Consumerist Paradigm Hurts American Higher Education, Attorney Says

-- Amid spate of lawsuits, universities should stop treating students like 'entitled consumers,' advises LeClairRyan's Robert B. Smith.

Sep 27, 2011, 09:30 ET from LeClairRyan

BOSTON, Sept. 27, 2011 /PRNewswire/ -- The slogan "the customer is always right" comes from retail, not higher education. But if colleges and universities fail to fight back against the creeping influence of America's consumerist paradigm, they could face a rise in class actions filed by former students who think their degrees should, in effect, come with money-back guarantees, said veteran higher education attorney Robert B. Smith during a Sept. 20 Webinar.

"A recent spate of lawsuits, including the consumer-fraud class actions filed earlier this year by former students from New York Law School and Thomas M. Cooley School of Law, are part and parcel of the consumerist movement that has swept the United States," noted Smith, a Boston-based partner in LeClairRyan and leader of the national law firm's Education Industry Team. "But college students are not 'entitled consumers' whose success in life is somehow to be guaranteed by the schools they attend. They are individuals with widely varying aspirations and aptitudes. To assume otherwise is to undermine the old-fashioned notion that education has value for its own sake."

The Webinar ("Higher Education Regulatory and Litigation Trends: Investigated, Audited, Fined and Sued!") was presented by The Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. During the 90-minute presentation, Smith described how American colleges and universities are now scrambling to comply with evolving regulatory standards, including changes to the way the Clery Act, Title IX and other laws are implemented. "Many institutions are struggling to deal with the burdens of investigations, compliance costs, expensive audits and the threat of losing federal funding," he explained. "At the same time, they also face a rise in lawsuits challenging just about everything they do."

These suits include the NYLS and Cooley class actions, which were filed by seven graduates who accused the two schools of inflating graduates' employment and salary statistics in a bid to woo new students. Smith also cited the case of a student who successfully sued The University of the South for wrongful dismissal after he had been accused of sexual harassment. "A few years ago, these kinds of 'educational malpractice suits' would have been dead on arrival at the courthouse door," Smith said. "Everyone understood the black-letter principal that schools are not guarantors of their student outcomes, and that they should, in general, enjoy academic freedom as they make admissions decisions."

In recent years, however, colleges and universities themselves have bought into the consumerist culture by, for example, describing students as "consumers" on their Web sites and treating them as such in other marketing materials, Smith noted. While this is perfectly natural in the context of American consumerism, it has a distinct downside for higher education, the attorney said. "Shoppers at Walmart or Target might be able to return anything they buy, with or without receipts, but schools cannot offer such guarantees," he asserted. "The concept of obtaining admission to any school, let alone a law school, is fraught with objective and subjective standards having to do with highly individualized assessments. Talent and intellectual capacity, the willingness to work hard, the ability to give good interviews—these things matter when young people come out of law school looking for jobs."

Nonetheless, Smith said, regulators also tend to rely on and reinforce the consumerist model when they, for example, require colleges and universities to produce and publish outcomes-related data for prospective students. "It is high time for educators to start thinking about the impact of consumerism on what they do," he concluded. "They need to fight back and restore the balance by reiterating the valuable role that education plays in our society, regardless of material outcomes. Simply put, there is no consumer model applicable to the process of obtaining an education, whether it's a law degree or any other degree."

About LeClairRyan

As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses.  With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation.  For more information about LeClairRyan, visit

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