Tuesday, April 12, 2011

The NCAA and Law Schools

One of my students alerted me to this NYTimes article which I had missed. It reminded me of a blog I posted some time ago about the exploitation of college football players and the cross subsidization of other sports played by predominantly white and middle class students. I wondered where all the liberal outrage was. There is none. The NCAA can get away with this in large part due to a Supreme Court opinion which, without needing to in the context of the issue at hand, exempted colleges when it comes to the exploitation of mainly minority and lower income students who happen to be good at football.

I cannot help but see in Law School externship programs some of the same factors. Under these programs, students pay law schools tuition and in turn the Law Schools allow the students to work for no income during the summer in order to earn credit. Or more crassly, schools charge students for the right to work for free. The exploitation issue is not as severe as in the football case. A student with little income or no income cannot be farmed out and must get a paying, no credit, job.

Like football, it's a huge money maker where the institution profits from the labor of others. Some schools, like mine, have even even created incentives by paying faculty on the basis of how many externships they can stack up. These are faculty who evidently were already fully occupied with full time jobs and being paid a salary. So, what are they not doing now that they were doing?

According the the US Labor department, to avoid falling under the Fair Labor Standards Act and, thus being afforded the protections for other workers, "The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship." What I could not find is the part of the process that says to earn credit students must not be paid. Luckily, a colleague helped me out here. It is evidently found in an interpretation of 305-3 of the

ABA Standards for Approval of Law Schools.

Interpretation 305-3

A law school may not grant credit to a student for participation in a field placement program for

which the student receives compensation. This interpretation does not preclude reimbursement

of reasonable out-of-pocket expenses related to the field placement.

So, let's see, attorneys and law schools agree that students cannot be paid if they are to receive credit. As far as the Law Schools are concerned does his amount to a horizontal agreement? Surely one way to compete would be to say to externs that they are permitted to be paid. And, is there a class of past externs who had no choice but to pay for credits and work for nothing because law schools agree to award credits only if the salaries are fixed at zero? This is all fanciful, I suppose, but isn't it interesting how those in charge of the law don't seem to stick to its spirit.

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