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Race, Debt, and Opportunity

March 10th, 2016 / By

Education opens doors. In law schools, we have tried for decades to open one particular door: the one that welcomes more minority graduates into the profession. In some ways, we have succeeded admirably. The percentage of minority law graduates almost tripled between 1983 and 2012, from 8.6% to 24.2%. The absolute number of those graduates rose almost four-fold during the same years, from 3,169 per year to 11,951 annually.

Today, all of us can name successful minority lawyers, judges, and law professors–as well as minority business people, nonprofit directors, and policymakers with law degrees. Legal education can even point with pride to the first African American President of the United States.

Just as the doors started to open, however, new obstacles emerged. Research shows that minority students earn lower law school grades than white students–even after controlling for entering credentials. We have also dramatically raised the cost of legal education as our student bodies diversified. And, perhaps most disturbing, we now know that these high costs fall disproportionately on Black and Latino/a students. New data from the Law School Survey of Student Engagement (LSSSE) show that these students assume substantially more law school debt than their white and Asian American classmates. That debt gap is new–and growing.


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ABA Poised To Tighten Accreditation

March 8th, 2016 / By

Originally published on Above the Law.

In the face of financial pressure from rapidly falling enrollment, law schools have made ethically questionable admissions and student retention decisions. Bar exam pass rates have suffered already; MBE scores are at their lowest point since 1988. With an enormous drop in admissions standards between 2012 and 2013, as well as in the two subsequent years, bar pass rates for the next three years will be even worse.

The current ABA accreditation standards can theoretically hold dozens of schools accountable through the bar passage standard (Standard 316) and the non-exploitation standard (Standard 501). But the bar passage standard, with its six loopholes, is almost impossible to fail. Meanwhile, the ABA Section of Legal Education is paralyzed without an enforceable line between “capable” and “not capable” — the relevant distinction under the non-exploitation standard.

To the Section’s credit, the organization has responded well to criticism — publicly and privately. At the first meeting after my organization asked the Section’s Council to address trends in law school admissions and retention policies, the Council asked a committee to propose changes to the law school accreditation standards. The Standards Review Committee (SRC) has since made three key recommendations:

1) The SRC submitted a new cumulative bar passage standard to the Council. Under the proposal, at least 75% of all graduates that take a bar exam must pass it within two years. This eliminates the six loopholes.

2) The SRC submitted a new interpretation to the non-exploitation standard to the Council. Under the proposal, there would be a rebuttable presumption that a school that experiences a certain percentage of non-transfer attrition has made exploitative admissions choices.

3) The SRC declined to submit new bar passage outcome transparency measures to the Council. Instead, the SRC advised the Council that it already has the authority to issue new transparency requirements under Standard 509. As I wrote previously, I agree and the Council should publish new information as soon as possible.

The Council will consider these proposals at its Friday meeting in Arizona. If satisfied with the first two proposals, the Council will send them out for a few months of notice and comment. If satisfied with the SRC’s analysis of the Council’s existing authority under Standard 509, the Council can immediately take the necessary steps to authorize new disclosures.

Changes to Standard 316 and Standard 501 will see significant pushback. While greater transparency may help some students make better choices, the other two proposals provide objective tools to stop law schools from exploiting students. The combination poses a significant financial threat to any school choosing money over ethics to survive. Unless the admissions climate drastically and rapidly changes, these new standards will cause exploitative schools to shrink further, merge, or shut down.

One argument against both standards is the limit on opportunity. Schools can take fewer chances on students who do not fit traditional profiles if bar passage rates and degree completion must be more seriously considered during admissions and retention decisions. Before the enrollment crash that began in 2011, however, schools were able to fulfill these lofty ideals without preying upon students with low expectations of completing law school or passing the bar. The “opportunity” offered to students with low predictors of academic success is failing the bar exam up to four times, accumulating six figures of debt, and never obtaining a law job. This is an opportunity for schools to bring in cash from federal student loans, not to increase opportunities for students.

Educational opportunity is too important to let opportunists capture the term. Reclaiming the term from reckless schools concerned primarily with survival is essential for an accreditation process that’s supposed to protect the public, not the law schools. If a school cannot muster a 75% bar passage rate after its graduates have had the opportunity to take the bar exam four times, the school does not deserve accreditation. If a school must rely on failing significant portions of the class to ensure compliant bar passage rates, the school does not deserve accreditation.

