"A LAW SCHOOL WITH A HEART"
THOMAS BUERGENTHAL
INTRODUCTION
Deaning was not one of my career goals when I was approached by the Washington College of Law (WCL) and asked whether I was interested in being considered for the position. I had no administrative experience to speak of and was quite happy teaching international law at the University of Texas at Austin and serving as judge on the Inter-American Court of Human Rights. Hence, when first contacted by the law school, I indicated that I did not wish to be a dean. Thereafter I received a phone call from Professor Robert Goldman, then the Acting Dean, who explained that the law school wanted to consider me because of my international law background and the school's interest in internationalizing its curriculum.
Bob Goldman had touched a sensitive nerve. For years I had been arguing that American law schools had not yet grasped the significance of a world that would increasingly need more lawyers skilled in international and foreign law. Most American law schools failed to recognize the importance of training lawyers for this new reality and the opportunities it presented. Here was my chance to put these ideas to work. Well, I was hooked and told Bob Goldman to put my name on the list.
The rest is history. I came to WCL as Dean in the summer of 1980 and left in the summer of 1985. These were not easy years for the law school nor, for that matter, for me. But the problems I confronted were not due to lack of cooperation from the faculty, the alumni, or the student body. Each of these constituencies was most generous and supportive; in fact, I could not have asked for a better group of people to work with professionally and personally. Many of them remain good friends to this day.
In retrospect, what made it all worthwhile was the support I received from the faculty, the alumni, and the students. I look back on my five years at WCL with nostalgia and great affection for the entire WCL community. These were difficult and, at the same time, wonderful years. As an institution, we tried to pull ourselves up by our bootstraps and had considerable success in doing so.
THE FACULTY AND THE DEAN
When I arrived at WCL, I found a faculty demoralized by internal strife, low salaries, and a sense that the school was going nowhere. The last permanent dean had remained only two years and his departure was accompanied by considerable acrimony. Given its past experience with some of its deans and concerned about inroads on its prerogatives, the faculty had gradually put into place a multitude of restraints designed to limit the powers of the dean. Here was a faculty with great expectations for the new administration I was to head but no real confidence that these expectations would be met. It was also a faculty that had devoted little time to legal scholarship, if only because most of its energy had been consumed by internal squabbles.
All this would have been quite disheartening had it not been for two very important facts. First, I realized very early on that the potential professional and academic quality of the faculty was surprisingly high. I must admit that, given the standing of the school at the time, I expected to find a great deal of dead wood. In fact, I found much, much less than is usual on law school faculties. Here was a rather young faculty with a great deal of academic promise; many of them were recruited during the administration of Dean Gordon Christenson. They had what it took to make a significant scholarly contribution and, hence, a name for the law school, but they were exhausted and dispirited. Second, despite its past experiences and suspicions, here was a faculty thirsting for internal harmony and eager to let a dean who could be trusted and respected administer the school while its members devoted themselves to teaching and writing. But that trust had to be earned. I could not have asked for more in starting the process of building a law school we could all be proud of.
The problem most law school deans face is that they have multiple constituencies: the faculty, students, alumni, the organized bar, and the University Administration. Most university deans owe their principal loyalty to the University Administration. The law school dean as a member of the legal profession and as the person responsible to it for compliance with professional standards has divided loyalties in this regard. Most law school faculties, moreover, regard the dean exclusively as their representative; he/she is their primus inter pares and they expect their dean to protect their interests to the fullest. At the same time, the university president who appoints the dean, considers the dean to be his/her direct subordinate with all that this status implies.
These loyalties are not easy to balance under the best of circumstances. It proved more difficult during my deanship because what the law school needed most was self-confidence as a professional school. To gain it, the school had to acquire that degree of administrative and academic autonomy that most of our great law schools enjoy; faculty salaries had to be increased, and additional incentives had to be provided to reward academic excellence. I found little understanding from the University Administration for these objectives, and no real willingness to engage in constructive dialogue on how one might reconcile the interests of WCL with those of the University. Invariably there were confrontations, and equally invariably I was forced to choose between important law school interests and complying with generic University fiats that should not have been applied to us. Moreover, I was never able to convince my University superiors that a law school dean who merely executes orders from above loses the faculty's trust, an element critical to the successful operation of any good law school.
