an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Was the New York Times Used by Duncan Law School (or were readers duped by the Times)?
The theme of the final installment of the New York Times series on law schools, "For Law Schools, A Price to Play the A.B.A.'s Way," was that ABA accreditation is to blame for high tuition. The story revolved around the effort of Duncan School of Law to obtain provisional A.B.A. accreditation. In the article, Duncan administrators and the main benefactor complained that accreditation regulations were "massive, just massive." Without these requirements, they claimed, "Duncan could have cut its tuition in half, maybe by two-thirds."
The article gave the clear impression that Duncan was awaiting a final decision on whether it would receive accreditation without any foreknowledge of its likely fate. The concluding passages:
ON Dec. 2, Mr. Beckman and six colleagues from Duncan traveled to a hotel in San Juan, P.R., where the A.B.A. held its latest council meeting. The school had 15 minutes at a hearing to offer its arguments for provisional accreditation.
“This is just a pet peeve,” Mr. Beckman said last week, “but there is all this talk about the cost of legal education, and they make us fly to Puerto Rico and meet at the Ritz-Carlton?”
After his presentation, Mr. Beckman and others answered a number of questions, including a few about the job market for lawyers in east Tennessee. This bothered Mr. Beckman because, for antitrust reasons, employment prospects are not part of the A.B.A.’s standards. He pointed that out to the council.
“They didn’t really respond,” he says.
Nor did they hint at whether they would give Duncan a thumbs-up. In the past, law schools have learned a few days after their hearings. But since Dec. 2, there has been nothing. “The last thing we heard — and they didn’t mean this to be rude or anything — was at the end of the meeting in Puerto Rico,” Mr. Beckman says. “They said, ‘You can let yourselves out.’ “
Just three days after the Times story, on December 20th, the ABA notified Duncan that it had been denied accreditation. The timing and perfunctory nature of the notification suggested to some observers that the ABA had retaliated against Duncan for its critical comments.
As it turns out, however, the story left out crucial information.
Duncan had been notified by the ABA on October 12, 2011, in a 23-page Recommendation with fact findings, that the Accreditation Committee "concluded that Duncan had not established substantial compliance with four separate Standards." Under ABA rules, although the Council makes the final decision, there is a presumption that "the Council shall adopt the Committee's findings of fact unless the Council determines that they are not supported by substantial evidence in the record." The ABA Consultant on Legal Education, Hulett Askew, had a follow-up meeting with the Dean of Duncan on October 27, 2011, advising the school of its options in light of the negative recommendation. (This information is taken from the sworn statement of Askew, available here.)
None of this is mentioned in the story. The Times does not say that Duncan had already received a negative recommendation from the Accreditation Committee. It is not quite true that Duncan had no "hint" of its likely fate, since a presumption attaches to the Committee finding and the exchange at the Dec. 2nd meeting had a critical tenor. And Duncan administrators were well aware of the reasons behind the negative recommendation, reasons which were not mentioned in the story. In light of this, it appears likely that Duncan officials already anticipated that they would be denied accreditation when they spoke with the Times reporter.
The Times account would have read very differently had readers been advised of the preliminary findings against the school.
I will elaborate on those findings in a moment, but first one must wonder why this crucial information was omitted from the story. One possibility is that Duncan administrators did not tell the reporter, David Segal, about the Committee's negative finding. That would be shocking if true. It would suggest that Duncan law school used the Times to help it mount a preemptive public campaign against the ABA before the negative finding came to light. Another possibility is also shocking: that Segal knew about the negative conclusions but deliberately failed to mention them because to do so would disrupt his story line.
Perhaps there is some other more innocent explanation for this omission, but whatever happened, it does not reflect well on the credibility and reliability of the Times.
What were the reasons for the negative recommendation? I will highlight several (all detailed in Askew's declaration linked above).
First, like many law schools recently, Duncan had suffered significant declines in the number of applicants and in student qualifications. As a result, Duncan fell far short of expected enrollment and student quality targets. This was not Duncan's fault--just a case of bad timing--as the school was set up during the mid-2000's boom days for law schools, just before the crash.
The median LSAT of the the last two entering classes was 147, with median GPAs of 2.97 and 2.99, respectively. A 147 LSAT is at the 33.1% mark for all test takers; the bottom quarter of Duncan's entering class was at or below 23.1% of all test takers (144 LSAT). These are exceedingly low numbers--so low that admitted students have a real risk of not completing law school and not passing the bar.
The Accreditation Committee was worried not just about the low student qualifications, but also about the apparent lack of an adequate academic support program. Students with LSATs and GPAs that low will need significant assistance to make it through the challenge of law school. Although Duncan correctly points out in its defense that half a dozen accredited law schools have similarly low student profiles, the fact remains that these are worrisome numbers.
A second concern raised by the Committee was the soundness of Duncan's academic standards. To remain in good standing at Duncan, a student must have a cumulative GPA of at least 2.0, although students may continue to enroll as long as their GPA remains above 1.25 (D+). Below that, a student is automatically dismissed. A dismissed student can be readmitted only under "extraordinary circumstances." Yet "Duncan had readmitted 6 of 18 previously dismissed students." A student with a GPA in that range, the Committee noted, would have to get A's and B's to qualify for graduation. Readmitted students thus were spending a great deal of money to continue their studies with significant odds against making it to graduation.
