Photo: President and Dean Thomas JP McHenry. Photo by Randolph T. Holhut.
by Joyce Marcel, Vermont Business Magazine
It’s difficult to describe the Vermont Law School without using words like “bucolic” and “tranquil.” Set in tiny South Royalton in the heart of rural Vermont, the state’s private, stand-alone law school leads the country in environmental law and is proud of its mission-driven student body and faculty — so mission-driven, in fact, that they usually find themselves on the lower end of the earning scale for lawyers, meaning they can’t provide the school with the impressive endowments that, say, are enjoyed by Yale or Harvard.
“Our graduates go to work for public interest organizations, they go to work for governmental agencies,” said President and Dean Thomas JP McHenry. “At one point there were more Vermont Law School graduates working for the Environmental Protection Agency than any other law school. They care deeply about preserving the environment. They care deeply about social justice. But they don’t get paid a lot of money. And so we do not have a rich alumni base.”
So last year, when the school found itself financially threatened, things exploded into a controversy one could call “tenure-gate,” where this lack of a deep endowment base bit them on their collective butts. The words being flung around then were “hypocritical,” “cowards” and “dishonest.”
In the same way, McHenry, 64, relatively new to the school, was described as “a tyrant” and “a fool.”
“Well, I have to point out that being called a coward, a hypocrite, a liar and a fool — there’s some self-contradiction there,” McHenry said, tongue firmly in cheek. “So I have enjoyed the quote. Tyrant. Yes, tyrant. Let’s get at the heart of it.”
To be fair, McHenry has also been described by others as “fabulous” and “an inspiring teacher.”
Vermont Law School is relatively young; it was only founded in 1973. Its attempt to merge with the University of Vermont in 2013 failed, making it a rare law school unattached to a larger university. The school has about 55 full-time faculty, 34 summer faculty, plus approximately 40 more adjunct professors who teach only part-time. It has a staff of 74 and a budget of $23 million.
The school has 550 students in residence, 80 percent of whom are taking a JD (Juris Doctor) degree.
“About 50 students each year are master’s students getting one of three environmental master’s degrees, and now a brand new master’s degree in restorative justice,” McHenry said.
The three environmental masters’ degrees are: environmental law and policy; energy regulation and law; and food and agriculture law and policy.
“And then we have a few LLM students,” McHenry said. “This is when you have a law degree already. Typically you’re from another country, or maybe you’ve got a law degree at the University of South Dakota. You want to learn more about environmental law so you come to us for a year and you get an LLM degree, which is like a master’s degree in law for lawyers.”
VLS has a stellar reputation. Two of the justices on the Vermont Supreme Court are VLS grads. Forty percent of the Vermont bar is composed of VLS grads. State governmental offices are full of them.
In 2018, VLS was named the top environmental law school in the country by U.S. News and World Report. In the last 28 years, VLS has ranked No. 1 in environmental law 20 times and No. 2 eight times. It has on-line educational opportunities, of course, and even an environmental law partnership that works with students in China. Yet it has a particular Vermont flavor.
“I think the law school’s mission is very much tied up with Vermont,” McHenry said. “I’m not sure this law school would exist quite the way it is without it being in Vermont.”
In terms of competition, there are only two other law schools in the country known for having such strong environmental programs: Lewis and Clark in Portland, Oregon, and the Elisabeth Haub School of Law at Pace University in White Plains, New York. McHenry called them both “great schools.”
“An interesting change in development is that large, well-funded law schools like Harvard, like Duke, like Yale, like Berkeley, like UCLA, have grown their environmental programs,” McHenry said. “So they are strong — but much smaller — in the number of faculty and students.”
VLS students love their school. Arielle King, for example, did her M.A. in environmental law and policy somewhere else but came to South Royalton to study environmental justice, which she described as “the understanding that there should be fair treatment and fair access to a clean and healthy environment for all people despite population or income or socioeconomic status or race.”
Photo: President and Dean Thomas JP McHenry. during his interview for this article. Photo by Randolph T. Holhut.
She thinks VLS’s small size is its only hindrance.
“I think it surprises employers, once we get there, just how great is the caliber of students that Vermont Law School passes out into the world,” King said. “But I certainly do think that we sometimes have to work harder just to get into the door sometimes, in that larger room, because of the lack of alumni that are already there.”
King, who is from Albany, likes being in Vermont.
“There’s a great benefit to just being in such a small state and having access to the political structures systems,” she said. “Being able to walk into the Statehouse and talk to people without metal detectors or anything else. It’s great to study here, and I think it’s absolutely beautiful.”
Another student, Lewis Grove, from Pennsylvania, came to VLS with a background in wildlife ecology. Now he wants to put his science — and his advocacy — into practice.
“So Vermont Law School was the best place to do that,” Grove said. “I think the hardest thing here is the word ‘underdog,’” he said. “We have a minority of students who go out to big corporate firms. So we don’t have a bunch of alumni with tens of millions of dollars out there. Our mission-driven public service is a part of our identity, but it also poses issues because we don’t have massive endowment that’s going to support this place. We don’t have hundreds of years of well-placed alumni throughout the political networks. We have certainly some great alumni. But in some ways we’re kind of swimming upstream against some of where the world’s headed. That poses its own sort of resource challenges for us.”
This year the school has students from 46 states and 12 countries; only 10 percent come from Vermont. This is what makes VLS special said Cynthia Lewis, who oversees academic programs as the vice dean for faculty.
“The students aren’t like other law students,” Lewis said. “They really want to change the world. Whether it’s environmental or social justice, they are really trying to educate themselves to do better. That’s one of my favorite things. And the next part is the other people I work with. We’re in this little town in the middle of nowhere, and we have students from Los Angeles and New York City and Chicago. When they first arrive they’re a little shell-shocked. To find their way to this little place is remarkable. It makes for an enriching environment. People either fall in love with South Royalton or they fall in love in South Royalton. The downside would probably be that our budgets are very tight. None of us come to Vermont Law School for the money. We come for the quality of life and that mission-driven thing.”
This “mission-driven thing” may be why McHenry left his large, successful, white shoe law practice in Los Angeles to take on the top job in 2017, during a time of extreme financial vulnerability.
