Binder, D --- "The Changing Paradigm in Public Legal Education" [2006] LegEdDig 21; (2006) 14(4) Legal Education Digest 6

The Changing Paradigm in Public Legal Education

D Binder

[2006] LegEdDig 21; (2006) 14(4) Legal Education Digest 6

Chapman U Sch of Law Working Paper 2006, pp 1–38

The Twenty-First Century, the New Millennium, has started out poorly for the public universities. Public financing has fallen sharply while tuition has risen by double digits. Full-time faculty rolls drop while student-faculty ratios rise, and sections, courses and even programs are slashed.

The pattern of tuition increases is national, ranging from economically depressed states, such as Michigan, financially mismanaged states, such as California, and fast growing sunbelt states, including Florida and Texas. The increases affect the most prominent flagship universities and the less prestigious masters and community colleges. They do not discriminate.

Public universities are facing a systemic, structural change in government financing from discretionary to mandated expenditures. In spite of, or more aptly because of, their success, the public law schools have disproportionately borne the financial cuts and tuition increases. Legislators, regents, trustees, and administrators are increasingly shifting the financial burden to academic units best able to charge market-based tuition, especially law and business. Thus, the state funding that previously supported legal education is now redirected to other schools and colleges. Public institutions, especially law schools, talk of ‘privatising’ or ‘quasi-privatising.’

The public law schools face a major challenge in preserving their ethos as public institutions. Their short-term response is to sharply raise tuition. The public law schools were established to provide a quality legal education to state residents at nominal tuition. The long term risk is a radical change in the paradigm governing public legal education — from one of low-tuition and access to all qualified state residents to one of high-tuition and limited access. This risk is a substantially different model of legal education — one which is more elitist than egalitarian.

Tuition and fee increases at professional schools have sharply escalated in recent years, jeopardising the goal of affordable education for state residents. The social compact with the state is over. The effect though is to call into question the social compact to provide affordable education, including professional education, to the residents of the state. The initial institutional response to declining state support is to sharply increase tuition for out-of-state students. To the extent that public universities are to a greater or lesser extent taxpayer supported, little political outcry arises to increasing tuition to non-voting non-residents.

Unlike businesses which compete in the competitive market, public institutions face strong political opposition in reducing expenditures. Higher education is a service enterprise in which the largest expenditure is personnel. Another large expenditure is financial aid, both in the form of grants and loans. Financial aid can in theory be easily reduced but the cost will be access, affordability and student quality. The sharp escalation in public law school tuition poses a competitive disadvantage to the public law schools. As their tuition, even for state residents, rivals that of many private law schools, they will lose one of their greatest competitive advantages: low tuition.

The first sign of a seismic change in higher education was the launching of US News & World Reports’ ranking of colleges in 1983. The Guide to Graduate Schools first appeared in 1987. With US News emphasising objective, quantitative criteria, institutions have changed their practices to affect their ranking. The 1987 rankings were based solely on reputation. By 1990 ‘objective’ quantifiable criteria, such as LSATs, GPAs, student–faculty ratios, placement rates, and bar passage rates, were added to the mix. The identification of these factors has resulted in many law schools significantly changing their admissions and financial aid practices to ‘tweak’ the numbers, as well as boosting their placement rates.

A critical caveat is that simply substituting tuition dollars for state support does not maintain the status quo, but weakens the institution in the short run. Indeed, it entails tremendous risks and substantial changes to the role of public legal education. The public law school is at great risk of becoming a tuition dependent quasi-private institution. Part of the challenge is to recognise the nature of many private law schools, which are tuition driven and dependent. As such, some operate more like an economically driven business than a knowledge driven cathedral of learning. These schools face continuous constraints on faculty appointments and retention, faculty, administrative and staff salaries, faculty development, academic programs, financial aid, admissions, and facilities. Indeed, salaries may be frozen during downturns in revenues. Large classes and high student-faculty ratios are common.

The public law schools could resist these pressures as long as states provided them substantial subsidies, rather than demanding a share of the school’s tuition revenue. Certainly not all private universities look to their law schools as a profit centre, but the temptation exists.

A major impact of the substantial increases in tuition is to intensify the economic stratification of the student body with the shift to a highly affluent student body. In other words, the cost of upper mobility and inclusiveness into the legal profession has risen substantially in recent years. The applicant pool becomes increasingly self-selective on the basis of finances — a pattern already manifesting itself with undergraduate admissions. In addition, high tuition can serve as a psychological barrier to low-income applicants.

As is well recognised, the middle class is in increasing danger of being squeezed out of the nation’s premier institutions — both public and private. Affluent families can afford the tuition increases while the shrinking pool of qualified economically disadvantaged families may receive substantial, sufficient financial aid.

The change in paradigms entails profound changes both for the law school and for society. Many of the prestigious private law schools are characterised by high tuition, large endowments, and low student-faculty ratios. The public schools are moving to the model of high tuition, low endowment and variable student-faculty ratios. Most private law schools are tuition dependent and driven. Public law schools are trending that way, resulting in tremendous changes in the ethos of public law schools.

Large tuition increases are a short-term, stop-gap action, in effect a bandaid with the inherent effect of radically changing public legal education. Even if totally privately funded, they are still a public institution and must strive to provide service to the community, offer educational opportunity for all state residents, and otherwise pursue the public interest.

The changing paradigm necessitates a critical self-assessment of the law school’s mission. If not, the financial changes will decide for the school. If the public law schools increasingly mirror their private counterparts, their ethos, their basis for existence, as a public institution, will cease.