Wednesday, May 04, 2011

What Can Law Schools Learn From Student Anger Over Claims of "Bait and Switch"?

{The following is a guest post by Drexel law professor Lisa McElroy:}
A story on the front page of the Sunday New York Times Business section made quite a splash this past weekend in law school circles; a number of law professor blogs and listservs are hotly discussing the issues it raised.  In the article,  David Segal draws on an academic paper by St. Thomas’s Jerry Organ (forthcoming in the Journal of Legal Education) to question the ethics of law schools’ offering conditional merit scholarships to incoming students. 
Both Segal and Organ discuss in depth the substantive merits of such practices: they assert that lower-ranked law schools use scholarship money to lure well-qualified students who might otherwise choose more prestigious programs; mandatory grading curves then force students to “curve out,” or lose their scholarships not because they are poor law students in absolute terms, but because they are unable to meet the grade requirements to keep the funding; and such schools do not explicitly disclose the number of students who lose their scholarships at the end of the first year. 
There is no doubt that these claims warrant a close look by those in the law school know.  But there’s another issue rumbling around just below the surface -- the reactions of the dozens of law students and lawyers who seized the opportunity to comment when the article was published online.  Because much of my research focuses on pedagogical best practices and the progress law schools have made in humanizing legal education, the clamoring voices raised concerns for me beyond the pros and cons of the scholarships themselves.  
Before I get into my thoughts on the comments, though, I should acknowledge that there is probably an inherent bias in the comments we read in the online edition of the New York Times (and more generally).  After all, in order to be moved to comment, a commenter has to feel awfully strongly about an issue, and so a significant number of comments are likely from those with extreme (rather than more tempered or mainstream) views.  Notwithstanding that fact, the number and tenor of the comments from law students and lawyers alarmed me in a couple of key ways.
First, a large number of commenters, especially law students, seem to agree with Segal’s conclusion that law schools that offer conditional merit scholarships intentionally engage in a “bait and switch,” or, as one commenter put it, something akin to a pyramid scheme. They seem genuinely convinced that law schools deliberately stack the odds against student success, with a number of commenters speculating that law schools deliberately place most scholarship recipients in the same 1L section, for example, to force them to compete against each other in the curve, leading to the inevitable and planned result that some will lose their scholarships. 
As a law professor, I had two visceral reactions when reading these comments.  First, I considered the three law schools where I have taught over the past eleven years.  While these schools have varied considerably in ranking and prestige (factors Organ and Segal see as relevant in the merit scholarship “game”), I found it hard to believe that senior administrators at any one of those law schools, in an effort to recruit students but save money, would deliberately act unethically in the ways that the commenting students seemed convinced their law schools had. 
Once I had satisfied myself on that point, I had to ask myself:  What is it about current law school culture that creates these feelings among students that law schools are acting in bad faith, without their best interests in mind?  What are we doing as law teachers and as institutions of higher learning to make students attribute negative motives to us, to consider us unethical professionals engaged in a profession where ethics are a cornerstone?  In fact, in reading the comments, I was struck more than I ever have been when in a law school building that at least a large number of vocal students believe wholeheartedly that law school is an “us against them” type of enterprise.  After all, the comments covered much more than just the merit scholarships themselves; commenters called law school grading “arbitrary and ridiculous” and “biased in favor of professors' favorite students and against at least one certain, specific, easily identifiable group;” law professors “eccentric;” exam success “a crap shoot” or a “game of ‘I have a secret;’” the system of assigning first-year students to sections “insidious;” and law school teaching “[a] pedagogical[] disaster.”
A number of things should concern us about this perspective that many – not just a few – law students hold.  Inherent to many law students’ feeling of being in a battle with their law schools – a scrimmage they are certain they will lose because (in their view) the rules favor the other team, a team of people who control their destiny and who do not hesitate to cheat – is the underlying premise that their law schools are entities separate from themselves.   They appear to see their law schools, not as communities, but as battlegrounds, where students have to fight for their rights and, quite often, give up in despair.  They see themselves, as students, as non-participatory players in their own educational experiences.  They see the professors as arbitrary and removed and the administrators as greedy and status-conscious.  Given that, in eleven years, I have yet to work with a group of people for whom those characterizations are even close to accurate, I have to wonder what we could do better to help students see that the vast majority of their law teachers are profoundly invested in their success and in the betterment of the law school as a whole. 
The commenters are also angry about one more thing, something related not to the controversy at the heart of the article itself – merit scholarships – but their belief that schools fail to disclose information about the job market, and that when students graduate, they will have wasted time and money they did not have, all for a degree that is worthless.  If they have to pay for that degree when they did not expect to have to do so, they are even angrier.
Here’s another place where law schools appear to be failing – it’s just that I disagree that we are failing in the ways that so many students seem to think we are.  Where I think we’re failing is in not being explicit enough that law school can and should be more than a means to an end.  Our mission should be (and largely is, in the eyes of the many, many law professors I claim as friends) to make the three or four years that our students spend in law school valuable in and of themselves, a time to explore the concepts of law and justice, of community and governance.  The opportunity to spend time thinking about the foundations of American (and, these days more and more, international) society should be seen as a privilege – something very few students (versus way too many, as the commenters claim) ever have a chance to do.  While it is certainly right that students want and need jobs when they come out of law school, and while law schools need to continue to provide the sort of education and resources that can help students achieve that essential goal of obtaining fulfilling and financially-satisfying employment, the years spent in law school are certainly worth more than just the paycheck the student will eventually earn.
But somehow – because of rankings?  Above the Law?  I don’t think it’s that simple – we are not communicating to our students our passion and love for thinking and learning and debating and arguing and listening and instilling that same intellectual curiosity in them – a gift that will be pretty darn fulfilling and useful in their future lives and careers.  No, law schools are continuing, somehow (but I am quite sure not intentionally), to reinforce the notion that a legal education is only about getting a job at the end of a very long boot camp, making a good living, and holding an elite place in society.Mr. Segal and the New York Times have run several articles now about law schools’ dirty little secrets.  I’m not sure that they’ve succeeded in uncovering for the reading public something real – that law schools that are playing a game that has nothing to do with helping our students become outstanding professionals.   But, inadvertently, I think that they have successfully pointed out to those of us committed to legal education that we are not yet educating students in a such a way as to show them how deeply we are committed, as well, to them, to the profession, and (by association) to their future clients.  They have revealed to us how important transparency may be.  And, as my Drexel colleague, Emily Zimmerman (whose empirical research focuses on law student enthusiasm and satisfaction), explained to me today, even though telling students that they may lose their scholarships may not change their behavior, it may make their institutions of learning appear more trustworthy to them.  In other words, the value of being transparent is largely transparency itself.


