Washington Law Prof: The Failure of Crits and Leftist Law Professors to Defend Progressive Causes
Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation’s highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.
The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.
Liberal law professors often express concerns about class in American society—championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.
Twenty-five years ago, as a budding academic with an interest in theory and concern for social justice, I was drawn to Critical Legal Studies (CLS), and came to know a handful of the first generation Crits (as they were called)… The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia—including the Crits—with perpetuating the profoundly warped and harmful economics of legal education.
I. THE COST OF ATTENDING LAW SCHOOL
Average tuition at private law schools in 2001 was $22,961—just a decade later, in 2011, it had reached $39,184. Public law schools are cheaper, but their prices went up swiftly as well, with average tuition rising from $8,419 in 2001 to $22,115 in in 2011.
Increasing tuition immediately results in rising debt levels for law students, about 90% of whom borrow to finance their legal education. The average debt of private law school graduates went from $70,147 in 2001 to $124,950 in 2011; at public law schools over the same period, average debt increased from $46,499 to $75,728. Debt has been increasing annually by alarming amounts in recent years—at private law schools jumping up from $91,506 (2009), to $106,249 (2010), to $124,950 (2011). And keep in mind that these figures exclude undergraduate debt, which averages around $25,000, and they do not count the interest accrued on debt while in school. On the day they depart law school, the full educational debt carried by law graduates, on average, is greater than the numbers cited above.
Adding college and law school costs together, the price of entry to the legal profession can reach $300,000. Students who attend an elite private undergraduate university and an elite private law school can pay as much as $400,000 in total. This has profound class implications: High tuition is an economic barrier that disproportionately inhibits people from the middle class and below. Entering the legal profession has long served as an avenue of upward mobility and access to power in American society, but high tuition is making this path much harder.
Tuition and debt went up relentlessly at the same time that law grads have struggled through the worst market for legal employment in decades, with many failing to land lawyer jobs, with unprecedented numbers of graduates taking part-time jobs and temporary jobs, and with many earning relatively low salaries. Only 55% of law graduates in 2011 had obtained permanent fulltime lawyer jobs within nine months of graduation.
A few numbers will illustrate the severity of the situation. The average student debt at the twenty-five most indebted law schools for the graduating class of 2011 is listed below (again, the figures exclude undergraduate debt and the interest accrued on the loans), followed by the percentage of the class in debt.
After the dash, highlighted in bold is the percentage of the graduates at each law school who obtained permanent full-time jobs as lawyers (excluding those entering solo practice) nine months after graduation.
California Western School of Law $153,145 (89%)—39.3%
Thomas Jefferson School of Law $153,006 (94%)—26.7%
American University (Washington) $151,318 (80%)—35.8%
New York Law School $146,230 (82%)—35.5%
Phoenix School of Law $145,357 (92%)—37.4%
Southwestern Law School $142,606 (80%)—34.6%
Catholic University of America (Columbus) $142,222 (92%)—43.7%
Northwestern $139,101 (73%)—77%
Pace University $139,007 (87%)—36%
Whittier College $138,961 (89%)—17.1%
Atlanta’s John Marshall Law School $138,819 (91%)—40.9%
University of Pacific (McGeorge) $138,267 (93%)—43.6%
St. Thomas University (Miami) $137,721 (81%)—49.3%
Barry University $137,680 (90%)—39.2%
University of San Francisco $137,234 (79%)—34.2%
Vermont Law School $136,089 (86%)—48.9%
Golden Gate University $135,645 (82%)—22%
Florida Coastal School of Law $134,355 (92%)—36.6%
Stetson University $133,082 (88%)—57.1%
Syracuse University $132,993 (80%)—50.3%
Loyola Marymount University (LA) $132,875 (86%)—42.7%
Columbia University $132,743 (77%)—94.1%
Georgetown University $132,722 (81%)—62.6%
Touro College (Fuschsberg) $132,302 (87%)—59.3%
Roger Williams University $131,754 (87%)—50%
These numbers, combined with available salary data, paint a devastating picture. At all but seven of these law schools, less than half the class had obtained permanent full-time jobs as lawyers. Many graduates who landed lawyer jobs, furthermore, failed to earn enough to make the monthly payment on their debt. The median starting salary of 2011 graduates in private law jobs was only $60,000. The standard monthly payment on $150,000 debt is over $1700; on $125,000 debt (the average among private law school grads) the monthly payment is over $1400. To manage monthly payments this large (after taxes, rent, and other basic expenses) requires a salary in excess of $100,000, which less than 15% of graduates nationwide obtained. Law graduates with high debt and low salaries will be compelled by financial necessity to enter a new government program, Income Based Repayment, created to assist debtors in financial hardship.