It didn’t help that a nation-wide decline in the student population had already seen Vermont suffer the loss of four small colleges this year: Southern Vermont College, Green Mountain College, the School for International Training at World Learning, and the College of St Joseph.
In addition, Marlboro College’s attempt to find stability by merging with the University of Bridgeport in Connecticut just went south, while Goddard College is struggling to restructure its finances.
Across the board, it’s been a difficult time for small private Vermont schools.
According to Colleen Connor, a VLS alumni (class of ‘85), chair of the school’s Board of Trustees, and an environmental professional currently working for a private equity firm, things at the law school were dire when McHenry arrived.
“He came in realizing we needed to look at more revenue streams, like new students and new programs,” Connor said. “For instance, the number of students taking the LSAT and the number of students applying for law school dropped. The discount rate that law schools were offering to their top LSAT scorers rose. There was a shift to more interest in remote learning, online learning. Tom needed to pivot and adjust and he’s done a really good job of recognizing what the new challenges are and making some tough decisions to come up with a plan for the future.”
After devoting a year to boosting programs in search of new revenue streams, McHenry learned he was still facing a $2 million-plus deficit.
When other cost-cutting measures failed, he made his toughest decision; he “restructured” the faculty, which involved stripping tenure from 14 of 19 tenured professors, or 75 percent of the faculty, according to VtDigger.
Tenure is “a status granted after a trial period to a teacher that gives protection from summary dismissal,” according to the Merriam-Webster Dictionary, and is considered a sacred and binding contract between a school and a teacher that protects the teacher’s job security and freedom of expression.
The decision caused a national uproar; as a result, the American Association of University Professors (AAUP) investigated and in June of this year voted unanimously to sanction the school for violating academic freedom. At least one professor is suing the school.
According to Connor, McHenry took one for the team; he did exactly what needed to be done to save the school.
“We certainly made changes in the law school, and we didn’t make them lightly, but facing the challenges we were facing, we certainly made the right decisions,” Connor said. “Tom has been a strong leader, first for understanding what we needed, for establishing a vision for the future and then for laying out a plan to get the law school to that future goal. He is quick to assess the situation. He works hard to find the right people in his organization that can help him come up with a plan for the future. And he is pretty focused on executing the plan.”
In person, McHenry is an interesting cross between a tree-hugging hippie environmentalist and a lieutenant colonel in the Marine Corps.
Well over six feet tall, he is voluble, smart, gregarious and formidable. He has an athlete’s energy, a dry and self-depreciating sense of humor and comes with his own personal brand of scary charm.
McHenry came to the school with a long and stunning resume.
He most recently worked for two decades as an environmental lawyer with one of the top law firms in Los Angeles, the giant Gibson, Dunn & Crutcher LLP, which brags about having 1,300 lawyers in 20 offices worldwide.
While sticking to his requirement that 10 percent of his work be pro bono, he used the other 90 percent to handle environmental problems for major clients like Walmart.
He also taught college-level classes on environmental law in both California and Vermont, and helped write the land use laws for a host of countries beginning with Taiwan and Liberia and going on to seven Caribbean nations.
“Tom is fabulous,” said Raymond B Ludwiszewski, a former lawyer for the Environmental Protection Agency and now a partner at Gibson, Dunn working out of D.C. “He was my law partner. He’s a wonderful guy. He’s very smart, works hard, has a good feel about people, knows a lot about the environment, and I think Vermont Law School was lucky to get him. He’s a great loss to environmental law at Gibson. When he was at Gibson — even though in a private practice law firm your compensation is measured by clients and revenues — he was always known for being very focused for doing pro bono work for environmental cases. He’s very public-interest oriented.”
Another friend from Gibson, attorney Eric Adair, said “Tom is a rare combination, in my experience, of an excellent lawyer, a really smart person and a great friend to many many people. Tom knows everybody and everybody knows Tom. I have made more friends through Tom than through anyone in my life. These are relationships that have lasted decades. I can’t say that for very many lawyers. He’s that rare exception. Most of the very obnoxious stories about lawyers are true. But they don’t take into account the kind of gregarious, outgoing, super-friendly kind of guy Tom is. Being around Tom opens me up. He cares about a lot of things, and if he cares about something, he acts on it. And he’s cared about the environment his whole life. He’s assisted countries around the world on environmental law and policies. He cares about the issues and wants to support them.”
William Christian, project director for the Nature Conservancy in the Mojave Desert, taught together with McHenry for more than 15 years at Claremont McKenna College.
“I also worked on several pro bono projects with Tom,” Christian said. “He is incredibly well organized. He is very good at leading people and organizing people to do things. He’s a very good teacher. He has a way of explaining things that’s simple. He’s very self-aware and self-critical. He’s concerned about doing the right thing. He’s very consistent, almost to the point of being over-the-top. If it wasn’t for people like Tom, we’d be in a fix because we need people to get the trains running on time and get people to do the right thing. He’s very good at that. A lot people who are really good at something, the rest of their life is a mess. But he manages to keep all the balls in the air.”
McHenry is a New Yorker; he was born in 1955 at Columbia Presbyterian Hospital.
“I wanted to be close to my mother at the time,” he jokes.
He has two younger brothers. His father is a successful lawyer.
“He worked with a law firm first, and later on became general counsel of Reader’s Digest magazine,” McHenry said. “For a number of years he ran the Lila Wallace-Reader’s Digest Fund. Then he became head of the Hudson River Greenway, which is a public private partnership to promote conservation, recreation and tourist development along the Hudson Valley. I believe he is still, at the tender age of 89, the co-chair.”
His mother was an art historian who taught at Hunter College and Fordham University.
McHenry went to a Catholic day school around the corner from the Guggenheim Museum.
“It was a wonderful, wonderful school,” McHenry said. “Very progressive. We cared about the environment. I picked up cans by the side of the road on the original Earth Day on April 22nd of 1970, which happens to be my birthday. So maybe I was predisposed to be an environmental lawyer.”
Growing up, McHenry had a number of New York City-flavored jobs; he was, for example, a flower delivery man at the tender age of 14.
“I got good tips at Christmastime,” he said.
