Student Admissions, I think now it’s Corporation. It used to be Council. It’s
a large structure because they have on staff statisticians and others who are very
able to both devise questions and test them for rigor and uniformity that are
effective at measuring skills for law school. And they’re responsible for
administering the LSAT. So each of these organizations has had a very long-time
leader. Phil Shelton has been head of LSAC for nearly 20 years. Jim White was
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the consultant on legal education for the ABA for an equally long time, and this is
now the 16th year at the AALS that Carl Monk has been our Executive Director.
Both the Section on Legal Education and LSAC have within the last two years
changed their executive director position and that’s been a big part of this year for
me. I just finished my third year of service as an officer, so I was President-Elect
in 2005 and then I was President in 2006 and for 2007 Immediate Past President.
The President in 2007, Nancy Rogers, who’s the law dean at Ohio State, asked me
to chair the committee to find the next executive director [of AALS]. It’s an
opportunity but it’s daunting because Carl Monk has done a terrific job, and it’s
one of those positions that young law professors don’t even know about or think
much about although it is the learned society for law professors. There’s a major
meeting just after New Year’s every year. I think we had 3,500 or 4,000 law
professors in New York City just a few weeks ago. The contracts professors get
together, and there’s a panel, and papers are given on current issues. It’s a way to
keep people current, to open their minds. You can sit in on any of the panels
during the meeting, so it’s a great way to find out what are the current big issues
in the law that you may want to bring into your classroom. And then we
separated out, it used to be one meeting but it got too big. Every November we
hold a meeting for people who are interested in becoming law professors, and
virtually every law school will send a team of people to interview. So those two
functions alone are a very important part of it. I’m pleased to say we’re in the
middle of it, but we’ve had very strong candidates, so I’m hopeful perhaps within
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a month, that’s our goal, we’ll have the next executive director. And it matters.
There’s a course taught here by John Olson of Gibson Dunn this semester on
governance of non-profits. His law firm did the report that was done on the Red
Cross in 2006 when they wanted to look at their governance and then most
recently they were involved with the Smithsonian issues as well. Nonprofits are
very complex institutions, and their conclusion, and I agree, is it is generally more
difficult to sort out governance issues. They’re difficult enough in for-profit
corporations. We’ve had this big national focus, and we passed Sarbanes-Oxley,
but there are challenges in nonprofits, too.
Mr. Lynch: Why is that?
Ms. Areen: Well, what simplifies – if I dare use that word with corporate governance – in forprofits
is you know your responsibility as a board member or as an officer, which
is to the shareholder. If you’re at the Red Cross, if you’re at the Smithsonian, if
you’re at Georgetown University, you have a lot of stakeholders. You’ve got a
university faculty, you’ve got students, you’ve got alumni, you’ve got donors,
you’ve got government officials, you’ve got local officials, a lot of people who
feel correctly that they have an interest in, a concern about, and expect some
response from either the CEO or the governing board or both. So they’re
challenging institutions to manage right now.
Mr. Lynch: On both boards like that, then, is there an organization to represent each of those
interests, or is each board member obliged to represent all of the interests?
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Ms. Areen: Well, that’s one of the things that the institutions debate. It’s very interesting to
look at – I’ll take the Red Cross because the reports are available, and —
Mr. Lynch: is this post-9/11, what they did with the money they raised for 9/11?
Ms. Areen: That was one of the issues that triggered concern internally and very candidly,
there were questions being raised by the Senate Finance Committee, the Senate
Committee and Senator Grassley. So they thought it would be a good idea to look
at their governing structure. And it used to be 50 people on the board. That
immediately raises questions. And they were constituent-based; 30 of the 50
came from Red Cross chapters. I think there were eight by position who were
cabinet secretaries with the federal government. On the one hand, while it’s a
good idea that you’ve got the Secretary of Health and Human Services, because
they do the blood supply, you’ve got other cabinet secretaries. The reality is, how
much time do they really have to devote to this board? And they tended to break
into these constituent groups. So it’s very interesting. They ultimately agreed
over time, there are some years to get there, to reduce the size of the board first to
25 and then to 20 and that every person on the board going forward will be a
general representative. They’re not there to represent a constituent, but to take a
leadership perspective over the whole organization. I think there’s a lot of
support for that as a much better way to go with a nonprofit.
Mr. Lynch: Is the Red Cross going to continue to keep government leaders as ex officio
members?
Ms. Areen: No. That’s part of the change.
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Mr. Lynch: I know the Smithsonian —
Ms. Areen: They’ve wrestled with this.
Mr. Lynch: A Chief Justice is —
Ms. Areen: is one of the ex officio. Right. I think Chair of the Board, but I’m not certain of
that.
