by Robert Kuehn, Washington University School of Law
The late Senator Daniel Patrick Moynihan once observed, “Everyone is entitled to his own opinion, but not his own facts.” When it comes to expanding clinical legal education, the knee-jerk opinion is that it is too expensive for legal education to follow the lead of other professional schools and ensure that every student graduates with a clinical experience through a law clinic or externship. Even the richest law schools couldn’t resist playing the cost card to scare the ABA out of requiring additional professional skills training: “Requiring all law schools to provide 15 experiential credit hours to each student will impose large costs on law schools, costs that would have to be passed on to students. . . . Even a law school with significant financial resources could not afford such an undertaking.” 1
Yet, the facts show otherwise — every school, from the well-heeled to the impecunious, can provide a clinical experience to each student without increasing tuition. Indeed, an array of schools already require 15 credits of experiential coursework (simulations, law clinics & externships) and a clinical experience (a law clinic or externship) for all their J.D. students without noticeable impacts on tuition. At the City University of New York, students must take a twelve- to sixteen-credit law clinic or externship prior to graduation, and at only $15,000 in resident tuition ($24,000 non-resident). Students at the University of the District of Columbia similarly must enroll in a seven-credit law clinic in their second year and a second seven-credit clinic in their third year, paying $11,500 in resident tuition ($22,500 non-resident). Starting with the 2013 entering class, Washington and Lee University requires twenty academic credits in simulated or real-practice experiences that include at least one law clinic or externship. The professor overseeing the program explained that a review of the first few years of the new curriculum showed it is “slightly less expensive than our former, traditional third-year curriculum. And . . . than our current first and second years.”2 Most recently, Pepperdine announced that beginning with next year’s class, students must graduate with at least 15 credits of experiential course work, yet the school increased tuition for 2015 by less than its average increase for the prior three years.
These examples are consistent with studies showing that every school can afford to require a clinical experience for every J.D. student. A study of ABA data on faculty salaries and teaching loads found that while clinical courses were more expensive than higher enrollment doctrinal courses, the curriculum could be restructured to give every student a faculty-supervised clinical experience without changing the size of the faculty, though “significant changes would of course need to be made in what law schools expected of a good number of their teachers.”3 A study of instructional costs at American University determined that the tuition income generated by law clinic courses came very close to meeting the actual instructional costs to the school, concluding that although clinical education was not a “financial cash cow” like large classes, it is “far more financially feasible than some make it out to be.”4 Professors Nancy Maurer and Liz Ryan Cole analyzed salaries and student/faculty ratios in various types of courses and determined that the typical cost per credit hour of an externship course was lower than the cost of a twenty-student class and significantly less than a typical twelve-student seminar.5 A subsequent article compared instructional costs for law clinics, seminars, and lecture courses and found that the cost of instruction for a typical clinic course is less per credit per student than for a seminar with fifteen students.6
Dean Martin Katz recently proposed a model comparing the costs of experiential education to traditional classroom courses that assumed clinics spend $45,000/year on outside attorneys for summer coverage and $95,000/year on litigation expenses.7 When his “basic model” is adjusted to include more realistic out-of-pocket costs and survey data, rather than assumptions, on clinical faculty teaching loads and lower salaries, the labor cost for a law clinic is half the cost of a seminar and less than the cost of a traditional twenty-student class.8 Externships are one-third the cost of seminars and almost one-half as expensive as twenty-student classroom courses.
These studies of instructional costs demonstrate that externship courses cost less than twenty-student podium courses and that even law clinic courses cost less on average than seminars. Thus, if the ABA can require, and schools can afford to provide, an upper-class writing experience for all students through a seminar taught by tenured faculty,9 then there is no basis to claim that the costs to the school of a law clinic or externship experience for every student are prohibitive.
But what about possible impacts on the tuition students pay, not the instructional costs to the school? To consider the effect that providing more experiential or clinical courses might have on the cost to students for their legal education, I examined five years of school-report data on the relationship between providing or requiring more of these courses and tuition. I published the results from 2012 and 2013 data before,10 and here also include results for 2011, 2014, and 2015.
As an initial observation, a school’s public or private status, U.S. News ranking, and cost of living in the area are all significantly related to tuition. Students at private schools pay on average over $19,000 more in tuition than students at public schools, and schools on average charge $1,000 more in tuition for each ten place improvement in U.S. News ranking (e.g., a school ranked 40th charges $1,000 more than a school ranked 50th, holding other influences on tuition constant).11 These three variables alone have an adjusted R-squared value of around 0.75, therefore explaining about three-quarters of the total variation in tuition among law schools and leaving limited room for the possible effect of other factors.
When these variables are controlled to measure just the relationship between increased course positions or requirements and tuition, there is no statistically significant relationship between the availability of experiential, law clinic, or externship courses and tuition. Indeed, the data even show that the increased availability of those courses is associated with lower tuition, standing any claim of increased costs to students from enhanced clinical education on its head.
I arrived at this finding using an ordinary least squares (OLS) regression model to first examine any relationship between a school’s courses and its published tuition rate for each year from 2011-2015. Thirteen independent variables were tested, including the availability of experiential, law clinic, and externship courses, whether the school offered sufficient capacity for every student to obtain a law clinic or externship experience before they graduate, and whether the school mandated or guaranteed a clinical experience. Of the sixty relationships examined over five years, only eleven were statistically significant at the p-value ≤0.10 level (see charts at http://law.wustl.edu/ClinicalEd/documents/Kuehn-regressionsclinicalcourses.pdf). Yet of these eleven, ten (91%) showed an unexpected inverse relationship between increased availability or capacity and tuition. That is, in 91% of the statistically significant relationships, average tuition went down as schools offered or required more experiential, law clinic, or externship courses. For example, in 2014, as the ratio of available positions for students in law clinics increased by one, average tuition decreased by over $1,700. If law clinics are more expensive for schools to provide and if tuition is sensitive to such costs, one would expect tuition to rise as clinic positions (and clinical faculty) are added. The data over five different years show just the opposite.