These numbers cover 2011, but the situation is not new. Employment numbers for graduates have been abysmal since 2009; for the past decade, at least, about a third of law graduates nationwide have not obtained jobs as lawyers. The U.S. Bureau of Labor statistics estimates about 22,000 lawyer openings annually through 2020 (counting departures and newly created jobs), at a time when law schools yearly put out over 40,000 new graduates.
Law schools thus discharge a slew of graduates each year scrambling for jobs in a tough employment market, burdened by a pile of debt that has resulted from a swift and massive run up of tuition. What were leftist law professors doing as these developments took place?
II. THE CRITS
The Critical Legal Studies (CLS) movement burst onto the legal education scene in the mid-1970s, generated lots of agitation among law professors for about fifteen years, and then quietly faded away. … Their core position can be summarily stated. Law and legal institutions in American society are legitimated through beliefs about the neutrality of law and rights for all, the Crits argued, but the darker truth is that the legal system has been “largely built by elites who have thought they had some stake in rationalizing their dominant power positions, so at any given time they have tended to define rights in such a way as to reinforce existing hierarchies of wealth and privilege.”
Duncan Kennedy, the enfant terrible of CLS, was a flamboyant iconoclast on the Harvard Law faculty who reveled in ridiculing the legal establishment. So notorious had the disruptions become that in 1990 the New York Times ran a full-length feature story on the dysfunctional state of the Harvard Law faculty, featuring Kennedy as prime provocateur.
Kennedy declared that a major goal of CLS was to transform legal education. … Three years of law school, in Kennedy’s account, amounts to indoctrination of law students to take their place serving elite power in American society. … Legal educators are crucial actors in perpetuating this system: “To my mind, this means that law teachers must take personal responsibility for legal hierarchy in general, including hierarchy within legal education.”
Three decades later, looking back at Kennedy’s piece on legal education, it is hard to suppress a sense of disappointed irony at what subsequently transpired in legal education. … When Kennedy penned his jeremiad against legal education, tuition at Harvard was $5850 ($14,111 inflation adjusted). In 1990, when the Times publicized the dysfunctional Harvard faculty, tuition had risen to $14,475 ($25,780 inflation adjusted). Today Harvard tuition is $49,950.
As the cost of legal education rose to astronomical heights, loading more and more debt on the backs of students, erecting an enormous economic barrier to access to the legal profession with major class implications, the Crits said nothing. Like other law professors, they have been playing in the academic sandbox, enjoying the increased income and release from teaching that followed from and was funded by the immense rise in tuition.
Today, the first-generation Crits are honored academic elder statesmen. … A sadly absurdist tone, resonating with outdated rhetoric, echoes through Kennedy’s commentary about legal education [in 2004]. A handsomely compensated Harvard Law professor urges law students burdened by large debt to engage in “resistance” while in law school, then after graduation, “to find a morally tolerable law firm to work for, or to move from whatever firm one is forced into working for by the status degradation ritual of the law school placement process.” This is a gross mis-description of their situation. Students nationwide are “forced” to work for a law firm—any law firm that deigns to offer them a job, tolerable or not—not because of the degrading ritual of the placement process but compelled by the iron cage of law school debt. This was already the case in 2004. Had a liberal law professor offered such shallow diagnosis and tepid advice, Kennedy, who delights in blunt talk, would have called it bullshit.
