Another Transparency Issue: Conditional Merit-Based Scholarships
The real mystery is why conditional scholarships for law students come in for so much criticism when they seem to be generally regarded as valuable and successful on the undergraduate level. The scholarships are, as their name suggests, conditional, and it would be completely unreasonable to continue to grant students merit scholarships when their performance in law school has been disappointing. Students who lose their merit scholarship have gotten their first year of legal education for free, so what is their harm? I think the claim for harm is derivative of the larger (and largely baseless) claim that law schools do not benefit their students.
The Critique
Jerry Organ published an interesting article criticizing competitive scholarships and recommending best practices for the law schools that use them, including better disclosure of scholarship retention rates. Law School Transparency proposed a new ABA standard that would require all law schools to publish on their websites data about the percentage of students who were able to retain their scholarships after the first year.
As readers of this blog should know, disclosure is no panacea. Professor Organ was able to find information about how scholarships work at 160 law schools. That means that the information was out there. Since Professor Organ was able to gather information about 160 law schools, it should not be difficult for students to gather relevant information about the one law school that they are considering attending. Many students can find their law school’s curve by looking on Wikipedia. Since a lot rides on the decision, one would expect students to investigate, especially since the investigation might not take more than a few mouse clicks.
If law schools were more aggressive and sat down with students offered conditional scholarships and walked them all through the statistics, would anything change? Would a student choose not to go to law school because she had been told that there was a 50/50 chance that she would lose her scholarship after year 1? I doubt it. She would feel confident that she would be one of the successful students and, even if not, she would still have enjoyed a year’s free tuition.
The Model, Drawing on Conditional Fellowship Programs for College Students
In the undergraduate setting, conditional scholarships have many desirable effects. They attract deserving students to college who otherwise would not be able to afford tuition, and then once in college, the students respond to the incentives of the conditional scholarship in predictable ways. They take more classes if that is what they are required to do and take fewer classes if doing so helps them maintain the GPA they need to retain their scholarships. They also seem to work harder to make certain that they retain their GPA.
For example, some conditional scholarships require students to take a certain number of credits each year. Others have no such requirement. In On Money and Motivation, Judith Scott Clayton looked at recipients of West Virginia’s PROMISE scholarships, which cover students’ tuition and fees if they maintain a certain GPA. In order to retain their scholarships, students have to earn 30 or more credits per year in their first three years. Professor Scott Clayton found that PROMISE scholarship recipients were 25% more likely than other students to earn 30 or more credits in their freshman year and in the subsequent two years of college. In Georgia, which offers similar HOPE grants but without the minimum credit threshold, HOPE grantees were 9.3% less likely than other students to take a full 30-credit course load as freshmen. PROMISE incentivizes students to take full loads. HOPE incentivizes students to focus on their GPAs, even at the cost of taking an extra year to graduate.
Both Professor Scott Clayton’s study and an earlier one in the Journal of Labor Economicsby a group of Georgia scholars who focused on the HOPE program show that undergraduates respond to incentives in another predictable way. Merit scholarships increase student enrollments. They incentivize students to go to college who would not do so without the conditional scholarships.
But the studies do not capture other rational behavior that might be less desirable. Undergraduates may shop around for “gut” courses or instructors that can help them retain their fellowships without maximizing the quality of their educational experiences. They may shop around for majors as well, changing from a demanding but long-term remunerative major to a less demanding and less useful major in order to retain the scholarship. Still, there do not seem to be many voices denouncing undergraduate merit scholarships as a bait and switch.
Why Don’t Law Students Behave Like Undergraduates
One would expect that law students would be more sophisticated and more motivated to do well in law school, since law school class rank is likely more highly correlated with success in the job market than is undergraduate class rank. But the optimism bias plagues people at all levels of sophistication and motivation. The assumption seems to be that if law schools did a better job disclosing the conditionality of the merit scholarships, students would make different choices. But it seems far more likely that students are behaving like consumers who shop for the best combination of prestige and affordability that the market in law school admissions has to offer them. They are not turning down better offers in favor of conditional merit scholarships. They are going to the best law school that they could get into and afford.