McHenry went on to high school at Groton School, a boarding school in Massachusetts, where he showed a strong interest in social justice.
“I worked in the kitchen at Groton School, washing dishes for pin money,” he said. “Groton was a reasonably progressive high school. We had a terrific Upward Bound program. It’s like Head Start and Outward Bound, part of the war on poverty begun by Lyndon Johnson. Upward Bound was a high school enrichment program for at-risk high school students who might not go to college. We tried to give them the skills and the incentive to go on. And so I worked for several years as a tutor and a summer counselor at the Groton Lowell (Massachusetts) Upward Bound program. And every summer we had a couple of hundred kids who would come to the Groton campus in the summer for an eight-week course. I taught English. I was a counselor. We did sports programs. We did hikes. It was really deeply challenging in the ‘60s and ‘70s, when these kids went on to college as a result.”
McHenry also spent a summer at Barea College in Barea, Kentucky.
“I was working as a counselor in their Upward Bound program,” he said. “And I ran the tomato co-op. We grew tomatoes and sold them in the local co-op. So one of the few things I can do besides practice law is grade a tomato. I can tell you whether it’s an A, a B or a cull.”
Throughout all of this, McHenry was spending as much of his time as he could outdoors.
“I always loved the outdoors as a child,” he said. “I always liked hiking and fishing and canoeing. My dad liked those things and we did family canoe trips and stuff like that. I climbed in the White Mountains and I was a cross-country ski racer. I went to Brattleboro and competed in ski races. I did the Putney long distance ski race when I was in high school. I even considered coming to Middlebury or Dartmouth to try to race, because that’s one sport I was actually good at. Back then there were only like 10 people who did it, so it was easy to be good at it. And I loved it. One of the fun things about coming back to Vermont is getting to do those things.”
For his high school senior project McHenry and a classmate canoed the lengths of Lake Champlain, Lake George and the Hudson River.
“We started in Missisquoi Bay and we ended up at the Statue of Liberty,” he said. “The following year, we kayaked the length of the Connecticut River, and the year after that, we kayaked the lake to the Allagash and the St. John River all way to the ocean.”
McHenry took his BA in history from Yale University.
“After I graduated from college, I spent a year teaching at a school in Boston for kids who’ve been kicked out of the Boston Public Schools system,” he said. “I was at the Charles Hayden Goodwill School for Boys in Dorchester. It was a pretty tough place. Sometimes kids chased me down the hallway with a broken bottle. Some tried to stab me. But I could run pretty fast. They were great kids with terrible family situations and stuff like that. And in some cases, mental problems.”
By then McHenry felt he could do more than simply teach.
“The environment made sense to me, and that’s when I decided to go to the Yale School of Forestry,” he said. “So I graduated from college and spent a semester working on an oil rig in the Gulf of Mexico. It was really fun. Then I applied to New York University Law School and the School of Forestry at Yale. That same year I was accepted to both. I decided to go first to forestry school, and I deferred going to law school.”
McHenry was still struggling to combine his passions.
“I was like any student, not exactly sure what I was going to do,” he said. “I was looking around at what the opportunities were. The environment is such a complex subject that knowing the law seemed to make a good combination. It turned out to be true. I was the chair of the Environmental Law Society at NYU Law School when I was there and took the clinic at the Natural Resources Defense Council. The law and the environment were always intermingled in my life.”
It was a good time to go to law school in New York.
“New York’s the biggest legal market in the country, if not the world,” he said. “And most of my friends were going to work for large law firms, because that’s what you do when you go to NYU Law School.”
Did McHenry want to become a lawyer because his father was one?
“I didn’t think so at the time,” he said. “But you have to be careful. For example, I did not realize until after I graduated from law school that my great-grandfather, Thomas Jefferson Perkins, who I am named after, was a utility lawyer who helped assemble and then served as general counsel of the Pennsylvania Power & Light Company into the 1950s. During my years at two law firms I had the pleasure of working on a number of renewable energy projects, including the largest wind turbine re-powering project in California and one of the largest solar projects, so maybe my great-grandfather’s apple did not fall far from the tree. Also, my father and grandfather are lawyers. My wife’s brother is a lawyer. So I suppose I was predisposed to lawyers, whether I liked it or not. But that’s not why I became a lawyer.”
“Because I wanted to protect the environment,” McHenry said. “I’m a child of the Sixties, pretty much. I was profoundly affected by the civil rights movement. My dad was a volunteer civil rights lawyer in the South in 1964. I think lawyers in my generation were viewed as people who were accomplishing social change, whether it was civil rights, whether it was women’s rights, whether it was gay rights, whether it was a protection of the environment. We also had a judiciary at the time which was receptive and successful to those issues. And from 1970 to 1980 you know we had this extraordinary decade of environmental law making: the National Environmental Policy Act, the Clean Air Act, the Clean Water Act. When I look back at my high school class, I’m amazed at the number of people who went on to law degrees. And I think it was largely because they viewed lawyering as a very worthy and important profession. Which is the way I still feel about it.”
The environment, he felt, could use support.
“I saw that the out of doors, the environment, was largely being deeply affected by pollution, by population, by land use development, and things like that,” he said. “And I didn’t, at the time, want to go work for a big law firm. By the way, I ended up working for a big law firm.”
Unfortunately, many of the environmental programs that brought McHenry to the law are being rolled back or being dismantled by the current administration in Washington.
“Maybe Vermont Law School students will prevent that from happening,” McHenry said with determination.
After Law School
After getting his JD, McHenry went to Taiwan instead of joining a big, prestigious firm.
“I said, ‘I want to go live in Asia for a year out of law school,’” he said. “And I found a job working as a researcher for the National Parks Department of Taiwan. It had just opened. They created their national parks from scratch. They didn’t have any before, only forest reserves.”
McHenry spent a year working there as a research fellow. Since he didn’t speak Chinese, he was lucky to find that almost all of the Taiwanese officials spoke English.
“At the governmental level, almost all officials took an English proficiency test,” McHenry said. “And in most cases, a lot of them had studied in the United States.”
McHenry worked on national park planning and often gave tours around the island to visiting dignitaries. More importantly, he got together with a group of Chinese professors and government officials and drafted a wildlife law for Taiwan.
