Why Law Schools Fail

In the wake of the recent announcements of the opening of two new law schools, one at Jacksonville University in Jacksonville, FL and at one at High Point University, in High Point, NC, I thought it would be worth exploring the question of why some law schools (especially new law schools) fail, and why others succeed.

The simple answer is that law schools fail when they admit too many underqualified students.  ABA Standard 501(b) states: “A law school shall only admit applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar.”  If law schools adhered to this simple rule, few, if any, would ever fail.  But, either because of greed, wishful thinking, or financial desperation, numerous law schools in recent years disregarded this guidance.  For many of them, the decision to violate this basic standard ultimately led to their downfall.

What Happens When Law Schools Admit Unqualified Students

When law schools admit large numbers of unqualified students -- that is, students who do not appear likely to be able to pass a bar exam -- it starts a vicious cycle.

Although the most harmful effects may not be felt for some years, some less obvious harms begin right away.  First, the law school that admits students with weaker entrance credentials could find itself dropping in the rankings, which are based in significant part on selectivity.  (Unfortunately, because the bottom 50 or so schools are often lumped together in the 4^th tier and unranked by U.S. News and World Report, for some schools there will be no rankings impact.)  Another immediate impact will be the need to dumb down classes.  Professors teaching classes with a large percentage of unqualified students will likely have to slow down and pitch their classes at a very basic remedial level, leaving all students less well-prepared for the bar, and leaving the few strong students feeling unchallenged, which may lead these top students to consider transferring.   Classes with large numbers of unqualified students are also likely to overwhelm the academic success faculty/staff. Rather than concentrating their efforts on a few marginal struggling students with a reasonable chance at success, the academic support folks are forced to spread their limited resources among large numbers of students with minimal chances of success.  So, the presence of so many weak students actually weakens the other students around them.  The class with a large percentage of unqualified students will, inevitably, have a very low first-time bar pass rate.  This will hurt the reputation of the school, and make it difficult to attract well-qualified students, creating a vicious downward spiral of weaker and weaker applicants.   Low bar pass rates and weak admission standards will lead to additional scrutiny from the ABA, which may impose sanctions or corrective actions, up to and including placing a school on probation.  Being placed on probation will lead the best students to seek to transfer to avoid being associated with a school that may be failing, which will further drive down the bar pass rate, as students in the top third of the class at any law school are extremely likely to pass the bar on their first attempt.   Being sanctioned or placed on probation will make it even harder to attract qualified students, leading to declining enrollments, and potentially financial insolvency.  As these effects multiply, at some point, the ABA may revoke a law school’s accreditation altogether.  Even if the ABA doesn’t act, at some point, the law school’s bar pass rate and declining reputation may become such an embarrassment that the parent University may choose to terminate the program voluntarily.  (See, e.g., Whittier, Indiana Tech).

The pattern described above, with some minor variations, describes what occurred at the following law schools that have failed:  Charlotte Law School, Arizona Summit, Florida Coastal, Valparaiso, Whittier, Thomas Jefferson and Indiana Tech.   Similar issues led John Marshall Atlanta to abandon its Savannah Law School branch campus.   Weak admissions standards have also caused considerable problems for Ave Maria, Texas Southern, Western Michigan (Formerly Thomas Cooley) and Appalachian, although these schools have managed to survive.  Of course, declining overall demand for legal education from 2010-2015 also impacted these schools and many other schools at the bottom of the pecking order.  But the primary difference beween the law schools that survived and those that failed is the extent to which the law schools lowered admission standards, as opposed to taking other belt-tightening measures to weather the downturn in applications.

So How Does a Law School (Especially a New Law School) Determine How to Set Admission Standards?

For a new school trying to determine what students to admit, ABA Standard 501(b) is frustratingly  and intentionally vague.  How does a law school know who is capable of completing a J.D. program and passing the bar?  The ABA has studiously avoided recommending any kind of strict LSAT score or GPA cutoff, or even guidelines, to advise law schools.  This can partially be attributed to the fact that bar passage standards vary from state to state so it is difficult to set a fixed standard for who is capable of passing a bar.  Also, although there is a strong correlation between LSAT scores and UGPA and ultimate bar passage, it is not a perfect correlation.  The ABA is concerned that law schools will over-rely on standardized tests and thereby miss some students with the potential to succeed.  The push to diversify the legal profession by admitting more underrepresented minorities to law school has also made the ABA extremely reluctant to endorse any kind of LSAT cutoff, because any such cutoffs would disproportionately exclude underrepresented minority populations, as some ethnic minority groups consistently have underperformed on the LSAT relative to other ethnic groups.  Therefore, law schools have been given considerable leeway to determine who might “appear capable” of completing their program and passing the bar, despite relatively low LSAT scores and/or undergraduate GPAs.

