from
There are two reasons I don’t use my middle name. One is that my parents gave me one (David) that’s both a first and last name while knowing – albeit perhaps in some 1970s haze – that my first and last names are both first and last names. Second, the best-known people with three names are assassins: Lee Harvey Oswald, James Earl Ray, John Wilkes Booth, and now Sam Bankman-Fried, financial assassin.
Maybe Sam Bankman-Fried will blame FTX’s poor corporate governance and controls on name trauma. I’ve always thought it was short-sighted and somewhat selfish of parents to avoid choosing a single last name for their children. As with so much these days (e.g., student loan debt, national debt, climate change), hyphenated last names kick the can down the road. What will happen when Sam Bankman-Fried falls in love with Samantha Friedman-Banks? Will they name their children Bankman-Fried-Friedman-Banks? Don’t bank on it. At least Sam, who appears to have Ponzi-appropriated billions in client deposits for speculative crypto investments, has the excuse that short-term thinking may be hereditary.
Here are two more assassins with three names: Yale Law School and Harvard Law School. Their intended victim: U.S. News & World Report. In a move reminiscent of Captain Renault in Casablanca who was “Shocked! Shocked to find that gambling is going on in here!” Yale Law School announced it would leave the U.S. News rankings because they were “profoundly flawed” after participating and coming out on top for 32 consecutive years. Later the same day, Harvard made a similar announcement. The stated reasons were that U.S. News’ methodology overweights scores/grades and calculates average debt at graduation without regard to loan forgiveness programs available to graduates who pursue public interest careers.
Jaded journalists inferred motives like “pulling out to avoid the embarrassment of losing its No. 1 slot” when the Supreme Court bans affirmative action. Others pointed to potential rankings chaos from the American Bar Association decision to end the LSAT requirement. I don’t buy it. The primary reason law school rankings are even more ossified than college rankings is that “reputation” (i.e., what judges, lawyers, and – most important – other law schools think) counts for 40% vs. 20% for colleges. It’s what former Macalester College president Brian Rosenberg calls “ prestige paralysis” and affirmative action and LSATs don’t interrupt this tautology. (Even if they did, top schools would move in lockstep.) So I take Yale and Harvard at their word (Veritas).
But the impact of opting out may be to usher in a new category. I used to worry higher education was emulating middle-class-emasculating-America by bifurcating into poor and rich. So perhaps I shouldn’t be surprised that, like the rest of America, higher education is actually trifurcating into poor, rich, and super-rich, with opting out of rankings a key indicator of the latter.
Yale and Harvard were already flying first class. Now, in order to avoid the hassle of security, crowds, and delays, they’ve opted out and decided to fly private. Following Yale and Harvard, Stanford and Columbia also announced they’re flying private. Could opting out of rankings become a status symbol akin to being linked to the Varsity Blues admissions scandal? (I’m looking at you, USC.) Hard on the heels of Harvard, a flotsam of top schools (Georgetown, Berkeley, Michigan, Duke, Northwestern, UCLA, UC Irvine) began Instagramming private plane photos in announcing that they, too, are opting out. (Sorry, folks: everyone knows those are fractional jets.)
The problem with flying private is it’s bad for the environment. As Johns Hopkins’ Peter DeCarlo told the Washington Post, “the act of taking a huge piece of metal and putting it up into to the sky is going to be an enormous carbon footprint.” Climate activists have begun using social media to “ flight shame” private jet setters like Taylor Swift and, after a sweltering summer, France may ban or heavily tax private air travel.
In higher education, flying private may not make the environment worse. But it does nothing to improve a bad one, particularly when U.S. News immediately responded, damn the torpedoes, it would keep ranking these schools. And like their parent institutions, law schools operate in a bad environment. Law schools struggle with affordability, student loan debt, and employability. U.S. News even has a separate ranking of law schools where graduates rack up the most debt (Georgetown #7).
As flight shaming shows, there are risks to opting up and out – like turning everyone against you. In the spring of 2021, the top clubs of European football – Manchester United, Liverpool, Chelsea, Real Madrid, Barcelona – announced plans to form a Super League that would exclude all other clubs from their home countries. The reaction was brutal. Man U legend Gary Neville called it “an act of pure greed.” Fans, other clubs and leagues, and politicians united in condemnation and within three days, nine of the 12 founding clubs had withdrawn.
***
The opt-out decision is different at Yale and Harvard Law School where greed is definitely not good. Throughout Yale Law School Dean Heather Gerken’s statement, there’s a thread of anti-commercialism. In the first line, U.S. News is described “a for-profit magazine.” In the second paragraph, it’s a “commercial magazine.” The conclusion denounces a “flawed commercial rankings system.” In stark contrast, Yale Law’s priority is equipping graduates for public interest work; the term “public interest” is repeated five times.