When a school cannot figure out how to maintain accreditation under such reasonable rules, it should close. Let the void be filled by the schools that can responsibly grow enrollment or new schools with new economic models.

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LSAT, Bar Failure, and Debt

March 6th, 2016 / By

Last fall, Law School Transparency (LST) released a detailed study of declining LSAT scores among entering law students. Drawing upon data from several sources, the report warned that students with LSAT scores below 150 suffer increasing risks of failing the bar exam. For students with scores below 145, the risk is extreme. One school, for example, reported that only 16% of graduates in that category passed the bar on their first attempt. The eventual pass rate for those students was just 36%.

LST also offered evidence that these high-risk students are paying more for their legal education than students with a better chance of becoming lawyers. Schools that admit a substantial number of high-risk students offer fewer tuition discounts than other schools. Scholarships at high-risk schools are also more likely to be conditional (and forfeited) than scholarships at schools admitting lower risk students.

The highly regarded Law School Survey of Student Engagement (LSSSE) just added an alarming data point to this analysis. LSSSE reports that 52% of law students with the lowest LSAT scores (145 or less) expect to incur over $120,000 of debt for their legal education. In contrast, only 20% of students with LSATs above 155 will owe that much.

The highest risk students are assuming very heavy debt loads for their legal education. Equally disturbing, the difference between those students and their classmates has grown substantially since the great recession. In 2006, LSSSE notes, debt loads did not differ much by LSAT score. Sixteen percent of students who scored above 155 expected to owe more than $120,000 for their legal education; for students scoring at that cut-off or below, the percentage was the same.

In 2011, the gap was much wider. A third (33%) of students scoring at 155 or below anticipated law school debt over $120,000. For higher scoring students, the percentage was just 24%. This year, the gap has widened even more. Only one-fifth (20%) of higher-scoring students expect to owe over $120,000 for their legal education. Among those students, the percentage amassing high debt levels has decreased–despite rising tuition levels and modest inflation.

Students with LSAT scores of 155 or below, on the other hand, are even more likely than in the past to assume high debt levels. Thirty-seven percent of those students now anticipate owing more than $120,000 for their legal education. And, as reported above, the percentage is even higher for those with the lowest LSAT scores: More than half of students with LSAT scores below 146 will owe over $120,000 for their law school degrees. Those are the very students at very high risk of failing the bar.

LSSSE’s public report doesn’t distinguish among law schools, so we can’t tell if this disparity reflects admissions and financial aid decisions at a large number of law schools–or whether it stems from the actions of a small number of schools. LST’s report suggests that the latter is true: A few dozen law schools are admitting a substantial number of students at high risk of failing the bar. The same schools may also be responsible for the high debt load assumed by those students.

But whether it’s a few schools or most schools, this is an issue that affects all ABA-accredited law schools. We all participate in a system of accreditation that signals quality and fairness to applicants. Do we want to perpetuate a system in which an increasing number of high-risk students take on the heaviest debt loads?

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Lawyers and Legal Services

February 26th, 2016 / By

There was a time when lawyers delivered most of the nation’s legal services. That time, however, is slipping away. Businesses increasingly obtain law-related work from contract managers, compliance officers, and human resource directors. Individual clients buy homes, draft wills, file uncontested divorces, and conduct other legal business with interactive software. When those individuals visit the courthouse, they may consult a self-help kiosk rather than a lawyer.

The ABA now recognizes that these changes are altering the market for legal services. The House of Delegates recently approved Resolution 105, which establishes model regulatory objectives to guide state regulation of “non-traditional legal service providers.” The objectives are relatively hospitable to non-traditional providers. They include, for example, a focus on “delivery of affordable and accessible legal services” as well as “efficient, competent, and ethical delivery” of those services. Those objectives would support many types of service delivery by non-lawyers.

The mere passage of this resolution, moreover, sends an important signal to the legal profession: Alternative service providers are here to stay. Have law schools gotten this message? What does it mean for us?


