Epstein on University of North Texas Law School

My former colleague (and mentor) David Epstein has written a defense of the University of North Texas School of Law, entitled "The University of North Texas School of Law is Important."  I have posted it below:

The continued existence of the University of North Texas School of Law (UNT Law) is important to the people of the State of Texas and to legal education. It is a special place that is boldly attempting to meet a pressing need.

I was fortunate to be a part of UNT Law during its first semester. I taught Contracts to both the “day students” and the “night students.”

Earlier, I had the good fortune to teach at the University of Texas Law School and the Dedman School of Law of Southern Methodist University and other law schools and served as dean of the University of Arkansas Law School and Emory University Law School. As a student, teacher or administrator, I have been involved in legal education for more than 40 years at 17 law schools.

What makes UNT Law special are (1) UNT Law people and (2) UNT Law policies. Any list of “special people” should have Royal Furgeson at the top of list. Ask Senator Kay Bailey Hutchinson and other people in Royal’s law school class, ask people in El Paso where Royal practiced law and was not only president of the bar association but also president of the United Fund, ask the lawyers and their clients who appeared before him during his 17 years as a federal district judge.

Royal is hardly the only special person at UNT Law. There is also the faculty. The UNT Law faculty have strong academic credentials and meaningful practice experience. But the faculties at all the other Texas law schools also have strong academic credentials. What is special about the UNT Law faculty is their commitment to teaching, and not their “scholarship,” their commitment to their students’ careers, and not their own While I was teaching at UNT Law, the other faculty members were in the building from early in the morning until late at night – helping students’ understand today’s class and working on tomorrow’s class.

But what really distinguishes UNT Law is the UNT Law students. It is hard to put into words how special the students are. It is not just that there are more black and brown faces at UNT Law than at other law schools. Or that UNT Law has more old faces. Or more faces without the expensive coiffures you see at other law schools.

To me, what makes UNT Law students that I taught special was how much many of the students – black, brown, and white - had to overcome to get to law school and how hard they were working to get as much as possible out of law school. They recognize and appreciate that UNT Law is giving them an opportunity not available anywhere else.

I acknowledge, as UNT Law consistently has acknowledged, that many of these students are also “special’ in that they have comparatively low LSAT scores and comparatively low grade point averages. UNT Law students know this. UNT Law students know that reliable predictors indicate that they will not pass the bar. UNT Law students are anything but naïve, and UNTLaw is anything but exploitive. UNT Law repeatedly makes these risks clear to applicants and again to admitted students. What is atypical of law school deans (but completely “in character” for Royal Furgeson) is Dean Furgeson’s meeting with each student for a one on one conversation during that students’ first semester. A big part of these conversations is Dean Furgeson’s reminders about the challenges that particular student faces in passing the bar.

And, at UNT Law, unlike the other 16 law schools that I have been part of, students get regularly feedback from their professors as to how they are doing. The general law school norm is a single graded exam at the end of the semester. The UNT Law norm is weekly, if not more often, graded work. Students know how they are doing and can make an informed decision about continuing to incur the costs of a legal education.

I am not suggesting that everything at the UNT Law is perfect and that there is no basis for concern by the five person ABA accreditation team that visited UNT Law. For example, I am concerned about the number of students academically dismissed during the first year – that number may well should be higher. If that proves to be a problem, it is fixable. It is not a basis for the Texas Bar denying all UNT Law graduates the opportunity to take the Texas. And, it is certainly not a basis for the American Bar Association withholding PROVISIONAL accreditation. It is PROVISIONAL so that fixable problems can be fixed.

Texas does not need more lawyers who want to represent the people living in Highland Park1, more lawyers who want to represent the investment group trying to buy the Rosewood Mansion on Turtle Creek restaurant2. Texas does need more lawyers who want to represent the people living in Oak Cliff3, more lawyers who want to represent the first generation Americans trying to transition from working as a waitress to buying a food truck. The continued existence of UNT Law is important to the people of the State of Texas and to legal education.

