Assuring Transparency

August 3rd, 2013 / By

Law School Transparency (LST) made news last week when several blogs reported that the organization had designed a certification program for law schools. For an annual fee, LST is offering to vet a school’s website and marketing materials for consistency with ABA standards and other best practices; create user-friendly graphics that would inform potential applicants; and certify the school’s transparency to those applicants. The proposal evoked charges that LST was operating a Mafia-like protection scheme, and even violating the Hobbs Act.

Really? Let’s revisit the history behind LST’s proposal.

ABA Requirements

In August 2012, the ABA’s Section of Legal Education and Admissions to the Bar adopted new standards governing law school disclosure of employment outcomes and scholarship retention rates. The Section explained these requirements in a memo distributed to all schools, and directed schools to comply with the mandates by October 5, 2012. Schools already possessed the information required by the new standard; they needed only to publish the data. To make that task as easy as possible, the ABA gave schools two simple templates for displaying data.

In late December of 2012 and early January of 2013, LST’s executive director (Kyle McEntee) and research director (Derek Tokaz) checked compliance with these requirements and issued a report. Despite the ABA’s clear mandate–and the ease of complying with those requirements–LST found that only one-third of accredited law schools had complied. Three months after the mandate took effect, 65.3% of schools had failed to publish at least one of the required tables. One in five schools (20.6%) had not published either chart.

The required charts were not mindless boilerplate. The ABA designed them to offer prospective students (1) key information about the percentage of students retaining conditional scholarships, and (2) basic employment outcomes for recent graduates. The information was essential to balance claims schools were making about scholarships and employment outcomes. Despite widespread recognition of the need for increased transparency, two-thirds of law schools failed to meet the ABA’s minimum standards.

After gathering this disheartening information, McEntee sent customized information to the dean, career services office, and admissions office of each accredited school. Those memos indicated whether the school had posted the ABA-required charts, whether other potentially misleading information appeared on the school’s site, and whether the school “went above and beyond the minimum regulatory standards” by publishing additional accurate, useful data for prospective students. After receiving this information, individuals from 102 different law schools communicated with McEntee, requesting more information about their school’s compliance or counseling on how to improve transparency. [You can find all of these details in the LST report cited above.]

After LST’s feedback, the percentage of schools complying with the ABA requirement doubled. Ninety percent (90.5%) of schools published at least one of the charts required by the ABA, while two-thirds (65.3%) provided both. Numerous schools improved other aspects of their communications with potential students, adopting some or all of the best practices suggested by LST.

In sum:

1. Despite frequent protestations of their improved transparency in communicating with potential applicants, two-thirds of accredited law schools had not complied with the ABA’s minimal disclosure requirements by early January of 2013.

2. Intervention by LST substantially improved compliance.

3. Even after that intervention, one-third of schools still failed to provide basic, required consumer information to law students.

How Do We Secure More Compliance?

As a legal educator, I find that lack of compliance astounding. How could so many law schools fail to comply with the ABA’s minimum transparency standards? These issues aren’t new. The press began spotlighting disclosure gaps in spring 2011, more than a year before the ABA issued its simple requirements. Law deans had vowed adherence to a new era of transparency, suggesting quick compliance with the new standards.

Some schools matched deeds to these words, but a majority did not. The foot dragging hurts the reputation of all law schools, but it hurts compliant schools more than the careless ones. We can’t regain the public’s trust, or recruit students to our programs, if we don’t adhere to our own accreditation standards governing transparency. Rules and lip service aren’t enough; we need compliance.

Who is going to take responsibility for achieving compliance? Do we as faculty have to police law school websites, sending polite notes to deans, admissions directors, and career services directors about omissions? If our own schools are in compliance, will we hound colleagues and deans at other schools about their failures? As scholars, we care about data integrity; as legal educators, we care about the reputation of our community. But how much time are we going to spend vetting the communications of 200 law schools?

LST proposed a solution: It would check transparency on law school websites, assuring consistency with ABA requirements as well as best practices in presenting data. Schools that followed those practices would receive a certification signaling their compliance with LST standards, which would be clearly identified to schools and the public. LST would charge for its time doing this work. That’s not a surprise: Most of us charge for our time when we work. The only surprise was that LST performed this work for free over the last few years.