Although the ABA has never explicitly stated any particular recommended cutoffs, it is possible to determine, through ABA sanctions, what the ABA considers to be acceptable.  Based on an analysis of sanctions and other remedial actions ordered by the ABA in 2016 and 2017, it appeared that the ABA was drawing the line right around 143 at the 25% percentile. Put another way, law schools risk running afoul of ABA Standard 501(b) if they admit more than 25% of their class with LSATs at 142 or below.  In response, since 2017 every law school has raised their 25^th LSAT percentile above 143, although it took a few schools (Southern, Appalachian and Western Michigan) a couple of years to get there.

The ABA has not sanctioned any schools for being out of compliance with Standard 501(b) since 2017.  Instead, the ABA decided to focus on outputs rather than inputs by revising its standard on bar passage rates, Standard 316.  The old Standard 316 had proved to be completely ineffectual.  Indeed, no law school was ever found to be out of compliance with it, even though there were many schools with sub 50% bar pass rates for multiple years in a row.  In 2019, the ABA announced a new requirement that “At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.”   This “within two years” requirement is commonly referred to as the “ultimate bar pass rate” or UBP.

The new UBP standard has essentially become the new admissions standard.  Law schools must now only admit a class of students that, as a group, are capable of achieving a 75% ultimate bar pass rate.  This gives law schools considerable latitude to admit students who are at high risk of failing the bar, so long as such students make up no more than 25% of the class.  In order to ensure that a law school can meet standard 501(b), I have recommended that law schools shoot for an LSAT 75%/50%/25% of 151/149/147 and certainly no school should go lower than 150/148/146 (in states with very difficult bar exams, add 1 point).  Four years of published UBP results supports these recommendations.  As of this year, only one law school, Southern University, is currently admitting a class that is at high risk of not meeting Standard 501(b), with LSATs of 149/146/144.  Two other schools are right on the borderline:  NC Central at 153/147/145 (the 153 does somewhat counterbalance the 145, and NC has a strong track record on bar passage) and Appalachian at 152/147/146 (Appalachian has an abysmal recent record on bar passage).  But for a new law school starting out, I would strongly recommend setting initial admissions goals much higher.  The inaugural class at any law school is critically important in establishing the reputation of the school and creating a baseline for future classes.  It is critical to the success of a new school that the inaugural graduating class have a strong bar-pass rate.  A new school should seek not just minimally-qualified students, but well-qualified students.   Thus, I would suggest a goal of LSAT 153/151/149 and UGPA of 3.45/3.25/3.05 for the inaugural class.  This would likely ensure a first-time bar pass rate of over 75%.  This will also ensure that admissions standards are not an obstacle to receiving provisional accreditation at the earliest possible time.

Of course, the challenge for a new law school is attracting students with decent credentials to attend an unproven, unaccredited law school, when any such students are likely to be admitted to, and even receive “merit” scholarship offers from, multiple fully-accredited law schools.  In a city with no nearby law school, there may be some pent-up local demand from prospective students who are geographically tied to the area and are therefore willing to try an unproven school, but there are unlikely to be enough such candidates to fill a class.  Thus, a start-up school must be prepared to offer full or close to full scholarships to lure highly qualified students away from established schools.  New schools should also line-up guarantees of paid summer jobs and full-time post-graduation employment from local law firms as an added inducement to prospective students.  The start-up schools that have had the most successful launches in recent years (UC Irvine and Drexel) employed these strategies.   In contrast, law schools that admitted weak inaugural classes, such as UNT-Dallas and Indiana Tech, struggled (or failed) to get off the ground.

Although law school is not rocket science, or even medical school, it is a challenging profession and it is not for everybody.  Law school and law practice requires strong analytical reasoning, reading comprehension, logical reasoning and critical thinking skills.  That is what the LSAT tests for.  Success in law school and on the bar exam requires good study habits and a positive work ethic.  These attributes are generally reflected in a student's UGPA.  Combined, these measures are the best predictor of success in law school and on the bar.   (Note - I am not saying these are the only skills that lawyers need to succeed, or even the most important.)  While it is important to diversify the profession and give deserving candidates an opportunity to attend law school, there is no proven magical formula to convert an unsuccessful college student and poor standardized test-taker into a successful law student and bar exam passer.  The ABA requires that law schools admit only students who appear capable of completing a J.D. program and passing the bar.  While the ABA tends to look at a school's admissions practices as a whole and therefore may allow a school to admit 25% or more very high-risk students, I believe proper application of this standard requires that it be applied to each individual applicant.  Thus, a school should not take a risk on a student with a low LSAT score, unless that student has a correspondingly high GPA and other personal attributes which suggest that his or her test score may be underpredictive.  Schools that follow such admissions practices will be successful in the long run.