Comments

[Captain Hruska Carswell, Continuance King]

There is an empty K-Mart in my community. Plenty of parking. Perfect for a new law school. Why not a law school in every town, berg, city....? The Atlantic magazine noted that law schools are a "capitalist dream." "Private profits and socialized risks" in the form of student loans. I concur that lawyers should be affordable and serve all community members. Us Solos and store front lawyers have been doing that for years. The problem is even that market is grotesquely oversaturated. There is not enough work on the low end of the market...What we end up with is newby desperate UNEMPLOYED solos taking cases for ridiculous amounts of money (49.00 for traffic tickets) that they may not provide effective representation. Its a cage fight that simply undercuts another desperate attorney dying for work. One newby domestic relations guy desperate for cash I know took an Armed Robbery matter. He thought he could get rid of it for minimal penn time. He charged the client $1200. He was horrified when the State offered double digits. In a panic, he called me. His client wanted a Jury trial and the judge wasn't letting our hero withdraw. I am sure this is replicated in Texas too...

[Doug Richmond]

Why does he assume that the students at UNT do not aspire to be successful lawyers at the largest firms in Dallas and Houston representing corporate clients and wealthy individuals? What makes him think that all of those students will serve disadvantaged populations or underserved populations? The fact that a student may come from a modest background or intends to serve "the people living in Oak Cliff" when she enrolls in law school does not mean that she will not choose a different life following possible bar passage (assuming bar passage). Maybe some UNT graduates will become hugely sucecssful plaintiffs' lawyers. Does he think Texas needs more of those? For these and other reasons, his exaggerated, hyperbolic defense of UNT does not hold together.

[anon]

"UNT Law students know that reliable predictors indicate that they will not pass the bar."

ABA Standard 501(b) "A law school shall not admit an applicant who does not appear capable of satisfactorily completing
its program of legal education and being admitted to the bar."

While I applaud UNT's innovative curriculum, the ABA was quite right in denying provisional accreditation to UNT based on its admissions of large numbers of students who are predicted to fail, in clear violation of Standard 501.

What UNT should have done is waited until they had evidence results demonstrating that their methods produce superior bar passage results from students at moderate risk of failure before admitting large numbers of students at very high and extreme risk of failure. If UNT could demonstrate that their methods produced strong results with students with 146-148 LSATs, then it would be reasonable to apply those methods to students with 145-144 LSATS. And if it worked for those students, then try the methods with 143-142 students, and so on. But conducting this educational experiment on students with extremely poor predictors was foolhardy to say the least. UNT may offer relatively low tuition, but it is not free, and most students still must take out significant federal loans to pay for their education. Telling students that they are predicted to fail may be refreshingly candid, but does not excuse the deliberate strategy to admit students predicted to fail.

[twbb]

I can respect the passion, especially regarding a school he is no longer at, but I think there are a few problems:

1. Hard work, drive, sacrifice, etc. are not by themselves enough. A student who even after four years of college struggles that much with the LSAT is in many cases not going to be able to engage with the practice of law.

2. Every law school insists that their student body is somehow unique, more dedicated, more public-spirited, etc.. The truth is once you correct for GPA, LSAT, and location the student bodies at law schools are pretty much identical, just as a matter of statistics. It's the same kind of thing for law school faculty.

3. The DoE has point blank told the ABA that they are poor accreditors, and threatened to remove the ABA's authority to accredit law schools for the purposes of federal loans. The writing is on the wall and I don't think the ABA is going to look the other way in terms of law school academic selectivity anymore.

4. UNT's tuition is 30k a year; this is far too high for a school with its stated mission.

I think, ultimately, the profession would best be served by an independent accreditor for law schools. The ABA could still accredit law schools for bar eligibility purposes, but the independent accreditor would accredit law schools for federal loan eligibility. That way the ABA could focus purely on the academic rigor (most important for bar purposes), while the independent accreditor could focus on financial outcomes (which are more important for student loan purposes). If UNT's administrators really feel that their students deserve a chance to take the bar, this would better able to allow them to do it without putting the taxpayer on the hook for nonpayment.