This solution also addressed a request that LST had received from several deans. After receiving a high rating on LST’s transparency index, some deans asked if LST would give them a letter attesting to their transparency. Others blogged, tweeted, or posted about their success (see footnote 23 of this review). Schools clearly wanted to demonstrate their commitment to transparency, a desire that LST could fulfill–as long as someone was willing to pay for their time.

LST’s certification program is designed to fill the above needs. The price, $1,925 for the first year, would cover modest salaries for the individuals doing this work. For a price comparison, consider that the ABA is paying $75,000 for an advisory firm simply to design a protocol for reviewing the integrity of data generated by law schools (a somewhat different need than the one LST proposes addressing). That $75,000 fee won’t cover any actual reviews; it will support only design of a protocol. LST has already created its protocol–for free. With $75,000, it could apply the protocol to assure that thirty-nine different law schools are providing accurate, transparent data to prospective students.

What Now?

Will LST’s certification program go forward? Fortified by a few negative blog posts, law deans may decide to forego certification and the best practices it requires. If they do, I hope that faculty at their schools will be willing to pick up the slack. Slipshod practices in reporting data are embarrassing to all of us. For years, I shook my head at the way schools reported salary information without noting response rates. We wouldn’t tolerate those practices in scholarly papers; they’re even less appropriate when urging potential students to attend our schools.

I hope some deans will embrace LST’s certification process. It’s a good way to move forward, demonstrate a real commitment to transparency, and give prospective students the information they need.

Personal Disclosure

LST doesn’t have investors; it’s a nonprofit without shares to sell. It does, however, have some donors and I am one. I gave the organization $500 in 2012 and $5,000 earlier this year; the latter is a bit less than the amount I have been giving each year to the law school where I teach (with that money going to summer fellowships for students). In addition to my financial gifts, I have served as an unpaid adviser to LST.

What do I get for my donations and free advice to LST? No football tickets, mugs, stickers, or expectations of profit. All I “get” is the satisfaction that potential law students will receive the information they need to make good decisions about their careers–and that law schools themselves, encouraged by LST, will volunteer that information more freely.

LST never solicited me for my donations. I was impressed with their work and offered the support I could afford. I am paid well for the work I do, and I think LST deserves to be paid for their work. They have done much to create needed transparency at law schools and to serve prospective law students. I wish other law professors would support LST, even at much lower levels than I have provided. With more donations, LST would not need to charge for the transparency work that it does.

I was sufficiently impressed with Kyle McEntee that I invited him to moderate this blog with me. I don’t agree with everything he writes (and he doesn’t agree with everything I write), but I thought it was important to include a recent graduate’s perspective in a blog about legal education. There are blogs written by professors, and blogs written by recent graduates, but I believe we are one of the few sites trying to combine those perspectives.

And, yes, this blog is “as purely non-profit as the driven snow.” It’s not just non-profit; it’s non-income. No advertising, no trinkets for sale, just ideas to discuss.

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Transparency Today

March 4th, 2013 / By

ABA Standard 509 governs the consumer information that accredited law schools provide to prospective students. The ABA Section of Legal Education and Admissions to the Bar approved changes to that standard in June 2012, and the revised standard took effect on August 6.

The revised standard was widely publicized; indeed, it followed more than a year of lively discussion about misleading practices in the way some schools reported scholarship retention and employment rates. In response to those concerns, the revised standard includes a requirement that schools publish simple tables disclosing specified information about scholarships and jobs. The ABA provides the tables through downloadable worksheets; law schools have the applicable data readily at hand.

Given the widespread attention to Standard 509, the clear obligation of law schools to provide accurate information to potential students, and the specific worksheets offered by the ABA, quick compliance with Standard 509 should have been a breeze. By December 2012, surely every accredited law school in the country would have published the two mandatory tables.

Sadly, no. In late December and early January, two members of Law School Transparency (LST) visited the website of every ABA-accredited school, searching for the tables mandated by Standard 509. Almost two-thirds of law schools still had not posted one or both of the tables mandated by Standard 509. These schools were actively–even passionately–recruiting students for the fall of 2013. Yet they had allowed an entire semester to pass without posting the basic information about scholarship retention and employment rates that these prospective students deserve to know.