“This is Taiwan, the Republic of China,” McHenry said. “Which, of course, is the island of Formosa off the coast of mainland China. In 1979, it was de-recognized by the United States when we recognized mainland China. So during that time, they were in a funny position where they weren’t recognized by many countries. But they’re incredibly sophisticated, incredibly hardworking people. And, actually, enough of them were highly committed to the environment. We wrote the new wildlife law in English, and I helped draft it because I was a lawyer and I knew something about wildlife and I had a bunch of access. Then they translated it into Chinese, because Mandarin is the national language of Taiwan. And it passed. It was fascinating.”
Back On The Mainland
For his next job, McHenry took a two-year clerkship for a federal district court judge in Sacramento, California. He chose California because he was in love.
“Often there is a woman involved,” he said with a laugh. “I had met a lovely young woman from San Francisco. We started dating, and she came and stayed with me when I was in Taiwan for much of the time. So since she was from San Francisco, I looked for a clerkship opportunities on the West Coast. I ended up working for a wonderful federal district court judge named Larry Carlton, who was the chief judge at the time for the Eastern District of California. That’s the part of California that doesn’t have many people in it. So it’s Bakersfield up to the Oregon border, and inland to the Central Valley — the agricultural lands — and the Sierras. Lots of federal lands. And if you sue the federal government, you often wind up in federal district court because you can’t sue the federal government in state court.”
Carlton, who had represented draft dodgers during the Vietnam War, was a liberal Carter appointee more concerned with social than environmental justice.
“He was a brilliant lawyer and also an intellectual lawyer,” McHenry said. “He liked to write, so he wrote a lot of decisions. I don’t know that he cared particularly about the environment, but he cared deeply about the law. And about the law being done right. So I worked on lots of environmental cases including a big Sierra Club case involving wilderness lands called Sierra Club v. Watt.”
James G. Watt, at the time President Ronald Reagan’s Secretary of the Interior, was considered an anti-environmentalist.
“In this case, it was the Federal Lands Policy Management Act of 1976,” McHenry said. “And so we were sort of making new law in this area. We stopped the release of a bunch of lands into the public domain so they could be leased for oil and gas purposes. No, it wasn’t us that did it. The Sierra Club did it. We just followed the law.”
After that, McHenry started looking for “what my mother referred to as ‘a real job.’” He and his girlfriend — now his wife — decided they wanted to live in a city. They examined New York, San Francisco, Washington, D.C. and Los Angeles, and decided on Los Angeles, where they knew nobody. McHenry soon had an offer from a firm there.
“It was a very small law firm with seven attorneys that specialized in environmental law,” McHenry said. “In 1987, environmental law was just becoming a growing field.”
And then an unexpected called from the Rome-based United Nations Food and Agricultural Organization, also known as the FAO, sent McHenry’s life off again on an unexpected tangent.
“They said, ‘How would you like to go to Liberia in West Africa and write a wildlife law?’” McHenry said. “They said, ‘You seem to be one of the few people who knows how to write a wildlife law from scratch.’ Which I didn’t, really, but I knew a little bit. A friend of mine had been asked to do it, and she wasn’t available, and she knew that I had some experience. So I asked my future employer in L.A. if I could defer my arrival, and when they kindly agreed, I went to Liberia in West Africa.”
Liberia, a country founded by freed American slaves, was then in the throes of an unrest that would eventually burst into a murderous civil war. But McHenry was in and out of the country before that. He spent a few months there writing a wildlife law.
“And I was on my way back from Liberia, in Rome, actually, at the FOA offices, and they asked me to go to the Caribbean for six or eight months and write environmental laws in seven different Caribbean countries,” McHenry said. “So I called the law firm up and said, ‘Would you mind if I delayed and came six or eight months later?’ They were nice enough to let me do it, which was incredibly generous of them. I ended up writing forestry, wildlife and national parks laws and regulations for the Bahamas, Antigua. and Barbuda, Montserrat St. Lucia, St. Vincent, Grenada, and Dominica.”
In the Caribbean, McHenry never spent more than 10 days in the same country. He shuttled back and forth, trying to bring the forestry, wildlife and national parks laws of these countries into synch, and reading lots of books in his time off.
“These are all former British colonies, so their legal structures were very similar,” McHenry said. “They’d all been run the same way. They’re all about the same size. And we were writing these laws because we were trying to preserve what remaining habitat there was, and to protect the wildlife species, and to the degree we could, provide some sort of a forest economy so they wouldn’t have to import everything. That was hard because you have such tiny islands. It was absolutely fascinating.”
After that, McHenry gave up “all this crazy travel,” moved to Los Angles in 1987, married, settled down and went to work.
“My law firm changed its name three times when I was there,” he said. “When I started, we were called McClintock Curling. Then we lost Curling to a big firm. We became McClintock Weston. Then we lost McClintock. He went to a big firm. During the 11 years I was there, I was an associate attorney and then a partner.”
He initially negotiated an agreement with the firm to pay him 90 percent of his salary in return for his pro bono work.
“So I guaranteed myself 10 percent pro bono work, but I actually felt that they owed me another 10 percent,” he said. “So about 20 percent of my practice was pro bono. And I represented American Rivers.”
American Rivers is a nonprofit whose mission is to “protect wild rivers, restore damaged rivers and conserve clean water for people and nature.” The issue that went to the U.S. Supreme Court, and for which McHenry wrote an amicus brief, was about minimum flow and whether the state of California could require a hydro-power developer, who was planning to install a small scale hydro project on a stream, to provide a minimal amount of water in the stream to protect the fish population.
“The question was whether the federal government, through the Federal Power Act and the Federal Energy Regulatory Commission, preempted any state regulation,” McHenry said. “Then if the feds set the level, the state couldn’t set a higher level. It was test case, a classic. And we lost because pre-emption under the Federal Power Act is pretty strong. But we thought it was worth trying. And there must have either been a vacancy at the Supreme Court or one of the justices recused themselves for some reason, because we lost eight-zip.”
The case, part of a seemingly endless power struggle between state and federal law, is still frequently cited; it often arose when activists tried to shut down Vernon’s Vermont Yankee Nuclear Power Plant, for example.