[J Browning]

Two brief comments: first, to twbb, the yearly tuition at UNT-Dallas College of Law is actually about $15k a year, not 30k. Second, one minor correction to Prof. Epstein, whom I hold in high regard. It is not the "Texas Bar" (officially, the State Bar of Texas) that will determine whether or not the inaugural class of the UNT-Dallas College of Law sits for the bar. It is the Supreme Court of Texas, which has given permission to law students from fledgling law schools permission to sit for the Texas bar exam before (most recently when the former Texas Wesleyan School of Law - now Texas A&M School of Law - was awaiting accreditation back in the early '90s). The requirements for being admitted to the Texas bar, however, remain a passing score on the bar exam (and presumably all approvals associated with that from the Board of Bar Examiners)as well as graduation from an ABA-accredited law school. Permission from the Supreme Court of Texas is likely, given that Chief Justice Hecht has publicly applauded UNT-Dallas College of Law's mission. Obtaining a reconsideration of the ABA Committee's preliminary decision, however, is crucial.

[anon]

" the independent accreditor would accredit law schools for federal loan eligibility."

Isn't that already the jurisdiction of the DoE and other federal agencies?

The feds have looked the other way for too long. Perhaps because the loan default rate isn't as bad as it might otherwise be (for reasons other than getting FT, JD required employment). But the main criterion for pulling accreditation - schools that train enormous numbers of students with little or no prospects of employment in their chosen field of study - simply to reap the harvest of student loans, remains.

[twbb]

Anon, the DoE has oversight of accreditation agencies but does not accredit schools itself. It can disqualify schools from receiving federal loan funds directly but that does not have anything to do with accreditation as far as I know. I think a full accrediting agency able to more closely monitor law schools would be a better choice than piecemeal decisions to revoke federal loan eligibility, especially since the law schools are often good at masking poor outcomes.

[anon]

twbb

A while back, in a thread like this one, I pulled up the record of pulling eligibility, and the criteria used to do it.

It seemed like a very straightforward process, subject to fairly certain factors. The analysis seemed to point quite obviously to pulling the eligibility of certain law schools, based on employment outcomes.

This sort of action, once applied, might wake the ABA up. THe ABA is a captured entity, and entirely worthless now, despite this sort of weak action to prevent just one more law school from adding to the problem.

The impassioned plea of some folks that claim that law school is a place for disadvantaged individuals to prove themselves is so disingenuous. THey know that the individuals with the motivation to attend will find a way and do it, within the existing structure, because there are already so many greedy operators feeding at the trough and taking advantage of unqualified (in an objective sense) candidates.

Let's face it. If you are in the bottom 10% of LSAT takers, you likely can hardly read at a high school level. Get real, folks.

[Captain Hruska Carswell, Continuance King]

The ABA will accredit this law school. How do I know that? I am a good lawyer. I know everything. Right now the ABA is feeling the heat and pressure from the DOE to DO SOMETHING. In "hush hush" behind the scene talks, the ABA told UNT to "go to the movies" and quietly wait out the storm. Shuttering a law school is as political as the Armed Forces Base Closing Commission was during the 90s.

[anon]

THe ABA has responded to possible, long overdue action by the DoE.

Could the ABA be any more oblivious to the truth? THe political overtones of its embarrassing and arrogant response ("who else but we could perform this function?") is, in light of the years of its stubborn refusal to acknowledge mounting pressure and overwhelming evidence, in a word, disgusting.

And, disgraceful.

[J Browning]

twbb: UNT Dallas College of Law's annual tuition is actually about $15k per year, not 30k. And while I respect Prof. Epstein immensely, he is incorrect in referring to the "Texas Bar" allowing the new law school's students to sit for the bar exam. The State Bar of Texas does not decide this; the Supreme Court of Texas does. That Court has previously granted permission to graduates of a school that was not yet fully accredited to sit for the Texas bar exam, most recently in the case of inaugural graduates of what was then known as Texas Wesleyan School of Law (now Texas A&M School of Law). Chief Justice Nathan Hecht has openly applauded the new law school and its mission, so I doubt that the school's first graduates will be denied the chance to take the 2017 Texas bar exam. Admission to practice in Texas, however, still requires both a passing score on the bar exam and a degree from an ABA-accredited law school. Provisional accreditation, which may have been initially denied but which will likely be granted after the law school has its hearing in October, will suffice.

