Dean Dan Rodriguez and I have been sharing some thoughts about tuition discounting in legal education. In this post I would like to raise the possibility of ending or scaling back the destructive practice of merit scholarships.
To summarize and add to some of Dan’s points, among the negative attributes and effects of merit scholarships are these:
*”merit” is typically defined very narrowly in terms grades and standardized test scores;
*directing so much scholarship money toward merit aid has caused need based aid to shrink (at many schools, there is now effectively no need-based financial aid);
*the students who receive the most merit-based aid are often the least needy, because high test scores correspond with socio-economic advantage, and generally translate into higher law school grades and, consequently, employment opportunities;
*the need for large sums of merit-based aid has contributed significantly to the excessive rise in tuition.
I am not proud to participate in this system of allocating financial aid. Yet individual deans and schools are essentially helpless to resist. The process by which merit scholarships proliferated was very rational, even if the results are undesirable. When the first schools tried to move up in the US News rankings by discounting tuition for students with strong academic credentials, other schools had to copy them if they wished to remain competitive. It is tempting to believe that schools could ignore this trend, but that simply ignores reality. Our susceptibility to the influence of rankings is not admirable, but it is widespread in higher education, particularly in law. At almost all schools, a dean who refused to play this game would have been replaced by one who would play. These trends have been playing out throughout many segments of higher education, not just law, which demonstrates the stickiness of the problem.
The only real way to resist the logic and power of merit scholarships is through collective action. An agreement among schools that all aid will be need-based, if adhered to, would be a game-changer. The obvious questions are whether such an agreement among law schools is lawful and practical. Frank Wu has done some excellent research on the law pertaining to this. He will be posting on this site soon to explain. In essence, there is a federal statute that seems to offer protection from antitrust rules that otherwise might prohibit this. This is why the Ivy League schools can agree to offer only need-based aid.
If lawful, would such an agreement be attainable? Could law schools reach and abide by such a policy? Would it result in a lower tuition rate over time? I hope that we can start a conversation on these and other related questions.