“It’s a huge issue in the environmental area because, as you can understand, there are arguments on both sides,” McHenry said. “You’re a dam developer and you want to build a dam. You want one set of rules. The feds have the rules. But the state has an interest in its natural resources. These are our fish. These are our animals. These are our state values.”
By the time he started practicing, many new environmental laws were coming on the books; the need for lawyers who understood these laws was growing.
“I was doing a bunch of pro bono work but I was also representing a bunch of companies on compliance with environmental laws like air quality and water quality,” McHenry said. “I developed expertise in hazardous waste regulations because California has its own hazardous waste regulations. Along the way, I started doing — and then continued to do — a lot of renewable energy projects. I spent a year working on a wind power project in the Altamont hills. We were re-powering that entire set of wind turbines, replacing older, smaller wind turbines with much larger ones that were more efficient. I worked on a bunch of solar projects in the California desert, which I continue to do. So it was a wonderful introduction. I spent a lot of time in it.”
Southern California is also a gigantic manufacturing area; there are furniture, tools and aerospace manufacturers, all highly regulated.
“We worked for a lot of those companies,” McHenry said. “It was a great introduction to environmental law, so I feel like I got a broad exposure.”
The Philosophy Of Law
Once he was working, McHenry began developing a philosophy of law.
“There is a reason why people describe being a lawyer as ‘the practice of law,’” he said. “You’re not a lawyer when you’ve completed your legal education, when you graduate from law school — no matter where you go to law school. Judge Coffin, who I think was a federal district court judge here in Vermont many, many years ago talked, about ‘the fourth year’ of law school. It’s absolutely true. You go to law school and then you learn to be a lawyer in the practice of law. And the practice of law means that you are practicing and you are learning. And there are innumerable mistakes along the way. For example, in the first letter I ever sent out as a lawyer, I misspelled the name of the company. It was the 3M company, and I didn’t remember which M came first, mining or manufacturing. So I got them reversed.”
McHenry went into private practice with “a deep and abiding suspicion about the role of business and corporations,” he said, especially large ones, protecting the environment. Yet he went to work for a law firm representing corporations. Outside of his pro bono work, he was a corporate lawyer.
“I discovered that many people who graduate from law school have a black and white view of the world,” McHenry said. “What I discovered, as soon as I started practicing, was that the world was infinite shades of grey. And I was very worried that I would be asked to do things that bothered me ethically or morally. And never once did I feel that I had to do anything that was improper or illegal or that violated my own moral view of the world. Lawyers offer legal advice. But you have to remember that if you’re a company and you approach a lawyer to help you solve an environmental problem you’re asking for legal advice and that’s what lawyers do. You don’t hire a law firm if you want to break the law. I suppose that’s when you want a lobbyist or a fixer. But that’s a different arrangement.”
Of course, McHenry and his firm represented people who were accused of violating environmental laws.
“But that was a small part of my practice,” he said. “Most of what I did were companies saying, ‘I want to build a solar plant.’ ‘I want to build a wind farm.’ ‘I want to buy a piece of property and develop it, but it was contaminated by some other company. Who’s going to pay for that? What protections do I have?’ What I liked about private practice — and what I miss — is that it’s very solution-oriented. The public sometimes thinks that lawyers cause problems. And lawyers are certainly capable of causing problems. But what most lawyers do is solve problems. Whether they’re solving a child custody battle or representing someone in a divorce or buying or selling a piece of property.”
McHenry’s corporate clients came to him because they had environmental issues.
“They had a problem and they wanted it solved,” he said. “They say, ‘Well, we bought a piece of property and discovered it’s got contamination.’ Or, ‘We received a letter from the EPA saying that a subsidiary that we bought had deposited some batteries in a landfill 25 years ago. What do we do? Solve my problem.’”
How do you solve their problems? I asked.
“First, you’ve got to understand what the legal obligations are,” McHenry said. “Sometimes you’re paying money. Sometimes you’re getting somebody to pay your client money. Sometimes you’re seeking a resolution. Occasionally, you’re looking for changes in regulations or laws to make things a little more sensible. A lot of times you’re educating your client. I found that being a good lawyer was being a teacher, and teaching my clients what the law was. So I greatly enjoyed that and I think I wouldn’t have stayed being a lawyer if I didn’t enjoy the problem-solving aspect of it.”
Becoming White Shoed
When McHenry started in LA, he was the eighth lawyer in a small firm.
“We grew over 11 years to be 55 lawyers,” he said. “That’s maybe medium size for LA, but it would be huge for Vermont. And I had to decide whether I would stay and make the rest of my career at that firm. I was in my early 40s by then.”
When McHenry was recruited by the huge law firm of Gibson, Dunn & Crutcher LLP, it gave him a crisis of conscience. Could an environmentalist survive at a large law firm?
“They were a traditional white shoe conservative law firm, and I didn’t think that I would fit in,” he said. “But I went over to get some interviews and meet the people and they were wonderful! And by the way, you want to know how people make decisions about which law firms to go to? It’s totally a people decision. It’s about people you like and trust and respect and who have strong values. And I liked the people tremendously.”
So McHenry moved over to Gibson, Dunn.
“When I joined there were something like 850 lawyers in 15 offices,” he said. “And by the time I left, there were 1,250 lawyers in 22 offices around the world. France, Germany, Hong Kong, Singapore, Beijing. Having been somewhat unsure that I’d ever want to work in a large law firm, I loved it. It was a great group of people. There was tremendous attention to detail. Everybody was smarter than I was, which keeps you on your toes when you walk in the room and the room is as smart as you are. It was very client focused. Very practical. A client has a problem. How do you solve it? A client is being sued or is suing somebody. How do we resolve it? A client wants to buy a company or sell a company. How do we help him do it? It was really fun and I worked with a great group of people. I was there for 20 years.”
The People Of California Vs Walmart
When you’re not protecting the environment from developers, what does an environmental lawyer do?
I asked that question of Patrick W Dennis, a long-time partner in the Los Angeles office of Gibson, Dunn who has a practice in environmental litigation and mass tort, administrative law and regulatory practice, and transnational litigation.