Kyle McEntee and Derek Tokaz, the Executive Director and Research Director respectively of LST, detail these disappointing results in a new paper. At the same time, they have published their findings on LST’s updated Transparency Index.

Before publishing, LST sent each law school the results of their website study. More than 100 law schools contacted LST and, over the next three weeks, Kyle and Derek counseled them on how to improve their compliance with Standard 509. As a result of these efforts, the percentage of schools failing to publish one or both of the mandatory charts has fallen from two-thirds to one-third. The online index reveals each school’s compliance status during the initial LST search (click “Winter 2013 Version”) and the school’s current status (click “Live Index”).

It’s hard to find any cheer in these numbers–other than to applaud LST for their tireless and unpaid work. Schools should have complied with the basics of Standard 509 by October 2012 at the latest. Two months is more than enough time to put readily available information into a spreadsheet and post the information on the web. How many times did non-compliant law schools update their websites between August and January? How much upbeat information did they add to attract applicants? What possibly excuses the failure to post information mandated for the benefit of those applicants? Facts about scholarship retention and employment matter to prospective students; that’s why the ABA requires their disclosure.

Missing 509 charts is just the beginning of the transparency problems that LST identified in its latest sweep of law school websites. The online index reveals still more sobering information. This report raises a serious question for law schools: If we want to provide “complete, accurate and nonmisleading” information to prospective students, and I think that most of us do, then what institutional mechanisms can we adopt to achieve that goal? Our current methods are not working well.

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Modules: An Introduction

January 21st, 2013 / By

A “modular” education is one in which (1) the institution delivers education in discrete courses; (2) those courses are independent of one another, although some advanced courses may carry prerequisites; (3) teachers assess students at the end of every course; (4) students have significant choice in electing courses; (5) the student earns a degree by passing a specified number of courses, sometimes with particular distribution and other requirements; and (6) a student often may apply credits from one institution toward the degree awarded by another institution.

Sound familiar? It should. Modular education has long been the norm at U.S. universities, including law schools. Universities in other countries, including the United Kingdom, embraced modular education much more recently–with significant culture shock and gnashing of teeth. [For a discussion of that transition, see the interesting article by David Billing, Review of Modular Implementation in a University, at 50 Higher Education Quarterly 1 (1996).]

So what’s the big deal about moving law schools to a more modular system? In a recent paper, Kyle McEntee, Patrick Lynch, and Derek Tokaz advocate a new model of legal education called the “Modular Law School.” Their proposal would make law school more modular by introducing greater flexibility in the length and scheduling of coursework. Modules could last a week, a month, or a semester–although most would last no more than seven weeks. Similarly, modules could meet one hour a week or ten hours a week; schedules would vary to accommodate the nature of the material, the pedagogy, and the instructor’s availability.

Many law schools have already moved in a modular direction. They offer “short courses” ranging from a week to a half-semester; they also schedule courses in different formats. The Modular Law School (“MLS”) builds on these approaches to create a more fully modular system. What are the pros and cons of an MLS?

There is a lot to say about the costs and benefits of a more modular education; so much, in fact, that I’ve decided to create a series of posts on this issue. In upcoming posts, I’ll consider these aspects of a more modular law school:

* Assessments and Feedback
* Curricular Content
* Delivery Methods
* Costs
* Customization
* Coherence
* Experiential Education
* Continuous Improvement

If you’re interested in other topics related to modular education, please let me know. My discussion is modular, so I can easily add to it!

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January 13th, 2013 / By

The ABA allows law schools to admit students who have completed just three years of college. Standard 502(a) provides that “A law school shall require for admission to its J.D. degree program a bachelor’s degree, or successful completion of three-fourths of the work acceptable for a bachelor’s degree, from an institution that is accredited by an accrediting agency recognized by the Department of Education.” This rule allows law schools to create “three/three” programs that admit students after three years of college. Students in these programs complete the normal three-year JD program, with their college applying one year of the JD study toward a BA degree. Students thus earn a BA and JD in a total of six years rather than seven.

