One important theme in New Legal Realism is the issue of legal educational reform, as seen in a number of past blog posts.  Like the original legal realists, our group worries about how to bring the “real world” into the law school classroom, and about how legal education is supporting and/or failing future generations of lawyers.  In this post, NLR blogger Riaz Tejani takes on the questions raised by today‘s for-profit law schools, asking whether we should be paying more attention to what is happening to the students in those schools.

Are We All For Profit?

“Go Home Law-Mart!” So proclaimed a short film released by the alumni association of Charleston School of Law when the corporate owner of three for-profit ABA law schools sought to acquire theirs as its fourth institution.  Although the proposed buyout was pretty noteworthy, equally sensational was the ensuing chorus of student, faculty and community voices against it.  Their collective action challenged a widespread view in higher education today that, when it comes to neoliberalism, everybody’s doing it.

Administrators at for-profit colleges and trade schools like to say ‘all schools are for-profit’.  All institutions, they argue, depend upon a net surplus of funding after salaries and operating costs are deducted.  Labels like “for-profit”, “not-for-profit”, and “nonprofit” should not, they stress, mislead people to impute greed on one side and charity on the other.  In the context of American law schools—cited widely as University “cash cows” for high tuition and relatively cheap operating costs—this suggestion is plausible.

But with thousands of student lives and millions in federal loan dollars at stake, claims dwelling in the semantics have been obscurantist.  This may be difficult to avoid: few can readily discover the day-to-day inner workings of a proprietary institution, much less a law school.  To properly understand how the for-profit movement is affecting legal education, deeper study will be useful. In my new study I have collected ethnographic observations of one of the six ABA-accredited “for profit” schools of law and, in the process, learned how little the equivalence based on surplus creation holds up.  The goal of institutions—their underlying purposes—influence everyday life and knowledge transmission therein.  In education, mission matters.

Among my informants, students describe with such passion the way their voices have been dismissed in the face of institutional (i.e.: local administrative, corporate and shareholder) objectives.  One recurring example has been protest over the firing of valued tenured professors, and the understanding that those were the most strident student advocates amid a recent wave of corporate-mandated curriculum change.  As people try to make sense of their own marginalization, power dynamics latent in corporate “for-profit” models becomes an unassailable explanation.  Those observations shed valuable light on the neoliberalization of higher learning in a sector most proximate to the New Legal Realism.  Do the rules taught and learned sound the same?  Are professional ethics communicated differently?  Are global citizenship and social justice conveyed as thoughtfully?  And is legal practice a means of serving carefully drawn policy goals or is it treated as an end in itself—a widget oriented quality control test for Six Sigma ninjas?  These questions reward careful field research.  But I wonder if the latter is even necessary to knowing whether, really, we are ‘all for-profit’.

If by profit one only means “benefit”, then closer study might be important to distinguish between types and magnitudes enjoyed by stakeholders.  But if by profit one means surplus—as do most of Merriam-Webster’s definitional bids, then I don’t think it is that complicated.   The question is not whether there remains a surplus at the end of the (school) day, but where that travels in the global web of financial linkages characterizing our era.  In the case of most public and private law schools, financial surplus remains either in the degree program, at the campus level, or in the university system that harbors these.  Students, whose above-cost tuition dollars help make up that surplus, should (in theory) see the value they helped generate accrue in facilities or cultural capital around them.  During times of austerity, those amounts still help to cover gaps at the local or relatively local level.

Under the for-profit model schools belong to global private equity firms whose managers have arranged capital commitments from institutional investors (often wealthier school endowments!) with guarantees of steady, sometimes lavish returns on investment.  This means two things.  First, surplus value generated at the local level is shipped off to equity investors on a regular basis.  Second, in times of fiscal austerity, this steady flow of high returns cannot be interrupted.  The risks of conducting the business—with its cycles of growth and austerity—shall be borne not by owners or administrators but by students. This may be just fine for some who feel, under a contract view of education, “you get what you pay for”.   But by likening themselves existentially to non-profit and not-for-profit institutions, for-profits obscure this unique allocation of risk.   They also render student transactions with themselves less than fully informed.  Exacerbating this is a deficiency of information about daily life in the schools.  Finally, though social media and word of mouth allow more data than ever to flow through student hands, law school is still something one experiences only once at only one institution, and comparative perspective for most students is of limited use post-matriculation.

For prospective students, however, transparency is of obvious value.  For them, benefits of enrollment in some of those schools—with part-time programs, non-traditional colleagues, solo-practice oriented instruction—might still be decisively attractive.  But those students should receive honest information about the risks involved, and the social (i.e. sociological) condition of for-profit legal ed.  With that they can decide for themselves whether and where their enrollment will be, within their own moral economies, truly “for-profit”.