Despite having opposed political philosophies — Dennis is a Republican and McHenry a Democrat — the two men have been friends and sparring partners for 30 years. Dennis calls McHenry “a very special person.”
In answer to my question, Dennis brought up the 2010 case of Walmart versus the People of the State of California in the Superior Court of San Diego.
McHenry, Dennis explained gleefully, had to represent Walmart.
“Whenever we had one of our clients come to us from a particularly dirty businesses — I mean one with more challenging obligations because they’re handling hazardous materials — I always felt it would be good for Tom to have the experience of representing them,” Dennis said, laughing. “And he did with enthusiasm. And handled them quite well. And developed friendships.”
The case pitted McHenry, as lead attorney, against a formidable array of opponents including the attorney general of the State of California and 25 regional district attorneys.
Basically, the case revolved around Walmart’s “reverse logistics hazard waste management,” or the way it handled, shipped and disposed of returned objects that might fall under the category of hazardous waste.
“This matter relates to the People’s investigation into Wal-Mart’s compliance with state laws and regulations governing the storage, handling, treatment. transportation, and disposal of hazardous waste and hazardous materials pursuant to Health and Safety Code Chapters 6.5. 6.7, 9 and 6.95 at Wal-Mart’s operating retail facilities in California on and before February 22, 2010,” says the stipulation of final judgement.
Dennis explained it to me.
“Walmarts have generous return policies,” Dennis said. “It leads to a lot of waste. Every day, they’d get half a can of paint, a half used can of lighter fluid, an almost empty bottle of nail polish remover. Toxic waste needs to be disposed in a special manner. Walmart had five large warehouse facilities located in parts of California where land is fairly cheap. And they would get this stuff from all the stores. Truckloads of clothing and paint, turpentine, whatever. They would sort through it. Some was perfectly fine and they’d send it back to a store. Or dispose of it. But they were not handling it as toxic waste. They weren’t pouring paint out onto the ground, but they just weren’t transporting it right. In the end, Walmart settled the case for almost $25 million.”
It sounds like a loss for McHenry, but he won’t comment on the case.
“Unfortunately, I am not allowed to comment on any client matters, as they strictly prohibit it,” he said in an email. “But you can say that I greatly enjoyed working with the Wal-Mart in-house legal team, including Vermont Law School graduate Richard Leahy.”
The case became a national model for operations like Target and Costco, Dennis said.
“That resolution set up a series of milestones for that company and became a model for all the other big box stores,” Dennis said. “They follow the model that Tom helped his clients devise to settle that dispute. Reverse logistics hazardous waste management is a major issue among all big box retailers.”
Being A Teacher
During their time living in LA, the McHenrys had two sons, both now grown. His wife, Elena Phleger, ran a bookstore in Burbank where she rented used books to movie studios for set dressing. Then she became the chair of the board of a small college specializing in early child education. Then she became a communications director for a K-through-12 progressive private school in Pasadena.
“So she was busy, I was teaching, I was working hard at the law firm — at times very very hard,” McHenry said. “Then I was invited to come to VLS during the summer and teach a two-week course in environmental business transactions. Sometimes what I was doing to assist my clients was what I was teaching in the classroom, which is the great benefit of our summer program here.”
McHenry was also offered the chance to teach a course in California.
“It came out of the blue, a phone call from Claremont McKenna College, part of Claremont College,” he said.
The Claremont Colleges are five undergraduate colleges joined together at the southern tip of L.A.
“They offer a terrific undergraduate education, McHenry said. “I was offered a job teaching an undergraduate environmental law class and I taught that class for 26 years.”
McHenry showed me a picture of a field trip to Death Valley National Park. On it, the students inscribed greetings to their teacher. “Tom, thank you for an awesome class,” said one. “Thank you for being the most fun, interesting, engaging professor,” said another.
Coming To Vermont
Over the years McHenry had several opportunities to go into government service in California, and he has served on a number of nonprofit boards.
“I’ve probably been on more than 25 nonprofit boards over the years,” he said. “But it had never even remotely occurred to me to become the dean of a law school. In fact, if you asked any of my law school classmates who would be least likely to end up being the dean of a law school, I probably would’ve been on the short list. I wasn’t an academic. I had not written lengthy law review articles. I had done a limited amount of teaching. I not familiar with academic administration. I love students, but I wasn’t a classic professor the way most law school deans are.”
Still, his wife was ready to stop working. Both their sons were living and working on the East Coast. And then Vermont Law School called.
“I came back here and went through a lengthy interviewing process,” McHenry said. “I made three or four trips back to be interviewed. They went from ten to five candidates. Then two. Then they offered me the job. I thought they had made a giant clerical mistake. But it seemed like a wonderful opportunity to do something incredibly valuable and important, or to be part of something valuable and important. Although, did I know what I was getting myself into? Absolutely not.”
McHenry came to the school with the understanding that it would continue, for at least one year, using deficit spending to make investments growing programs that would bring in more students. And that is what happened. And McHenry expected to close out the year with a balanced budget. That is what did not happen.
“I was shocked and surprised to learn, after I’d been here for several months, that the projections of a balanced budget in fiscal year ‘19 were much rosier than the reality of our own numbers,” McHenry said. “And then instead of having a small budget surplus, we were going to run a substantial deficit of as much as $2.5 million on a $22 million dollar year budget. And we have a tiny $10 million endowment that spins off about half a million a year.”
It’s all about the number of students, McHenry said. The high water mark of American enrollment in American law schools was 2010. In 2019 there were 37 percent fewer of them. Changes were needed.
“If Toyota was selling 37 percent fewer cars, would Toyota change?” McHenry asked. “Of course they would. I mean it’s no choice.”
A Magazine That Makes Law School Deans Cry
One of the biggest problems law schools face? According to McHenry, it’s a magazine, specifically US News and World Report.
Once the number of students seeking to go to law school was reduced, the competition to get them became stiffer. Then US News and World Report began ranking law schools, and those rankings soon became “the Bible.”
“The rankings are heavily dependent upon the entering LSAT score of your class,” McHenry said. “Because they’re now competing for students, to get the higher rankings law schools start offering tuition discounts to good students with high LSAT scores. This is known as tuition discounting. If you get a group of law school deans in a room together, you’ll see the tears in their eyes when you explain this.”
