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Social Structure, Educational Attainment and Admission to Law School

Alex Ziegert*


“From the moment you are born, …”, a recent TV advertisement tells us, “… the odds are stacked against you!”. The advertisement then goes on to demonstrate how minimal the chances are to incur certain favourable life-events. It suggests that, rather than trying hard, it is better to play the lottery as a way of overcoming the adversities of everyday life. However doubtful the actuarial calculations may be which are used in the advertisement, it makes a forceful point: what we expect to be, and what — in a democratic society — is promised to be, apparent equality of opportunities turns out as a maze of barriers, dead-ends and capricious events. What the lottery advertisement implies, but what the liberalist democratic formula fails to tell us generally, is that the equal chances provided by the social life of any society are not only as bad as, but in fact worse, than chances provided by a lottery. Different from the lottery, the “odds” in real life are systematically “loaded when equal access is attempted to health, wealth, power and status, or to whatever seems worth achieving in a given society. What appears to be chance, or at best fate and providence, is evidently the invisible hand of social structure, tipping the scales consistently in the direction of how that structure itself operates at any given time in the life of an individual from the moment the individual is born.

This observation is, of course, hardly original. However, it is important to keep it in mind when one wants to assess the practices of admitting access to tertiary education — a resource in all modem societies — and when one wants to design policies which are aimed at reforming the access to law schools — a formidable resource in all societies which follow the common law tradition. Viewed from the aspect of the complex and pervasive historically entrenched social structure and social processes, to change admission practices effectively is an awesome task. Admission policies which are advocated as “new” can be safely assumed to be merely the administration of more of the same unless enough leverage can be mobilised to unsettle the systematic bias of social structure and to neutralise some of the thoroughly debilitating effects of its invisible hand. Obviously, to attain such leverage is beyond the scope of individual universities and/or their law faculties, and it is outside the work practices which are employed in the admission of students. We must assume that whatever universities can or will do necessarily amounts to not much more than tinkering with the systematic bias of social structure.

There is now compelling evidence that this is in fact the only result which universities have achieved in a fairly long history of admission policy reforms in the tertiary education sector in Australia. There is also increasing consensual knowledge2 that the even more comprehensive and better coordinated actions and programmes on state or national government level, which were designed to affect the social mix of undergraduates in Australia and overseas had no, or only a limited effect.3 Often, the small effect achieved by incisive single-measure government intervention4 or by broad equal opportunity policies is counteracted by subsequent changes in admission policies5 which in turn make access to higher education even more highly competitive. Any gains made by these policies are whittled away by the social forces at work on a deeper and more complex level of a given society.6

It is important to note, however, that this bleak picture changes somewhat where specific target groups are concerned. Here more narrowly tailored government programmes can be shown to be reasonably successful.7 Special programmes of this kind remain promising but are, by definition, limited in their outcomes.

Finally, a third and different case in the history of admission practices in educational organisations in general and, especially, in the tertiary education sector, is the case of women. It provides us with the evidence that the dynamics of the invisible hand of social structure can be forced over time even if ever so slightly. Women, coming from a position of practical exclusion from higher education, have achieved, at least nominally, equal access to higher education with men, even if, as yet, actual admission practices are still quite patchy.8 As the following discussion will show, this more complex change in admission practices but, more importantly, in educational attitudes towards girls and women generally, has had and still has crucial consequences for structural change in a given society. This potential for change is related to the pivotal role women have in societies as mothers who are, rather than fathers, effectively in charge of the socialisation of their children. This is generally the case in all societies but plays a particularly important role in the educational programmes of societies which are on the way to become modern, industrial societies and possibly post-modem societies.9 It appears, then, that the educational attainment of mothers is one of the most powerful single predictor variables for structural change and for intergenerational transmission in societies. A review of admission policies has to address this observation.

