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

[This is the second part of my two-part column pondering the relationship between access to law schools and access to justice in Canada. Part I was posted on May 15, 2013 and can be read here.]

As mentioned in Part I of this column, Canadian law schools have made significant strides in increasing their ethnic, cultural, and gender diversity profiles over the past decade. Though much remains to be done to mirror the diversity profile of Canadian society, law schools have been eager to report on their progress. They have been less eager, however, to report on the subject of socioeconomic diversity. Official socioeconomic data on law students is rare indeed. It has been said that low-income students are the invisible men and women of legal education.

With little data to analyze, it is no wonder that few academic papers have been written on the subject of socioeconomic diversity in Canadian law schools. This was mostly the case south of the border as well, until Richard Sander opened the lid on economic inequality in American law schools in his 2011 paper, Class in American Legal Education. Sander found that only two percent of students at the top twenty American law schools came from the bottom socioeconomic quartile of the population, while more than three-quarters came from the richest socioeconomic quartile. Furthermore, about half of students at the same schools came from the top tenth of socioeconomic distribution, and about one-tenth of students came from the bottom half. This led Sander to conclude that, “low socioeconomic status representation at elite law schools is comparable to racial representation fifty years ago, before the civil rights revolution.”

But that is America and this is Canada; we’re different, right? We have come to expect that public funds and tuition regulation combine to keep our law schools affordable for anyone undeterred by a little student debt. Is this still the case in the face of growing income inequality and rapidly rising tuition rates? The University of Toronto Faculty of Law (and its nation-topping $29,000 annual tuition fee) would have you believe so.

This past March, the Toronto Law Dean’s Office issued a report on the accessibility and diversity implications of offering “the best legal education in Canada, and one of the best of the world.” It found virtually no change in the estimated socioeconomic composition of the school’s incoming first-year J.D. class from 1999 through 2012, despite annual tuition having risen by about $25,000 over that time. It employed a rather questionable methodology of assembling the postal codes of successful applicants and then cross-referencing them with general household income data pulled tract by tract from the 2006 Canadian census. It discovered that no matter how much they paid in tuition, successful applicants came predominantly from middle-class and upper-middle-class neighbourhoods, with only a smattering of household incomes trailing off into the $250,000 range. The report never questioned whether postal codes were drawn mostly from university campuses and student neighbourhoods where even very affluent students bunk down for a while.

Supposing that the scant socioeconomic data coming out of Canadian law schools belies a growing phenomenon of economic inequality as in America, how does this present a problem for access to justice anyway? Quite obviously, it cultivates a legal profession with more limited life experience and a tighter frame of reference. The background, identity, and social location of lawyers (and ultimately judges) matter because they inform their values and perspectives, and determine how they understand the circumstances of justice system users. Drawing from a more diverse range of life experiences will unquestionably help lawyers and judges to overcome any subconscious biases, facilitating a more equitable, even-measured application of the law.

From a public confidence standpoint, it also helps if the people influencing and making judgments are representative of their community. Diverse representation infuses the composition and purpose of juries and the principle of being judged by equals rather than lords. If the public comes to perceive that unequal access to justice is more about class dissonance than straightforward affordability, then the cries for professional deregulation and system overhaul will finally tip the legislative scales. We are already heading in that direction.

From a more practical standpoint, higher tuition fees and a more elite class of law graduate will likely translate into fewer lawyers engaging in public interest practice (unless a newly robust culture of noblesse oblige ascends), and fewer lawyers willing or able to serve in under-served (i.e. rural, humble) home communities. For other lawyers who finance their legal education with massive student loans, pro bono service, legal aid and reduced rate work may well be unaffordable “luxuries” in the face of punishing debt repayment plans.

That said, there is some saving grace and untapped potential in financial aid at Canadian law schools. In a guide to its J.D. Program, the University of Toronto Faculty of Law reports that its average first-year bursary in 2011-2012 was $11,410, and that its average first-year tuition (after bursaries) was $13,809. So the school’s effective tuition rate—though still substantial—was less than half of its rack rate. Bursaries also enable law schools to target financial aid or to effectively discount tuition according to individual applicant means, rather than apply a regressive one-price-fits-all approach. But a $29,000 advertised price is still a $29,000 advertised price, and the initial sticker shock is enough to deter many low-income students and even the mildly debt averse from pursuing a law degree long before vague promises of financial aid are heard.

One option worth contemplating in conjunction with measured tuition regulation is a sliding tuition scale based on applicant means. This would essentially lay the current financial aid approach bare such that students would know several years beforehand that a legal education is within their financial reach. It could arguably amount to something of an affirmative action program for the socioeconomically disadvantaged, but Richard Sander’s research shows that nothing cultivates true law student diversity—ethnic, cultural, socioeconomic or otherwise—better than preferential admission policies for low-income applicants.

Also, it is worth monitoring a very recent development in Oregon where the state legislature approved a bill that would provide free tuition to state colleges for students who agree to repay the government about three percent of their future earnings over roughly 20 years. Among other positive things, the “Pay It Forward” initiative promises to unchain law graduates from heavy debt so that more of them can make a viable go of it in public interest practice.