The Presidential Program at this year’s AALS Annual Meeting featured a discussion of “Law Schools and Their Critics.” As part of that discussion, Gene Nichol offered a compelling challenge to law faculty.
Paralleling a paper published earlier this year, Nichol suggested that law schools have pushed tuition past the breaking point “without dramatically improving, or perhaps even paying close attention to, the actual learning experience of our students.” How can schools cut costs now that the crisis has arrived?
Nichol’s primary suggestion: Aim solutions at the central cost driver, tenure-track faculty salaries. To do that, Nichol suggested four mechanisms: (a) Return teaching loads to 12 credits per year. (b) Cut back overly generous policies for research leaves and sabbaticals. (c) Require faculty to teach more courses that students need for successful careers. (d) Reduce salaries to more realistic levels.
These are provocative proposals, at least for some faculty. And I offer an immediate caveat that Nichol did not have time in his short presentation to explain how he recommends implementing some of these steps. My imminent airline departure also prevented me from hearing the Q&A portion of this panel. Would Nichol trim salaries over time by cutting at corners (e.g., fewer summer research grants), freezing salaries (perhaps at the highest levels, where some of us have already attained so much), and attrition? Or would he recommend more dramatic steps? I will invite Gene to offer more details here at the Cafe if he’s willing to do so.
Meanwhile, there were three points embedded in Gene’s presentation that deserve particular mention. First, as noted above, he stressed the need to aim solutions at the problem. If high tuition is a problem, and if the high cost of tenure-track faculty lies behind that problem, then we need to address those costs. Making other reforms won’t cure the problem.
Second, Gene gently warned law schools that if we do not cure the problem of high tuition ourselves, then a combination of market and regulatory forces will solve the problem for us–perhaps in ways that are even less palatable to faculty or less supportive of legal education’s mission.
Finally, Gene suggested a silver lining in the cloud of faculty belt tightening. Most of us became teachers and scholars because it was our calling. We wanted to educate new lawyers and help the legal system gain new insights. Most of us, even 25 to 30 years ago, were delighted to learn that being a law professor was a “livable calling.” We would not have to make as many financial sacrifices as our friends who taught history, who became journalists, or who pursued careers in the arts. We could follow our passion, do what we believed in, and have an impact on the next generation, while still living comfortably.
Isn’t it possible, Gene asked, for law faculty to return to a livable calling? Do we need all of the extras that we awarded ourselves over the last few decades?
I’ve grown to like the idea of workplace externships. Properly supervised, students can learn quite a bit from an externship. Today’s employers undeniably want that type of proven experience in new hires. Working at an externship also puts a student “on the spot” when an employer wants to hire. Externships won’t create jobs, but they may make a school’s graduates more competitive for the ones that exist.
On the other hand, I’m a bit queasy about charging students tuition while they work somewhere else for free. That seems like a negative wage, rather than a minimum one. When an externship constitutes just part of a student’s course load, and the school charges a flat fee for full-time students, the concern is small. It costs the school something to supervise the externship, the student’s marginal cost may be zero, and we don’t differentiate other credits based on the number of students in the class, the professor’s salary, or other cost factors.
But what about externships that consume an entire semester? Or ones that occur during the summer? For these externships, students pay high fees for the privilege of providing free workplace services. Here, as Northwestern’s Dean Dan Rodriguez suggests on PrawfsBlawg, tuition reductions might be appropriate.
Sure, the school will lose revenue from those students but the market is going to force us to reduce the cost of law school attendance in one way or another. We already subsidize lots of law school credits through scholarships. Reduced-cost externships are just another targeted means of reducing tuition–and it’s a mechanism that might prove quite attractive to students.
Suppose, for example, that a school told every student: “We provide one no-cost summer externship to any student who wants one. We’ll help you find a suitable placement, provide appropriate classroom instruction, and award up to 5 hours of credit–all with no tuition charge to you. You can take advantage of this externship opportunity after either your first or second year; joint degree candidates may use the opportunity during any semester of their degree program.”
To me, that seems like an attractive way to discount tuition. It tells prospective students that a school recognizes the importance of workplace experience and will help every student obtain that opportunity. A strong externship program can also complement a school’s career services office: the ties with externship organizations can yield regular placement opportunities. And alumni are likely workplace supervisors, solidifying their ties with the school.
How much would this cost a school? You would have to include (a) the costs of externship supervisors, including the time they would spend identifying good externship oppportunities; (b) any charges the central university would impose on these subsidized credits; and (c) forgone tuition from students who would use summer credits to graduate a semester early. In past years, relatively few students have used summer credits to graduate early, but that number may increase in coming years.
For full-semester externships the calculus is similar–except that the risk of forgone tuition is closer to certainty. Few students enjoy law school so much that they will stay for a seventh semester. Still, as pressures mount to reduce the cost and length of law school, a no- or reduced-cost externship semester could draw students to a particular law school.
What other costs and benefits do you see? Are there other ways to structure externships to serve students and keep down educational costs?
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.
Cafe Manager & Co-Moderator
Deborah J. Merritt
Cafe Designer & Co-Moderator
Kyle McEntee
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