Does Cost Matter?

January 3rd, 2013 / By Deborah J. Merritt

When assembling a faculty, does cost matter? Should law schools consider cost when deciding whether to offer courses through tenure-track faculty, non-tenure-track faculty, part-time adjuncts, or other types of instructors? Or should law schools embrace the highest quality instruction, regardless of cost?

Even posing the question seems silly: Of course cost matters. Cost affects everything, even the availability of lifesaving treatment. Few of us can afford to exalt quality entirely over cost in a purchase. When we do opt for the highest quality in one part of our personal budgets (say housing), we necessarily limit options in other categories (such as entertainment). Law schools face the same constraints: few, if any, schools have the type of resources that make cost irrelevant in choosing faculty.

Law schools, in fact, show considerable price sensitivity when deciding what types of faculty to hire and what kinds of courses to teach. Schools frequently observe that adding clinics is “too expensive” because clinics cost more per student-credit-hour than large doctrinal courses do. The same has been said for legal writing courses taught by tenure-track faculty. The use of low-cost adjuncts and non-tenure track faculty has grown substantially over the last few decades. Law schools have been quite strategic in accounting for cost while building a curriculum.

Kyle McEntee, Patrick Lynch, and Derek Tokaz build on this reality in a recent paper that explores new models of legal education. McEntee, Lynch, and Tokaz (“MLT”) propose that “cost must be a factor” in determining faculty composition and that “faculty composition should be the optimal balance of cost and teaching quality, as analyzed in terms of legal education’s purposes.” The trio acknowledge that scholarship is also important in hiring faculty but, given the high cost of legal education, “it must be subservient to learning outcomes.”

Many faculty will disagree with making scholarship “subservient.” As one of them, I would add scholarship as an independent factor in the balance, saying something like “faculty composition should reflect the optimal balance among cost, teaching quality, and support for ongoing research, as analyzed in terms of legal education’s purposes.”

Some faculty (including me) would add another factor to the “optimal balance”–questions of workplace equity. When composing a faculty, I would consider both positive and negative aspects of maintaining a professorial caste system. Some professors welcome a status that allows them to teach full-time without producing scholarship; others enjoy teaching part-time while pursuing a law practice. But some of these “other status” faculty accept part-time or nontenure-track positions because they can’t find full-time jobs on the tenure track. As employers and professional role models, how far will we go in pushing workers into contingent positions–especially if the workers lack benefits from other employers?

The important point, however, is that cost should count in any decision about faculty composition. Whether the overall calculus includes two factors (as MLT suggest), four (adding scholarship and workplace equity), or some other number, cost is an essential part of the balance. As tenured faculty, we have been very nimble in accounting for cost when it benefits us. We hire adjuncts and non-tenure track faculty to teach courses that we prefer not to teach. We also resist the expansion of skills offerings on the ground that teaching them would be expensive while (we assume) doing little to further the school’s collective scholarship.

We are much less willing to account for cost when that would benefit students by lowering tuition. MLT remind us that we need to look at all faculty expenditures with cost in mind. At many law schools, the number of tenured faculty members has grown significantly over the last decade. Do we really need that many full-time, tenure-track faculty when we balance the cost against both teaching quality and other benefits these faculty may confer?

Before we discuss that question, it seems worth affirming that costs do matter, that schools already make decisions based on cost, and that both students and future clients have a very strong stake in that cost balance.