Tuition discounting acts like a snake eating its tail. And it’s very different from offering needs-based scholarships.
“Say you’re Mark Zuckerberg’s daughter or Bill Gates’ son and you apply to Vermont Law School,” McHenry said.
“We don’t know who their parents are. If they have a higher LSAT score, we will cut their tuition as much as 90 percent because we want that ranking. You’re only offering these discounts to the best students, right? Theoretically, you don’t care as much about attracting a student with a lower LSAT score. You may think they’re a wonderful person and everything, but you really want that very bright student that’s going to improve your score and be a good student in class.”
In 2000, VLS’s tuition discount was 10 percent. In 2010 it was 20 percent. Last year it was 47 percent.
“We’re getting 53 cents of every tuition dollar,” McHenry said. “I’m running Vermont Law School on seven million dollars less than we had in 2010. Same school. Same programs. Same number of students.”
But if you’re Bill Gates’ son, you have probably gone to a good preschool. You’ve gone to a good high school. You’ve gotten good grades, and if you haven’t, you’ve gotten good remedial coaching.
“And probably, your mom or dad paid for a pre-law school test course,” McHenry said. “If you are from more straitened socio-economic circumstances, you may not have had those advantages. So your LSAT score may not be as high. Assuming the same level of intelligence on both, someone who has more preparation will do better on the test. So the person who is richer and better resourced is going to do better on tests and get a better tuition discount. The person who doesn’t have those resources? Where are they going to get the money to go to school? This is deeply horrible. This is why deans of law schools are crying.”
The end result is that students from less well-off families are paying more for law school, if they can afford to go at all. And they have to take out federal loans to do so. Meanwhile, schools badly in need of a strong alumni base to support its endowment are discounting the fees of the parents who can afford to pay the full freight.
“It’s not fair,” McHenry said. “It’s deeply, deeply unfair. We’re making it easier for rich people and harder for poor people to get a good education. And it’s worse than that, because the data so far is showing that the students who are getting these discounts think that they have earned them. So they’re not paying the money back to the school in terms of contributions.”
When McHenry realized that the school was coming up short $2 million or more for the 2019-2020 budget, he went into action mode. He calls it “restructuring.”
The teachers who lost tenure as a result, however, ended up calling it a “violation of a sacred trust.”
According to the AAUP’s May 2019 sanction report, called “Unacceptable Conditions for Academic Governance at Vermont Law School,” the administration’s actions “violated the principals and standards set forth in the AAUPs Statement on Government of Colleges and Universities, which was jointly formulated by the AAUP, the American Council on Education, and the Association of Governing Boards of Universities and Colleges.”
These principals “famously” state that “this type of decision making should be conducted jointly by the board, the administration and the faculty. Also, the faculty should have “primary responsibility” for decisions about the curriculum, academic policy and faculty personnel matters.” (https://www.aaup.org/report/college-and-university-governance-vermont-la... (link is external))
According to the report, the restructuring “imposed on the faculty” restrictions including “lowering salaries, reducing the number of full-time positions, and effectively eliminating the tenured status of three-fourths of the institution’s highest paid faculty members. Fourteen of the nineteen tenured faculty members were essentially turned into at-will employees —transferring the bulk of the teaching load to lesser-paid contingent faculty members and radically reducing the size of the full-time faculty. As a condition of their restructured appointments at VLS, affected faculty members were required to sign releases-of-claims and nondisclosure and non-disparagement agreements (NDAs).”
Not true, said McHenry in his rebuttal. (#13.)
“Any suggestion that Vermont Law School engaged in reduction of its instructional budget, including restructuring faculty positions in the spring of 2018, without ongoing, extensive, and continuous involvement of the faculty is inaccurate,” McHenry wrote. “When a condition of financial exigency was identified, and it became clear that the survival of the school was at stake, the administration explored, together with the faculty, all realistic alternatives to involuntary reductions in faculty positions, while at the same time preserving its premier environmental program. The AAUP report does not identify a single viable alternative that was presented to the administration by the faculty, or suggest one on its own. To the extent that the report notes lack of involvement by some portion of the tenured faculty, the report fails to highlight the administration’s continued solicitation of input from the faculty, and the extent to which some faculty were not willing or did not choose to participate.”
Things went awry because in 2017-2018, when he first arrived, McHenry knew VLS was going to lose money because of years of deficit spending and those new program investments.
“We had anticipated we would be neutral in fiscal year ‘19,” he said. “We discovered in the early fall of 2018 that we were on track to lose another $2 million dollars, and we had spent significantly from our reserves over the last five years. We had cut retirement benefits back to zero. We had not awarded cost of living increases to staff. We significantly cut travel expenses. We cut our buildings and ground staff. We did all sorts of things. The only budget that we didn’t touch was our instructional budget which was our faculty salaries and positions. And we had lost some faculty during that time period. Who knows why they left, but in many cases they were demoralized. And this was a demoralized place, in some ways. We needed to fix this.”
Still new to the job, he had only a few months to find a solution.
“I didn’t get a year’s grace,” he said. “I wish I’d had a year’s grace. I would’ve been better at it. Probably would have made better decisions. But I only had a couple of months.”
He convened a committee to meet every week until they solved the problem. He thought it might take a few months. It took seven months and opened a Pandora’s box of problems.
“We looked at other law schools,” McHenry said. “Most law schools our size had faculties half our size. Half! The University of Delaware had the same number of students and a faculty of 28. The University of Toledo? Half! I talked to other law school deans. We eventually determined that we were going to have to reduce our instructional budget.”
McHenry first sought voluntary reductions. To set an example, he even reduced his own salary by 25 percent, or $50,000.
“But I simply didn’t have enough takers on the faculty,” he said. “I will say there were a small number of faculty who were incredibly gracious and brave and agreed to substantial reductions in their salaries. They are heroes and heroines in my mind. They saved us a lot of money.”
The board’s instructions to him: preserve educational quality, preserve the environmental program, and preserve the sense of community at the school. But also: cut out over $2 million.
In the end, 52 positions were either changed, or had their salary changed, or both. Some faculty took pay cuts of $20,000-$30,000. Some offered to take deeper cuts and McHenry wouldn’t let them. Some refused all change and lost their jobs. Some went to the media to complain. And some ended up suing the school.