This is the kind of discussion that has not really happened until now, so I hope out
of some of these unfortunate experiences we’ve read about too much in the
papers, people can begin to be more thoughtful about what’s a good size for a
governing board. Another problem many of these institutions have had is what
does it mean to be a board member as opposed to an officer. And I gather it used
to be at the Red Cross that while the president was the CEO, the presidentiallyappointed
Chair of the Board had governing responsibilities. Well, that’s a
formula for conflict, and they went through a number of CEOs in recent years. So
on a much smaller scale, we have no scandals. The AALS has been well-run, but
these issues of the role of the governing board, the role of the executive director,
have been part of what I’ve worked on with the other members of the board the
last couple of years and have been very important I think to setting the stage for a
good transition.
Mr. Lynch: A brief aside here, that sounds like a very interesting course. Is it John Olson?
Ms. Areen: Yes.
Mr. Lynch: Do faculty members ever “stoop” to attending classes taught by other professors?
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Ms. Areen: That’s what I’m doing. I’m sitting in on his course. And yes, I’ve team-taught
with other faculty. Anybody is free to do it anytime you want, and people do do
it. Everybody, and not all the time, especially if you know, for example, you’re
going to go into another subject matter, it’s a great idea to go in and watch
somebody else teach it, and people are very collegial and encourage that. It’s also
a way for young faculty, and what we do here is, because it’s Georgetown, you
have a faculty angel rather than mentor. One of the things your angel can do if
you’re new and a little hesitant is go to a colleague and say “here’s a new young
associate professor who’s going to be teaching torts next year, may he or she
come and audit in the spring and see how you do it?” And most people are
flattered and say fine.
Mr. Lynch: Anyone ever have trouble?
Ms. Areen: I haven’t heard about it. I can’t say it hasn’t happened, but I’ve never heard of
any problem.
Mr. Lynch: There were a couple of AALS issues that have been in the news recently. One
involves a student at Regent Law School who sued Regent for, I think the issue
was he published something on a Facebook site that was interpreted by that law
school as insulting to Jerry Falwell. I believe he sued in federal court, claiming
that the accreditation process required some notion of free speech for students
even at religious-identified schools.
Ms. Areen: Right. A couple things. The legal body that accredits is the ABA, so it was
probably the ABA rather than the AALS. The AALS and the ABA actually do
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joint site visits, but the AALS is a membership organization of the law schools,
and not all schools that have ABA-accreditation are members of the AALS. The
feeling is that there’s a higher standard, and you have to have been operating as a
law school for a while and demonstrate your academic quality to be in the AALS.
The issue of academic freedom for students is a fascinating one. Again, people
just don’t know this. I didn’t before I started doing research. Germany actually
pioneered the issue in the late 19th century, and they developed the notion of
freedom of teachers and freedom of students, and it’s that kind of academic
freedom that is picked up for faculty by the AAUP – Association of University
Professors in 1915. John Dewey was their first president. They issued this
statement about the need for academic freedom for the faculty. They do not
discuss in that document academic freedom for students. They were very clear
about it. They were a membership organization of faculty. They had that fight to
win. They weren’t necessarily opposed. Now to be fair, in Germany when you
look at it closely, it’s not that the students really had academic freedom. What it
meant was they didn’t want to be responsible for them. So, unlike the English
universities that had dormitories – and it’s still the case in many European
universities – where you lived is up to you, that’s your problem. And they didn’t
want to be responsible for your choice of courses, so except for required courses,
what they really meant by student freedom in Germany is the freedom to decide
which courses you would take so the faculty don’t have to have any
responsibility. It only changes, and it’s rare that you can date it – in 1964, and
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you’ll remember this – the Free Speech movement at the University of California,
Berkeley. And that summer was, I want to get the date right so I’ll need to check
it, but it was the Mississippi Freedom summer, and a number of students around
the country went down to Mississippi and helped register African American
voters. Again, just to circle back. It is amazing in our lifetime to see, I just think
Obama is a terrific candidate, so I’m revealing my bias. Two of those students
then returned to the Berkeley campus and they set up a table to raise money for
civil rights and a not-very-wise president, there’d been some back-and-forth the
past couple of years about whether the particular piece of land they were on
belonged to the city or the university. There had also been, it’s pretty clear in
retrospect, some pressure brought to bear by local businessmen who were
unhappy because there was some picketing of discriminatory labor policies at
some of the local companies. Anyway, the long and short of it is they come in
and the campus police arrest, or attempt to arrest, the student who’s raising money
on behalf of civil rights. It really was about free speech. So they surround the
police car, literally, hundreds of students, and it’s the first mass student protest.
There’s back and forth. They manage to settle it sort of temporarily, and the
students present their case to the faculty, who are very sympathetic. I want to get
the timing straight. The faculty does vote in support of the students. There’s
some variations here and there, but they basically say, the First Amendment,
we’re a public university, ought to apply to students. Most of them were over 18.