Thirty years ago, in their radical heyday, it would have seemed unthinkable that the Crits would remain silent in the face of such extraordinary changes in the economics of legal education. What stood out about the Crits—one of the most attractive qualities of their work—was their commitment to social justice and the downtrodden. … Disappointingly, the Crits, currently respected members of the legal academy who have built their identity on fearless criticism in pursuit of justice, have remained passive in the face of a massive rise in the cost of legal education that would inflict serious harms on social justice and the well-being of law students nationwide.
III. SOCIETY OF AMERICAN LAW TEACHERS (SALT)
The largest and most active organization of leftist law professors is the Society of American Law Teachers (SALT), formed in 1972 to advocate for progressive causes. Several hundred members strong, SALT has engaged in a host of advocacy work on behalf of progressive causes, from testifying before Congress, to issuing public positions, to writing reports on nominees to the federal judiciary, to submitting amicus briefs in cases before the Supreme Court, to participating in various matters related to the ABA regulation of law schools. A great deal of SALT advocacy relates to issues in legal education, particularly the effort to boost minority enrollment and minority faculty in law schools. “Social justice” is frequently repeated in SALT materials.
That makes their failure to act forcefully against the rise of tuition and debt, which carries major class and race implications, all the more inexcusable. … Many of the lower ranked law schools on the most indebted list, furthermore, have relatively high percentages of minority students. In the 2012 U.S. News Diversity Index, St. Thomas ranks #4, San Francisco #10, Whittier #13, Atlanta’s John Marshall #22, Southwestern #25, and Thomas Jefferson #30. That sounds laudable on the part of these law schools—advancing the SALT goal of enhancing minority access to the legal profession. But the picture is not so rosy. At St. Thomas, only 49% of graduates overall landed full time permanent lawyer jobs; at San Francisco only 34%; at Wittier only 17%; at Atlanta’s John Marshall only 41%; at Southwestern only 37%; and at Thomas Jefferson only 27%. These percentages, remember, are for the entire graduating class, not minorities alone. These law schools are enrolling relatively higher percentages of minorities, but in actuality they provide an uncertain avenue to the legal profession. Students that enter these institutions think they are on the way to achieving their dream of becoming a lawyer, but it is more akin to an expensive roll of the dice with the odds heavily against them.
Black and Hispanic graduates, moreover, appear especially burdened by law school debt. Ninety-five percent of African American graduates take on debt for their legal education, substantially above the percentage of white graduates who do so (81%). A study of graduates from the class of 2000 found that a much smaller percentage of black (4.5%) and Hispanic (6%) law students graduated from law school debt-free than did whites (17.3%) and Asians (19.9%). … Half a dozen years out, fewer blacks (17%) and Hispanics (28.9%) had paid off their student debt as compared to whites (37%) and Asians (46.8%). Since tuition went up substantially after the study was conducted, the size of the debt today is undoubtedly much greater for recent law graduates than the numbers cited above.
The combination of these factors presents a worrisome picture: Students from less wealthy families attend lower ranked law schools in higher numbers than top law schools; they leave law school with large debt; a significant percentage of the students at lower ranked schools are minorities; less than half the class at many of these schools land jobs as lawyers; and most of the lucky grads who do obtain lawyer jobs from lower ranked law schools earn $60,000 or less, insufficient to manage the standard monthly payments on the average debt. For a progressive concerned about the implications of class and race on access to a legal career, this has the makings of a disaster.
More questionably, SALT has taken a strong and unbending stance against a set of initiatives aimed at slowing the rise of tuition. For the past several years, the ABA Standards Review Committee has been considering a number of proposals that would eliminate from accreditation standards any rules requiring tenure and long-term job protection for law professors. The proposals would allow law schools to fill teaching positions more cheaply and with greater flexibility by hiring greater numbers of adjuncts and professors on contract.
SALT has been at the forefront of the fight against these changes. … Among the dozens of actions it has taken in the past decade, including many related to legal education, SALT has offered no proposals on how to slow the rise of tuition; it has issued no official statements or position papers about the terrible crisis suffered by recent law graduates and the harmful consequences for social justice that will result from such a large economic barrier to access to the legal profession.
