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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, April 25, 2017

Temperature Rises In Debate Over Closure Of Whittier Law School; Are 5-25 Law Schools In A 'Death Spiral' Leading To Closure Over The Next Five Years?

WhittierFollowing up on my previous posts:

Dan Rodriguez (Dean, Northwestern), The Hubris of the Unknowing:

I would not presume to know nearly enough to opine about this issue in any public fashion. But this does not appear to deter various pundits — Prof. Stephen Diamond most recently.

Stephen Diamond (Santa Clara), From the Shores of Lake Michigan Came a Howl …:

[T]he Dean of Northwestern Law School, a stalwart top-20 law school for decades, had taken to a leading law school blog to attack me for my alleged “hubris” and ignorance (he used a somewhat nicer sounding word I had not heard before in this context, “unknowing,”) because I had the temerity to blog recently about the closing of Whittier Law School in southern California. ...

[T]here is no basis at all to the ad hominem attack of Dean Rodriguez. I simply pointed out what is obvious to anyone willing to pay attention — as I have paid, quite closely now, for several years — to the legal employment market. That market is continuing its longterm expansion with more jobs and higher incomes than ever before. Any law school that closes down now is admitting it does not know how to run a law school. And since the ABA has accredited Whittier and it has something like $13 million in the bank from a recent real estate deal then it is perfectly reasonable to call into question —as I did — the logic of the Whittier Trustees’ decision. ...

[W]hat is the bug in Dean Rodriguez’s craw that he has to take to attacking a faculty member whom he does not know, has never met, whose work he does not read and has never seen presented, whose career and reputation are otherwise irrelevant to him? ...

The mystery as to why a Dean of a major law school — who presumably has more important issues to deal with — is paying attention to this and going out of his way to dismiss someone defending those who are trying to keep an ABA-accredited law school open remains unaddressed.

One possibility has occurred to me. It is a bit cynical but it does pass the test of Occam’s razor. Dean Rodriguez may be trying to go out of his way to denigrate backers of the Whittier faculty and students because he thinks the closure of Whittier is a good thing. He is, after all, concerned about the pressure from the ABA to increase bar passage rates. He applauded the delay in that effort at a recent ABA meeting. One way to alleviate regulatory intervention is market exit. Hence, if Whittier closes, the AALS feels less heat. Yeah, cynical, I know. But, believe me, it’s the friendliest explanation I could come up with — after all, if I were really being cynical I would point to this blog post and the comments of Whittier professor William Patton who basically suggests that Dean Rodriguez is backing a tougher national bar passage rate that would have a racially disparate impact on minority law school graduates.

Robert Anderson (Pepperdine), Who Really Killed Whittier Law School? The Shocking Truth That You Won't Believe!:

Let's be clear. The reason Whittier is closing is because of intransigent, highly paid, unproductive law professors hang around for decades even when they haven't published anything or updated their courses since they were doing the Macarena. And the culprits are not even at Whittier specifically. As I wrote before, the insatiable appetite for tuition of vulture professors up the food chain from Whittier is what scavenged Whittier's applicants and picked its bones clean. Those law schools can't do anything about it because tenure absolutists like Diamond seem to believe tenure is the right to an indefinite idle aristocratic existence as a professor. Try to trash an obsolete tenured professor and you will have a lawsuit on your hands, even if he or she has all the contemporary relevance of a VCR. Thus the schools have to take it out on tenure track faculty or law school staff no matter how talented they are and for no other reason than because they don't have tenure.

The plight of Whittier and its students is not the result of any Machiavellian scheme of Dean Rodriguez to thwart a law school on the other side of the country and in a different competitive universe from his own. It is the fault of the rest of us in California law schools who have not responded responsibly to the decline in law school applications, decreased employment prospects for our students, and increased debt. 

Bloomberg Law, Whittier Law School Closing: The First of Many?:

Many other schools are grappling with similar issues to Whittier, [Paul] Campos said.