How could the First Amendment not apply on a university campus which the
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actions of administration had not honored. Although they thought they had
worked it all out, again the local administration just handled it badly. So they
send a message to the leaders of the movement saying “you’re all to appear before
a disciplinary board” which everybody thought was in really bad faith. Mario
Savio gives this terrific speech I was alluding to talking about if the university is
like a corporation and the faculty are mere employees then who are the students”
Some of us are prepared to put our bodies on the line. We care about the society
and we have rights to.
Mr. Lynch: And just for the record, who is Mario Savio?
Ms. Areen: He’s one of the students who’d been in Mississippi and is now a graduate student
at Berkeley so he’s responding to this situation. You can see his speech on the
web. You can literally see him deliver the speech. It’s amazing because they
look like it’s the 1950s rather than 1964, very short hair. Everybody has a suit
coat on and tie because they were following the procedures they’d used in
Mississippi, which was always to be in your Sunday best because this was serious
work. They wanted to be taken seriously; they’re defending their constitutional
right. So he gives this amazing speech and hundreds of students march in and
take over the administration building. It is the first student protest, and it really is
about free speech. The next day Governor Brown calls in the state police and
they arrest more than 800 students. It’s the largest mass arrest of students in
history. I say “march in,” of course it’s perfect, Joan Baez is there singing. So
then there is this faculty vote in support and the regents at that point back down
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and agree going forward by January that students do have First Amendment rights
and can speak on political matters on the campus. The campus is free, of course,
to limit that, the rule we live with today; you can designate those areas of the
campus for political activities so the time, place, matter restrictions are
acceptable, but students have First Amendment rights.
Mr. Lynch: How was that formalized?
Ms. Areen: Policy of the regents was announced. So this is 1964. By 1968, protests against
the Vietnam War escalate until we get to Kent State in the early 1970s, and at one
of those protests, students are, again they call in the National Guard in Ohio, are
shot and killed and all over the country students go out in protest. There’s a
national commission put together, a very interesting document to read, where they
say there’s been this split between the generations and that’s bad for all. We’ve
got to find a way to get back together for our future as a country. They make
statements to the students, but very interesting, to the administration of the
university, the national commission says you need to include students going
forward in your decisions as an institution. It’s certainly true here, I assume it’s
true at most law schools for example, we have students on most committees. We
don’t think twice about it, but it didn’t exist before this dramatic change in the
1960s, whether it’s free speech rights or some right to participate in government.
Mr. Lynch: Did that commission have a name?
Ms. Areen: Yes. Pause. It was the Commission on Campus Unrest, also known as the
Scranton Commission.
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Mr. Lynch: In the last couple of months there was a flare up with Dean Erwin Chemerinsky,
who was hired and then fired and then re-hired, presumably still hired as we speak
today. Can you tell us a little bit about that?
Ms. Areen: Let me go back and give a little bit of the history that sets it up. When you go
back to colonial America, several things are stunning. There was a larger
proportion of college graduates in the Massachusetts Bay Colony than there were
in any part of England. That part of the country was settled by an amazingly
well-educated before-its-time group. So they land in 1630. By 1636 they have
established a university. As a historian says, “How audacious.” I mean, there’s
still some of them living in holes in the ground with thatch roofs but they believe
in education. They knew what education meant. It was what they’d experienced.
There were only two places you could get degrees in England – Oxford and
Cambridge. So they had graduated from one of those universities. And they tried
their best to copy them. But there was a problem. There weren’t enough faculty.
So what to do? I mean they could have buildings, they could find someone
learned enough to be the president, but they couldn’t round it out to have a
faculty. Why did that matter? Oxford and Cambridge were self-governing
communities of scholars. The faculty ran, the faculty still runs them. They
couldn’t do that. So they took the form of governance they were familiar with
politically. Massachusetts Bay Colony was a corporation that had a charter from
the king. So they set up Harvard College and later William & Mary and then by
the time of the Revolution, there are nine colonial colleges that all have a
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governing board of non-faculty. So we in the United States, out of necessity,
come up with the non-faculty governing board. Why does it matter? Well it
doesn’t for several hundred years because they were mostly religious
organizations. The faculty were basically teaching a very narrow range of
subjects and did what they were told. By the time you get to the late 19th century,
religion is losing its force, science arises, and expertise. And a number of the
most thoughtful people actually are educated in part in Europe and particularly
influenced by Germany that had developed this notion of academic freedom for
the scholar. Now in Germany they were all civil servants so what academic
freedom meant was that they could be in charge of their own thoughts and their
own teaching. So you get real clashes in the late 19th century in the United States.