The wisdom and enthusiasm with which the faculty as a whole supported me during some of these inevitable confrontations are among the more heartwarming memories I carried away from my deanship. We struggled together, planned our strategies together, and gave each other strength. In the process, we achieved a great deal for the law school. WCL would not be where it is today had we not been willing to stand our ground. The financial benefits and relative administrative autonomy we obtained for the school (see below) are but two examples that have permitted WCL to develop into a fine and respected law school with an excellent future. But I would certainly have enjoyed my job more had these objectives been achieved without the almost daily hassles with the University Administration.
ADMINISTRATIVE AND FINANCIAL AUTONOMY
The finances of the law school were in a sad state when I assumed the deanship. WCL only received about fifty-five percent of its tuition income. The rest was retained by the University and used to support other University departments. Each item on the budget had to be negotiated with the academic vice president, who was not very responsive to the notion that law school faculties, to be competitive, had to be paid more than professors in many other departments and that the school had other critical needs. Because American University had no medical or engineering schools, there was very little understanding among the University's administrators for the special financial needs of such schools in general and the law school in particular. We were regularly told that we were greedy and totally unreasonable in demanding special treatment.
WCL also had no endowment to speak of and no separate fundraising operation. Only two percent of WCL alumni contributed to the university-wide fundraising campaigns, in large part because the older, and consequently wealthier, alumni had special loyalties to WCL, which had been an independent institution in their day, but none to the university. They also believed that the University enriched itself at the expense of the law school by keeping so much of its tuition money and assumed that the same would happen to their contributions.
In negotiating the terms of my initial contract with the University, I had insisted on and was promised the right to establish a law school foundation to enable the school to embark on an independent fundraising program. I was also promised more resources for the law school. Not long after assuming the deanship, I was told that I would not be allowed to have a foundation. The more I probed to determine which of the promises made to me with regard to the school's budget and fundraising autonomy would be kept, the clearer it became that many of the commitments I thought I had negotiated and which I believed vital to the future of the school, had evaporated in a cloud of bureaucratic double talk.
Once I realized what was happening, I decided that it made no sense for me to continue as Dean unless the school's financial resources increased and we were given substantial fundraising autonomy. Shortly after becoming Dean, I had established a Dean's Advisory Council consisting of distinguished WCL alumni. I therefore advised the Council of our problems and my decision to resign unless the University granted us the type of financial arrangements I thought indispensable for the future of the school. I did not want to continue as dean knowing that we had no chance of improving the quality of the school with the resources at our disposal; I had better things to do with my time than to be a caretaker dean proclaiming a rosy future for the school when none was on the horizon.
The members of the Council understood what was going on and gave me their enthusiastic support. Together we planned a strategy to use my readiness to resign to extract various commitments for the benefit of the school. It was clear to us that we had to obtain a much higher percentage of the school's tuition income, the right to have an autonomous budget, and the power to do our own fundraising for the benefit of WCL. We also had to be sure that whatever commitments were made would be honored. John Knebel, a former Secretary of Agriculture and alumnus of WCL, was the chairman of the Dean's Council at the time. Together with David Hughes, a member of the Federal Energy Regulatory Agency, and Frank Manaker, Vice President and General Counsel of the Martin Marietta Company, Jack Knebel met with the president of the University to express the Council's strong support for my position and to urge the University to rethink its policies toward WCL.
In the negotiations with the University that followed, we basically obtained what we wanted: the law school would retain seventy-eight percent of the school's tuition income (still relatively small when compared with many other law schools, but substantially better than before); we would be the masters of our own budget; we would be allowed to mount our own fundraising operation; and we would be able to retain what we brought in. These concessions gave the WCL a new start and a fighting chance to earn a respectable place among the country's major law schools. Let me hasten to add here that with minor exceptions the University lived up to these commitments throughout my tenure.