Law schools at risk of closing, he said, include Valparaiso University (63.3 percent bar pass rate in 2015), Thomas M. Cooley School of Law (51.9 percent), Thomas Jefferson School of Law (48.2 percent), University of La Verne (53.7 percent), and Appalachian School of Law (58.1 percent). Campos also named named Florida Coastal School of Law (61.1 percent), Charlotte School of Law (46.3 percent), and Arizona Summit Law School (41.6 percent), all of which are operated by InfiLaw System, a for-profit entity owned by Sterling Partners.

“I would put the number of schools likely to close over next five years as five to ten,” Campos said. “We’re still just at the beginning of what’s going to be a significant shakeout.”

Inside Higher Ed, What Comes After Whittier Shutdown?:

Administrators at Whittier were trying to cut the size of the law school in order to find a new balancing point, said Sharon Herzberger, the president of the law school’s owner, Whittier College. They wanted to admit enough students to keep the law school financially sustainable, but also to increase selectivity so they were admitting students with a greater chance of succeeding. And they were working to do so even as the number of applications to law schools shrank. ...

That attempted balancing act ended last week, when Whittier College’s Board of Trustees announced that the law school will not enroll any new students. Current law students will be able to complete their degrees, although the exact details of that process are not yet set. Whittier Law School will close. ...

[S]ome experts believe other schools are likely to follow Whittier Law in closing. Critics of legal education argue that the country still has too many law schools that do not prepare their students for legal careers and instead leave them with high levels of debt they will be unable to repay. Others retort that the number of law schools truly in danger of closing is relatively small, with estimates ranging from 10 to 25 across the country. ...

Others worried that the closure of Whittier Law School takes away an important option from groups of minority and women students who are already underrepresented in the legal field. Those students often go on to practice law locally, so closing Whittier law school deprives nearby communities of important services, they said.

Whittier College tried to find ways to keep the law school open, according to Herzberger. Administrators offered faculty members voluntary separation agreements last year, the college president said. They discussed merging the law school with other institutions and talked with others that showed interest in operating it. ...

The law school has not operated at a deficit in recent years, except for when it was buying out faculty contracts, the president said. However, projections showed it would run deficits after this year. ...

Law schools also face new accreditation pressure. The American Bar Association has taken action against four law schools in the last year over issues including loose admissions policies and low bar-examination passage rates.

The pressures could push less prestigious law schools into a death spiral. Their applicant pools are declining, and their top students often transfer to better-known institutions. As a result, they can lose the students they admit who are most likely to pass the bar. That can make it harder for them to increase their bar-passage rates over time, which in turn cuts down on their applicant pools and drives their best students to transfer — continuing the spiral. ...

It should be pointed out that a college or university could consider closing its law school for reasons beyond finances or accreditation. Operating a successful law school can add to a college or university’s standing, giving it access to a new set of wealthy donors and helping it build a powerful alumni base. But struggling law schools can hurt a college or university’s prestige.

“It’s a reputation thing,” said William Henderson, a professor of law at Indiana University’s Maurer School of Law. “Bad employment outcomes, high debt and low bar-passage rates — that affects the university and how it’s perceived in a marketplace.” ...

Another Southern California institution stands as a contrast to the decision to close Whittier Law School. The University of La Verne College of Law is not producing a surplus. It’s been losing money for about five years. But university leaders say they are on their way to changing that after they overhauled tuition practices in 2014.

The La Verne College of Law broke with the norm of offering deep tuition discounts to attract top students. Instead, it decided to charge students a flat price and lock in their tuition for three years. Leaders put that model in place because of swirling questions about the cost-benefit analysis students make when deciding to attend law school. Many thought a lack of transparency in law school prices and outcomes was leading to rising and unpredictable student debt levels. The new idea at La Verne is that a student can count on a set price over three years and project their debt upon graduation.

The law school is moving toward becoming revenue positive, said La Verne’s president, Devorah Lieberman. She acknowledged that the closure of the Whittier Law School could affect La Verne. “I just think it means that the rest of us who have law schools in the region need to continue to focus on serving those students,” she said.