Location

Of course, one factor in the success of a new law school, as with any new business, is location.  New schools located in a city without a law school, or where the only law school is highly competitive to get into, tend to do well.  This helps to explain the early success of Charlotte Law (only law school in Charlotte), Florida Coastal (only law school in Jacksonville) and Arizona Summit (only private law school in Arizona).  These schools could have continued to thrive indefinitely if the ownership had allowed the schools to stop growing when they reached a sustainable level - perhaps 200-250 per class.  But the owners got greedy and required that these schools start admitting large droves of unqualified students; this, in the end, spelled doom for these schools.  Concordia had a chance at success being the only law school in Boise, Idaho, but when the University of Idaho announced plans to open a branch in Boise, it helped usher in the end for Concordia.  Boise didn't have the population to sustain two law schools.  Savannah, GA did not have a large enough population to sustain a law school and should never have been opened.  From a location standpoint, Jacksonville University has a good chance of being successful, as it replaces Florida Coastal as the only law school in a major metropolitan area.  In contrast, High Point University is not an auspicious location for a new law school.   The University is located just 17 miles from Elon University School of Law, 24 miles from Wake Forest and just over an hour from North Carolina Central and Campbell.  High Point University would be well-advised to consider locating their law school in Charlotte, NC, which is currently the largest city in the U.S. with no law school.  Several universities have chosen to locate their law schools away from their main campus in order to fill a market niche and provide a more convenient location for law students to find jobs.  Examples include: Loyola Marymount/Loyola L.A., Barry University, Florida A&M University, Rutgers (Newark and Camden), Seton Hall, University of Idaho (Boise campus), Widener (Commonwealth and Delaware), and Georgetown.

 

 

Comments

[AnonProf]

Another problem, suggested by your post, is hiring decisions regarding ASP faculty. Offering a salary of $60,000 with no contractual stability limits the pool of applicants. You will not attract an experienced academic/ bar support instructor with those employment conditions. As a result, the successful candidate is learning the field as the clock ticks on producing students who can pass a bar exam.

Compounding this problem, hiring one or two such instructors, ostensibly to move the needle on 100+ students, is an unwise approach.

Taking academic/ bar support seriously has led to results. See Muller and Ryan's recent article with solid empirical evidence to support that point. Belmont comes to mind, but too few schools take that approach.

[Another Law Professor]

AnonProf could not be more accurate. Law schools get confused and think another JD from Y,S,H will move them up in USN+WR. They skimp on ASP and bar--programs that actually help students, in order to pay for more podium profs they think will get them in the first tier. Get your students through 3 years and pass the bar, then invest in more Y,S,H grads.

[David Frakt]

Anon and ALP - I was thinking about law schools failing in terms of going out of business, but there are plenty of law schools that are still operating that are failing some of their students, or at least not doing as much for their students chances of success as they could be. For example, several law schools routinely underperform on the bar exam based on the entrance credentials of their students; this suggests they are failing the students in terms of their educational program. I will address bar pass results in a future post. In the meantime, if other readers have thoughts on how law schools are failing to be the best they could be, please share your thoughts in the comments.

[Greg Sergienko]

David, I am sorry to see you write that the problem at Concordia was student admissions.

Nothing could be further from the truth. Concordia students attained a cumulative bar passage rate of 100% two years in a row, tying it with Yale for best in the country, and better than all other law schools.

The real problem with Concordia was a deal with HotChalk entered into by university-level management that gave HotChalk a large share of tuition revenue. Lawsuits are pending on this. The Oregonian has coverage on this, and you and others can read about it there.

I am, of course, speaking for myself, and not as a representative of Concordia or any other institution.

[David Frakt]

Greg - great to hear from you and thanks for the clarification. I have edited the post to remove this assertion. I can't seem to find the numbers for 2013, Concordia's inaugural class, but Concordia's numbers in 2014 were respectable at 157/152/149. Nevertheless, the school was still denied provisional accreditation that year. After that, the admissions standards dropped steadily. 2015: 154/150/146. 2016: 151/149/145. 2017: 151/147/144. In fact, in 2017, Concordia made my bottom 10 least selective law schools list with a bottom 25% LSAT of 144. https://www.thefacultylounge.org/2017/12/the-2017-bottom-10-law-schools-in-the-country.html Concordia made my bottom 10 list again in 2018 at 6th place with LSATs of 151/148/144. https://www.thefacultylounge.org/2018/12/the-2018-19-bottom-ten-law-schools.html After some initial issues with bar pass, Concordia did do very well on the bar for a couple of years as you note, but this was only after Idaho significantly lowered the bar cut score. So perhaps poor admissions standards did not contribute to Concordia's ultimate decision to close, but a steady decline in admissions standards and being mired in the bottom 10 is hardly a recipe for success either.