FUNDRAISING AND ALUMNI AFFAIRS
Having obtained the right to do our own fundraising, we could now start in earnest. Under the imaginative leadership of Dr. Paul Purta, whom I had brought in as Director of our Development Office, we began to mount various campaigns. These early efforts have now grown into a major operation for which Paul deserves most of the credit. While the gifts bandied around in this office nowadays consist of six and at times even seven digit sums, Paul and I still remember our great joy and sense of accomplishment when we received our first $1000 check from a WCL alumnus. I think our decision to establish the John Sherman Meyers Society, whose members had to make a minimum annual contribution of $1000, had its genesis in that first check. Alumni contributions increased dramatically in the next few years once it was clear that WCL would be the sole beneficiary of their gifts.
But, it was not only the money that was important. The fundraising campaigns gave me an opportunity to get to know many WCL alumni and to demonstrate to them how vital I thought their professional and personal input was to the future of the school. A professional school, to be successful, must maintain an ongoing dialogue with its alumni lest it lose its moorings in the profession. And law professors and law school graduates must recognize that they are involved in a common and ongoing endeavor to strengthen the profession.
Many of the older alumni had gone to WCL at night while holding down full-time day jobs. They had worked very hard; many of them were the first in their families to go to college; and an equal number had become very successful. While acknowledging their strong debt to WCL, they had nevertheless become estranged from the school in large measure because for years the school had neglected to maintain proper contact with them. In trying to change this situation, I met some fine human beings who helped me move the school forward. Here I think in particular of Jack Knebel, David Hughes, Walter (Joe) Stewart, Herb Morgan, Frank Manaker, Pat Bailey, Art Cameron, Jacqueline Jackson, Bob Zimet, and many others. Tony Morella, a loyal alumnus, WCL professor, and General Counsel for the University, also helped immensely on many fronts. Together we became a family committed to making WCL a premier institution.
PROMOTING EXCELLENCE
The additional funds from tuition and fundraising placed at our disposal as a result of the agreement with the university made it possible to raise faculty salaries across the board, to recruit new instructors, to grant more financial assistance to needy students, and to provide additional financial incentives to those faculty members who distinguished themselves through scholarship and teaching. Here I am particularly proud of the Faculty Scholar Program I established. It enabled me to designate a number of outstanding faculty members to a Faculty Scholar Chair named for a distinguished former WCL professor, alumnus, or donor. WCL had no endowed chairs or professorships when I joined the school. The Faculty Scholar Program sought to bridge this gap by honoring special academic achievement with a salary bonus and an academic distinction the named Scholar Chair recognized throughout the law school world as a mark of excellence.
In order to have a sound basis for making my decisions regarding faculty raises and bonus, I would read all new publications of the faculty and try to inform myself on the quality of their teaching and the scope of their public service. As the productivity of the faculty increased and it increased dramatically during my tenure my work in evaluating it grew commensurately. I considered this rather time-consuming task a very important part of my job. It not only gave me a basis for evaluating the professional contributions of my colleagues, it also brought me intellectually closer to them. In the process, I learned a great deal of law and came to value the importance of their work. This annual review provided me with a refreshing counterbalance to the often mundane tasks a dean has to perform.
INTERNATIONAL LEGAL STUDIES
The International Legal Studies Program of WCL has become the school's trademark and made it famous in many parts of the world. It has grown far beyond any reasonable expectations I had when I assumed the deanship. Credit for these developments belong in large measure to Professor (now Dean) Claudio Grossman, whom I hired to direct the program. His energy and creativity put the program on the map.
What had intrigued me about coming to the WCL was the opportunity to give the school an international orientation. I believed that the school was in the right place at the right time to focus on international legal studies, and that in doing so it could make an important contribution to the profession and gain a competitive advantage over other law schools.
In initiating our internationalization, I thought it was important to start by establishing a graduate program for foreign lawyers and to expand the school's international law curriculum. The extra funds generated by the graduate program would permit us to increase our course offerings in the field, enabling our J.D. students to take more international courses without straining our limited resources. Moreover, the presence at the school of students from all over the world could not but benefit our American as well as our foreign students, establish lasting professional contacts and friendships, and help deprovincialize students and faculty alike.
After we established the graduate international legal studies program, we began to add other international activities. Here our first effort was a humanitarian law training program, undertaken in cooperation with the International Committee of the Red Cross and the American Red Cross. Ray Geraldson, a former chairman of the University's Board of Trustees and a distinguished Chicago lawyer, was the moving force behind this program and provided the funds to make it possible. His commitment to international humanitarian law inspired all of us who had the privilege of working with him.