[dupednontraditional]

Following up on twbb and Doug Richmond's comments:

I have to laugh at the implicit scorn heaped on places like Highland Park and Turtle Creek, by general members of the self-same elite. I most certainly did not grow up in those neighborhoods with those resources and those connections, but the "noble sacrifice vs. filthy lucre" types of statements are tough to swallow all the same.

While I honestly admire people like Royal Furgeson and Kay Bailey Hutchinson, as referenced in the article, they both got their career starts in the late 60s to say nothing else. The world has changed a little since then, and nowadays to serve the underserved, in Oak Cliff or anywhere, (1) you need to be a trustafarian, (2) you need significant scholarships to make law school remotely affordable, and (3) you need solid connections to "good-deed-doer" firms/job markets on the other side. Any combination, in some comparative amounts, will do or at least certainly help.

As it stands currently, clients can't pay, and the average lawyer needs to be able to put food on the table after their (undergrad and law) student loans. More lawyers, just for the sake of more lawyers, does not help the equation.

Ultimately, I suspect no one at UNT is working for free. Why then, should struggling, indebted law graduates, whose sole crime is having the misfortune of graduating into the legal job market of 2016?

[anon]

Duped

Have no fear! As we have been informed here in TFL, next year will be the greatest year in history to graduate from law school, as the job market will absorb all new grads and law firms will be unable to fill openings for lawyers!

[Deborah Merritt]

I am a longstanding critic of traditional legal education. I also submitted a comment to the ABA supporting the proposed tightening of bar passage standard. If approved, that standard will apply to UNT-Dallas along with every other law school. But I'm with Epstein in supporting provisional accreditation for UNT. As Epstein writes, it's PROVISIONAL. That's how we figure out whether innovations work, rather than remaining stuck in the same rut.

UNT's innovation is to focus on good teaching, especially by offering extensive feedback. Teaching and feedback matter, and there's room for vast improvement in legal education.

The in-state tuition at UNT is $15,000--not $30,000--and the school focuses on attracting the former. Meanwhile, UNT's selectivity is among the top half of all law schools: It is not admitting virtually all comers to meet a budget. The ABA Council needs to take a more nuanced look at UNT and how it administers its admissions process. That information appears in the self study and site visit reports that have been released by the school.

I cringe at comments like "If you are in the bottom 10% of LSAT takers, you likely can hardly read at a high school level." That's pretty condescending; can you back up the statement? Have you talked to lawyers with low LSAT scores? Or talked with their clients and opponents?

[anon]

Deborah

I'm sure that you have supported law school reforms, and I applaud you for that.

But, seriously, if feeling like a "savior" for those who, for whatever reason, will not suddenly become good lawyers because of "good teaching, especially by offering extensive feedback" is the rationale for yet another bottom feeding, ABA law school, I must disagree.

As many have shown in these threads, especially David Frakt, the likelihood of success on the bar for those with extraordinarily low LSAT scores is abysmal. The bottom 10% is beyond extraordinarily low; it is likely reflective of an inability to read at a high school level.

Borrowing from Paul Campos, a few years ago:

"A 138 means that 90.4% of test takers scored higher than you did. ... An LSAT of 134 means that 95.3% of test takers scored higher. To get a 134 you have to choose the right answer on about 29 of 100 LSAT questions, but since it’s a multiple choice test this means that, accounting for random correct answers, you only need to get nine questions right as a consequence of something other than chance."

Deborah, you may believe in the miracles that follow "feedback." (I seriously doubt the teaching is measurably better at this particular law school, especially because actually learning to be a lawyer does not turn on spoon fed, bar exam coaching, which is what most of these "innovative" programs try to do).

But, the burden is on anyone who thinks YET ANOTHER law school is needed to show that motivated individuals have no other option but the proposed new money machine.