It’s hard to say exactly how, though. Law school closures have been so rare that the effects of this one will be unpredictable, according to the La Verne College of Law’s dean, Gilbert Holmes. “That might enable us to be a little more selective in our admissions,” he said. “But the primary thing we need to think about is the communities that may find themselves not served as well, because they have potentially fewer lawyers to serve them.”

Across the country, the law schools that are mostly likely in danger of closing tend to produce graduates who go on to work as solo practitioners or in small firms, said Michael Olivas, the chair of law at the University of Houston Law Center, who served as president of the Association of American Law Schools in 2011. That means low- and middle-income residents in the area will have fewer lawyers available than they otherwise would.

What is up for debate is whether or not that’s a good thing. As with many of the issues swirling around law schools, the answers to the debate depend on how you weigh different factors. Closing a law school hurts some students, faculty members and area residents. It could theoretically help some students who would not have been served well by the institution. Closing a law school can help a college or university if that law school had been a drag on its operations.

“If it means schools that have no chance of meeting their obligations are dying or being put to death, then I would say the system is working,” Olivas said. “Notwithstanding the pain and struggle the faculty and staff and students at the institution are encountering.”

Law.com, Is Whittier Law School’s Closure a Big Mistake? Some Think So.:

Whittier College’s decision to close its law school is drawing sharp debate among legal academics in the blogosphere over whether the move is prudent or foolhardy.

Shuttering the law school is shortsighted when the legal market is strengthening, wrote Stephen Diamond, a professor at Santa Clara University School of Law. 

Whittier’s business model—and that of plenty other law schools—is unsustainable given that it relies on students taking on thousands of dollars in debt to fund the salaries of many retirement-age professors who declined to move on, countered Robert Anderson, a professor at Pepperdine University School of Law. ...

At least one prominent legal academic believes that the public pontification about Whittier’s fate is premature and unhelpful. Legal bloggers ought to refrain from a “rush to judgment” on the decision to close the school, wrote Northwestern University Pritzker School of Law Dean Daniel Rodriguez, on PrawfsBlawg. ...

Above the Law, Some Sad Truths About The Closing Of Whittier Law School: A Harsh Indictment of Legal Academia — From One of Its Own Members:

[T]he story of Whittier is a story of generational wealth shifting that is seen throughout tuition dependent law schools, and indeed throughout our country. The Millennial generation is expected to go deeply into debt to subsidize a population that is already (comparatively) wealthy.
Professor Robert Anderson of Pepperdine School of Law

Update:  Dan Rodriguez (Dean, Northwestern), Of Bar Passage, Opportunity, and Collective Effort: A Perspective on a Very Difficult Issue of Great Importance (and About Which Reasonable People Can and Do Differ):

In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that).  No special knowledge or authority from me of course, but just one law prof's opinion:

http://taxprof.typepad.com/taxprof_blog/2017/04/temperature-rises-in-debate-over-closure-of-whittier-law-school-will-5-10-more-law-schools-close-ove.html

Legal Education | Permalink

Comments

It is reasonable to argue that Whittier should remain open, if you are willing to acknowledge that reforms are needed after the abysmal bar passage and employment results over the last few years. It was also reasonable for the board of trustees at Whittier to look at the failures of the school in recent years and conclude that reform was not possible.

Just look at the objective data the board of trustees considered. Last July, 78% of Whittier grads failed the bar exam. As of March of this year, only 30% of 2016 grads obtained full time, long term, bar passage required employment. 20% of grads were unemployed. That number would have been higher, had the school not hired 9% of grads to work in university funded part time jobs. 5% of grads were working in non-professional jobs. These numbers are unacceptable from an ABA accredited school. Especially when those students borrowed hundreds of thousands of dollars to obtain their education.

Last year was not an outlier. Whittier students have struggled to pass the bar since the July 2014 examination. In 2015, 19% of grads were unemployed 10 months after graduation. This number would have been higher had the school not employed 9% of grads. 5% were employed in non-professional positions. In 2014, 24% of grads were unemployed. In 2013, 41% of grads were unemployed. Whittier students are struggling to enter the supposedly growing Orange County legal market.