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February 25th, 2016 / By

The University of Arizona’s James E. Rogers College of Law has decided to accept GRE scores from applicants. The school will also accept LSAT scores, with applicants free to choose between the tests. (Note, though, that an applicant who takes the LSAT must submit that score; that applicant may choose only whether to submit a GRE score as well.)

Is Arizona’s move an attempt to attract more students in a weak market for legal education? Undoubtedly–the school’s press release admits as much. But that doesn’t mean that the change is bad for prospective students or legal education. Weak markets should prompt innovation. Arizona has taken a number of other steps to make legal education more accessible and attractive to students: It slashed tuition (twice) for nonresidents and created a BA program in law.

Here’s why I like Arizona’s latest innovation as much as the other two.


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Women In The Law

February 23rd, 2016 / By

During three years of law school, I learned the law from only one female professor. But she was a gem: the future Justice Ruth Bader Ginsburg. After graduation, I had the honor of clerking for then-Judge Ginsburg on the Court of Appeals for the District of Columbia Circuit. The following year, I clerked for an equally admirable woman in law, Justice Sandra Day O’Connor.

Justices Ginsburg and O’Connor faced stiff sexism throughout their careers. Even when they ascended to the Supreme Court, their gender could diminish them. I heard one lawyer address the Court as “your honors and Mrs. O’Connor.” Other advocates confused Ginsburg and O’Connor, despite their different jurisprudence and physical appearance.

Entering the law a generation after these pioneers, I faced much lower barriers–although women of my generation still struggled to prove their value in the workplace and to combine work and family. Today’s women, another generation forward, face a somewhat more hospitable workplace. But I don’t kid myself that the playing field is level: glass ceilings, hidden biases, and workplace stereotypes still hinder women in the legal workplace. Both men and women, meanwhile, struggle to combine a demanding professional career with a supportive home life.

Against that background, I’m delighted to announce that LST Radio is creating a podcast mini-series that will explore the ongoing role of gender in the legal workplace. Episodes will address implicit bias, the leaky pipeline, media images of female lawyers, and much more. Podcasts will include summaries of expert research, interviews with individuals, and round table discussions.

LST has assembled a first-rate team of producers, as well as partners who will distribute the podcasts widely. But to go into production, they need some start-up funds. Diversity Law has made a generous matching pledge: If you donate to the “Women in the Law” podcast project now, your dollars count double. Give $10 and the project receives $20. Give $25 and $50 goes in the pot. I’ve already made my pledge–please add your dollars here.

Let’s make sure we understand the forces that still hold women lawyers back–and work to overcome them.

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2016 State of the Legal Market

January 24th, 2016 / By

Georgetown Law’s Center for the Study of the Legal Profession has released its 2016 Report on the State of the Legal Market. The data-driven study of mid-sized and large law firms repeats many of the same findings that researchers have reported since the Great Recession. The news, unfortunately, is that there is nothing new. In 2015, as in other recent years, demand for law firm services “was essentially flat,” productivity among lawyers at those firms declined, and realization rates “plummeted.” (A realization rate “is the percentage of standard billing rates that is actually collected.”)

In sum, “2015 will go down as another overall lackluster year in terms of law firm financial performance.” Yikes. What does that mean for law schools? (more…)

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“Little Staff Attorneys”

January 21st, 2016 / By

At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.

This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people. (more…)

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Peking University

January 18th, 2016 / By

In August 2012, the ABA’s Council of Legal Education and Admissions to the Bar decided not to accredit any law schools located outside the United States. Many observers assumed that action would put an end to Peking University’s upstart enterprise, a School of Transnational Law. Instead, the school, popularly known as “STL,” is thriving.

Philip McConnaughay and Colleen Toomey, STL’s Dean and Associate Dean, explain the school’s success in a recent paper. Their insights are important for anyone seeking to understand the globalization of law practice and legal education. The story of Peking University and STL also offers a cautionary tale about American protectionism.


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The ABA Council and LSAT Scores

January 10th, 2016 / By

As Law School Transparency documented last fall, LSAT scores have plunged at numerous law schools. The low scores, combined with previous research, suggest that some schools are admitting students at high risk of failing the bar exam. If true, the schools are violating ABA Standard 501(b).

