In my previous discussion of the Supreme Court’s affirmative action ban, I noted that:
With a wink and a nod, the Supreme Court told universities they could continue racial preferences in admissions–as long as they are willing to thread the needle of its 230+ page decision and face lawsuits for inevitable missteps.* Racial preferences lose elections for Democrats. Race wins elections for Republicans. A Republican-appointed Supreme Court will never comprehensively or effectively ban affirmative action because doing so would be handing electoral victory to the Democrats for the foreseeable future.
When some universities take the bait and continue racial preferences… they’ll … risk creating campaign issues that will help Republicans …
That prediction is coming at least partly true, as law school deans’ discussions about ways of continuing affirmative action after the ban are providing fodder to conservative media organizations who are attempting to depict academic institutions as lawless, duplicitous, and hostile to poor whites (and Asians). Most law professors and most deans probably don’t regularly read such publications, and so are unaware of them. I only became aware of the criticism after a friend sent the information to me.
But many people apparently do read these sites, and their talking points often spread to mainstream media organizations with a broader reach. That’s what happened in the 2010s, when the Cato Institute’s Walter Olson’s “School for Misrule” depicted law schools as far left organizations that emphasized ideological indoctrination over nuts-and-bolts legal education and left their students heavily indebted and unprepared to practice law. Olson’s criticisms, and similar criticisms from others–though wildly underestimating the economic benefits of legal education, both in ordinary times and during recessions–set off a flurry of mainstream media criticism of law schools that went on for years.
Media attacks, and law schools’ belated, at times clumsy, and often uncoordinated responses to them, ultimately led law school applications to fall off a cliff from which they have never recovered. In 2004, 105,000 prospective JD’s applied to law school. By 2010, it was 91,000, and by 2016 it had fallen to 57,000. As of 2022, it has recovered only slightly to 64,000, still down 42 percent since 2010.
This decline is not due to unfavorable aggregate demographics.* Nor is the decline in law school applications due to a decline in labor market demand for lawyers or law degree holders.**
While it’s hard to know precisely what is driving the decline in interest in law school, it seems plausible that the criticism–that law schools place too much of an emphasis on political indoctrination and not enough on preparing all of their students for professional and financial success–has resonated with prospective students.
Students coming from less privileged backgrounds increasingly both need and demand a financial payoff in return for their tuition. Data from the Census Bureau and the Department of Education shows that among bachelor’s degrees, fields that generally have below average earnings and employment prospects (for example, education, fine art, humanities (other than composition and library science), and social sciences (other than economics and public policy), have declined as a share of total degrees. However, degrees know for their apolitical emphasis on technical skill and career readiness and their high value to employers (for example engineering, computer science, healthcare, biochemistry, and business) have grown their share.***
Degrees in fields with reputations for combining a strong ideological valence with uncertain value to employers–such as race and gender studies–have always been minuscule as a share of the total (less than 0.5%) and have lost much of even this tiny share in recent years.
Law schools are more vulnerable to a repeat of the devastating criticisms of the 2010s today than they have been in years. Interest rates (including rates on student loans) are the highest they have been in a decade. Even a small increase in long term interest rates can dramatically reduce the present value of education, which pays off over many years. There are signs of a tightening labor market and possibly an imminent recession (for example, an inverted yield curve). The ABA has imposed requirements that several leading law professors argue are ideological in nature and have little if any relationship to preparing students for the bar exam or future employment opportunities.
Unlike in the 2010s, when law schools could supplement JDs with international students, immigration restrictions imposed during the Trump administration and maintained through the Biden administration are making this increasingly difficult.
What obscure conservative papers are saying today could end up on Fox News or ABC or in the WSJ or the NY Times next month.
Although many law school deans will disagree with conservative criticism, responsible leaders of law schools nevertheless cannot afford to ignore them.
* According to the U.S. Census Bureau’s ACS, the population age 21 to 29 holding a bachelor’s degree or above has grown from 9 million in 2010 to 12 million in 2021. Moreover, the share of this population with an advanced degree, rather than a terminal bachelor’s has increased from 18 percent to 20 percent.
** Lawyers are a larger share of the work force than ever before, and controlling for increases in diversity, their pay has grown in real terms.
*** Students’ shift from degrees in lower-earning fields toward degrees in higher earning fields, would–according to numerous peer reviewed economics studies–have been even more pronounced if not for rampant grade inflation in lower earnings fields. This grade inflation attracts students by awarding them higher grades for fewer hours of studying/work. The most generous interpretation of this grade differential is that departments in lower earning fields are trying to help students by making them look more capable to employers. A less generous interpretation is that they are protecting their own budgets by pandering to weaker, less motivate students’ worst tendencies–their inability or unwillingness to respond to negative feedback with greater effort to grow and improve. Whatever the motive of educators, the evidence shows that students who switch to lower earning majors do get higher grades than they otherwise would have, but nevertheless go on to earn less money than they would have if they had persisted in learning more valuable skills in higher earning majors, even while getting lower grades. (Degrees in lower earning fields are also more closely associated with a mismatch between employment and field and level of study, which may lower graduates’ satisfaction with both their jobs and their educations).