One of the most famous was Mrs. Stanford, and her husband at that point had
died, so she’s sole trustee of Stanford and there’s a faculty member she doesn’t
like and she tells the president to fire him, and he does. I think we may have
talked about this. So we get this notion, starting with the 1915 AAUP statement
that we’ve got to balance the non-faculty governing board, which works very well
for fundraising and business but what do they know about curriculum, or deciding
who’s a good chemistry professor or who’s a good Renaissance scholar. So we
develop this notion of shared governing, and what academic freedom is about is
you can’t be fired just because you don’t agree with the board, that they will defer
on academic matters to the faculty. So this is background to Chemerinsky, a long
way around to say “What is the dean?” Is a dean administration or is a Dean a
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faculty-selected creature. In most established law schools, law faculty play a
major role in selecting dean. They don’t do it alone. Law deans are appointed by
the president, but the understanding is, and this is supported by the ABA
accreditation structure, is the faculty in effect has a veto. If someone is not
competent to be faculty, because they’re not qualified to have tenure, to be a
scholar on the faculty, then they shouldn’t be the dean . Chemerinsky’s is a
particularly strange situation because it’s a brand new law school, so there’s no
faculty there. He’s going to bring in the faculty.
Mr. Lynch: And just for the record, what is the law school?
Ms. Areen: It’s the University of California, Irvine . So in the California system, they will
decide we will have a law school here, and that decision has been made, a
university that exists at Irvine , we’ll add one more school, and funds have been
provided, and so forth, and the president goes out and presumably there was a
search, or he was advised along the way, and offers the job to Professor
Chemerinsky, who’s then on the faculty at Duke, a very distinguished
constitutional scholar.
Mr. Lynch: I’m always going to be a fan of Professor Chemerinsky because of his federal
court’s treatise.
Ms. Areen: He’s terrific at many things. He’s a scholar, he’s a great teacher, I understand.
Then the strange thing happened. The president, who as I said you imagine he
was well advised, withdraws the offer. The first thing I think you conclude at that
point is the president wasn’t very well advised, because whatever caused him to
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withdraw the offer should have been foreseeable. The best we can tell from the
outside, and I don’t know the facts, but the press coverage was that the major
donor for this new law school who is I gather quite conservative politically feels
that Chemerinsky is too liberal. Had there been no discussions with him? Even if
there hadn’t been discussions, wasn’t this foreseeable? So that, I think, is the real
problem. In any event, the offer is rescinded, Professor Chemerinsky tells people,
and suddenly in this era of the Internet, everybody’s online and saying, “How can
you do this?” “He’s a great scholar, how could you possibly renege?” And the
president is, I think, publicly shamed into saying, “You’re right, I was wrong,” the
offer’s reinstated, Chemerinsky accepts it, and they’re going forward. I would
say it’s very hard for all of them, I think, as I look at it from the outside, what will
happen because his first task, he’s the first employee for this new law school, is to
assemble a faculty. Well what faculty member who’s an established faculty
member presumably tenured at a good law school is going to say, “Oh yes, I’ll
come and take a flier,” the school’s not open, knowing about this much instability.
So I wish him well. Obviously it would be great to have another very good law
school. He knows what a good law school is because he’s a great law professor.
But it’s going to be tough going forward for him and for the president.
Mr. Lynch: Do you have any idea whether the donor who had some objections to his
appointment has withdrawn the donation?
Ms. Areen: I don’t. I think we would know that if that had happened, so that has not
happened. But exactly what his state of mind is, or his relationship with the new
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dean, I do not know. And perhaps that’s the other big challenge facing soon-to-be
Dean Chemerinsky going forward. Part of being a dean, like it or not, is a
responsibility for bringing in funds. Having started with a clash with the major
donor is, again, going to make it hard.
Mr. Lynch: Has Georgetown had issues with donors trying to earmark funds in a way that the
school could not accommodate?
Ms. Areen: I did not have that problem, I’m glad to say. It’s interesting, when I first started
as dean, I can remember being taken to lunch by two alumni whose message
basically was “we’re here to tell you how you should be the dean.”
Mr. Lynch: How presumptuous.
Ms. Areen: It was a bit. I was pleased to do my homework after the lunch, after this
unexpected message, to learn that neither had ever given any money to the law
school. There was sort of an implicit threat. I won’t say it always worked, but I
was fortunate enough to find there tended to be some correlation between the kind
of person who’d make that bald kind of threat, and to find actually they really
hadn’t been major donors, and conversely we were blessed with some very
generous donors who understood that part of giving to a good institution is to give
to the institution, not to try to change it. But historically, again I learned going
back, at the time when Oxford and Cambridge begin to for the first time really
attract the sons of the establishment, if you will. In an earlier period, the scholars
were not so significant, but suddenly as this time is developing, in the 15th and
16th centuries, and they’re very successful, and suddenly the king and his court
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say, “Wait a minute, they’ve got all these future lords and movers and shakers of
the land, what are we going to do? What do these scholars think about the
monarchy, and what are their views on the pound,” and so forth and so on. So
they establish several Regis professorships that exist to this day at Oxford with
the understanding that the king or queen would approve who’s appointed in the
chair. And now it is only nominally true, the queen reports “Professor Smith has
just been appointed to the Regis chair of whatever at Oxford.” I’m assured by my
colleagues in Great Britain that it really is nominal, that it’s the normal faculty
process. So this tension between how much control the donor should have is a
very old and honorable one.