Blogger said...

I have nothing to positive things to say about my own law school experience -- I am lucky to have enjoyed the academic experience and to have found a way to finance it. But I feel compelled to point out that Prof. McElroy does little or nothing to respond to students' substantive concerns.

It is nice that her anecdotal evidence discloses no bad faith among her colleagues, but she doesn't respond to the mathematical realities of the scholarship programs at some of the lower-ranked schools. Furthermore, she seems to not fully grasp the financial realities of leaving law school $200K in debt. Yes, law school is an excellent academic experience, but that has to be weighed against the possibility of being saddled with a life-long nondischargeable debt that, for many, cannot be repaid. Passion and love for learning is great, but it is important that law schools disclose the costs of such luxury. And it's not that law students are complaining that they won't be as rich as they might have been, but that they'll be much, much financially worse off they might have been.

I don't doubt that law professors are dedicated to their students and want to help them succeed. The critique is not personal, but institutional. The system is set in such a way that trades on information asymmetries, responds to university pressures to use the law school as a cash cow, and bows to inefficient market pressures to allocate budgets in correspondingly inefficient ways.

Unfortunately, it's not until after the first year of law school that we learn that, applying Hand's formula, most of us have been negligent in choosing law school.

rhen356 said...

I enjoyed law school classes without subscribing to the idea that they were means to an end, e.g. good grades, great job. But I think that is a result of my personality, shaped by by education in philosophy. Most students don't share that view; indeed, many see it as ridiculous. But that's because most of our society sees education as a means to end. As a society, we're far from being Socrates and Plato, appreciating the Good because it is the Good. But that cannot be blamed on law schools! That's a societal issue!

Michael C. Dorf said...

Like Blogger, I share the view that law faculty and administrators almost universally understand themselves as supporting, rather than setting out to rip off, students, but I think that they/we may be suffering from some cognitive biases. The point is closely related to Judge Posner's provocative comparison--in Overcoming Law--of legal education and barriers to entry to the legal profession more broadly, to medieval guilds. For the analogy to be persuasive, one need not think that law professors (or lawyers) consciously aim to extract rents. The point is simply that they/we behave in some ways that look like, and have the same effects as, rent-extracting behavior.

Of course, there are cognitive distortions on the student side as well: Even when given the full facts about the job market or the cutoff line for maintaining a scholarship, most students will be unfazed, assuming that only other people will be adversely affected. But given the asymmetrical nature of the relationship, perhaps that places those of us in the legal education business a special duty to caution prospective students very strongly about what they're getting into.

John Maguire said...

The law schools are doing something untenable and basically dishonest--like a used car salesman putting sawdust into the transmission of an old car.

I am the parent of a kid who went into deep debt--despite my pointing out the possibility of terrible outcomes--fully encouraged by Northeastern Law School. When I called the administration and tried to get them to talk some sense into my kid, they said such claptrap as "He's legally of age, you know" and "We can't let you know the details of his loans--it's confidential, don't you know."

The administration of the school of full of 40-watt bulbs who have no moral center that I can perceive: little Eichmanns running the machine they were given to run.

Susannah Pollvogt said...

I'm very pleased to come across your blog. I will simply say very briefly that the majority of students I work with do not feel that either the faculty or the administration care about the quality or nature of their law school experience. I don't think this is entirely accurate, but I also don't think that we are doing a good job of conveying that we are there to support students in achieving excellence.

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