According to a recent paper by Kyle McEntee, Patrick Lynch, and Derek Tokaz, thirteen law schools currrently advertise three/three programs. Those programs are:

Albany Law/Sage College
Chicago-Kent Law/Shimer College
Columbia University (scroll down)
Creighton University
Fordham University
Georgia State University
Florida Coastal Law/Jacksonville University
Hofstra University
Rutgers University-Camden
Seton Hall Law/NJ Institute of Technology
Southwestern Law/Cal State University
St. Thomas University
Willamette University (scroll down)

Many of the existing programs have strict limits. Creighton offers the option only to business students; Columbia chooses only one or two students a year. All thirteen of these programs, furthermore, reflect partnerships between a single college and a single law school–often under the same university umbrella. In this form, three/three programs serve very few students.

Should law schools expand three/three programs to encompass more students and schools? Here are some pros and cons:

Advantages of Three/Three Programs

1. For students, the programs reduce the cost of becoming a lawyer. Students devote just six years of higher education, rather than seven, to qualifying for the bar. They save a year of tuition and opportunity costs.

2. In most other countries, law is an undergraduate degree. From a systemic perspective, three/three programs could move the United States closer to parity with other nations. If U.S. students and new lawyers are disadvantaged by our longer education track, this change would assist them.

3. From a law school’s perspective, three/three programs may attract students who are otherwise reluctant to invest in law school.

4. Again from the school’s perspective, three/three programs may offer a way to “lock in” attendance by especially talented undergraduates at a partner school.

Disadvantages of Three/Three Programs

1. The programs do nothing to reduce the cost of legal education. As McEntee and his coauthors note in the paper cited above, three/three programs try to solve the problem of soaring law school tuition by cutting a year from college. Former law school dean and university president Gene Nichol sounded a similar theme while speaking at this year’s AALS meeting. Would it be healthier for law schools to address their costs more directly?

2. Unless three/three programs become dominant, the programs may do little to solve the problem of declining law school applications and enrollment. College seniors and graduates won’t care that a few other students saved money by enrolling in a three/three program; these potential applicants will continue to compare the cost of legal education to other graduate and workplace options. If high tuition and a diminished job market are discouraging students from attending law school, then schools need to find a way to address those problems for the bulk of their applicants–not just for a small number who matriculate through a three/three option.

3. The fourth year of college provides significant pedagogic value for many students. College seniors write undergraduate theses, pursue research projects with professors, and study abroad. Students who pursue three/three programs may miss these opportunities, hampering their personal development as well as the contributions they make to law schools and the workplace.

4. The students who would benefit most economically from three/three programs, those with few financial resources, may be the students who most need four years of college. Students from affluent backgrounds have the chance to take college-level courses in high school, travel abroad with their parents, and pursue other special programs before they set foot on a college campus. Less fortunate students only begin to catch up with these opportunities during college. Three/three programs may either give a bonus to wealthy students (who are educationally ready for law school after just three years of college) or further penalize disadvantaged students (who feel financially pressured to combine college and law school).

5. In a three/three program, the student saves a year of college tuition rather than one of law school tuition. If the student attends a low-cost college or has a substantial undergrad scholarship, the tuition savings may be small.

6. Although the ABA allows three/three programs, at least one state (Ohio) severely restricts the ability of these students to take the bar. Ohio’s Supreme Court Rule I.1(B) requires bar applicants to earn a bachelor’s degree (i) before beginning law school or (ii) “through completion of courses and credits other than those received in law school.” This rule precludes three/three applicants from gaining bar admission in Ohio unless their law school is willing to let them take a full year of credits outside the law school. I have not found any other state with this restrictive a rule, but schools or students considering three/three programs should look carefully at bar admission rules. For a quick guide to each state’s rules, check the Directory of Bar Admission Offices on the home page for the National Conference of Bar Examiners.

7. Current three/three programs offer students few, if any, choices among law schools. At least for now, the programs pair a single college and law school. A student who enrolls in one of these programs may sacrifice the opportunity to attend a more prestigious law school, one that would have offered a larger scholarship, or one with other attractions. The narrow focus of these programs similarly limits their utility to law schools. If a law school can strike a three/three partnership with only a few colleges, the number of students admitted under the three/three umbrella will be small.

8. Colleges may resist establishment of three/three programs because they (a) interfere with the liberal arts mission, and (b) reduce undergraduate revenues. Unless colleges are willing to endorse these programs, and to accept credits from a large number of law schools, the programs will remain small.


