By Frank J. Macchiarola and Michael C. Macchiarola
Why do law schools charge higher and higher tuitions that keep outrunning the cost of living? In the two decades ending in 2007, according to the American Bar Association, the cost of attending the average private law school (including tuition and fees) more than tripled--increasing from $8,911 a year to $32,367. Unsurprisingly, the average amount borrowed by law students has risen just as dramatically. Last year's average private law student graduated with more than $87,000 in law school debt.
In trying to understand this phenomenon, many have blamed the American Bar Association's Standards for Law Schools. The ABA accredits 200 American law schools that adhere to the Standards and, by doing so, permit their graduates to sit for the bar examination in every state. These standards govern student's course of study, the law school's administration, the faculty's rights and obligations and the adequacy of the physical plant. Among other things, law schools are reviewed in a comprehensive three-day site visit with several visitors every seven years to maintain their accreditation.
Others, particularly law school deans, who face competitive pressures from other law schools, have blamed the U.S. News and World Report rankings of law schools. These critics believe the rankings spark a tournament of law schools to compete on the magazine's terms, often at great costs and at the expense of more student-centered activities. In a December 2009 report to the Congress, the General Accounting Office dealt, in part, with concerns that have been raised about how some of the accreditation standards of the ABA may affect the cost of law school.
The GAO concluded, among other things, that "according to Law School officials, the move to a more hands-on, resource-intensive approach to legal education and competition among law schools for higher rankings appear to be the main factors driving the cost of law school, while ABA accreditation requirements appear to play a minor role." The Report's authors also noted that officials at public law schools cited recent decreases in state funding as a factor fueling the higher tuitions at public schools.
For the co-author, who until 2009 was a member of the ABA's Accreditation Committee, it is personally pleasing not to be among those principally blamed for the increasing cost of law school. It should, however, be acknowledged that ABA Standards, and the desire of many law schools to meet and exceed them do drive up costs; and more extensively than the GAO found. And if the law schools and ABA are the only game in town, costs will inevitably be uncontrolled.
The officials from ABA schools, who were heavily drawn upon for the GAO study,
reported that changes in the approach to legal education have affected cost, particularly in the areas of faculty and staff. These changes include: increased emphasis on hands-on clinical experiences, and smaller skills based courses; increased diversity of course offering - eg., international law and environmental law; and increased student support - e.g. academic support, career services, and admissions support.
Yet, the law school officials the GAO spoke with placed the blame for increased costs primarily on the U.S. News and World Report rankings. The law school officials claimed (and the GAO concurred) that "schools compete to attract students and faculty and to increase their U.S. News and World Report ranking." The GAO found that this competition has impacted costs because (1) rankings are determined in part by such cost-related factors as per student expenditure, student-faculty ratio, and library resources, (2) schools offer clinics and diverse elective courses to compete for students and (3) schools may offer higher salaries to attract the best faculty.
While it is appropriate to find the ABA standards themselves not the culprit that some portray them to be, it is not clear that the standards can be so easily separated from the competition that exists among law schools. The standards do place an emphasis on aspects of a legal education that do drive costs, and would do so notwithstanding the added burden of the U.S. News rankings. ABA Standard 302, for instance, requires law schools provide students with "substantial instruction" in at least one rigorous writing experience, other professional skills and live clinics on real life practical experiences. Costly, each and every one.
What The GAO Ignores
The GAO suggests that there is some external force that compels law schools to charge what they do with little choice in the matter. Given the methodology employed of surveying law school officials, we suppose that answer is to be expected. After all, it is easier to blame someone else rather than to engage in a bit of introspection, particularly when blame will be taken at face value.
The GAO further ignores the fact that law school debt has been abetted by destructive federal education financing policies not unlike those in housing finance and credit card finance that have had terrible consequences for borrowers. These policies have irresponsibly driven students into significant debt assumption. Lenders and law schools have had little incentive to slow the debt train. For the lender, the risk on the loans was largely guaranteed by Uncle Sam; for the law school the tuition dollars supported by the debt have translated into higher faculty salaries, lighter course loads and upgraded facilities.
The GAO study further ignores the fact that the accreditation process gives law schools a virtual lock on bar admission. Rather than considering lower cost alternatives - like on-line education, allowance for accelerated coursework or a two-year curriculum - the virtual monopoly on bar admission accorded to the 200 ABA approved law schools excludes prospective attorneys who cannot afford the cost of a legal education in the way in which it is currently delivered. There are many who could be qualified to practice law by reason of skills and knowledge they could acquire by alternative means. In fact, the concept of law schools as the preferred vehicle for entry into the legal profession is little more than one hundred years old. Great lawyers, like Daniel Webster, John Marshall, Thomas Jefferson and John Adams, learned their craft in the apprentice of others. In fact, clerkships or internships were the standard route to practice well into the 1800s. The reconsideration of such alternative routes today would certainly limit what is now a virtually limitless capacity by the law school professionals to define standards and, at the same time, could dramatically address the cost issue. It may actually be a matter of survival since as costs have grown, prospects have diminished; with employment opportunities slowing and lawyer salaries being reduced.
By insisting on its prescribed set of rigid standards, the ABA limits the ability of law schools to compete with one another and stifles experimentation crucial to pedagogical and curricular advancement. Within the framework of comprehensive ABA rules and regulations, law schools have been unable to pursue radical innovations without jeopardizing accreditation, reputation or standing. As Professor Rachel Moran wrote in a recent article,
In a world of highly constrained competition, schools have few ways to improve their standing through strategies that upset the prevailing wisdom about how best to deliver legal education. As a result, law school rankings largely remain stable over time, and different methods of ranking overall quality yield similar results. With full-bodied competition curbed by the accreditation process, schools rely on gaming to influence the U.S. News rankings rather than strike out in novel directions to gain prominence.
In such a context then, the "ABA accreditation costs" can hardly be decoupled from the "U.S. News" costs. And both make law school out of reach for many students who consider the growing costs and diminishing return on investment.
The GAO methodology of asking questions largely to school officers could not possibly have gotten to the truth. "Insiders" do not easily examine the limits of the system within which they work. They are not about to scrutinize the productivity of the faculty in terms of whether it is truly directed to the needs of the paying customer (the student). As entities where self-governance reigns, self-service is rarely questioned. Law schools generally assume that students should pay for many cost intensive practices that are found in university life. The product they deliver, while it may be a good one, must be subject to a value measurement. Moreover, law schools are not the only vehicle that can be used to enter the legal profession. It is time to consider other ways for prospective lawyers to be admitted to the bar.
If we are going to study the reasons why law schools are so expensive, we must confront more fundamental questions than those raised by the GAO. Linking what law schools do to what students actually receive would have compelled them to dig far deeper with their inquiry. And seeking to find alternatives to the present system would better prepare law schools for their uncertain future. Such an endeavor would have yielded far more useful insights.
Frank J. Macchiarola is the Chancellor of St. Francis College and the former Dean of the Benjamin N. Cardozo School of Law. Michael C. Macchiarola is a Distinguished Lecturer at the City University of New York.