A third concern had to do with the basic economics from the standpoint of students. To attend Duncan, tuition ($28,600) and living expenses come to almost $50,000 annually, with projected debt upon graduation between $80,000 and $100,000. Despite the high cost for its degree (which it blames on the ABA), Duncan identifies its core mission as serving unmet legal needs of the poor in the Appalachian Mountain region. The Committee (and the Council) wondered how graduates with this level of debt could afford to work in the low end legal market, especially since legal services positions were being cut.
This question highlights a glaring contradiction in the Duncan law school model (which the Times piece failed to recognize). Regardless of who or what is to blame for Duncan's high tuition, the bottom line is that students who pay that much and take on that level of debt to obtain a law degree will be under severe financial pressure as attorneys--and it is sheer fantasy to assert that they will go on to serve the poor after graduation.
Again, none of this was mentioned in the Times piece. Duncan comes off as a victim in the story, trying to do the right thing for the community but forced to spend all kinds of money by the ABA for unnecessary reasons. The story would have been a lot messier (and less convincing) if readers were informed about the serious problems at Duncan because that information would have shown that some good, at least, comes from what ABA accreditation does.
The Duncan position boils down to the assertion that the ABA cannot limit competition and, anyway, the ABA has already accredited a bunch of law schools that charge a lot of money from students who have low qualifications and dismal job prospects upon graduation, so it cannot deny Duncan on these grounds. Duncan is correct that other law schools with an equally questionable economic model have earned accreditation in the past, although whether this entitles Duncan to the same is another matter.
What's especially odd about this Duncan affair is the full circle traveled by the Times in its series. Earlier articles, Is Law School a Losing Game? and "Law School Economics: Ka Ching!", raised hard hitting questions about the economic model of law schools, especially lower ranked expensive private schools that load debt on students for a questionable economic return. The final Times article, inexplicably, promotes (champions?) a law school that embodies these same problematic features.
I should make clear that, although I am critical of the latest Times story because it points in the wrong direction, that does not make me a fan of the ABA, which I have criticized here, and more extensively in my forthcoming book, Failing Law Schools (Chicago 2012).
Having presented a limited defense of the ABA, let me end by pointing out, once again, why the ABA still is more a part of the problem than a part of the solution.
In a recent interview, the current president of the ABA, William Robinson, appeared to blame disgruntled law students and recent graduates for their plight:
"It's inconceivable to me that someone with a college education, or a graduate level education, would not know before deciding to go to law school that the economy has declined over the last several years and that the job market out there is not as opportune as it might have been five, six, seven, eight years ago," he said.
That might be true today, with all the public criticism of law schools out there, but we must remember that prior to 2011 there was relatively little information about this other than in the scamblogs. The legal establishment did its best to ignore or discredit the scamblogs (my initial post on misleading job numbers and poor employment prospects came in June 2010). Hence it is not correct to assert that current 2nd and 3rd year law students, who entered law school in 2009 and 2010 (not to mention prior classes), should have known about the dismal job prospects--law schools, facilitated by lax ABA employment reporting requirements, did their utmost to conceal this reality.
Robinson is also badly off when he dismisses misleading employment statistics as a limited problem, saying that the number of schools in question is "no more than four" out of 200 with ABA accreditation. Misleading job reporting is widespread and remains at many law schools today (with some improvements of late). There are many examples, but I will offer just one, a well-regarded but not elite law school which claims a 99% employment rate for the class of 2010, with a median salary in private practice of $130,000. These are unbelievable numbers, given the dire state of the legal job market, and the school does not provide enough information to get the full employment picture.
This presumably is not one of the four misbehaving law schools Robinson had in mind. That leaves us with two dubious propositions coming from the president of the ABA: that it is okay for law schools to publish numbers like this, and the fault lies with students for foolishly taking law schools at their word. Posted
by Brian Tamanaha [link]
All of Segal's articles have glaring questions that were not asked or, maybe, even considered.They read like opinion pieces more than articles designed to investigate a phenomenon. He started with a position, and gathered information to support his pre-formed notions. As you indicate, the articles did raise important questions. But Segal had neither the inclination nor, perhaps, the capacity, to deal with these issues in a coherent manner. The Times refused to print responses from some pretty prominent folks who wrote in to challenge some of the things he wrote.
Readers were given the chance to ask Segal questions after this last article. His answers showed that he is clearly in over his head in these matters. Someone asked about the antitrust implications of the ABA seeking to limit law schools, and he wrote as if he had never heard that this was ever thought to be a problem. In other venues people from Tennessee pointed out that the state already has a lower cost alternative to higher priced private institutions-- the University of Tennessee. They are subject to all the ABA requirements, but manage to deliver education at a lower cost than Duncan. What gives? That should have been a feature of the piece, if there was not already a pre-fab conclusion that the author wanted the reader to accept.
Also, there are at least ten states that offer alternative ways to get a law license. How could a journalist champion the notion of alternatives to law school, and pay no attention to the ones that already exist. That should be as basic as "who, what, what, when, where why" Just as a matter of simple curiosity, which a journalist must have, why wouldn't the existence of alternatives be a feature of the article, if only to explain why those alternatives aren't taken by more people.If they aren't attractive, why aren't they attractive? How should new alternatives be different? I think the whole thing has been a mess.
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