In view of the complex operation of social structure and social process, and their combined effects on the work practices of educational organisations on all levels (family, primary education, secondary education, and tertiary education), a review of admission practices cannot be content to assess admission to law school as a single, independent event but must attempt to link this event to the socio-historical context in which it occurs and in which a particular educational organisation operates. This link provides the parameters for educational operations on all levels, from childhood to adulthood, on which selection occurs. The following discussion is a report of an attempt to draw such a link. This attempt is limited by the specific objectives of the task set for the researchers.10 However, neither the explorative nature of such a study nor its necessary limitations should preclude that the evaluation and discussion of results are attempted with a substantial and explicit connection between theory and research.11 The study, as presented in this report, attempts to demonstrate such a connection. It introduces a general model of the selective dynamics of social structure and social process as they can be seen to bear on educational operations, including admission practices, and as they can be shown to apply to New South Wales and to the work practices of the Faculty of Law of the University of Sydney in particular. This model is based on the theory of operationally closed systems12 described in section 2. Such a model informs us what kind of data are needed and how they can be collected (described in section 3) and it directs the way in which the collected empirical material can be understood (interpreted) and presented in the following discussion (section 4). Though such an approach uses the collected data to the best knowledge of the researchers, it is obviously still not the full story of admission to law school.

The Practice of Law Student Selection in New South Wales — A Theoretical Model

The concept of law school intake (admission), as envisaged here, starts from the assumption of a highly stratified concatenation of selection processes which affect every individual student on a number of steps in the student’s life-career. The result of these selection processes is effectively, as far as our law students are concerned, that they are eventually accepted as law students: they have “made it”. However, seen against the background of the population at large, the chances of a new-born child to be eventually admitted to law school are rather remote.

We find, then, a systematic funnelling process represented in the life-careers of law-students as compared with the life-careers of young adults at large. This process is made up by a great number of multi-level selection processes which, in the sociological sense, are constituted by the interplay of socialisation and education.13 This interplay is orchestrated by social structure14 over time, both in the Australian society at large and in the society of NSW in particular. The picture which we gain from this sociological view on law student selection as practised by a particular law school (Sydney University Law School) appears to be that of a funnel which has numerous filter levels. Each of these filters allows for only a minority of individuals to pass through to subsequent levels and retains the rest. Evidently, those individuals who pass each level to the next one possess particular (highly selected) personal characteristics and they share these characteristics with all those others who have also passed; and, the more filters these individuals pass, the more those who pass share personal characteristics with each other.15 Seen from the vantage point of the eventually successful admission to law school, and with hindsight, all law students share the experience of such a rather long, and in fact — when compared with other university studies — one of the longest possible, educational career-paths. The high homogeneity of the personal profiles of the students in this group should not come as a surprise. The most remarkable feature of this homogeneous group is the over-representation of individuals who come from families with high socio-economic status in a given society, and who have had — on their long march through the education system — sufficient time and specific support in these family environments to learn how to become educated. This feature becomes more prominent with each step on the career-path in the educational system. In short, our model suggests that institutionalised education is not a simple hand-out of knowledge to particular individuals but rather a series of selective operations by families, educational organisations and the economic system to which individuals adjust skilfully by socialisation. The overall outcome of education is that a specific group of individuals acquire a particular set of social skills which affect the way in which those individuals operate their cognitive manoeuvres of self-concept maintenance in order to achieve individually perceived goals which are at the socio-cultural and socio-economic disposition of society at large.

