Law Schools Closing

11/06/2016 08:42 pm ET Updated Nov 07, 2016
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Critics of legal education might be chortling that Indiana Tech University has announced it will close its new law school. Only one member of its inaugural class passed the bar exam, and the school reportedly has suffered $20 million in losses. Everyone not associated with it wondered why they had opened it in the first place. When it started operations in 2013, it was apparent that legal education was not a reliable source of revenue for either the institution peddling it or the individual purchasing it. Provisionally accredited, the coming demise of Indiana Tech apparently is the first such shuttering in a generation. As often is the case, the real scandal is not the extreme example that generates headlines but the ordinary occurrence that continues without attracting attention. We have been too polite.

People ask why more law schools have not closed. The answer to the question is that, in effect, they already have. We simply haven’t noticed. Astute observers have argued that the cumulative losses in enrollment equal a couple dozen law schools’ worth of would-be attorneys.

In 2010, the number of applicants to law school was a record 87,900, who filed 604,300 separate applications. The number who matriculated that year was 52,488. After year over year of decreases, the number of applicants to law school has settled at 54,500. The number who matriculated in 2015 was 37,058.

A censorious commentator might note, however, that the decline in the applicant pool exceeds the decline in students, in proportional terms. That means, in the aggregate or on average, law schools are accepting persons with statistical indicators (LSAT and undergraduate grade point are the conventional predictors of academic success) that are lesser than prior to this crash. More of the best students seem to be staying away from the profession. The situation is so dire that law schools compete to recruit people they would have rejected not long ago, and even elite schools are facing the challenge.

The real issue here is whether some law schools may have crossed the line from offering access to higher education to predatory lending in the form of student loans all but impossible to discharge in bankruptcy. For the “better” law schools, or those that would describe themselves as selective, there has always been quite a margin between the weakest student whom they would take and the risk of failure on the bar exam.

They had room. Yale, at the opposite end of the rankings from Indiana Tech, is not troubled, and that should not be concerning to the rest of us since it still attracts more than enough extraordinary candidates for each available seat.

If legal education were free, erring on the side of giving folks an opportunity would be laudable. Since legal education is quite costly, however, there should be a tipping point past which progressives ought to encourage a student with weaker credentials to consider carefully whether the investment was worthwhile.

That becomes all the more so, since scholarship policies (actually “tuition discounting”) have shifted significantly toward rewarding the students who are safe bets. A consequence, not intended but inevitable, is that students who are less wealthy end up subsidizing those who are more wealthy. (The reason this happens is that there is a rough correlation between wealth and the indicators that are relied upon.)

When the line is crossed, and numbers go over the tipping point, we have a responsibility. A few professors have called out the business decision to generate revenue from people who aspire to improve themselves yet who cannot realistically expect gainful employment to provide sufficient return on the investment they have made. We should be wary of those who would disguise their profit motive by suggesting they are promoting diversity. Some places, such as historically black colleges/universities, mean it; others are doing what lawyers do that causes others to dislike us so, making an argument that serves self-interest.

For that matter, law schools are working themselves into an awful predicament. They are pursuing policies that cannot be sustained. The subsidies now required to maintain standards at law schools, which can be see at the public ones, cannot be making university presidents happy. Even leaders who were blasé about law students should be losing sleep over them.

The hierarchy within legal education is real. It affects the schools as well as their students. Schools that do not adapt, but instead try to imitate those with better resources, will regret the strategy.

None of us should be pleased that people, students especially, almost certainly will be severely harmed by choices made by those who purport to teach them. The admonition applies to more campuses than one that regrettably is in the news. It signals a structural problem throughout higher education. Indiana Tech Law School is not alone.

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