TaxProf Blog op-ed: Salaries and Scholarship, by Deborah J. Merritt (Ohio State):
Law professors teach a wide variety of subjects: Property, Civil Procedure, Legal Writing, Law & Economics, Business Associations, Feminist Legal Theory, Law Clinics. Professors bring diverse backgrounds to this teaching. Some hold JDs, some hold PhDs, some hold both. Some have practiced law, while others have not. Some earned high salaries before joining a law faculty, while others drew more modest paychecks in government, legal aid, nonprofits, or other academic fields.
Despite this variety, there is one constant: professors who focus their teaching on legal writing or clinical courses earn significantly less money than those who teach other types of classes. This is true regardless of degrees, prior professional experience, or past salary level. What explains this pay gap? And what does the gap tell us about our values in legal education?
Before answering those questions, we have to understand the size of the gap. Academics shy away from salary discussions, but silence can hide inequity. To break that silence, I have been gathering information from salary databases released by public universities. I don’t have information on every public law school, but a surprising amount of data is available.
In this post, I will refer to salaries at one leading law school. US Newsranks this school among the top 25 schools nationally, and it is a clear leader in legal education. The salaries at this school, which I’ll call the Myra Bradwell College of Law, do not reflect salaries at every law school. They do, however, illustrate the type of salary gap our schools maintain between professors who teach clinics/legal writing and those who teach other subjects.*
For junior faculty, Bradwell’s salary database lists both assistant professors and clinical assistant professors. Professors in the first category teach no legal writing or clinical courses; professors in the latter category teach almost exclusively those courses.
The salary gap between these two groups is substantial. Bradwell’s assistant professors earn a median annual salary of $168,840. The school’s clinical assistant professors draw a median annual salary of $86,226. Assistant professors, in other words, earn almost twice as much as assistant clinical professors.
In absolute terms, the difference amounts to $82,614 a year. Bradwell’s assistant professors can afford homes, investments, private schools for their children, and other goods or services that are far out of reach for the school’s clinical assistant professors.
The salary gap of $82,614, moreover, is a conservative estimate. Bradwell’s assistant professors are paid on a 9-month basis, while most of the clinical assistant professors are paid on 12-month contracts. Assistant professors, in other words, are paid twice as much for three-quarters of the time. Because of their 9-month status, the assistant professors are eligible for summer funding from Bradwell or other sources.
This pay differential does not disappear over time; a similar gap exists between Bradwell’s full professors and its clinical full professors. The median salary for the former group is $272,322; for the latter, it’s $175,000. In percentage terms, the gap is smaller than among junior professors: clinical full professors earn about 64% of other full professors. But as an absolute matter, the gap widens from $82,614 among junior faculty to $97,322 at the more senior levels. That’s almost $100,000 per year or, combining the junior and senior differentials, more than $3.2 million over a 35-year career.
What Causes the Gap?
What justifies such a large pay gap among full-time colleagues at the same institution? It’s not years in the academy: at both the assistant and full professor ranks, Bradwell’s writing and clinical faculty have at least as many years of service as other professors. Indeed, the writing and clinical faculty often have more years of professional or academic experience.
Nor is it the importance of the courses that the two groups teach. Most contemporary faculty–along with most employers—agree that legal writing and clinical courses are essential components of the curriculum. It’s hard to imagine a successful law school without writing and clinical courses. In fact, the ABA won’t accredit a school that lacks faculty-supervised writing experiences or substantial opportunities for clinical/externship work.
Nor, finally, is it differences in course difficulty. Teaching writing and clinical courses requires a heavier time commitment than teaching other courses; clinics and writing courses also demand special teaching skills. Professors who teach other courses rarely feel qualified to teach legal writing or clinics; nor are they willing to invest the time required for effective teaching in those courses. Writing and clinical faculty, in contrast, often teach other courses in the curriculum.
Defenders of the pay differential usually point to two factors: (1) the market, which I discussed in my last post; and (2) scholarship, which I examine here.
Scholarship, Expectations, and Workload
A simple version of the scholarship explanation goes like this: “Clinical and writing professors teach, while other professors engage in both teaching and scholarship. Professors who pursue two institutional missions deserve more money than those who pursue just one goal—maybe even twice as much money.”
The rationale, like the market one, may seem plausible at first. But like the market explanation, this rationale one weakens with scrutiny. There are three problems with using scholarship to explain the substantial pay gap described above.
First, many clinical and writing professors do publish scholarship; Bradwell’s website lists many publications by its clinical and writing professors. There are differences in the focus and quantity of scholarship produced by the clinical/writing faculty and their higher paid colleagues, but there is no clear line–certainly not one that suggests a $100,000 difference. Bradwell’s clinical/writing faculty are publishing original insights on important topics—and they are reaching audiences interested in those topics.
