Paul L. Caron

Tuesday, May 12, 2020

Universities, Colleges, And Law Schools Plan To Be Open On Campus This Fall

Mike Spivey, Universities, Colleges, and Law Schools Plan to Be Open On Campus This Fall:

CoronavirusJust about every college, university, and law school — in fact, every college, university, and law school we’ve spoken to; we’ve spoken to chancellors, presidents, provosts, and deans — plans to be open, on campus. ...

[W]hat about law schools? It’s a whole different entity because you don’t have dorms. They have a lot more flexibility because they’re smaller; they can have different methods of educational platform delivery because of the smaller sizes. I think that makes them more nimble. They’re going to look a lot different; it's interesting because we’ve talked to a lot of deans of law schools, this is where our firm got its genesis and where we have our most experience. Again, the theme is on campus. They want to be on campus; they want to educate in person. Faculty will likely be in the building, and they will be in the classroom, but they’ll also likely be in their offices. Law schools have the ability, again unlike a dorm, to test people every day, so you can test people entering and exiting. So they will be on campus. The plan for most law schools is to at least record but also potentially simulcast every single class — so for example, for international students, a class could be simulcast. Although, that gets kind of interesting because of time zones. If you’re nine time zones away, should you be required to attend a class at 3:00 in the morning? I mean, I guess if you work at the Gates Foundation, the answer is yes, you’re up at 3:00 AM. So maybe they’ll be recorded. There are some scenarios where maybe there will be 1Ls on campus but 2Ls and 3Ls will be online. That again helps with the mitigation, the social distancing. There are scenarios, potentially, where students will have a lot more say in whether they can just choose to take classes online, but law schools by and large — the ones we've talked to, which again are numerous — are going full throttle with planning to have at least an on-campus component, but with the backup — for anyone who doesn’t want to be there, anyone who can’t be there for international reasons, or certainly for preexisting conditions or symptomatic reasons — of recorded classes or simulcast classes online.

Which brings us to the second point: what will the grading be like? This is on a lot of people's minds who we talk to on a daily basis. If you’ll recall, and most people will know this in the law school arena, but almost every school that was on a curve went to P/F grading because they were sent home early in the semester. Again, we don’t think law schools are going to close, at least they don't plan to close, if there’s an outbreak. There is now this quarantine plan in effect that law schools, just like colleges and universities, just like we discussed, are going to follow.

So law students won’t be sent scattering home, and unless there’s a spike or unless public health officials close them down, we think they’re going to be open. We’re not quite as certain on the grading yet; we know that faculty want to be grading the same way that they were pre-COVID. So for example, if you were on the Harvard grading model (and this is a very outlier-ish grading system) of dean's scholar/honors/pass/low pass/fail, you’ll go back to that model. If you were on a curve model — 3.1, 3.2, 2.9, whatever the curve was — you’ll likely go back to that model. It’s a little bit problematic, which is why we don’t have a definitive answer for law students yet, because there are going to be a number of law students internationally, which makes up a substantial portion of some law schools. There's one law school that I believe has 43% international; there are a number of law schools in the 15-20% range of international students, and this is just talking about JD, not even LLM, where some programs are 100% international. You will likely be graded on the same curve, same scale, that your school had before COVID. So that means, for the vast, vast majority of law schools, going back to a curved grading system. 

I’m going to bring up one interesting caveat to all of this — rather it’s not a caveat; it’s a conversation I had with the biglaw firmwide hiring partner of a top 10 AmLaw global law firm, who said they would actually rather see someone's online grades. And please don’t take this and run with it and think that every firm in the world believes this; this was just one person talking out loud, but there's a scenario you could see where an online grade would be just as valuable or even more valuable, in the new world that we live in, than an on-campus grade. My point being this: if you are online, if you’re home online, if you’re international, and you get a grade and you took the class online, I wouldn't be afraid to bring up to a firm in a hiring situation that you took that entire semester online, because law firms are moving much more in an online direction right now anyways. So that grade will be valuable to them. I know our firm is rooted in law schools first, and I know I didn’t spend nearly as much time on law schools, but the fact of the matter is it’s pretty simple. They’re going to be on campus while simultaneously, or at least through recording, having every class also available online. There will be backup faculty members for every class, and there’s even a scenario where law schools may share faculty members, so if you’re at Princeton Law School, you may get a Brown Law School faculty member if your Princeton faculty member is sick for a week or two and can’t teach.