Because of discounting through grants and scholarships, a school’s advertised tuition amount does not correspond to the net tuition the school receives or the actual tuition many students pay. Although schools are not required to publicly report their net tuition, using the reported 25th, 50th, and 75th percentile amounts of average financial aid per student and the percentage of full-time students receiving aid, a discount rate and net tuition was calculated for each private law school. (The lack of comprehensive information on the percentage of students at public schools who pay resident vs. non-resident tuition prevents a reliable estimate of the net tuition at those schools.)
The relationship of experiential and clinical courses to discounted tuition even more dramatically debunks the opinion that increased clinical courses lead to higher tuition. Of the thirty-nine course variables examined for 2013-2015, twenty-three results were statistically significant. And of these, 74% (17) were inversely related to tuition — as the availability of the courses for students increased, average net tuition decreased in amount, in some cases consistently over all three years. For example, the increased availability of experiential, clinical, and externship course positions all yielded statistically significant inverse relationships with net tuition for each year, with decreases ranging from $2,762 to $669 for each one unit increase in course availability for students.
In sum, regressions on ninety-nine independent experiential and clinical course variables over a five-year period yielded thirty-four statistically significant relationships with tuition or discounted tuition. Twenty-eight relationships (82%) were inverse or contrary to the claim that increasing experiential coursework or requiring a clinical experience results in increased costs to students. While statistical relationships do not prove causation and one should be hesitant to read too much into the 4 to 1 ratio of inverse to positive associations with tuition, there is no basis from the data to assert that students are, or would be, charged greater tuition when provided with or required to take more simulation, law clinic, or externship courses. Schools that are not providing these enhanced clinical opportunities cannot claim that costs prevent their students from enjoying this educational benefit.
Three reasons might explain the absence of any relationship (or the statistically significant inverse relationships) between clinical courses and tuition. First, perhaps as noted, instructional costs for clinical courses are not more, or not significantly more, than the costs for many non-clinical courses. Second, although certain clinical courses might have higher instructional costs, the overall amount of those costs is small in comparison to the many other substantial costs that law schools incur (e.g., non-clinical faculty salaries/benefits, faculty research/publication costs, building costs). Or third, perhaps law school tuition is driven by demand rather than costs — schools set prices to reflect the prestige of the school and perceived value of the degree to prospective applicants, not based on the cost to provide the education. Schools then choose to allocate the total amount received in various ways, some prioritizing clinical experiences for students while others spending their tuition on different priorities (e.g., faculty salaries or research, academic centers, buildings). Some support for this last theory is that I found no evidence that lower student-faculty ratios (a surrogate for higher instructional costs) or increased library expenses are associated with higher tuition during any year from 2011 to 2015.12
It is time to put to rest the canard that costs prevent the expansion of experiential courses or a required clinical experience for all students. Every school can afford to provide 15 credits of experiential coursework for its students, including a mandated law clinic or externship experience. The facts show that it is the wills of the ABA, state bar admission officials, and law school deans and their faculties, not the costs of clinical legal education, that are obstructing that progress.
1. Letter from Yale Law School Sterling Professors to ABA (Jan. 29, 2014), http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/comments/201401_comment_std_303a3_sterling_professors_yale_law_school.authcheckdam.pdf; see also Letter from Paul G. Mahoney, Dean, Univ. of Virginia School of Law to ABA (Jan. 30, 2014), http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/comments/201401_comment_std_303a3_paul_g_mahoney.authcheckdam.pdf (requiring 15 experiential credits “would be punishingly expensive and would necessarily drive up tuition”).
2. James E. Moliterno,Long-Overdue Medicine for What Ails Law School, Litigation, Fall 2014, at 54, 57.
3. Peter deL Swords & Frank K. Walwer, Cost Aspects of Clinical Education, in Clinical Legal Education Report of the Association of American Law Schools—American Bar Association Committee on
Guidelines for Clinical Legal Education 133, 184-85 (1980).
4. David F. Chavkin, Experiential Learning: A Critical Element of Legal Education in China (and Elsewhere), 22 Pac. McGeorge Global Bus. & Dev. L. J. 3, 13–14 (2009). http://www.mcgeorge.edu/Documents/_02_Chavkin%20Master.pdf
5. Nancy M. Maurer & Liz Ryan Cole, Design, Teach, and Manage: Ensuring Educational Integrity in Field Placement Courses, 19 Clinical L. Rev. 115, 157-8 (2012).http://www.law.nyu.edu/sites/default/files/ECM_PRO_074921.pdf
6. Cody Thornton, Note, Shared Visions of Design and Law in Professional Education, 6 Ne. U. L.J. 21, 70, 79–80
7. Martin J. Katz, Understanding the Costs of Experiential Legal Education, 1 J. Experiential Learning 101,116-17 (2014). http://www.tourolaw.edu/jel/Articles/VOL1-14-15/Understand_costs.pdf
8. Robert R. Kuehn, Pricing Clinical Legal Education, 92 Denv. U. L. Rev. 1, 23-24 (2014). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2318042
9. Bar Ass’n, ABA Standards and Rules of Procedure for Approval of Law Schools, Std. 303(a)(2) & Int. 303-2 (2015-16). http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2015_2016_chapter_3.authcheckdam.pdf
10. Kuehn, supra at 27-39.
11. Id. at 28-29.
12. Id. at 41.