Column

As Goes Access to Law School, So Goes Access to Justice – Part I

[The memosphere strikes again! Between submission and publication of this column, Omar Ha-Redeye posted a very informed and insightful Slaw entry entitled, “Access to Justice Starts With Legal Tuition“. Playing Bell to my Meucci (that reads rather strangely), Omar covers much of the same analytical territory as me—with the bonus of journalistic rigour. Still, I like to think that both posts deserve your attention.]

A lot happens in a year, and the Quebec student protests that dominated the news last spring are a distant memory now. The students went back to school, Quebec elected a new government that swiftly imposed a tuition freeze, and the once boiling issue of access to higher education was reduced to a slow simmer in la belle province. But the issue trickled back into the national consciousness this April when the Alberta government—typically yin to the Quebec government’s yang—imposed a tuition freeze of its own.

Alberta’s Advanced Education Minister announced that a one-year tuition freeze would make “education more accessible for our students, particularly from low-income families“, while overlooking that the estimated $16.5 million revenue freeze followed a $147 million cut to operating grants for the province’s post-secondary schools. Nonetheless, Alberta joined Newfoundland, Quebec, Manitoba and Saskatchewan as the only provinces with tuition freezes. BC once instituted and maintained a multi-year tuition freeze, but since 2005 has limited annual tuition fee increases to 2%. Likewise, Ontario had a tuition freeze until 2006, then permitted annual tuition fee increases up to 5% (8% for graduate schools), and now limits increases to 3% (5% for graduate schools).

Unsurprisingly, the patchwork of provincial tuition regulations has led to significant post-secondary tuition disparity across Canada, particularly among law schools. For example, first year tuition for law school is about $9,000 at the University of Victoria, compared to about $29,000 at the University of Toronto. Fees can even vary wildly within regulated provinces because of odd timing and exceptions. Thompson Rivers University Law—located in Kamloops, BC and established in 2011 as the first new Canadian law school in 33 years—charges about $17,000 in first year tuition because it is exempt from government limits. That is roughly 55% more than UBC Law, and 90% more than UVic Law.

It is no wonder, then, that many law schools lament the competitive disadvantage that tuition regulation imposes on them. Less tuition revenue means less money to hire and pay faculty, to acquire library holdings, to maintain and build new facilities, etc. And the competition among Canadian law schools for top rankings, top students, endowment support, and the good graces (i.e. donations) of large national firms is fierce. So every dollar counts. What is a law school with regulated tuition to do?

A law school with low regulated tuition should benefit from its price advantage over competitors, particularly in the face of a grim job market for graduates. But there is scant evidence that students are choosing to attend specific Canadian law schools on the primary basis of affordability. Instead, reputation and diploma marketability seem to be the main drivers of law school selection. And nothing bespeaks a good reputation more than a hefty tuition fee.

Tuition regulations permitting (or notwithstanding in the case of the University of Toronto and a few others), Canadian law schools appear to charge however much the market bears. A brand new unregulated school like TRU Law can thus afford to charge about twice the amount in tuition fees as a well-established and regulated school like UVic Law. If all current law school tuition freezes and regulations (i.e. price controls) were lifted, it is easy to conceive of rapid and substantial tuition hikes from coast to coast.

Can a law school with low regulated tuition at least boast greater student diversity? Canadian law schools have certainly made concerted efforts over the past decade to ensure that their student population better reflects the ethnic, cultural, and sexual diversity of the society it will eventually serve. The public interest, after all, requires a legal profession that is both competent and diverse. But while law schools have made some significant forward strides in achieving a gender balance and diversifying the ethnic composition of their graduates, it is difficult to believe that they are making any headway on socioeconomic diversity. When the median individual Canadian income is about $27,000 after taxes, a $29,000 price of admission to one year of law school speaks for itself.