IV. LIBERAL LAW PROFESSORS
Many law professors are on the liberal end of the political spectrum, though most do not identify with CLS scholarship and most do not join SALT. The cluster of familiar liberal positions includes gay rights, abortion rights, gun control, free speech, affirmative action, open immigration policies, universal health care, higher taxes on the rich, unemployment benefits, a decent minimum wage, rights for criminal defendants, a social safety net for the poor and elderly, better schools in poor districts, equal access to opportunities, protection for unions, equal pay for women, environmental protection, human rights, corporate regulation, legal services for the poor, and a host of other positions that tend to be associated with the Democratic Party. Many law professors hold some combination of these views. A study found that substantially higher percentages of professors on law faculties contribute to the Democratic Party than the Republican Party.
Law faculties across the country, as did SALT, erupted in protest in spring 2011 against the above-mentioned proposed changes to the ABA accreditation standards. Seventy law faculties (“and counting”) passed resolutions “vigorously opposing the proposed changes to ABA Standards 206, 405, and 603 that would end the legal academy’s commitment to the system of tenure and security of position for law school deans, traditional faculty, clinical faculty, legal writing faculty, and librarians.” The President of the American Association of Law Schools (AALS), Michael Olivas, sent a ten-page letter detailing objections to the changes…
Salary numbers reveal that legal educators are doing very well. … The latest SALT survey shows a median pay of law professors above $150,000 (including summer stipends) at most of the schools that reported salaries. (The survey is unrepresentative because most of the higher paying law schools do no participate.) Professors at top thirty law schools earn much more, although these law schools typically do not report their salaries in the survey. The highest median salaries reported in the 2008 SALT survey were at Michigan ($254,500), Harvard ($252,450), Minnesota ($220,000), and Emory ($212,004)—all of these medians are likely higher today.
Most tenured law professors are not paid in the same range as elite law professors, it must be said, and at affordable public law schools professors are not compensated extravagantly, but law professors generally are well compensated, with most earning salaries at or above the level of federal judges. And we earn much more than professors in other fields (except medical professors), repeatedly pressing the argument that we deserve higher pay because we could earn more as lawyers. … Since professor salaries typically constitute half or more of the budget, high professor pay adds to the debt burden carried by students.
V. ELITE LAW SCHOOLS AND THE TUITION-SCHOLARSHIP MATRIX
The über-elite law schools—Yale, Harvard, Stanford, Columbia, Chicago, NYU, etc.—are responsible for the rapid rise of tuition nationwide. Legal academia is a prestige market in which the elites set the market price, and other schools price themselves a level or two below roughly in accordance with rank (and location). When elite law schools increased their tuition, all other schools beneath them kept pace, maintaining a price about $10,000 lower.
Neither Yale nor any other law school up and down the hierarchy exercised restraint, turning a blind eye to the harmful consequences to our students and to society of rapidly increasing tuition. Law schools across the country raised tuition by large amounts each year because they could. Applicants continued to line up, clamoring to get in, willing and able to pay whatever price law schools set.
The harmful class consequences this produced might have been partially ameliorated if law schools had taken a large portion of the revenue they reaped and distributed it to lessen the financial burden on students with limited means. But the opposite happened—as tuition rose dramatically, law schools substantially reduced the proportion of need-based scholarships, shifting the bulk of financial aid to merit scholarships. … Under this arrangement, students with lower expected earnings end up subsidizing the legal education of students with higher expected earnings. … This manner of distributing scholarships contains another set of class implications with great potential for inflicting long-term harm.
VI. WHY THIS HAPPENED
In the past few decades, I have argued in this Article, an economic barrier to access to the legal profession was built layer by layer, with significant class consequences for society and the legal system. … These developments, it bears emphasizing, were not exclusive to law schools. Law schools are the most extreme manifestation of a broader situation in higher education, wherein academic institutions became focused on growth and wealth accumulation—for the institutions, administrators, and professors—wantonly raising tuition without heed to its consequences for individuals and society. That it occurred in legal education is more critical due to the central role that law plays in our society, and the debt levels of law graduates are much higher and thus more painful and life-altering, but the same phenomenon took place across higher education.