McHenry refuses to see what he did as an attack on tenure.
“We did not view this as a stripping of tenure in any way,” McHenry said. “This was a restructuring of our faculty to accommodate our financial circumstances.”
McHenry said that he could not comment any further on that specific period of time.
Then he did.
“We individually negotiated with each faculty member an arrangement that we thought best fit the needs of the school,” he said. “We consulted the faculty individually and in groups, consistently, over a five-month period. And that includes all of the tenured faculty. But tenure was not our focus. Our focus was what works financially for the school and what works best for our students. If a school faces a situation of financial exigency, it can modify contracts. We were looking at the faculty as a whole. We have numerous faculty at the school who never had tenure but have worked here for 25 years under long-term contracts. They’re entitled to the same protections and same arrangements as tenured faculty. And we’ve made exactly the same sets of calculations with them. Tenure was not the issue. The issue was finding a model that that could be workable for us.”
When the media got wind of the story, however, it was tenure that took the headlines, in large part because of a long-standing and still on-going right-wing attack on tenure aimed at rooting out “liberal tendencies” in colleges.
“Others outside of the school viewed us as a poster child for a larger set of debates that are taking place about tenure nationally,” McHenry said. “We’re not really part of that, because we’re not part of a large university. We’re a one-off. We’re our own model. The idea that that the faculty as a whole and the tenured members of the faculty were not consulted is completely untrue.”
McHenry doesn’t underestimate the fact that there was a personal cost to this process.
“I mean, this was a deeply painful process to go through,” he said. “But ultimately, we made these decisions because we felt this was essential for the future of the school. I was lucky because I came to the school as a new person. I had no loyalties or deep personal relationships with all but a smattering of faculty. So I could sort of look at it from a distance and say what’s best for the school. And that’s what motivated us.”
In the end, 29 faculty members took a pay cut of some kind. Of the rest, 14 of 19 faculty members who were tenured had their positions changed. Half of those people are still teaching at school, McHenry said. “So we actually lost a relatively small number of faculty.”
Still, McHenry admits to regrets.
“I regret every ounce of pain and suffering that anybody suffered as a part of the process,” he said. “I deeply regret it. I haven’t slept well since the fall of 2017. And I used to be a good sleeper. I spent a year worried about whether and how the school would survive. I was deeply assisted by the senior team of our administrators here at the school. I’m very lucky I have a great team. I couldn’t have done it without them. ”
McHenry said he isn’t against tenure, per se.
“I think tenure plays an important role in educational institutions, but it has to be taken into account in the context of the financial realities of the marketplace,” he said.
The future is looking much brighter, McHenry said.
“We’re in great shape now,” he said. “Have we turned the corner? Absolutely! We went from a $2.3 million dollar deficit to a balanced budget. We’re projecting balanced budgets for the next couple of years. We’ve been able to reserve a little money to do some long delayed capital projects, like painting buildings and fixing the air conditioning and other stuff you can only delay for so long. We were able to increase retirement benefits from 1 to 2 percent. I’d love to see us continue to increase that. We were able to bring along four new teachers, mostly with grant funding.”
Apart from the AAUP, the school’s accreditors appear to be satisfied.
“The American Bar Association is coming to inspect us soon, and I don’t anticipate any problems about being accredited for another year,” McHenry said. “I am very confident that we will pass our accreditation because we teach students well. And we are in the process of convincing the New England Council on Higher Education that we are in strong financial shape — or at least satisfactory financial shape. So we are not concerned about the AAUP in that regard. We are only concerned about our accreditors, and they have made it very clear to us they are only interested in their own standards, not in the AAUP itself.”
Budgets remain tight, however.
“I became Dr No,” McHenry said. “You want money? No! We’re just incredibly careful about how we spend every single dollar.”
Enrollment for the upcoming year meets tuition targets.
“We had a huge class last year, which was a surprise to us,” he said. “It was more than we expected. So did every other law school in the country. Last year was a bumper year. We call it the ‘Trump bump.’ Because we think a lot of people are going to law school because they are upset about what’s going on Washington.”
Faculty is enthused, McHenry said.
“We just had a faculty retreat last Friday faculty,” he said. “Staff is terrific. We have a US-Asia program going to China in the fall. We train Chinese judges and Chinese government officials on American environmental law and they go back to China. It’s fantastic. Our South Royalton clinic is the legal aid provider in Windsor County. We also are the primary provider of veterans and immigration law services in the state of Vermont. And we just opened an office in Burlington. That is our Immigration Law Clinic. Our students will go up there to assist immigrants on their legal issues. We’re excited about that.”
Since climate and climate change will be the defining environmental issue of our time and our generation’s time, VLS looks to be well-situated.
“We teach like 15 courses that have climate components,” McHenry said. “We have to be nimble and robust and imaginative and innovative as a school, but so does everybody in higher education. That’s our duty. The best schools providing the best education to students should be the ones that survive and last. And I think we’re doing a great job. I deeply believe in the nonprofit sector. I mean I think one of the distinguished aspects about American society is our nonprofit institutions, including our education institutions. Our higher education system, whatever its challenges, is the envy of the rest of the world. But it’s a competitive environment out there.”
In his welcoming speech this year, McHenry told the class, “We take dreamers and we turn them into dreamer-practitioners. We want people who come to us because they have a dream that they want to preserve the environment. They want to keep people out of prison. They want a fairer or more just world. And we give them the tools to implement those dreams.”
It appears that McHenry may, at heart, be an idealist.
“Can you not be an idealist and be in education?” he asked. “I’m thrilled and excited. I’m even sleeping a little bit better. Now I have new things to worry about. I’ve got to raise more money. I’ve got to manage things.”
Joyce Marcel is a journalist in southern Vermont. In 2017 she was named the best business magazine profile writer in the country by the Alliance of Area Business Publications. She is married to Randy Holhut, the photographer who took the photos for this story. He is also the news editor/acting operations manager of The Commons, a weekly newspaper in Brattleboro. The couple have been living in a Windham and Windsor Housing Trust shared equity home for more than 22 years.