At the initiative of Professor Herman Schwartz, an eminent constitutional and comparative law scholar whom I am very proud to have brought to the law school, we next established a program to train Israeli lawyers to advance the cause of civil liberties for all inhabitants of Israel. Some of Israel's leading civil rights lawyers received their training at WCL. The initial funding for that program came from the Dr. Louis P. Levitt Trust Fund whose trustees, Judge Seymour Korn and Mr. Edward Alexander, became enthusiastic supporters. The Levitt Fund was established for the benefit of the school during my tenure and early on provided badly needed moneys for activities that would otherwise have remained unfunded. Without the involvement of Bob Goldman, who introduced Korn and Alexander to us, these funds would never have come to the School.
When I came to the WCL, the law library had a very small international law collection. This became a priority concern for me because one cannot hope to build a solid international program without a good library. I knew too that it would take years and a great deal of money to build a good international law collection from scratch. While Professor Patrick Kehoe, our Law Librarian, and I struggled with this problem, I learned that the private library of Judge Richard R. Baxter, the U.S. judge on the International Court of Justice and former Harvard Law School professor who had recently died, might be looking for a home. Dick Baxter had been my teacher and friend. A world famous international lawyer, he had amassed a very fine international law collection. Through the goodwill of Mrs. Harriet Baxter and Judge Stephen Schwebel, Baxter's successor on the Court who acted as adviser to the Baxter family, we obtained this fine collection for WCL. It became the nucleus of the school's Baxter International Law Collection and a source of great pride for me to have brought these books and the Baxter name to WCL.
By the time I came to WCL, the school already had a number of fine international lawyers on the full-time faculty, among them Professors Seymour Rubin and Robert Goldman. I was able to add Claudio Grossman and a number of outstanding adjunct professors, including Bruno Ristau, David Stewart and Robert Effros, all leading practitioners who had distinguished themselves through their scholarship. For a two-year period, we also had with us Professor Covey Oliver of the University of Pennsylvania Law School, an eminent international lawyer, teacher, and diplomat. Together we laid the foundation for the fine international law program for which WCL is now famous.
THE PAST AS PRELUDE: OTHER IMPORTANT PROGRAMS
Even though WCL had been founded by two women committed to giving women equal access to and opportunities in the profession, the school's pioneering spirit in promoting the rights of women seemed to have evaporated many years before I assumed the deanship. I have long believed that institutions which forget their history or forsake traditions that have stood the test of time in terms of societal values sacrifice their institutional soul. That is why it seemed to me of critical importance for WCL to go back to some of its roots, to remember its original mission, and to build on it.
The first step I took in that direction was to obtain permission from the University Administration and the University Board of Trustees to award an honorary doctorate to Ruth Bader Ginsburg, then still a judge on the U.S. Court of Appeals for the District of Colombia Circuit. It seemed to me that her outstanding work on behalf the rights of women deserved to be recognized and honored by a law school with the history of WCL. This honorary degree was one of the first, if not the first, Justice Ginsburg had received. Her fine commencement address, delivered on that occasion and reprinted in The American University Law Review,1 paid tribute to the founders of WCL and their contributions to the women's movement.
This event and what it symbolized was an expression of our commitment to unearth and build upon our important history, but it could not stop there. The next step was the establishment of the Women and the Law Program and the recruitment of Ann Shalleck to direct it. The purpose of the program was to expand the school's curriculum by offering academic courses and a clinical program dealing with issues relating to the rights of women. Much of the credit for promoting the Women and the Law Clinic belongs to Professor Elliott Milstein, who at that time ran our clinical programs and was responsible for the outstanding professional reputation they had acquired.
Sometimes an institution also has an obligation to acknowledge and rectify past errors or harm done long ago lest its institutional development suffer from sins that should be purged. One of the two founders of the WCL received her legal education at Howard University, one of the very few law schools in the country that admitted women at the time. Yet, from its very beginning and for too many years afterwards, WCL denied admission to African Americans. That was no longer true by the time I became Dean, but the School appeared not to have been very successful in attracting minority students.
