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UC Irvine Law Review




When we think about the democratic promise of higher education, we often think of public universities. Consider, for example, the civic-minded reflections of Gordon Davies, the former Chancellor of the University of Virginia, who concluded in 1997 that “[e]ducation is not a trivial business, a private good, or a discretionary expenditure. It is a deeply ethical undertaking at which we must succeed if we are to survive as a free people.” This lofty vision has since been undermined by persistent cuts in funding for state universities across the nation. In 2007, James Duderstadt, the former president of the University of Michigan, described the transformation of public universities from “‘state-supported’ to ‘state-assisted’ to ‘state-related’ to what might only be characterized as ‘state-located.’” Another colleague of Duderstadt’s went even further, describing them as “state-molested.” It would be tempting to remark at what a difference a decade made but, in fact, pressures to privatize higher education have increasingly strained the mission and operations of public universities since the 1970s. These changes may be among the most visible evidence of the impact of privatization, but the consequences have been much broader. The tendency to treat a college degree as a private good has diminished the salience of higher education as preparation for civic life, widened the divide in resources among colleges and universities, and placed a growing burden on students and their families to self-finance a degree. The shift to the rhetoric of the private marketplace is decidedly ironic, given that approximately three out of four students enroll in public colleges and universities, which have been heavily subsidized to promote high-quality education for all.

The turn toward privatization reflects a significant departure from our historic commitment to higher education as an integral partner in the nation-building process and our collective aspiration to build a city on a hill. Although higher education has always promoted personal mobility, it has long been characterized as a hybrid good with both private- and public-regarding aspects. Early on, when private institutions served a handful of elites, civic obligation in higher education had overtones of noblesse oblige. With the rise of industrialization and urbanization, the role that colleges and universities play in promoting general economic prosperity became prominent. After World War II, the story of higher education epitomized democratization through expanded access, a transformation made possible by increased federal aid for students and the growth of state colleges and universities. In recent decades, the evolution of higher education as a public good has been stymied by the push for privatization.

After briefly tracing the history leading up to today’s calls for privatization of colleges and universities, this Article will clarify what it means to describe higher education as a public or private good. The analysis begins by evaluating postsecondary education as a public good and ultimately focuses on its role in promoting democratic equality through preparation for civic leadership and preservation of a level educational playing field. The Article then unpacks the concept of privatization by identifying three manifestations of this trend: commodification, segmentation, and stratification. Commodification refers to the monetization of a college degree; segmentation describes differentiation among institutions of higher education that interferes with cooperation and collaboration; and stratification relates to the hierarchical ordering of colleges and universities. Each of these elements of privatization can undermine the public-regarding aspects of higher education. Next, the Article explores how the impetus to privatize impoverishes our political discourse about improving American colleges and universities. The paper closes with some thoughts about the reforms most urgently needed to protect those at greatest risk from a betrayal of the democratic promise of higher education.

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University of California, Irvine School of Law

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