Attacking the Whittier board of trustees and the dean of a very respectable law school, in a bombastic style typical of a Fox News host, is beneath the dignity of a law professor. Unfortunately, Professor Diamond no longer looks at this issue as an academic, carefully considering all of the facts and determining the truth. Rather, he is suffering attitude polarization, much like the political right these days. Any further debate will lead him to become more emotional and extreme on this issue.

At Professor Diamond’s school, 22% of 2016 grads were unemployed as of March. There are grads working in non-professional jobs. I wish he put more effort into helping his students find jobs and improving bar passage rates, instead of attacking respectable people in academia.

Posted by: anon JD/MD | Apr 25, 2017 8:52:24 AM

It's nice to see some intellectual honesty, thank you professor Anderson and Dean Rodriguez. Many of us lawyers out here looking at what's going on in legal education through the lens of this and other blogs and news outlets are baffled at the kinds of blatantly disingenuous statements made by Mr. Diamond and others. It's shocking and disheartening.

Posted by: Anon | Apr 25, 2017 9:10:29 AM

It should be pointed out that on Prawfsblawg we finally have the first non-ad hominem contribution from Dean Rodriguez who has pointed readers there to a link to data showing the challenges at Whittier. Of course. my original post that triggered his insults was based on data, too, which shows strong employment growth for lawyers in the OC.

Nonetheless, the comment by the Dean at least implies that, as I suggested, he favors closure of Whittier. It would certainly help solve the ABA/AALS "California problem" but it exacerbates the diversity problem in our profession.

So it remains an open question whether Whittier was pressured into folding when it meant breaking their commitment to the AAUP Statement on shared governance, shocking and angering their students and has the effect of pulling up the ladder of opportunity for hispanic, black and other minority JD aspirants.

Posted by: Steve Diamond | Apr 25, 2017 9:24:40 AM

My favorite part of the Diamond-Rodriguez contretemps on Prawfsblawg is that apparently neither of them know it is a FOUNT of wisdom, not a FONT of wisdom. They both spell it incorrectly. Whoops. The etymology stems from the world's numerous mythological fountains that grant omniscience. Norse mythology, Proverbs 18:4, Baha'i, the Oracle of Delphi's pool, etc., etc., etc. Nearly everyone has a fountain of wisdom. Where the phrase doesn't come from is typesetting.

/end rant

Posted by: Unemployed Northeastern | Apr 25, 2017 9:26:52 AM

It's called the market, folks. Overproduce an inferior product and soon or later, it will work its magic. This is called a correction.

Posted by: Carla Spivack | Apr 25, 2017 1:03:32 PM

Posting as a law professor at Prawfsblawg, Dan Rodriguez has now put up a long (humble and knowing, presumably) blog explaining his views on the bar passage rate and explaining why he believes his position is not, in fact, discriminatory. Now, if he had done this in the first place, well, who knows. In any case, while I don’t accept his rationalization for the pressure on schools like Whittier the argument is worth engaging. Some key points to keep in mind: employment prospects are improving in Whittier’s back yard, the College ignored its obligations under the AAUP Statement to which it is a signatory and we are now losing an ABA accredited law school that has one of the most diverse student bodies in the country.

Posted by: Steve Diamond | Apr 25, 2017 2:11:39 PM

Steve, what happened to the 32% of 2015 Santa Clara graduates completely unemployed 10 months after graduation (70/219)?

Also, what happened to the 22% of 2016 Santa Clara graduates completely unemployed 10 months after graduation (40/215)?

How do you square these outcomes with your fervent defense of the current law school business model?

Posted by: terry malloy | Apr 26, 2017 6:54:42 AM

A point studiously ignored by advocates of both sides (presuming there are only two) is this: the owners of a business have the right to shut down their business when they are losing money AND EVEN when they are making money.