Just the path to law school covers some expensive ground. To meet the very competitive standard for law school admission, a typical “pre-law” student must afford the real costs of high undergraduate tuition, enrichment activities, LSAT training, LSAT fees, law school application fees, and the opportunity costs of unpaid internships and volunteer activities that are increasingly vital to a law school application. Only then does the student arrive at a three-year commitment to $30,000-90,000 in tuition (alone) for a law degree that provides no guarantee of gainful employment. Financial aid regimes have ramped up to soften some of the skyrocketing costs of a legal education, but the decision to pursue a prohibitively expensive law degree is made long before the realistic prospect of an offsetting bursary or scholarship emerges.

In the United States—where tuition at top-tier law schools is universally unregulated and commonly exceeds $50,000 per year—the class of 2016 is expected to graduate into a collapsed job market with average personal debt upward of $215,000. An effect, then, of tuition deregulation and climbing law school tuition fees is to create an increasingly narrow social category of student who can afford the professional gamble of a law degree. And for a slew of reasons that I will explore in Part 2 of this column topic, a more elite class of law school graduate spells trouble for the Canadian legal profession’s ability to contend with the current crisis of unequal access to justice.

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Comments

  1. In an ideal world the inequity of access to law schools might increase both the the legitimacy of schools accredited to teach Licensed Paralegals and the recognition granted to their graduates. In this — far from ideal one — it does tend to explain some of the divisive turf wars between Lawyer and Paralegal licensees. They are, in fact, also class wars.

  2. Would it be possible to get tuition *after* the fact? Let’s say tuition for law school was a base amount, for example $12,000.00, with the understanding (well, an understanding in the form of a contract), that five years after graduating if you are making over X amount of dollars, you give a certain amount back to the school. Like a deferred tuition. For example, at 5 years out, if a former student makes over $65,000.00 they have to pay the law school $5,000.00. Or if they make over $100,000.00 they would pay $10,000.00. Something like that. And if a former student doesn’t make more than those amounts after five years, they are tracked for another five years. If by ten years out they don’t make those amounts, they never have to pay any more tuition.

    I realize this would be difficult to manage, but it would make access to the law better, and those who make more money pay more tuition, just at a later date. Why should it be that those who desire to work on Bay Street pay the same price for tuition as those who would rather work in a solo practice in small town Prince Edward Island? The Bay Street lawyer will have lots of cash later, whereas the solo practitioner may never make more than $60,000.00. Both are lawyers, but the solo practitioner can actually live out his/her dream and not have to work at a big corporate firm just to pay back his/her student loans.

    Just a thought.

  3. To hear that the University of Toronto charges $29,000 is disappointing, but, unfortunately, not surprising. TRU’s $17,000 tuition, however, is shocking. How can they possibly justify such a price? UVic and UBC, both of whom charge far less, have a lot of years of history, results, and practice under their belts. For a brand new law school to charge more than both of those schools is shameful and speaks to the culture of elitism that permeates the popular conceptions of law school and the legal field.

  4. Jamie Maclaren

    I’ll chime in here as the OP.

    Sue– I know that some provincial governments have looked at forgiving a portion of student loan debt for lawyers who end up practicing in public interest areas. But I haven’t heard of its implementation anywhere. As noble as the goal may be, I don’t know if law schools would be willing to defer or write off tuition revenue in order to improve access. They typically complain of not having enough revenue to balance their books as it stands. Sad but true.

    Re your second point regarding the same tuition being charged to all law students no matter their career intentions– this is obviously the case at all law schools. But law students may be choosing between law schools based on tuition costs and their particular career aspirations. If someone wished to be a solo practitioner in PEI, perhaps they would choose to pay $9,000 at UVic (trans-Canada flight costs notwithstanding) rather than $29,000 at U of T. And vice-versa for someone intent on working at a Bay Street firm. This, of course, only entrenches socioeconomic disparity as the elite schools become increasingly elite and further removed from concern for “street-level” legal practice. Maybe paralegal schools become more popular as Anne suggests.