When students do well enough in their first year and transfer to another school, law schools don’t get to claim that the students have pulled a bait and switch. We don’t moan about lost tuition dollars or point out how we had become invested in our students’ success, although we have. We understand that they have to look out for their own best interests, and we wish them success in their careers.
Still, let’s deal with the toughest cases. Let’s assume that most students who lose their conditional scholarships lose them after their first year of law school. A law student’s options are more limited than an undergraduate’s if she needs a 3.0 to keep her fellowship, and her GPA after the first semester is 2.8. Undergraduates can drop classes if they think they are going to do poorly or switch to pass/fail to eliminate the risk that outlier grades will drop them below the cutoff. First-year law students cannot drop classes, take incompletes or take required courses pass/fail. Nor do they have the freedom that college students have to shop around for a course or an instructor whose liberal grading policies will enable them to get over the GPA bar. Most first-year students do not get to choose their professors.
In addition, undergraduate courses usually have multiple assessments before the final exam or project. Undergraduates know which way the wind is blowing grade-wise and can take remedial measures long before the hammer falls. Many law professors still give winner-take-all final exams. Students have no idea going into the final exam how they will fare. Certainly their first set of grades should give students on provisional scholarships notice that they may be in danger of losing the scholarship, but that does not mean they can figure out how to repair their transcripts sufficiently to get them over the GPA threshold in the Spring semester.
This does not mean that there is nothing law students can do to get up over the GPA threshold. There are always tried and true solutions like working harder, studying more, talking to professors, doing more practice exams, etc. I also think it is on the whole a good thing if law school conditional scholarships do a better job tracking academic achievement than undergraduate conditional scholarships.
So, where does this leave us?
Probably pretty close to where we ought to be. Conditional scholarships should incentivize law students to meet the GPA thresholds, and if they cannot do so, it would make no sense for them to keep their scholarships when stronger students still have to pay their own way. In 2013, the ABA Journal identified 25 schools at which merit scholarship retention rates were 50% or less. We do not know why this happened. One possibility is that some law schools were playing a US News game, trying to get higher LSATs into the door without having to offer them three-year scholarships. The other possibility is that those schools did a poor job predicting which admitted students would excel in law school. Even if law schools were offering merit-based scholarships knowing that half of the recipients would lose them, what is the harm? The worst that could happen to students who could not maintain a B average is that they have gotten a year of law school for free.
One difference that might account for the different responses to conditional fellowships at the undergraduate and law school levels is the perceived value of the two enterprises. Critics of legal education have persuaded themselves (and others) that law school is a “scam.” It is thus a terrible thing when unsuspecting students are tricked into going to law school when they might do other things with their lives. But few people question the value of a college education, so the very same conditional scholarships that incentivize to attend and work hard to remain in college seem an unalloyed good.
As I have pointed out elsewhere, Michael Simkovic’s and Frank McIntyre’s work demonstrates that law school is also a good investment for most students. If you, like me, are persuaded by peer-reviewed scholarship that uses high-quality data, relies on tested methodologies used in labor economics and is the most rigorous empirical study on the subject matter, you will think that offering students the chance to go to law school for free for at least one year for thing is a good thing. The side that thinks a free year of law school is a bad thing tends to rely on unrepresentative anecdotes and selective data sets.
Students who lose their merit-based scholarships for law school will have to choose whether to continue through two more years of law school at full price, transfer to a less expensive law school, or reconsider career options. It is good to have choices. It makes sense for law schools to continue to use conditional merit scholarships to attract students, and most likely, those students will benefit from the opportunities created by those fellowships, whether they enjoy those benefits for one year or three.
Links to Related Posts:
The Current Series
X: Siloing: The Next Unneeded Import from Undergraduate Education
IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don’t Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself?
Related Posts form 2012:
Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem