As a law school dean, I was much taken with a statement from Justice Sandra Day O’Connor’s landmark opinion in the University of Michigan case: “Law schools represent the training ground for a large number of our nation’s leaders…it is necessary that the path to leadership be visibly open” to every segment of society.
In a powerful way, that sentiment breaks new ground. It recognizes that more is at stake in our affirmative-action battles than the quality of the classroom experience. The graduates of the country’s strong law schools enjoy a hugely disproportionate access to opportunity and authority in the private and public sectors of our economy. Selective professional schools constitute distinctive pipelines to our principal corridors of power. The processes designed to distribute these remarkable resources, Justice O’Connor reminded, must be open to all.
The Michigan case, of course, explored the accessibility of selective higher education when it comes to race. The Justices concluded, thankfully, that universities need not be agnostic about the effective integration of their halls. But what if we cast O’Connor’s inquiry more broadly? What if we asked about the diversity of selective student bodies on the basis of class? I think we’d find that the great institutions of American higher education, and their law schools, are constructed on a foundation of economic advantage that is bad–and getting worse. We aren’t doing much about it. And we’re behaving in ways to widen the breach.
Here’s what I mean.
The Educational Testing Service recently published a study of the nation’s 146 most selective colleges and universities. This is the pool into which law schools cast their nets. ETS concluded that only 3 percent of those students come from the bottom economic quartile. Only about 10 percent of the cohort comes from the bottom 50 percent. A stunning 74 percent hails from the top quarter. The pool of undergraduates from which we choose is badly skewed toward the economically privileged.
And the bias is increasing. A 2003 Education Department study found that the lion’s share of the past decade’s financial aid increases has gone to students in the top economic quarter. In 1995, 41 percent of private university aid went to high-income students. By 1999 it was 51 percent. The Lumina Foundation’s recent study of tuition discounting draws similar conclusions. Eight years ago, students from families making $20,000 or less received, on average, 2 percent more than students from families making $60,000 or more. Today, wealthier children get 29 percent more than poorer ones. The high tuition, high aid model is backfiring.
And then there are the law schools. Tuition increases have dramatically outpaced inflation over the past decade. Public school tuition rose a staggering 141 percent. Inflation was 31 percent. The average private law school tuition bill is now about $25,000 a year. Public ones charge about $19,000 for nonresidents, $10,000 for residents; 86 percent of law students borrow to pay for their studies. Last year, the median private law graduate debt burden was $84,000. And that doesn’t include undergraduate loans, which can also be daunting. The typical starting salary for public-sector jobs nationally is about $35,000–requiring an impossible 40 percent of monthly income for debt repayment.
As private law school tuition has skyrocketed, some of the best public law schools have, in effect, privatized–Michigan and Virginia being ready examples. Average per-student expenditures at American Bar Association-approved schools quadrupled over the past two decades–rising from about $5,000 to $20,000 per student. The money fueled what one dean calls “a positional arms race.” We compete on U.S. News & World Report‘s terms–offering more high-end and fewer need-based scholarships; paying extraordinary salaries to star faculty and deans; spending huge sums on facilities, technology and brochures bragging about our accomplishments–raising the price of education for everyone. No one even thinks of expanding our student bodies or reducing the costs of instruction. That would be heresy. This elevator only goes up.
This crescendo of rising costs and expenditures cannot be thought acceptable. It fences out a huge segment of our community on the basis of wealth. It allows students’ dreams to be swamped by their debts–forcing them into career paths they wouldn’t otherwise choose. It increases the ultimate cost of representation in a legal regime that already prices too many out. It results in a system of legal education that radically penalizes the bottom half, in the service of a system of justice that has long done exactly the same thing.
No single formula will push back the mounting exclusion. But altered admissions and financial aid practices could work to assure that poor students matter. And meaningful loan forgiveness programs, at both state and federal levels, could help return public-sector jobs to viability. State legislators must recall that even given budget difficulties we face, an economically polarized democracy can’t afford to abandon public higher education. And the academy itself has to remember that professional education is a public good, not merely a private one. After all, educating for privilege is powerfully at odds with who we say we are.
