R.B.G. AND THE FUTURE OF HIGHER EDUCATION

It’s been a week since we lost Justice Ruth Bader Ginsburg. A truly great American for her service on the Supreme Court, but equally for her groundbreaking advocacy in the decades prior, R.B.G. passed away on Erev Rosh Hashanah. Today she becomes the first woman and first Jew to lie in state in the Capitol. Now we embark on an epic battle that will redefine not one, but two national institutions charged with protecting our hard-won freedoms. In this new year, we are worse off in every way without R.B.G.

Diminutive in stature, no one was more fierce in defense of opportunity than Justice Ginsburg. Her majority decision in U.S. v. Virginia (1996) established that the Fourteenth Amendment’s Equal Protection Clause prohibited Virginia Military Institute (VMI) from excluding women; VMI utterly failed to provide the constitutionally required “exceedingly persuasive justification” for discriminating based on gender. In 2017, Justice Ginsburg visited VMI and spoke to the assembled cadets, including 200 women who otherwise wouldn’t have had the opportunity.

R.B.G. was equally ferocious in her defense of those denied opportunity, most notoriously in her famous dissent in Ledbetter v. Goodyear Tire (2007). Lily Ledbetter worked at a Goodyear plant in Alabama for nearly 20 years, rising to the position of area manager. By the end of her tenure, she was making 15-30% less than the men employed in the same role. While the Supreme Court upheld the Eleventh Circuit decision that Ledbetter’s failure to file a complaint with the EEOC at the time of the first pay disparity (whenever that was) meant that she had abandoned her claim under the Equal Pay Act, what’s remembered from the case is Justice Ginsburg’s blistering and ultimately persuasive dissent which prompted Congress to pass the Lily Ledbetter Fair Pay Act of 2009, obviating the Supreme Court decision.

From her crusading days as the leading advocate for unmasking and undoing gender distinctions codified in law, R.B.G. knew as much as anyone about pay discrimination. As she wrote in her Ledbetter dissent, “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time… Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.” In this, she correctly distinguished pay discrimination from more discrete adverse actions like termination, failure to promote, or refusal to hire.

Notorious R.B.G. would have understood the crisis of employability that has plagued Millennials and is now reaching pandemic levels for would-be career starters. Like discrimination, underemployment is more creeping than discrete. Taking the first job that allows you to make your student loan payments may seem like the right move. But because second and third employers care a great deal about the first job – perhaps more about the first job than where you studied, what you studied, or whether you went to college in the first place – by the time you’re looking for a new job a few years later, many opportunities are out of reach.

While R.B.G.’s jurisprudence illuminates the insidious nature of discrimination, to understand the scope of underemployment we turn to S.B.G.: the Strada-Burning Glass report The Permanent Detour. Among the millions of graduates underemployed in their first jobs, 2/3 are underemployed five years later, and half are underemployed a decade later. So a suboptimal first job can be as injurious as Lily Ledbetter’s first pay disparity, and each subsequent incidence of underemployment is likely to be deeply felt, and contribute to frustration and animus.

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Unlike Lily Ledbetter, underemployed graduates can’t sue their employers. (More precisely, they can always sue, but they won’t win, and they’d probably get fired.) But perhaps there’s another deep pocket that made express or implied promises about their career trajectory…

That would be the college or university to which they paid tuition and fees for four years or more. Unfortunately, higher education conventional wisdom remains frozen in a conversation I had a few years ago with a Dean at a top public university who told me in a moment of candor that it wasn’t his problem if graduates didn’t get good jobs. It’s also reflected in a recent tweet by one of EduTwitter’s most prominent voices, Sara Goldrick-Rab, a Professor of Sociology at Temple University with nearly 50,000 academic followers. Last month, Professor Goldrick-Rab tweeted the following (and received 49 retweets and 196 likes):

Opposition to education takes many forms. One way is by insisting it is a private good and pricing it as such. Framing college as a personal investment limits access to it, by definition. A focus on individual ROI follows from that perspective. And it justifies student debt.

There’s no question that higher education benefits the public. Public benefits from higher education include more Americans with more educational experiences, more Americans with – as Lumina Foundation says – credentials of value, and a more educated citizenry. At the same time, injuries from underemployment are initially and profoundly private. Underemployment denies opportunity to specific human beings. So not unlike totalitarian regimes of the 20th century ready and willing to efface real lives for the sake of a community or ideology, stating or implying that higher education is principally a public good whitewashes these distinctions and euphemizes real damage done to millions of Americans and their families.

There are other problems with viewing higher education as a public good. If it’s a public good, who decides how to allocate resources to it and within it? If no market forces are at play, how can it improve, let alone align with a universe of employers that (presumably) aren’t also controlled by the government? And if it’s a public good, is there a formula for calculating the social return on investment? If so, what is it? And if not, is that a result of willful innumeracy or fiscal nihilism?

A generation ago, when today’s tenured faculty were graduating from college, a degree in practically anything, from practically any school, gave graduates a good chance at a good first job. Back in the day, businesses were less data-driven and competitive, and employers were more casual about the whole thing. Many even had training programs for new hires with real budgets.

While faculty attitudes may not have changed, the rest of the world has. And while higher education has many public benefits – due to the high cost of public universities like Temple (in-state tuition and fees $35,371, $23,536 net of scholarships and grants) – it is primarily a private good in which individuals decide to invest time and money in return for a payoff down the road. And because we live in the real world – not in academic journals – for virtually everyone except the most wealthy, that payoff must be economic. So a focus on individual ROI is inevitable. The alternative is at loggerheads with R.B.G.’s view of opportunity, not to mention basic principles of human rights and liberty.

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“Fight for the things that you care about, but do it in a way that will lead others to join you.”
Ruth Bader Ginsburg

For faculty like Professor Goldrick-Rab, to disagree is to be against education i.e., to be a philistine. In this, faculty are borrowing a strategy from the right, branding those who think differently as enemies. Through ideology and vituperation, they aim to ensure a flow of funds and unquestioning students to their institutions, thereby ensuring their own job security. But they should listen to the many adjunct faculty and lecturers in their own departments trying to make a living stringing together courses: access to higher education – even doctoral programs – is no guarantee of stability or success. Tenured faculty indifference to these very real – not at all academic – private injuries is unsustainable.

I submit, however, that the vast majority of faculty want to do the right thing. The events of 2020 have increased recognition that their students come from a wide variety of backgrounds and face many challenges in persisting, completing, and getting good jobs. We can all agree students are taking on far too much debt, and that it would be productive if we could figure out how to measure some of the many public benefits of higher education in order to justify maintaining or increasing the current level of public investment.

But stating that higher education is not principally (or at all) a private good is ludicrous. R.B.G.’s opinion in the VMI case is all about ensuring that the “unique education benefits” of a VMI education are made available not to some amorphous collective, but to specific individuals who – regardless of gender – meet admissions standards. As higher education tumult continues in the years ahead, faculty who assert that higher education is not a private good, or who even believe it, will force college and university leaders to bypass or quash what remains of shared governance. And that's too bad. Because as higher education tries to right itself post-Covid, we could use all the help we can get.

Fifty-seven percent of working class voters now believe a college degree will “result in more debt and little likelihood of landing a good paying job.” So faculty who are upset – as am I – that the political upheaval prompted by R.B.G.’s passing means she won’t get the lasting recognition she deserves should keep in mind that this Senate was elected by millions of economically struggling, disaffected voters ill-served, injured, and discriminated against by our current system of higher education.