Editor’s Note: The author is a law professor who clerked for Justices Ruth Bader Ginsburg and Sandra Day O’Connor.
It’s an open secret in legal education: Law schools substantially discount tuition for selected students. Classmates sitting side by side pay very different amounts for the same seminars and lectures. Some pay full tuition; some pay a reduced amount; a lucky few pay nothing at all.
The Law School Survey of Student Engagement (LSSSE), a highly regarded research team, has just focused a spotlight on this practice. The researchers pull no punches: They title their report “Law School Scholarship Policies: Engines of Inequity.” Aaron Taylor, the group’s director, notes that law schools’ scholarship policies have created a system “in which the most disadvantaged students subsidize the attendance of their peers.”
This “reverse Robin Hood” pattern arises from two factors. First, schools focus on LSAT scores, rather than economic need, when awarding scholarships. “Put simply,” Taylor’s team concludes, “a high LSAT score is the surest path to receiving . . . a lucrative scholarship.” Almost four-fifths of law school scholarships depend heavily on LSAT scores.
Second, most of these “scholarships” reflect the reallocation of tuition dollars, rather than the contributions of alumni or other supporters. Schools announce high tuition rates, which they collect from students with the lowest test scores. Dollars from those students help fund discounted tuition for classmates with higher scores.
This focus on test scores hurts minority applicants, as well as those from economically disadvantaged background. As the LSSSE report documents, applicants from both groups record lower LSAT scores than more privileged applicants. As a result, the most disadvantaged pay higher prices for access to legal education. Compounding the inequity, the disadvantaged subsidize the education of their more advantaged classmates.
The LSAT scores that underlie this process, meanwhile, do not adequately capture students’ “merit.” Those scores predict first-year law school grades, but the predictions are far from perfect. Truly merit-driven scholarships would incorporate a wider range of factors. Still better, schools could reserve the bulk of their scholarship dollars for students who demonstrate economic need—or for those who prove their excellence in law school itself.
Why do law schools tie so many scholarships to performance on a single multiple-choice test, rather than addressing financial need or rewarding law school performance? Opening doors for disadvantaged students doesn’t raise a school’s rank in the U.S. News sweepstakes. Neither does rewarding excellent performance by students already enrolled in law school. LSAT scores, on the other hand, directly affect a school’s rank. To bolster their rank, law schools offer scholarships to applicants with high LSAT scores. Other considerations take a back seat.
Law schools do offer some need-based scholarships; they also use scholarships to attract students from underrepresented minority groups. The mix of these scholarships varies from school to school. The LSSSE report, however, suggests that scholarships based largely on LSAT scores far outnumber other types of aid in legal education.
That imbalance has dramatic consequences. LSSSE discovered that almost three-fifths of Latino law students expect to amass over $100,000 of debt for their legal education. More than half of Black students anticipate the same burden. Only 38% of White students, in contrast, expect to incur that much debt to secure a law school diploma.
Similarly, almost half of first-generation law students (those with parents who did not complete college) expect to borrow more than $100,000 to underwrite their legal education. Only a third of students from college-educated families anticipate borrowing that much.
These differences reflect family circumstances as well as scholarship dollars. White students, on average, hail from wealthier families than their Black or Latino classmates. A half-tuition scholarship, supplemented by family contributions, may allow a wealthy White student to graduate debt-free. A less affluent Black student with the same scholarship might owe more than $100,000 by graduation.
Law schools do not award their scholarships in a vacuum; they know that, in our society, wealth correlates with race and family background. By stressing “merit” scholarships — especially those based primarily on LSAT scores — schools aggravate inequality rather than providing opportunity.
These facts would be sobering at any time. The LSSSE findings, however, are especially troubling given the ABA’s recent decision to delay — and perhaps forestall — a proposal to make schools more accountable for their bar passage results. Opponents of the proposal argued that greater accountability might reduce the number of minority students attending law school; the ABA House of Delegates seemed to heed those claims.
But appeals to diversity ring hollow when schools pursue scholarship policies that disproportionately burden minority students. Law schools with low bar passage rates invoke diversity to justify admitting students who have little chance of passing the bar. But do those schools award scholarships to these at-risk students? Law schools turn their backs on diversity if they reserve scholarships for the most privileged students in their classes. They openly mock diversity if they force disadvantaged students to subsidize those privileged classmates.