I promised in a Tweet, because I get this question so often, that I would talk about college athletics. Athletics are near and dear to my heart. I have a background in athletics. I don't want to spend more than a minute on this, and in fact it will be less than a minute. I think that colleges plan on going full steam ahead with college athletics, and based on speaking with the medical community who we trust and based on the research that we’ve done, it seems unlikely at this time, unless there is a therapeutic (there won't be a vaccine for another 10-18 months), that many athletic sports will be able to finish the season, again because of the contagiousness of the virus. College athletes congregate by definition while they’re playing, in a locker room, in practice, so there’s no social distancing on a practice field.

Let me end on two more sort of upbeat notes. The message of this podcast, in some sense should be optimist if you’re a student wanting to go to college, because colleges are working really hard at figuring this thing out. And problems greater than COVID-19 have been figured out before. In World War II, when winter was coming and American troops had no food supply, they were forced to figure out how to get food to the American troops, and they did. It's kind of akin to Cortez coming to America and burning his ships so that they had to figure out how to build housing and forts and survive in America. Colleges right now feel like Cortez — they're not burning their ships, I promise you they have backup plans of not being open — but they are very committed to figuring out this plan.

On an optimistic note, I mentioned I talked to David Lat, who's a very prominent legal publisher and author, who was in very critical condition. In fact even when I talked to him, weeks I believe after he'd been discharged from the hospital, he was still in a weakened state, and I applaud him for giving me 15 minutes of his time — his voice had a cough; he was still short of breath. I thought David Lat was going to say that colleges shouldn't be open, and he basically said that he is eager for law schools (I believe David went to Yale) to be open. He wants them to be open. He brought up the notion that you might see, regionally if you're in a hot spot, a scenario where there are a few colleges or law schools that aren't open because of regional outbreaks. But what David Lat, who again was in critical condition from COVID, said was he would rather see them be open. I think that's optimistic. I would too, of course.

I will end with a quote from Kent Syverud, the Chancellor of Syracuse University, who for full disclosure I worked for twice, once at Vanderbilt University and once at Washington University. Kent said this publicly in a podcast, that education needs a Marshall Plan. To quote Kent, "I think, as a country, we should have a Marshall Plan that says we need to enable education to start again this fall." Now I'm going to use my own words to interpret. Educators want to educate. And the government, working hand in hand with higher education, needs to find a way to make this work. There probably is a pathway. There are lots of variables that we've discussed that could impede that pathway, but there are great minds at work, and those great minds are talking together, and they're figuring out the challenges of COVID.

The takeaway message from this, probably the longest podcast I've ever done, is this. These people want to be open, and they're planning on being open. There are a couple things that could shut it down, but I would walk away from this podcast saying, if I'm enrolled in a college, if I'm enrolled in a law school, I will be able to be on campus this fall.

Mike Spivey, Schools Are Now Confirming in Large Numbers They Will Be Open. What Questions Did We Not Answer?:

Question: What if I, or my child, does not want to be on campus?
Pretty much every school will have an online option.  They are grappling with the grading and attendance differences between those who will take classes on campus versus online, but that will get sorted out, and we have no inside knowledge on where that is tipping. There will be online options for those that need or want them.

For complete TaxProf Blog coverage of the coronavirus, see here.

Coronavirus, Legal Ed News, Legal Education | Permalink


Yes, law schools are “a whole different entity,” and not just because they “don’t have dorms.”

Indeed, financial and other considerations which might compel universities to return largely to in-classroom instruction in the fall would not necessarily apply to law schools - so the former can take the risks of having students and faculty in close proximity in classrooms, while law schools might protect students and faculty by having largely on-line classes (with possible exceptions for clinics, 1L classes, etc. ).

