The Ethics of Academia

April 2nd, 2015 / By Deborah J. Merritt

What obligations, if any, do academic institutions owe potential students? When soliciting these “customers,” how candid should schools be in discussing graduation rates, scholarship conditions, or the employment outcomes of recent graduates? Do the obligations differ for a professional school that will teach students about the ethics of communicating with their own future customers?

New Marketing/New Concerns

Once upon a time, we marketed law schools with a printed brochure or two. That changed with the advent of the new century and the internet. Now marketing is pervasive: web pages, emails, blog posts, and forums.

With increased marketing, some educators began to worry about how we presented ourselves to students. As a sometime social scientist, I was particularly concerned about the way in which some law schools reported median salaries without disclosing the number of graduates supplying that information. A school could report that it had employment information from 99% of its graduates, that 60% were in private practice, and that the median salary for those private practitioners was $120,000. Nowhere did the reader learn that only 45% of the graduates reported salary information. [This is a hypothetical example; it does not represent any particular law school.]

I also noticed that, although law schools know only the average “amount borrowed” by their students, schools and the media began to represent that figure as the average “debt owed.” Interest, unfortunately, accumulates while a student is in law school, so the “amount borrowed” significantly understates the “debt owed” when loans fall due.

Other educators worried about a lack of candor when schools offered scholarships to students. A school might offer an attractive three-year scholarship to an applicant, with the seemingly easy condition that the student maintain a B average. The school knew that it tightly controlled curves in first-year courses, so that a predictable number of awardees would fail that condition, but the applicants didn’t understand that. This isn’t just a matter of optimism bias; undergraduates literally do not understand law school curves. A few years ago, one law school hopeful said to me: “What’s the big deal about grade competition in law school? It’s not like there’s a limit on the number of A’s or anything.” When I explained the facts of law school life, she went off to pursue a Ph.D. in botany.

And then there was the matter of nested statistics. Schools would report the number of employed graduates, then identify percentages of those graduates working in particular job categories. Categories spawned sub-categories, and readers began to lose sight of the denominator. Even respected scholars like Steven Solomon get befuddled by these statistics. Yesterday, Solomon misinterpreted Georgetown’s 2013 employment statistics due to this type of nesting: he mistook 60% of employed graduates for 60% of the graduating class. (Georgetown, to its credit, provides clearer statistics on a different page than the one Solomon used.)

Educators, of course, weren’t the only ones who noticed these problems. We were slow–much too slow–to address our lapses, and we suffered legitimate criticism from the media and organizations like Law School Transparency. Indeed, the criticisms continue, as professors persist in making misleading statements.

For me, these are ethical issues. I believe that educators do have a special obligation to prospective students; they are not just “customers,” they are people who depend upon us for instruction and wise counsel. At law schools, prospective students are also future colleagues in the legal profession; even while we teach, we are an integral part of the profession.

With that in mind, I communicate with prospective students as I would talk to a colleague asking about an entry-level teaching position or a potential move to another school. I tell students what I would want to know if I were in their position. And, consistent with my role as a teacher and scholar, I try to present the information in a manner that is straightforward and easy to understand. For the last few years, most law schools have followed the same golden rules–albeit with considerable prodding from Law School Transparency, the ABA, and the media.

Revisionist History

Now that law schools have become more careful in their communications with potential students, revisionist history has appeared. Ignoring all of the concerns discussed above (although they appear in sources he cites), Michael Simkovic concludes that “The moral critique against law schools comes down to this: The law schools used the same standard method of reporting data as the U.S. Government.”

Huh? When the government publishes salaries in SIPP, a primary source for Simkovic’s scholarship, I’m pretty sure they disclose how many respondents refused to provide that information. Reports on the national debt, likewise, include interest accrued rather than just the original amounts borrowed–although I will concede that there’s plenty of monkey business in that reporting. I’ll also concede that welfare recipients probably don’t fully understand the conditions in the contracts they sign.

Simkovic, of course, doesn’t mean to set the government up as a model on these latter points. Instead, he ignores those issues and pretends that the ethical critique of law schools focused on just one point: calculation of the overall employment rate. On this, Simkovic has good news for law schools: they can ethically count a graduate as employed as long as the graduate was paid for a single hour of work during the reporting week–because that’s the way the government does it.

I don’t think any law school has ever been quite that audacious, and the ABA certainly would not approve. The implications of Simkovic’s argument, however, illuminate a key point: law schools communicate for a different purpose, and to a different audience, than the Bureau of Labor Statistics. The primary consumers of our employment statistics are current and potential students. We draft our employment statistics for that audience, and the information should be tailored to them.

As for scholarship, I will acknowledge that the U.S. government owns the word “unemployment.” I used a non-standard definition of that concept in a recent paper, and clearly designated it as such. But this seems to distract some readers, so I’ll refer to those graduates as “not working.” I suspect it’s all the same to them.