How will employers react to three/three graduates? Will they treat these students identically to other law students? Or will they find that three/three’s lack maturity or useful educational background? Some law students find jobs by combining undergraduate experiences–gained through externships, part-time jobs, or special study programs–with their law school degree. Will three/three students lack some of these opportunities?

On Balance

A three/three program may offer a useful option for a small number of students; my father obtained his Columbia BA and JD through a three/three program. But these programs seem unlikely to address the larger issues of cost associated with law school attendance. They may even interfere with full preparation of students for the workplace. Developing and administering any program takes time and money from a law school budget. Given the limited pay-off of three/three programs for schools and students, other innovations seem more promising than this one. But what do you think? What other costs and benefits have I missed?

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Does Cost Matter?

January 3rd, 2013 / By

When assembling a faculty, does cost matter? Should law schools consider cost when deciding whether to offer courses through tenure-track faculty, non-tenure-track faculty, part-time adjuncts, or other types of instructors? Or should law schools embrace the highest quality instruction, regardless of cost?

Even posing the question seems silly: Of course cost matters. Cost affects everything, even the availability of lifesaving treatment. Few of us can afford to exalt quality entirely over cost in a purchase. When we do opt for the highest quality in one part of our personal budgets (say housing), we necessarily limit options in other categories (such as entertainment). Law schools face the same constraints: few, if any, schools have the type of resources that make cost irrelevant in choosing faculty.

Law schools, in fact, show considerable price sensitivity when deciding what types of faculty to hire and what kinds of courses to teach. Schools frequently observe that adding clinics is “too expensive” because clinics cost more per student-credit-hour than large doctrinal courses do. The same has been said for legal writing courses taught by tenure-track faculty. The use of low-cost adjuncts and non-tenure track faculty has grown substantially over the last few decades. Law schools have been quite strategic in accounting for cost while building a curriculum.

Kyle McEntee, Patrick Lynch, and Derek Tokaz build on this reality in a recent paper that explores new models of legal education. McEntee, Lynch, and Tokaz (“MLT”) propose that “cost must be a factor” in determining faculty composition and that “faculty composition should be the optimal balance of cost and teaching quality, as analyzed in terms of legal education’s purposes.” The trio acknowledge that scholarship is also important in hiring faculty but, given the high cost of legal education, “it must be subservient to learning outcomes.”

Many faculty will disagree with making scholarship “subservient.” As one of them, I would add scholarship as an independent factor in the balance, saying something like “faculty composition should reflect the optimal balance among cost, teaching quality, and support for ongoing research, as analyzed in terms of legal education’s purposes.”

Some faculty (including me) would add another factor to the “optimal balance”–questions of workplace equity. When composing a faculty, I would consider both positive and negative aspects of maintaining a professorial caste system. Some professors welcome a status that allows them to teach full-time without producing scholarship; others enjoy teaching part-time while pursuing a law practice. But some of these “other status” faculty accept part-time or nontenure-track positions because they can’t find full-time jobs on the tenure track. As employers and professional role models, how far will we go in pushing workers into contingent positions–especially if the workers lack benefits from other employers?

The important point, however, is that cost should count in any decision about faculty composition. Whether the overall calculus includes two factors (as MLT suggest), four (adding scholarship and workplace equity), or some other number, cost is an essential part of the balance. As tenured faculty, we have been very nimble in accounting for cost when it benefits us. We hire adjuncts and non-tenure track faculty to teach courses that we prefer not to teach. We also resist the expansion of skills offerings on the ground that teaching them would be expensive while (we assume) doing little to further the school’s collective scholarship.

We are much less willing to account for cost when that would benefit students by lowering tuition. MLT remind us that we need to look at all faculty expenditures with cost in mind. At many law schools, the number of tenured faculty members has grown significantly over the last decade. Do we really need that many full-time, tenure-track faculty when we balance the cost against both teaching quality and other benefits these faculty may confer?

Before we discuss that question, it seems worth affirming that costs do matter, that schools already make decisions based on cost, and that both students and future clients have a very strong stake in that cost balance.

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ABA Journal Blawg 100 HonoreeLaw School Cafe is a resource for anyone interested in changes in legal education and the legal profession.

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