Sorry, but the faux sobbing for the distressed applicants to yet another bottom feeder is not credible or convincing: this seems more like posturing by an advocate, not a person who actually cares about the vast majority of those who will be seriously ripped off and harmed by this sort of thinking.

Cringe or not, you haven't advanced a very convincing argument here. The fact that you "cringe" doesn't really tell us anything except something about your feelings. Why should your sensibilities govern a decision like this, when the evidence is lacking that yet another ABA law school is needed or prudent?

Rather, the ABA should be focused on shutting down the corrupt operators of sham law schools that use the pretense of "opportunity" to fleece their student bodies of federal loan dollars.

[Deborah Merritt]

Anon, what makes you think that LSAT scores at UNT are in the 134-138 range? The median last year was 146 and the 25th percentile was 143. Those are low scores, but your exaggeration doesn't advance the discussion--just as claims that UNT charges $30,000 (rather than $15,000) hinder thoughtful evaluation.

The 25th percentile LSAT at UNT is higher than that figure at 16 currently accredited schools; it matches the figure at four others.

The ABA Council does not have the power to limit the number of law schools to a number that would be "needed or prudent." That would violate antitrust laws. Instead, the Council must determine whether each particular law school meets accreditation standards; if it does, the Council should accredit.

Like you, I believe that the ABA should revoke accreditation for schools that admit students with scant prospects of passing the bar; do little to compensate for lack of preparation among those students; saddle those students with unmanageable debt; and finance their operations with federal loan dollars. I have been willing to say so publicly under my own name--although that has generated some hate mail. Perhaps you would be willing to add your name to public support for the proposed new bar passage standard?

UNT, however, does not fit in the category described above. Their LSATs are higher than those of accredited law schools; their tuition is lower; and their educational program rests on sound research. Feedback is very different from spoon feeding, as cognitive science research shows.

[anon]

Deborah

Thank you for your thoughtful response.

There are a few straw "persons" in there, so, let me reiterate what I did say, and respond to what you say I said.

I said: ""If you are in the bottom 10% of LSAT takers, you likely can hardly read at a high school level."" You challenged that statement. You wanted to know the evidence that supports that statement (aside, of course, from common sense). I cited the Campos piece, the Frakt work, etc. I think reading the Campos piece, you can see just how abysmal these LSAT scores really are.

You are correct. That evidence shows that persons who score HIGHER than the bottom 10% on the LSAT have abysmal bar pass rates. You have no evidence to contradict this fact or suggest that is not the case; the evidence is fairly overwhelming. In fact, you seem to admit as much.

But, you argue, this particular school is admitting students, at the 25th percentile, at the 143 level: which means that approximately 80% of LSAT scores were better than the MEDIAN. Not a very strong argument for meeting standards in admissions, which you say you support, if that significant a portion of the incoming class is admitted with such predictors.

The argument that other law schools are doing it just defies belief. If you even skimmed my comment, you would see what I said about other bottom feeders, and what IMHO the ABA should do about those schools.

Taking that one step further, the existence of these bottom feeders also formed part of my impression that your "opportunity" argument doesn't really hold up. You have turned that into an argument that the ABA should violate anti trust laws. That's sort of a disingenuous argument, in my view. I think you know that there is really no argument that more bottom feeding, federal loan guzzling law schools are necessary, and that has nothing to do with restraining competition in the market.

It is YOUR argument that yet another bottom feeder is necessary. You seem to believe that the market can't serve these students. Why? Is it because they are unqualified? Do you actually believe that the teaching will be ever so much better at this proposed law school? Why? How do you know?

Finally, feedback is different from a three year bar review course, of course. I never said otherwise. My point was, and again, if you read my comment I think you know this, that the guise of "feedback" is often just a cover for the latter: a glorified three year bar review course with graded essays designed to prepare students for the bar. Please. Let's stop pretending about this.

Rather, the ABA should be focused on shutting down the corrupt operators of sham law schools that use the pretense of "opportunity" to fleece their student bodies of federal loan dollars.