Dean Gerken appears to be positioning Yale Law on the right side of a titanic, end-of-times battle between public interest and crass commercialism. And that’s rich (pun intended) for a Dean whose Chair is named for Sol Goldman, New York’s most prominent for-profit, commercial real estate investor in the 1970s and 80s – a man who owned nearly 1,900 properties including the Chrysler Building.
So perhaps the chief characteristic of higher education institutions’ decision to fly private is that they’re already so wealthy – floors that shine like the top of the Chrysler Building – they don’t need to worry about making money. Endowments spin out scholarships, fellowships, and debt forgiveness programs. Students are told they’re privileged and have an obligation to give back. When I was at Yale Law, jobs where your salary wasn’t being paid by the government or philanthropy were lower status. Word on the street is even more so today – a 21st century version of noblesse oblige. Every graduate should try to change the world. Working for a law firm or company and doing well enough to lift up one’s family from a hard knock life isn’t nearly enough.
One reason for this public interest ethos is that it feels good. Another is ample resources make it seem possible; to demonstrate Yale Law would fund any initiative with a plausible public interest angle, my roommate Dave and I put together a proposal for the Dean to support and host the first ever conference on “Maple Syrup and the Law.” But I think the primary driver is the small scale of these schools. Together, Yale and Harvard admit 800 students per year (Yale 200, Harvard 600). Because they’re tiny, even if every low-income student went on to become Daddy Warbucks, the social impact would be negligible. So the public interest focus (and concomitant anti-commercial bias) is a rational swing-for-the-fences response.
This Manichean approach to public interest explains a sea change in the American “elite.” 50 years ago, it was country club Republicans. Today’s elites are less big business than big philanthropy, big think tank, big university, and big tech (typically with some quasi-philanthropic angle, see e.g., Sam Bankman-Fried’s Effective Altruism). It’s more about status, less about money (although you don’t matter if you don’t have enough to party at Davos). As a result, Republicans have left the country club behind and the Democratic Party is tarred as elitist.
***
Every quarter I’m proud to read the Yale Law Report, a glossy magazine full of the school’s national and global impact, particularly in groundbreaking cases brought by an absurdly long list of clinics (30). (In my time, I co-led a prison clinic case in which the school spent $50K on a noble but unwinnable cause. I learned a lot, including to avoid spending $50K on noble but unwinnable causes.) But there’s no clinic for reforming legal education or higher education more broadly. And that’s a shame, because it’s the one area where Yale Law School has a clear competitive advantage for acting in the public interest; about one-third of law school faculty across the country graduate from Yale or Harvard.
Rather than opting out and flying private, Yale and Harvard should pioneer a new ranking system based on impact. How many lives are schools changing for the better and by how much? If it’s going to include good work on the part of students and alumni, it must also include not-so-good work (Oath Keepers founder and seditionist-in-chief Stewart Rhodes graduated from Yale Law). But the central pillar has got to be helping disadvantaged students chart a path to a better life. Dean Gerken suggests as much in her statement: “A far better measure is how much financial aid a law school provides to its students, rewarding schools that admit students from low-income backgrounds and support them along the way.” Public interest begins at home and Yale and Harvard should engage rather than opting out.
The challenge may be that if student socioeconomic mobility counts as impact as much as clinic class actions, scale becomes an important variable. And in such a ranking, tiny schools no one gets into – or that extremely few students from low income backgrounds get into – are unlikely to come out on top. Writing in The New Republic last week, Kevin Carey came to the same conclusion: “Instead of identifying 200 people per year as the best of the best of the best of the best, it could give 2,000 people per year an affordable legal education in a wide variety of communities.” As ASU’s Michael Crow would say, if accredited higher education institutions are to remain central to the lives of American families, prestige needs to be less about how many we exclude and more about how many we include.
We live in a society where the pinnacle of achievement is flying private. That’s something the changemakers at Yale and Harvard Law would like to upend. The real problem with private jets is that they carry eight passengers rather than 800. The real problem with Yale Law School is that it’s more of a finishing school for the nonprofit elite than an engine of national mobility.
In opting out of rankings, Yale and Harvard Law Schools are on their way to Teterboro. That’s Sam Bankman-Fried-ish short-term thinking. If I learned anything at Yale (other than the $50K and the many connections between maple syrup and the law), it’s that impact comes from engagement, not walking away. If they’re not afraid to upend the status quo, Yale and Harvard will turn around, head back to LaGuardia, and work to improve air travel for everyone.