A comprehensive account of the complexity of the historical conditions for educational outcomes in NSW is beyond the scope of our study but such historical conditioning must be kept in mind. It refers to a small, geographically relatively isolated society which is demographically concentrated in the State capital, resulting in an extremely low, degree of mobility but a high degree of interaction between the local elites. This historical framework of a small society in a large geographical space is basically a provincial one and one which is characterised by economic vulnerability.16 Here, the society needs to respond to wider international developments through the adjustive operations of the economic and education systems. Historically, it appears that in Australia and NSW the education system has been the more open and resilient one and that the economic system has been the more, protectively, closed and vulnerable one. Thus, while Australia has never developed a strong secondary, industrial sector — and in this sense has never become an industrial society in the full (socio-economic) sense of the term — it has become a modern developed society by the responsiveness of its highly differentiated education system. This education system provides the necessary cultural capital to drive a relatively strong tertiary industry (services) sector in a vibrant multicultural environment. In Australia, as anywhere else in modern Western societies, the crucial measure for development, then, is the capacity to relate the operations of the economic system and of the education system meaningfully to each other. Such a meaningful relationship between the operations of different systems can be understood in the terms of structural coupling.17 This means, in the case of a structural coupling of the economic and education systems. that the operations in each system condition each other through the use of references to certification (certificates, degrees and diplomas). The reference made to certification by both the education system and the economic system means that access to economic resources (positions of occupational status and/or wealth) in NSW, as anywhere else in modem societies, depends increasingly, and often exclusively, on the attainment of high levels of formal education rather than on a traditional recognition of practical skills through non-certified educational operations in the economic system itself (for example by training “in house” or “on the job”). By issuing certificates and by a recognition of issued certificates, the economic and the education systems condition each other externally and they co-ordinate their respective autonomous internal operations by referring to, and occasionally quarrelling over18 certificates.

A good example for this important historical step of the mutual recognition of the economic and educational systems in the structural coupling through references to certification is the change in the approach to recruitment for the legal profession in Australia and in NSW. Here, selection of recruits to the legal profession has turned from a regime of apprenticeship19 and in-house approbation in the position of the articled clerk to a nearly exclusive regime of university education or tertiary-education-styled education in colleges of advanced education, college of law, joint admission board courses and examinations, modelled after university courses and administered by university staff.

The complex pattern of change by mutual connectedness of education and economics has had a profound effect on the organisation of formal education. Educational careers have become longer, curricula more complex and more varied. Moreover, formal education has become more comprehensive for the entire population, and in turn, access to educational organisations, especially their higher levels, has become more competitive.20 With every additional rung in the ladder of formal education, that is, a further differentiation of the education system, numbers of intake increase but also selectivity overall increases. Rather than to equip individuals for coping with modem society, this process of differentiation has the pervasive effect of sequestering (classifying) — often irretrievably — the certified winners and losers in social life.

Conveniently simplified, we can distinguish five major levels of the educational careers of law students in NSW The socialisation in a family home and in institutions (like kindergarten, primary schools) supporting socialisation in primary groups (families). On this basic level, education is not highly formalised. This lack of formalisation, accounts for both the strength and the failures of education on this level. A major problem is that there is no formal exit from the educational system on this level; educational success is exclusively dependent on the socialisation processes which go on in the privacy of family homes and/or in other primary group environments.21 Such family or primary group performances are, in turn, crucially dependent on the organisational quality of the unit, measured in terms of their resources (e.g. socio-economic status and educational attainment of members) and of the on-going processes in the unit for example supportiveness, communication, interaction, and liaison with external environment. Resources and process together provide for the human development and for the socialisation of social competence of children and adolescents,22 but also of the adults in such units.

Evidently, educational careers are formed on this level; omissions and commissions perpetrated on individuals on this level are highly formative for the protection and maintenance of self-concept and so for the pathways which the life-course of individuals will take.23 Because socialisation does not allow for exits while education does,24 the most distressing feature of education at this level of low formalisation is that the mode of selection of the education system, and particularly, a number of specific “exits” from the education system, are not easily visible and/or are not conceptualised as such. Rather, classifications of “success”, “failure”, and “dropping out” are hiding here in the private niches of family life as so-called apathy, disinterest, retardation, unruliness, dyslexia, or as diagnosed psychosomatic, neurotic and psychotic disorders. Nevertheless, the labels with which are assigned to individuals here, stick with the respective individuals through informing their self concepts; they learn to see themselves as failures in an early age, and this will be the most distinct feature of the life-careers of such individuals.

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