Mr. Lynch: I think Yale had that issue with a Western Civilization class?
Ms. Areen: Yes. There was a gift that in the end, I believe, they were asked to return. And
there’s a related matter in litigation involving Princeton and one of their major,
major gifts. The donor and his wife are no longer alive, but their children are
suing, claiming that the terms of the gift were to prepare people for public service,
that Princeton has not complied with the terms, and therefore the money should
no longer go to Princeton. I don’t know if they’re asking for themselves, or have
another destination for it. And there were rulings just this fall that cleared the
way for it to go to trial, so in the next year or two we’ll know more about how
much control on a conditional gift a donor and the heirs of a donor may have.
Mr. Lynch: So Princeton lost on their summary judgment motion?
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Ms. Areen: They did. They won some motions. It will be tried before a judge rather than a
jury, which was something Princeton had asked. So this set of rulings sort of split
the difference. There were some rulings for the challengers, some for the
university. No one wants to be in court with the heirs of major donors.
Mr. Lynch: Has Georgetown had those issues?
Ms. Areen: I didn’t experience them as Dean, and not to my knowledge. There was one gift
while I was a faculty member before I became Dean in which Father Healy gave
back a gift to I think it was Adnan Khashoggi for —
Mr. Lynch: the arms dealer?
Ms. Areen: The arms dealer. The president returned the gift. He said it was a mistake to have
accepted it.
Mr. Lynch: Do you think that’s right?
Ms. Areen: I think he shouldn’t have accepted it in the first place. To the extent someone is
clearly trying to use the university to launder their reputation, I think you have to
think long and hard and in general resist providing that service. Which is not to
say that any donor has to pass some impossible bar about behavior, but you
immediately said arms dealer, and I think we could agree that that’s a category
that you shouldn’t accept from.
Mr. Lynch: I don’t know that he’s been convicted as an arms dealer, but that’s the comment
that usually comes in most newspaper reporting on him. If a donor came to the
school and offered an amount such that we just read in the news last week that
Yale is going to submit an increase in financial aid to people of even middle289
income status – if there was a donor who came with, for whom it was clear that
they wanted to use the school to build their own reputation or resuscitate it, but
they were offering enough money such that financial aid would be not an issue for
the next 20 years —
Ms. Areen: There’s no rule that will fit all situations, and that’s when presidents or deans are
tested, but I hope principles are not for sale at this university. They shouldn’t be
at any university. The Yale decision, I want to point out, follows Harvard, and
they both follow statements from Senator Grassley, just to take us back to where
we were earlier on non-profit governing, and he and the members of his staff had
been floating the idea that maybe there should be a mandatory payout of
endowment. Some years ago – you may know this – it was ruled by the Congress
that private foundations – public foundations – foundations – must pay out at least
five percent of their principal annually, and it was partly a reaction to these vast
accumulations of wealth and are they in fact being used for the public good or are
they just growing. With the enormous endowments, particularly at Harvard and
Yale, people started saying how much do they get to accumulate, and maybe they
need a mandatory spending requirement bill. So the very good thing Harvard did
earlier this fall was to announce that they were going to greatly increase financial
aid and increase it to families earning up to $200,000 a year. And it turns out
when that’s done, they will be spending about five percent of their endowment.
Yale has now made an announcement that they are increasing their financial aid,
and when you read the article, you will notice it means they’re going to be
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spending about five percent of their endowment. And this week Brown made as
much of a claim as it could – they aren’t as wealthy as Harvard or Yale – but
they’re adding to their financial aid, and they will be spending six percent of their
endowment. So it’s an interesting example of how federal oversight can
sometimes achieve its goal without necessarily having to pass legislation.
Mr. Lynch: Which arguably is effective — because one could question whether Congress has
any business, let alone jurisdiction, to tell a private institution how it should spend
its endowment, but on the other hand, why does Yale or Harvard need such —
Ms. Areen: They certainly have jurisdiction through the Tax Code, which is how they did it
for other foundations. And people are asking, again given these huge
endowments, maybe they should have to pay tax on the money they’re making
with their now over $30 billion endowment. Why should the federal government
give them a free pass?
Mr. Lynch: I think the return on investment each year is much more than five percent.
Ms. Areen: Oh yes. Much more. It’s huge, which is part of how the endowment has grown.
The return on their endowment was larger than the endowment of virtually every
other university in the country.
So I understand the sentiment behind the notion of, gee, maybe we have to pull
back our tax break, but that’s another example, to go back to our earlier
conversation, of you want to think carefully about, there is some value to having
these great universities, and their financial support is part of what makes them
great.
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Mr. Lynch: Ave Maria Law School. You talked about that in one of the earlier sessions
because Bernie Dobranski is leaving Catholic University on the theory that the
country needs a Catholic law school. Now there are complaints against him filed
by, I believe, someone who was denied tenure who was on the tenure track,
maybe a tenured faculty member, and it involves their move.
Ms. Areen: I don’t think it’s about tenure. It’s some of the faculty, maybe a significant part –
I’ve heard varying accounts – are strongly opposed. You may know, it’s pizza
money that was given by Tom Monaghan. He has now opened his university in
Florida, so he’s now committed to the Florida location even though he had started
in Michigan, and so it’s his decision to bring the law school there, and his
ongoing support is vital to the financial stability of the school. So the dean simply
announced, “Well we’re moving to Florida,” and some portion of the faculty said,
“Wait a minute. Nobody asked us, and we don’t want to move.” Again, given the
governance structure, it’s probably not for the faculty to decide. It is a traditional
board decision, and the board is structured in such a way the board has said,
“We’re moving.” Now that said, can they slow it down and might there be local
judges who would say, “Well wait a minute. Moving the whole school maybe
undoes academic quality in such a way that we do have to take into account the
faculty.” Looking from the outside, it’s probably at most a delay tactic.
Mr. Lynch: Before we move on to other issues, we talked about the Education Law course
you’re teaching, but you’re also teaching Family Law again. What are the issues
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that family law is grappling with now? What are the issues that the law is having
trouble working on?
Ms. Areen: Marriage. When I started teaching this course, the tough issues were divorce and
issues involving children – abuse, neglect, adoption. We’re still struggling with
child abuse and neglect. And it’s not so much a legal structure, it’s a public
policy struggle. We never put enough resources into it. I don’t mean just hiring
well-trained social workers, although that is part of it. We just lived through this
terrible tragedy in a family here in the District, and this highly controversial
decision by the Mayor to fire social workers and others in the bureaucracy who
didn’t respond.
Mr. Lynch: This must be the woman who was found with the four children.
Ms. Areen: The four children, and it appears the mother killed the four daughters. You can
debate whether the people should have been fired. I think what’s clear though
looking in is there aren’t enough social workers and there aren’t the resources to
bring to bear when they uncover a difficult situation, so acting is only part of it.
We’ve never properly financed it. So that issue, I would say looking at it over 35
years, just continues to be tragedy.
This is the most recent one here in the city; it’s not only a Washington problem.
Divorce is settled. I don’t mean that people are happy with it, but we have moved
over this 35-year period from a time when divorce was a privilege that was
withheld as often as granted to almost divorce by mutual decision, that’s what nofault
divorce amounts to. But what was not an issue at all, or at least very much
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when I started teaching, is now the issue of marriage. And it’s interesting how
it’s come to be front and center on the agenda. It is because there has been a very
strong push for same-sex marriage. Legally that push has succeeded in only one
state, Massachusetts. And the decision was made on the basis of the state
constitution so is not appealable. No other state has joined Massachusetts in that
decision. It turned into a political vehicle, which is what makes it so very
complicated. Propositions which are valid initiatives to amend state constitutions
have been used around the nation starting in 2000 and again in 2004 by people
who’ve had strong feelings about same-sex marriage, but I think also pretty
clearly used by politicians who could care less about the issue, but found it a way
to draw people to the polls who would support their political candidacy for other
reasons. So there’s a discussion underway certainly in the community of people
who’ve pushed for same-sex marriage that not only has it not worked in achieving
that goal, there have been major political costs, and some would say who are
unhappy with the last eight years of federal administration that a lot of it was
made possible because of the way same-sex marriage was used as a political tool.
More recently immigration has replaced same-sex marriage. But that history
means that people are asking not only about same-sex marriage but about
marriage more generally, and in a number of states, we’ve seen this recently in
New Jersey, we’ll see what happens in Maryland, are saying maybe we need to
move to civil union, that marriage has a religious connotation and dimension to it,
why not move to civil union, not only for same-sex partners who would like a
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legal relationship, but for opposite-sex partners. In Europe for centuries, marriage
has been strictly civil. Technically it’s civil in the United States. That is, we
don’t proscribe anything about the marriage ceremony, but it has certainly been
understood to have a strong religious dimension. Why not go to a situation where
civil union, which would hopefully not carry the same religious objection,
becomes the norm even for opposite-sex couples. So, I don’t know how this
discussion will end, but it is interesting how this history has played very front and
center.
Mr. Lynch: I know that there have been ballot issues, but there also has been litigation on
whether various state constitutions would allow it or require it. Have you had a
chance to read those cases?
Ms. Areen: I’ve looked at a number of them, but in general, a majority of states now have
changed their constitutions, so it’s not a legal issue in many of them. Even in
Massachusetts, very interestingly, when the decision was first made, in
Goodridge, they simply ruled that the existing statutory scheme denies equal
protection. In response, the state legislature in Massachusetts first adopted the
civil union statute. When it went back to court, it also was rejected. That’s
where Massachusetts differs from other states, Vermont, New Jersey. A growing
number of states are putting in place either domestic partnership or civil union
laws.