    This is a bit off point, but I’ve never understood why full-time lawyers all pay the same Law Society-brokered insurance premiums when some legal practices are fraught with much higher value risks (and are more lucrative) than others. Perhaps something can be done there.

    Jamie– TRU charges $17,000 because the market permits it, I guess. If nothing else, it provides a good example of why tuition regulation is so important.

  5. Compare this: when I was a student at Osgoode Hall Law School (OHLS), 1961-1964, the yearly tuition fee was $650. At that time, OHLS was not at York University in the northern portion of the Greater Toronto Area (the GTA), but instead in downtown Toronto—it was the law society’s law school (the Law Society of Upper Canada (the LSUC), which, in the public interest of people finding it and its website, should change its name to the Law Society of Ontario, given that half the people in Toronto weren’t born in Canada, and therefore are likely to think the LSUC is a law society for lawyers whose offices are north of the 60th parallel of latitude where Canada’s territories area, rather than know that “Upper Canada” was Ontario’s name when it was a British Colony, prior to Confederation in 1867). During those years of my basic legal education, when sitting in the law library of the Osgoode Hall building, I could watch Toronto’s New City Hall being built, and it was there, about 12:20 p.m., that I learned of the tragedy of President Kennedy being shot, on November 22, 1963, in Dallas, Texas.
    OHLS’s tuition fees are now in the upper strata of Canadian law school tuition fees, and so are its conference fees among CPD (Continuing Professional Development) conference providers. For example, its conference, “The Osgoode Certificate in eDiscovery, Records Management, Information Governance and Privacy,” given on 5 days over the 5 weeks, April 16-May 23, 2013, had a registration fee of $3,495 + Ontario’s 13% HST (Harmonized Sales Tax, for federal-provincial government harmony and no one else’s). It appeared to be an excellent program that I would very much have liked to attend. But it offended my sense of values to be paying a total fee of $789.87 for each of those 5 days. Just who does Osgoode Professional Development (OPD) think it is??
    I’m sure that OHLS and its OPD division would reply that they are justified in paying their academic staff salaries commensurate with the status of the leading practitioners that they are. In reply to that I would cite a conversation I had in 2009 with one of those OHLS leading practitioners. He was teaching one of the courses that I was taking evenings and weekends as part the school’s LL.M. program for practicing lawyers (yes, you can do such things well post-65, if you take care of yourself, starting when you are much younger). It was during a break, as we were loading up on the leftovers of the supper food provided, that he said to me, “You know Ken, we really are over-paid for what we do.” Perhaps you think that I’m now, literally, “telling tales out of school,” but the topic to which I append this comment, is very important to the population’s due access to justice and law school, and I know from the character and courage of my informant that I am not violating any confidences.
    OHLS’s fees and their implied indifference to the above “access” issues, remind me of the arrogant indifference of American attorneys known as “G-men,” i.e., lawyers who now charge more than $1,000 per hour. They are described in an article in the American Bar Association Journal’s Weekly Newsletter for February 25, 2011, entitled, “More Top Lawyers Break Through $1,000 Hourly Billing Barrier”.
    .
    The article ends with this paragraph: “Billing rates for other well-known lawyers are $1,065 an hour for former White House counsel Gregory Craig, now at Skadden, Arps, Slate, Meagher & Flom; and $1,045 an hour for bankruptcy lawyer Harvey Miller of Weil Gotshal. “The underlying principle,” Miller told the Wall Street Journal, “is if you can get it, get it.”
    So, OHLS is out “to get it,” in spite of the fact that your taxes and mine subsidize law school education. How is the attitude that motivates such high fees, in compliance with a lawyer’s and law school’s duty to act in the public interest?
    See also the ABA Journal article, posted Feb 1, 2008, “The G-Man, a week in the life of a $1,000-per-hour lawyer,”.
    The comments thereto, expressing disapproval of the “G-man” attitude, are informative and entertaining.
    — Ken Chasse, member of the Law Society of Upper Canada, and of the Law Society of British Columbia.