That's because considerations which might apply regarding undergraduate classes are almost certainly very different from those at the Law School

For example, law students (especially those scheduled to return from last term) are highly motivated to return so that they can obtain their degrees and begin to practice, regardless of whether they can have in-classroom or on-line instruction.

In contrast, many experts predict that younger undergrads already at a university will be more hesitant to return if instruction will be on line, as will many incoming freshmen about to begin their studies, and there's increasing talk about both undergraduate groups taking a gap year, etc. until the epidemic has subsided.

Those undergrads who do wish to begin their college educations are said to be more carefully considering going to a school closer to home, just in case a resurgence or "second wave" again forces them to leave their dorms - something not as much of a consideration for law students who tend to more independent and no longer living at home when not away at school.

Most people would probably agree that the in-person college experience - living away from home for the first time, interacting with peers in a dorm, joining clubs and attending sporting and other university events, etc. - is far more important to undergrads than to law students, so the latter would be much more willing to accept a fall term with on-line classes if necessary to have protection from infection and receive their degrees without interruptions.

Moreover, law students are also much less likely to need the discipline, supervision, and in-person interaction with professors in classrooms which are so important for many undergrads; thus in-classroom instruction is more important for undergrads than for law students.

In other words, even if most of a university plans to generally return to in-classroom instruction this fall, law schools might wish to continue generally with on-line instruction, for some or even most courses.

Fortunately, the author notes that many law schools will have a backup - “for anyone who doesn’t want to be there, anyone who can’t be there for international reasons, or CERTAINLY for preexisting conditions or symptomatic reasons — of recorded classes or simulcast classes online.”

If that backup for anyone with preexisting conditions, who “certainly” need additional protection, does not include law professors, who might then be permitted to teach on-line, take sabbaticals, or even furloughs of leaves of absence, then there is an additional important difference between law schools and other parts of the university.

Law professors who do not want to risk their lives by returning to the classroom are more likely than professors in other disciplines to take appropriate legal action to protect their rights under the Americans With Disabilities Act [ADA] and/or the Occupational Safety and Health Act [OSHA] because they know how to do it, and probably need not spend lots of money on outside counsel

Law professors who are most concerned about dying - and are therefore most likely to refuse to teach in a classroom, are also - because they are aware of their rights, and know how to enforce them - more likely to call in sick and/or take action under the federal Family and Medical Leave Act and/or its state counterpart, as well as the U.S. Family First Coronavirus Response Act (perhaps with a note or other help from a sympathetic MD), as well as file complaints with the EEOC, state offices of human rights, and/or OSHA.

So perhaps law professors should try now, before decisions regarding opening in the fall are made, to convince university administrators that law schools are different, and should be allowed to proceed differently, than other parts of the university - a tactic likely to shield them from numerous legal actions.

Posted by: LawProf John Banzhaf | May 12, 2020 1:41:07 PM

"so if you’re at Princeton Law School, you may get a Brown Law School faculty member if your Princeton faculty member is sick for a week or two and can’t teach."

Since when did Princeton, let alone Brown, have a law school?!
Also, a number of law schools do indeed have their own dormitories -- Harvard and Georgetown come immediately to mind.

Posted by: Andy Patterson | May 12, 2020 10:14:34 AM

Yes, re-open. The initial rationale for the shutdown was to flatten the curve (15 days to flatten the curve, then 30 days...) so that hospitals would not be overwhelmed. That is not a concern in most parts of the country now. Here in Mass, we just shut down a field hospital that never took a single patient. If we are to continue with the shutdown, it has to be supported by an entirely new rationale. The only logical one is suppression of cases until a treatment or vaccine is available, which irrationally elevates COVID deaths over other causes of death that will result from the shutdown (deaths of dispair, 1 million expected additional tuberculosis deaths).

The risk posed to the general public by COVID has been exaggerated. In Mass, 58% of fatalities are in nursing homes, in NH it is 72%. We need to focus on protecting the vulnerable populations, and allowing the rest of society to get a chance to live their one life.

Posted by: JM | May 12, 2020 6:47:39 AM