Mr. Lynch: The cases that you have read, is there anything that you can draw from it, we’ve
seen the question of civil rights law for example, we saw Sweatt v. Painter, each
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step moving toward an end and people of different ideologies grappling with the
claim of right. Do you see any of that going on in the opinions? Now we’re in
this whole different time period, but we’ve got a new —
Ms. Areen: Some, but it also it tells you what’s different. And remember I started out with
children. The Supreme Court has never held that marriage is a fundamental right.
People don’t always understand this. If you go back, the case even non-lawyers
may have heard about, is Loving v. Virginia, which struck down the antimiscegenation
law in Virginia, and frankly around the country. Again it’s
certainly interesting Barack Obama is a candidate and to think – I think I have the
timing right – his parents were already married and separated at that point because
they were in a jurisdiction where it was not prohibited. When the Supreme Court
struck it down, they did it under equal protection; they did not strike it down
because they found marriage to be a fundamental right. They struck it down
because it was race based, and race had already been made a suspect
classification. The next case you don’t get until the Burger court, and they do it
under privacy. So marriage has never been held to be a fundamental right. I
believe part of the reason that’s the case is there is an understanding – and let me
add most recently, in Lawrence v. Texas, the Rehnquist supreme court opinion
written by Justice Kennedy that gives constitutional protection to intimate
relationships among consenting adults. So in a way we’ve had this evolution to
say, as to adults, it is a little hard to understand what role the law has. Shouldn’t
there be constitutional limits? The problem is children. And often when people
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marry, there are children. Not always. So I think this is what makes it very
difficult, as people wrestle with whether it’s who should qualify to marry or how
difficult should it be to divorce, we’ve moved in the direction of saying it should
be up to the parties, now except when there are children.
Mr. Lynch: The Lawrence case, the right to order one’s affairs, personal matters, that’s even
more broad and abstract than the right to marriage.
Ms. Areen: It is. Clearly. And the parties were not claiming that they were married.
Mr. Lynch: So, if you had to predict, would you think the Supreme Court now would accept it
if it were presented with the claim that there is a fundamental right to marriage?
Ms. Areen: I think not, for the same reason. I think their concern is about – when you read
justifications for why the state can even make rules, say rules about incest for
example, it tends to focus on the impact on children. Congress passes the Defense
of Marriage Act (“DOMA”), and it’s been upheld in a number of federal courts
around the country, and they tend to uphold it by saying, “Well it’s okay if the
state has a policy to say the best way to raise a child is with a man and a woman.”
So while society seems ready to say consenting adults, and this is reported in
Lawrence, that’s their business, but when we’re talking marriage, then there’s a
hesitation, “Well, are we prepared”? People are more cautious about it,
legislatures are more hesitant, courts are.
Mr. Lynch: Have people presented the claim in federal court that there is a fundamental right
to marriage?
Ms. Areen: Absolutely. Time after time. And most of these DOMA cases —
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Mr. Lynch: DOMA was the statute that —
Ms. Areen: this defense of marriage act which says you don’t have to give full faith and credit
to a decision by a state to allow same-sex people to marry. And the basis, the
claim basis for it, the reason it’s upheld, is the full faith and credit clause which
says “Congress shall have authority to enforce what the procedure will be.” Well
that was supposedly to say well do you need an original copy of the marriage
license for it to be recognized? It was a procedural step. But the courts have, I
think, stretched that meaning to uphold the congressional statute because it’s so
politically controversial.
Mr. Lynch: How would, or rather, how should an originalist approach that question?
Ms. Areen: It would be interesting. I haven’t seen an article by one.
Mr. Lynch: We’re skipping around a little bit. We talked a little bit about whether you had
any interest in going back to the government —
Ms. Areen: And I said, “No.”
Mr. Lynch: And you said no.
Ms. Areen: Don’t misunderstand. I loved my time in the government, but you know, you
reach a different point in your life.
Mr. Lynch: Did you ever want to be a judge?
Ms. Areen: No. I always felt, and I felt it most strongly when I was serving as dean, and there
were explorations, who knows what would have become of it. I really like being
able to, when I focus on a problem, focus on it broadly, and be open minded about
what might be the right way to solve the problem. It’s one of the things I liked
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about being Dean, the range of things you could do. I would find it constraining,
I think, and even frustrating to be a judge. You only get to look at the problems
that the litigants bring to you, and you only get to answer the legal questions. Our
discussion on child abuse and say really the problem here isn’t the definition of
child abuse, it’s that there’s not enough money in the Social Services Agency. I
didn’t think it would fit my approach to problem solving.
Mr. Lynch: Did someone come and talk to you about whether you’d be interested?
Ms. Areen: Yes, but nothing formal.
Mr. Lynch: For Federal or Superior Court?
Ms. Areen: Federal.
Mr. Lynch: Appeals or District Court?
Ms. Areen: It wasn’t that specific.
Mr. Lynch: When was that? Which administration?
Ms. Areen: Clinton.