Second, expectations affect conduct. To justify the pay gaps on our faculties, highly paid faculty often stress the fact that clinical/writing faculty are not expected to produce scholarship. Some of these statements imply that clinical/writing faculty are not capable of producing good scholarship, so it’s just as well that they don’t try. More benign comments acknowledge that clinical/writing faculty must devote a lot of time to their teaching, so that it would be difficult for them to produce scholarship.
These comments and expectations matter. Stereotype threat isn’t limited to students; it also affects faculty members. If deans and senior faculty members repeatedly tell clinical/writing faculty that they’re not expected to produce scholarship, that they probably don’t have time to produce scholarship, and that they may not be capable of producing good scholarship, then very few clinical/writing faculty will undertake scholarship.
Finally, law schools don’t give most clinical/writing faculty sufficient time to produce good scholarship. We lighten teaching loads for junior faculty handling other courses, provide ample summer research grants for those other faculty, and keep teaching loads as light as possible for all faculty teaching courses other than clinics or legal writing. Legal writing and clinical faculty, in contrast, carry teaching loads that more than fill a forty-hour work week—often without sabbaticals or other time off.
These heavy teaching loads are not inevitable. We could structure our curriculum and faculty workloads to provide more scholarship time to writing/clinical faculty; we just don’t choose to do so. Instead, we maintain two classes of faculty: one that engages full-time in teaching and another that divides its time between teaching and scholarship.
How Much Do We Pay for Scholarship?
This leads to one final question for today: If we consider just faculty salaries, how much do law schools pay for scholarship? What percentage of faculty salaries support that institutional mission?
A common response to that question is: “Schools devote much more money to teaching than scholarship because (a) writing/clinical faculty devote substantially all their time to teaching, and (b) other faculty divide their time evenly between teaching and scholarship.” A variation on this response acknowledges the role of service by combining it with teaching duties. I.e., “writing/clinical faculty devote all of their time to teaching/service, while other faculty divide their time evenly between teaching/service and scholarship.”
These responses, however, overlook some important evidence: the salaries paid to clinical/writing professors reveal the value that the school and market attach to full-time teaching and service. Bradwell, for example, can hire a junior professor who will provide full-time teaching and service for $86,226; at a senior level, the price is $175,000. Bradwell undoubtedly could hire full-time faculty to teach any group of courses (not just legal writing or clinics) for these amounts.
If Bradwell’s “scholarly” faculty devote only half their work week to teaching and service, then those services are worth just $43,113 (at the junior level) and $87,500 (at the senior level). The lion’s share of the salaries paid to these faculty members supports their scholarship: $125,727 per year for the median assistant professor and $184,822 per year for the median full professor. And that’s without counting summer research grants, released time, or other types of salary support.
Bradwell’s pay gap may be larger than at many law schools, partly because few schools can afford to pay what Bradwell pays any of its faculty members. But Bradwell is not alone in its salary rates; I have no evidence that it is a particularly wealthy top-25 law school. More important, Bradwell is not alone in its salary structure. My examination of salary databases reveals sharp discrepancies at many schools; I will explore more of those gaps in future posts.
Meanwhile, what do these pay gaps suggest about legal education? They tell us, first, that we greatly devalue legal writing and clinical education. The skills and knowledge taught in these classes lie at the heart of professional service; they place students in professional roles and require them to respond as professionals. Failing to value these courses demeans both our profession and the clients we promise to serve.
Second, these gaps reveal that tenure-track law faculty are comfortable with high levels of income inequality. We may criticize income inequality in other contexts, but we are comfortable with that inequality in our own workplaces. We work daily with colleagues who share our academic and professional backgrounds, as well as our institutional aspirations and much of our workload, but who earn substantially less than we earn. It surely bothers them, but it doesn’t trouble us much.
Third, as suggested by my previous post, legal educators are willing to capitalize on a gender-biased market to maintain these discrepancies. We condemn gender discrimination in the classroom, but leverage it in hiring.
Finally, law schools should heed what clinical/writing salaries tell us about the amounts we spend to support scholarship. If excellent junior professors will teach full-time for $86,226 per year, then a salary of $168,840 for someone who will devote only half their time to teaching implies an extraordinary premium for scholarship. Given the high cost of legal education, reduced class sizes at many law schools, and the ongoing crisis in access to legal services, can we justify such high payments for scholarship? High-quality scholarship is essential to support the legal system, but how much scholarship and at what price?
* Professors who teach academic support classes or supervise externships also suffer from low salaries at most law schools. I do not yet have enough information about those professors, but I hope to discuss their pay rates and status in later posts.