The investors/owners of any n=business, whether it is an alleged law school or a string of muffler shops can sell their business or liquidate it at will, under the law, as long as they file the necessary tax clearances afterwards with the State and the Feds. That is one of the perks of ownership, the right to dispose of your own property as you see fit.

So a bunch of revanchist soon-to-be-ex professors want to keep their jobs, so what? As long as Whittier complies with state and Federal layoff policies with regards to notice and accumulated vacay, the profs are out in the cold, as it should be.

Deal with the ABA and racism/sexism/homophobi on your own dime; let the owners of Whittier Law get their dough out of the business and invest it elsewhere, or just use it to put in a new kitchen. I sure need to.

Posted by: curmudgeoninchief | Apr 26, 2017 6:59:13 AM

Curmudgeon: That's true unless you enter into a contract with your employees that says otherwise. And here that contract is the AAUP Statement of Principals and Academic Freedom to which Whittier is a signatory. It's enforceable and it sets limits on what the College can do when it comes to shutting down academic programs. It's aim, in part, is to avoid litigation by using the mechanism of "shared governance" which, according to the complaint filed by the faculty, did not occur.

Posted by: Steve Diamond | Apr 26, 2017 9:32:34 AM

Here is the link with the full and proper name: https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure

I urge all law school faculty to consider joining the AAUP today.

Posted by: Steve Diamond | Apr 26, 2017 9:33:46 AM

Steve,

You claim that the market for lawyers in the Whittier area is improving dramatically (22%). If this is so, why did only 21% of Whittier's graduates get jobs requiring JDs? In other words, doesn't this present another reason for shutting Whittier down.

Posted by: Anon | Apr 26, 2017 10:34:39 AM

Anon, Whittier has posted its preliminary count on 2016 grad employment showing gains this year of 8 percentage points up to 29% employment consistent with the BLS data on OC. It's their highest number since 2012.

Posted by: Steve Diamond | Apr 27, 2017 11:44:39 AM

Let me see if I have this straight: your actual defense of this school staying open is that over it has placed 29% of graduates in FT/LT/license-required jobs at any salary and this is the school's best outcome in the last five years?

Posted by: Unemployed Northeastern | Apr 27, 2017 12:39:58 PM

A 71% failure to obtain a job requiring a J.D. is abysmal. No law school with numbers like this should remain open. Steve, you are deluding yourself.

Posted by: Anon | Apr 27, 2017 12:58:20 PM

Obviously there should be a cutoff point for a law school where it may not make sense to continue. But it is far from clear that point has been reached at Whittier. There is no deficit, there is cash in the bank. The employment situation is showing improvement. At a minimum the College should have used and may still be forced to use the required shared governance procedures to find the answers to tough questions. Of course, if we listen to the likes of UNE and his we would have fifty elite law schools serving the global corporate elite with about 1000 graduates a year.

Posted by: Steve Diamond | Apr 27, 2017 5:53:31 PM

Heh. Obvious and evasion of the data along with a risible red herring about what I must believe about the number of law schools that should remain open. Some masterly argumentation there, Steve. Allow me to return it in kind. If we listen to the likes of Steve, students who score a 29 percent on their tests should receive As and social advancement to the next grade. See how it just looks like a stupid cheap shot when you are the recipient? Hmmm. Try writing in that font of wisdom next time.

Anyhoooo, since I didn't go to a top fifty law school myself, it doesn't really suit my interest to only have the fifty elite law school survive. I do, however, think that law schools - all schools - should be responsible for at least 50% of the student loan balances for every graduate and ex-student who defaults or must enter one of the sundry IBR plans out of financial necessity. If all law school grads make as much as you aver, this won't cost a dime, so I fully expect you to be on board with the proposal.

Posted by: Unemployed Northeastern | Apr 27, 2017 10:49:45 PM

Steve, when Brian Leiter goes so far as to disagree with your position, you know you're really out in the wilderness...

Posted by: grump | Apr 29, 2017 9:04:10 AM