Mr. Lynch: What do you want to accomplish now? You said you’re working on this
textbook.
Ms. Areen: The textbook and articles and time permitting, to do a book for non-lawyers,
about Higher Education. I feel this obligation, I mean, education has made my
professional life possible, I just have so enjoyed and continue to enjoy being part
of the university, and I feel it’s important for people to understand more about
them because I do worry that inadvertently some of these measures we were
talking about – tax policy, accreditation, regulation in general – we could really
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begin to undermine them. I think they’re important not just because it’s nice to
work in an ivory tower, but because they’re part of what has made America
something I’m proud of. They’re a key part of social mobility. My mother didn’t
go to college, my father didn’t really have a profession, and we’re starting to lose
– there’s data now that there’s more mobility between fathers and sons in France
than in the United States. I find that shocking. Part of what America has stood
for is this is a place where your children can be better than you, and not just in
economic terms, but in social and professional terms, and the engine for that
mobility has historically been education. I think I’ve talked about this, even now
we have more people educated through a college degree than any country in the
world, but if you look at college age people, we’re now only 14th. I think when I
talked to you before we were 11th, but we’re slipping. There are more than a
dozen countries that educate more of their young people to a college degree than
we do. And we’re heading into the information age. How do we compete even if
you just want to do it in naked self interest. So we’re losing a sense of social
mobility, and with it we’re losing talent and our future. It’s important to talk
about it.
Mr. Lynch: This would be geared not just to law professors, but toward a broader audience?
Ms. Areen: Faculty generally, and maybe a broader audience. I was struck as I was doing my
research this summer. Tony Blair – I don’t know if I have mentioned this to you
– when he came in as Prime Minister, said one of his goals was to increase the
proportion of young people in Britain to get a degree through either associate or
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bachelor degree to 50 percent. We’re at one-third. Only a third of our young
people get either an associate or bachelor’s degree. Only a third. And it’s been
flat for 20 years. He set a policy. Now he didn’t get Britain there, but he thought
about it, and he articulated it. Most people don’t even know that we’re flat, at
only a third. Raise public awareness, and I think it absolutely has to be going
forward a part of what we pay attention to. We’re talking now about carbon
footprint goals. Great. I’m for that. We need to be greener. But we ought to
have education goals too.
Mr. Lynch: How are we going to pay for that, particularly given the price of tuition, and as
you’ve described in our past interviews, tuition doesn’t even cover the operating
budget?
Ms. Areen: How can we not pay for it? And indeed, right now about half the kids graduating
from high school nationwide go to community colleges. One of the good things
about them is they’re not very expensive. One of the terrible things about them is
very few people complete a degree. That’s the big sort of leakage, if you will. It
wouldn’t cost very much in dollar terms to be more thoughtful about what
happens when you first come into a community college. There’s a study that
found that students didn’t even see a counselor, nobody gave them tests to see
where they were in their writing or math skills, nobody guided them as to what
courses to take, there’s no place to put your stuff down. These are kids who are
working during the day and go to local community college in the evening. Some
of the more thoughtful schools are building – some are building regular
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dormitories for them, others are building places where you can have a space as a
commuting student to at least put your stuff and hang out and get the support of
some time with your peer students. Not very expensive, but so important.
Mr. Lynch: That sounds like something that could be done without the huge concern about
money.
Ms. Areen: Exactly. Now I don’t want to say we can do without spending some money, but
we’re not talking large dollars. It’s talking about directing your dollars more
effectively.
Mr. Lynch: Where should that money come from? Should it come from the federal
government?
Ms. Areen: Community colleges are actually funded for the most part by local communities,
as the name suggests, and sometimes with state money. And that happens
because the local employers desperately need people who have this additional
education and the skills that go along with it. I have a friend who just visited a
factory, he said whatever your views of factories, they’re out of date. What he
saw was not many people and the few people on the floor had computers. We’ve
automated an awful lot of our production. Well, do you need a higher level of
education to be in a factory floor today than you did 30 years ago?
Mr. Lynch: If the states aren’t going to put out the money for these schools —
Ms. Areen: I’m not saying that they aren’t. They’re putting it out now. What they don’t have
is any leadership. This is one where, not by telling them what to do, but by at
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least paying attention. We need a national commission focused on how to
improve community colleges.
Mr. Lynch: Should the federal government have a larger role? We talked at the beginning
about some of the downsides, that if it becomes more mandating, one size fits all,
but in terms of —
Ms. Areen: A wiser role I prefer to a larger role. Don’t undermine accreditation. One of the
things we did I think correctly is the federal government decided it would give
most of the money in the form of student financial aid. If you think about it,
higher education is on a voucher system. Part of what was good about that is it
kept it in terms of decisions about curriculum, admission, style at the level of the
individual institution. So we need to carry that wisdom forward and not go the
wrong direction by trying to impose some test everybody’s got to take or telling
every accreditation agency these are the standards every institution must
meet,which is where we’ve been headed.