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End Note

The “Rugged Individualist” versus the “Ivory Tower”

How the consumerist paradigm threatens higher education in America
University Business, Nov 2011
Robert B. Smith

Deep admiration for the self-made men and women of business is all but encoded into Americans’ DNA. This is all well and good. Where would we be if innovators like the late Steve Jobs were reviled instead of admired? Where would our colleges and universities be without the businesslike approach to management that has become their hallmark?

For decades now, America’s tendency to look for business-based approaches—to see things in terms of clients and customers, products and prices, inputs and outputs—has helped universities conduct the business side of higher education with Fortune 500-like efficiency. But when it comes to the process of obtaining an education and achieving success later in life, what might be called our consumerist paradigm simply has no place.

Students, after all, are not entitled consumers, but individuals with varying levels of talent, discipline, creativity, and composure. If colleges and universities fail to honor this reality, the long-term consequences for higher education and society could be profound. In fact, we are already beginning to see hints of how the creeping influence of consumerism could slowly bring an unhelpful mantra to campus—“the customer is always right.”

As a case in point, take the consumer-fraud class actions filed in August 2011 by former students at New York Law School and Thomas M. Cooley School of Law (Mich.). In this provocative litigation, seven graduates accused the two schools of, in effect, a bait-and-switch, arguing that they inflated graduates’ employment and salary statistics in a bid to woo new students.

The retail slogan “the customer is always right” is creeping into higher education.

Other American law schools now face the threat of similar suits (at least 15 threatened class actions, at last count). If even a few of these prove lucrative for the plaintiff, the scope and scale of such actions is bound to expand as higher ed marketing practices from A to Z are subjected to the microscope.

A few years ago, these kinds of “educational malpractice suits” would have been dead on arrival at the courthouse door. This is because American courts generally adhered to a black-letter principle that schools are not guarantors of student outcomes. To assume otherwise, it was understood, was to undermine the notion that education has value for its own sake, regardless of material outcomes.

No Money-Back Guarantees

But in their understandable drive to be as competitive as possible, institutional leaders seem to have embraced the consumerist paradigm whole-cloth. On their websites and in slick marketing materials that take full advantage of Madison Avenue’s messaging prowess, many schools cater to students as though they were just consumers poring over some junk mail (and some literally refer to students as “consumers” in such materials).

Perhaps this is natural in the context of American consumerism, but its downside for higher education has been inadequately discussed. Walmart or Target shoppers might be able to return anything they buy, with or without a receipt. Schools cannot offer such guarantees. Talent and intellectual capacity, the willingness to work hard, the ability to give good interviews and to make sure your tie is free of Quiznos mayonnaise—such qualities make a real difference for newly minted professionals looking for work. Colleges need to be at least as forthright about this reality as they are about the plush amenities over at the new aquatics center.

The consumerist paradigm has affected another favorite target of the rugged individualist: government. When regulators require institutions to publish outcomes-related data, they act as a kind of Consumer Product Safety Commission. It’s another illustration of the kind of pressure schools are under to be “customer-service oriented.”

At times, rugged individualists have been right to berate the ivory tower. Why should the physical plant take a haphazard approach to vendor contracts? Why should a registrar’s office have a clunky billing system that infuriates tuition-payers? Ultimately, though, the slogan “the customer is always right” comes from retail, not higher education.

Ironically, if educators embrace the theme that individual students are responsible for their futures through hard work, talent, and determination, they will help keep the consumerist juggernaut at bay even as they please rugged individualists everywhere. After all, in Horatio Alger stories, the protagonist never whines about money-back guarantees.

Robert B. Smith is a Boston-based partner in LeClairRyan and leader of the national law firm’s Education Industry Team.