[twbb]

Deborah,

I misread the tuition information on the UNT website (which is itself hard to find; clicking on "costs" under financial aid bizarrely results in a message that the costs are "shown on other web pages"). The 14k tuition is inartfully referred to as that for "Fall 2016 and Spring 2017" instead of the traditional "annual." In any event, 15k (or 14k) is certainly better than 30k, but still far, far too high. It is significantly higher, for example, than the tuition for UNT's other graduate programs.

In any event, my other criticisms remain in force. A 146 median LSAT is extremely low. At that score you are either unlucky to the point of extreme probabilistic implausibility, or you are unable to answer numerous, fairly basic reading comprehension questions that are far less difficult than the material you will be expected to learn in law school.

I think too many are dancing around the central question: does being a competent lawyer require a certain level of ability by the time of entry into law school? We get told about "life experience," and "discipline," and "hard work" and "dedication" and "public service" but again, a law degree is an indicator of competence, not an award for hard work or moral worth. It may be unfair that candidate X, who may be naturally intelligent but who never had the opportunity to develop the skills necessary for the practice of law is thus denied entrance to the profession, while candidate Y, who had every advantage and breezed through law school without exerting himself, is admitted. But it's more unfair to the clients of candidate X. To use a comparison, I would rather be treated by a good, lazy surgeon than a bad, hardworking one.

[Deborah Merritt]

Anon, there are a lot of categorical assumptions embedded in your reply--ones that I see from some other commenters as well. E.g.:

1. All law schools that admit students with low LSAT scores are "bottom feeders," intent on fleecing their students and the federal government.

2. LSAT scores are the only admissions credential worth discussing. Virtually no weight should attach to college grades, work experience, and other factors.

3. The US doesn't need any more law schools of any type in any place.

4. Students with low LSAT scores must take three years of bar prep courses to pass the bar. They are not capable of benefiting from other types of courses.

5. Courses that focus primarily on helping students pass the bar are an unworthy form of education. These courses focus on memorization and drills, rather than policy discussion and thinking like a lawyer.

twbb adds another assumption that I think many people share: that by the time you come to law school, your intelligence is relatively fixed. You either have it or you don't. Law school grades will reveal just how much of "it" you brought with you, but classes won't do much to change your ability compared to classmates.

These assumptions interest me, not only because of the way they shape this debate over UNT, but because of the way they color much of our approach to legal education. That approach, I think, hurts a whole lot of students and their future clients. I'll share separately some more nuanced views of UNT and legal education more generally.

[Deborah Merritt]

Anon asked me why I think UNT will offer better teaching and enjoy higher success rates than other schools that admit students with similarly low LSAT scores. The answers are that I have talked with some of the faculty and administrators at UNT over the last few years, read all of the information they released publicly about their accreditation process, and am pretty knowledgeable (for a law professor anyway) about the cognitive science and educational practice literature informing their program.

UNT is distinctive partly because its leaders spent so much time researching how to structure an educational program that would help disadvantaged students succeed; identify students who would do well in that type of program; and prepare students for hands-on law practice. They also sought considerable advice on how to build a program that would attract profs interested in preparing lawyers rather than pursuing theoretical scholarship. And they worked to cut costs in every possible way to keep tuition as low as possible.

While developing their program, they reached out to me and others who were sympathetic to these goals--tapping our knowledge for whatever help we could provide. That was how I first learned about UNT and its particular focus.

I note, to anticipate internet skeptics, that I was never paid for any advice I offered UNT. That's a pretty strong personal measure of how I put UNT in a very different category from Cooley or the Infinilaw schools. Would I share my expertise with the latter schools without charging for my time? Would I even help them if they offered a hefty fee? Not unless their ambitions changed radically.

Does that mean I have a personal, emotional stake in seeing UNT succeed? Not really. I didn't spend *that* much time working with them. I would vastly, vastly overstate my contributions if I claimed (or felt) any such thing. But it's a school I know something about. And I think even people who read the accreditation materials, along with some of the cognitive science literature from the last 20 years, will see differences between UNT and schools that exploit students and the federal loan system.

I want to address some of those assumptions about legal education, but I've already taken up a lot of space here. Maybe later or over on my blog!