The minority enrollment in 1980, when I came to the law school, was about four percent. It had risen to over twelve percent by the time I left the school. This development was made possible in large measure because of a relationship of trust and mutual respect that I was able to develop with the Black Law Students Association, whose members gradually became the school's strongest boosters in the minority community. They went out to recruit qualified black students who would otherwise not have come to WCL. They educated me on the problems minority students face and on their needs, and together we tried to solve them. In the process we learned a great deal from each other, overcoming mutual misconceptions and suspicions, and developing a good working relationship that benefitted the school as a whole.
Gradually, our black alumni also became involved in this effort, helping with recruitment, strengthening the academic enrichment program, and becoming mentors to our minority students. The annual Black Alumni Dinner we initiated together served to strengthen these bonds. The special award I received from our Black Law Students Association to this day shares a place on my office wall with other memorabilia of which I am particularly proud.
A SPECIAL MEMENTO
I cannot end these reminiscences without recalling my last commencement exercises at WCL in the spring of 1985. As Dean I had presided over these ceremonies for the four previous years. We always adhered strictly to a detailed script set out in a thick black binder prepared in my office in cooperation with the University Marshal. I followed the same routine in 1985 until the President of the Student Body presented me with a special gift: the English translation from the Norwegian of Tommy, a book about my life in various Nazi concentration camps, which had been written by Odd Nansen and published in 1970.2 The graduating seniors had learned that I had never been able to read the whole book only some small parts had been translated for me by friends and decided to commission a private translation. Although I had some advance knowledge of what was coming, when the book was presented to me, it so moved me that I lost my place in the script and was unable to go on for what seemed like a terribly long time. I have participated in many academic exercises over the years and have forgotten what most of them were about. But the members of the WCL Class of 1985 truly touched my soul with their very special gift and made their commencement unforgettable for me.
CONCLUSION
It should surprise no one reading these pages that I have not spoken about the mistakes I made during my tenure as dean. After all, it is only human to dwell on accomplishments, real or imagined, rather than on failures. But having dwelled on the former, I owe it to all of my close collaborators in the Dean's office to acknowledge that I would have achieved little without their hard work, valuable counsel and loyal support. Here I think in particular of Professors Barlow Burke, Robert Goldman, Robert Vaughn, and Andrew Popper, who took time out from their academic duties to serve as my Deputy and Associate Deans.
I owe an equally strong debt to Marianna Smith, who left a teaching position in Florida to become my Deputy Dean. Her administrative skills and dedication saved me and the school from many near catastrophes. Ray Hazen joined me from Nebraska and imbued the post of Dean of Students with professional vitality. Assistant Dean Patricia Houser brought order to the financial aid and budget operations of the school and gave us all a lesson in how to be efficient without making enemies. Professor Patrick Kehoe, our Law Librarian, played an important role on my team, giving valuable advice and often performing a variety of functions in addition to his library responsibilities. I have already mentioned Dr. Paul Purta, whom I brought to WCL to establish our Development Office. He discharged many other functions besides doing a magnificent job as founder and director of that office. Over the years, I benefitted immensely from his wisdom, friendship and tact.
When I came to WCL I expressed the hope that we should work on becoming "a law school with a heart." By that I meant that it was important for the ultimate success of the school as an institution committed to justice, scholarship, and the rule of law to treat its students, alumni, professors and administrators with respect and tolerance. Some of that respect and tolerance was lacking when I assumed the deanship. That affected not only the collegiality of the school, but also its academic, professional, and scholarly reputation. The atmosphere had changed dramatically by the time I left WCL. A law school dispirited by internal strife had come together and was embarked on a common endeavor to transform itself into a community committed to those values that permit institutions to achieve greatness. All of us who were at WCL between 1980 and 1985 deserve some of the credit for this achievement: we helped to make it possible for the law school to become the fine institution it is today
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1. The Honorable Ruth Bader Ginsburg, American University Commencment Address, May 10, 1981, 30 AM. U. L. REV. 891 (1981).
2. ODD NANSEN, TOMMY (Christopher Smallwood trans., 1985).
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