Two leaders of the ABA’s Section of Legal Education and Admissions to the Bar recently offered thoughts on this issue. Justice Rebecca White Berch, Chair of the Section’s Council, and Barry Currier, Managing Director of Accreditation and Legal Education, each addressed the topic in the Section’s winter newsletter.

Taking Accreditation Seriously

Berch and Currier both affirm the importance of enforcing the Council’s standards; they also indicate that the Council is already considering school admissions practices. Justice Berch reminds readers that the Council enforces its standards largely through review of each school’s responses to the annual questionnaire. This year, more than half of approved schools are replying to inquiries based on their questionnaire responses–although Berch does not indicate how many of those inquiries relate to admissions standards.

Currier, similarly, endorses the Council’s process and promises that: “If the evidence shows that a law school’s admissions process is being driven by the need to fill seats and generate revenue without taking appropriate steps to determine that students who enroll have a reasonable chance to succeed in school and on the bar examination, as ABA Standard 501(b) requires, then that school should be, and I am confident will be, held accountable.”

This is good news, that the Council is investigating this troubling issue. If we want to maintain legal education’s status, we have to be serious about our accreditation standards. But two points in the columns by Justice Berch and Managing Director Currier trouble me.

The Significance of LSAT Scores

Both Justice Berch and Currier stress that LSAT scores reveal only a small part of an individual’s potential for law study or practice. As Justice Berch notes, “an LSAT score does not purport to tell the whole story of a person.” This is undoubtedly true. Many law schools place far too much emphasis on LSAT scores when admitting students and awarding financial aid. Applicants’ work history, writing ability, prior educational achievements, and leadership experience should play a far greater role in admissions and scholarships. Rather than targeting high LSAT scores for admission and scholarships, schools should be more aggressive in rewarding other indicia of promise.

At the other end of the scale, I don’t think anyone would endorse an absolute LSAT threshold that every law school applicant must meet for admission–although we do, of course, require all applicants to take the test. There are too many variables that affect an admissions decision: a particular applicant with a very low LSAT may have other characteristics signaling a special potential for success.

LSAT scores, however, possess a different meaning when reported for a group, like a law school’s entering class. A law school may find one or two applicants with very low LSAT scores who display other indicia of success. That type of individualized decisionmaking, however, should have little impact on a school’s median or 25th percentile scores.

When a law school’s 25th percentile score plunges 10 points to reach a low of 138, that drop belies the type of individualized decisionmaking that responsible educators pursue. This is particularly true when the drop occurs during a period of diminished applications and financial stress.

The Charlotte School of Law displayed just that decline in entering credentials between 2010 and 2014. Nor was Charlotte alone. The Ave Maria School of Law dropped its 25th percentile LSAT score from 147 to 139. Arizona Summit fell from 148 to 140. You can see these and other drops in the detailed database compiled by Law School Transparency here.

We shouldn’t confuse the meaning of LSAT scores for an individual with the significance of those scores for a group. As I have suggested before, the score drops at some law schools are red flags that demand immediate attention.

Limited Resources

Justice Berch reminds readers that the Council’s accreditation process is “volunteer-driven” and that those volunteers already “give thousands of hours of their time each year.” More, she suggests, “should not be asked of them.” Even making the best use of those volunteers’ hours, she warns, careful review of the LSAT issue will take time.

This caution sounds the wrong tone. As professionals, we owe duties to both our students and their future clients. If law schools are violating the professional commitments they made through the accreditation process, then our accrediting body should act promptly to investigate, remedy, and–if necessary–sanction the violations.

Of course schools deserve “an opportunity to justify the admissions choices they have made before sanctions may be imposed.” But students also deserve fair treatment. If schools are admitting students who cannot pass the bar exam, that conduct should stop now–not a year or two from now, after more students have been placed into the same precarious position.

The LSAT drops cited above occurred between 2010 and 2014. More than a year has passed since schools reported those 2014 LSAT scores to the ABA. Isn’t that enough time to investigate schools’ admissions processes? What has the Council done during the last year, while more students were admitted with weak scores–and more graduates failed the bar?

Accreditation signals to students that schools and their accrediting body are watching out for their interests. If schools need to contribute more money or volunteer time to provide prompt review of red flags like these LSAT scores, we should ante up. Maintaining an accreditation process that fails to act promptly smacks of protectionism rather than professional responsibility.

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