I focus on liberal law professors to explain an apparent puzzle: How could developments so contrary to progressive causes occur at a time when most law professors are progressives? Most of it happened in a single generation that spanned the 1990s and the 2000s. This is not offered as a study from a distance but from a liberal insider who watched it happen. I support the cluster of progressive causes I mentioned earlier. Beyond writing a few blog posts on the topic and voicing objections at faculty meetings, I did nothing myself to halt tuition increases that I too benefitted from.
If liberals are to be true to our professed values, we must critically examine our own conduct, however painful and embarrassing it might be. We cannot speak truth to power yet not to ourselves. The Crits and progressive law professors, I charge, have profited from a system of legal education with harmful consequences to individuals and society—while claiming (and believing) that they were fighting the system. Before addressing why this happened, let me first anticipate several objections liberal law professors are likely to raise to my argument.
Loan forgiveness and repayment programs ease the pain for graduates.
Only a handful of law schools—the most elite—provide meaningful loan forgiveness; indebted graduates of about 190 law schools get no real relief. The new federal income-based repayment program for graduates in “financial hardship” will save many graduates from defaulting on their loans. This new program does not ameliorate the fact that exorbitant tuition is what put law graduates in financial hardship to begin with, nor does it help the tens of thousands of students who took on large private debt before the program was implemented.
This is a historically bad legal market, so don’t blame us.
Tuition is too high, and its negative consequences for progressive causes, including the tuition-scholarship matrix, would still exist (and did exist before) even if the employment market had not suffered a severe contraction.
Why liberal law professors did not perceive or experience a sense of urgency about the harms we were inflicting is more complicated. The Crits I know personally, and many liberal law professors, are genuinely caring, committed people, yet everyone overlooked what was developing in our own law school buildings. Upton Sinclair’s quip is perhaps apropos: “It is difficult to get a man to understand something, when his salary depends upon his not understanding it!” … The situation brings to mind an old joke we tell in Hawaii about the early Christian missionaries to the islands, whose families went on to become wealthy land owners: “They came to do good, and they did very well.”
Seduced by the allure of prestige and material comforts, Crits and progressive law professors have become a part of the system they set out to reform. Watching market-thinking become pervasive and the gap between rich and poor in America steadily increase, knowing that on broader economic issues we had lost, we succumbed to the temptation to grab what we could for ourselves and our families, while fighting the good fight on affirmative action and immigration, women’s rights, gay rights, the environment, human rights, etc., . . . and for tenure and fair compensation for law professors (not for our sakes, mind you, but to defend the principles of academic freedom and equitable pay).
Legal educators (not only progressives but all of us) loaded debt on the backs of our students, and our hands helped build the economic barrier that makes it difficult for people from middle-class and poor families to become lawyers and to reach elite positions in law, government, and business. We made it much harder for the current generation to walk the same path of upward mobility many of us took ourselves. It is as if “The System” set a devious trap for progressive law professors: indulging us to “rebel” with our flurry of written words and speeches while dangling status, a comfortable life, and other goodies, ours for the taking as long as we did nothing to challenge the underlying economic dynamic at work. We went for it. That was our bargain with the devil. Future generations of liberals will not judge us kindly—nor will the streams of heavily indebted students we send off each year to bear its concrete consequences.
A final small lesson to be learned from these events: Be skeptical of tenured academics who present themselves as radicals. When our stances secure generous rewards, we are not fighting the system. To think otherwise, if I may invoke a favorite Leftist phrase, is false consciousness. We liberal law professors are a privileged leisure class living an enviable lifestyle, and we should not forget this for a moment.
By Brian Z. Tamanaha, Professor at Washington University School of Law
Published in Stanford Law & Policy Review, Vol. 24, 2013