By Sarah Mansur
Chicago Lawyer correpondent
When The John Marshall Law School opened its doors in 1899, the fledgling market for legal education contained far less than the 235 American law schools that operate today.
Roughly 120 years later, the inaugural 1L class of the UIC John Marshall Law School marks the first public law school in Chicago’s legal education market.
Without John Marshall, there are roughly 18 stand-alone law schools accredited by the American Bar Association.
“It is not surprising that some law schools have been adversely impacted by the profound changes taking place, as well as the continuing challenges in, both higher education and the legal profession,” said Barry Currier, managing director of Accreditation and Legal Education at the ABA.
Declining enrollment is one such change with a drop from more than 150,000 in 2010 to approximately 110,000 in the fall of 2018.
“A more than 25% decline in aggregate enrollment will stress the system,” Currier said. “Further, new technologies and globalization impact both the profession and higher education, creating additional stress and great opportunities.”
UIC John Marshall Dean Darby Dickerson said financial concerns following the enrollment downturn was not a primary motivator for the merger.
“It wasn’t, because UIC came to us,” she said. “Once they came, I think these were considerations.”
Dickerson said she has no doubt the former John Marshall Law School would have survived the downturn and continued to thrive.
But historically, she said, law school enrollment cycles through peaks and valleys.
“When you project out, that was a factor. But I think the bigger factor was the benefits that this could bring in terms of programming for students, the ability to attract faculty to a university setting because a lot of newer law professors come from interdisciplinary backgrounds and they are looking to be able to collaborate on their research and even teaching across lines,” Dickerson said.
Still, not all law schools survived the tough times, resulting in some closures in recent years that include Valparaiso University School of Law in Indiana, Whittier Law School in California, Charlotte Law School in North Carolina and Arizona Summit Law School.
Law schools that survived, especially independent ones, have adjusted to the changing legal education market, by downsizing faculty and students or establishing some connections with larger institutions.
In addition to the shift in enrollment, the ABA recently set a stricter bar passage standard for law schools.
The change in ABA standards may put some independent schools at risk of losing accreditation and adds another dimension to the changing landscape of legal education.
Tuition dependency
Like most law schools in the country, tuition had been the principal source of revenue at the formerly separate William Mitchell College of Law and Hamline University School of Law, both in the Twin Cities. The schools combined in 2015.
“When applications are down and enrollment declines, that means less revenue,” said Peter Knapp, interim dean and president at Mitchell Hamline School of Law.
Between declining applications and the two other law schools in the Twin Cities, it made sense to move forward with a combination, he said.
“We’ve come through a time of financial challenge and I think we captured the strengths of both of the predecessor institutions and combined them into a single law school,” he said.
The new law school remains independent from Hamline University and doesn’t receive financial support.
Still, Knapp said he believes the merger puts the schools in a much stronger position in the local market and elsewhere.
“It worked out well for us,” he said.
Knapp said the schools share more than a name as a result of the combination.
“We’ve used each other’s facilities. We’ve cooperated on programming and other projects. We continue to work on finding more areas where we can partner,” he said.
Across the Mississippi River, the University of Minnesota Board of Trustees has given the law school more than $39 million since fall 2012 to cover the law school’s budget shortfalls from declining enrollment, according to the Duluth (Minn.) News Tribune.
“Clearly, schools that have a university system supporting them have the advantage of that comfort,” said Thomas McHenry, president and dean of Vermont Law School.
McHenry said Vermont Law School has roughly $11 million endowment and is about 78% tuition dependent.
Many of the law school’s programs rely on obtaining government or private foundation grants, he said.
“It’s an ongoing challenge to raise money for those programs,” he said.
Last summer, Vermont Law School eliminated tenure status for 14 of its 19 tenured faculty as part of the law school’s cost-cutting measures and “restructuring.”
“We had to make a bunch of very tough decisions and we made decisions the best we possibly could,” he said. “When you make any decision there are always going to be people who are unhappy with what you do.”
As an independent school, you have to re-create all of the services students need, Dickerson said.
“It can become expensive. You are not able to share costs and services across a larger campus and that can really become a challenge,” she said.
Alicia Ouellette, president and dean of Albany Law School, said Albany has made a deliberate decision to downsize its faculty and student body, although it will add more legal master degree programs.
“We are working to grow our endowment to deal with the tuition dependency issue,” Ouellette said. “We are in a capital campaign and it’s an endowment campaign.”
Within the last year, the school has raised seven new endowed scholarships.
“The capital campaign is designed to grow our ability to provide student scholarships,” she said.
Albany Law School launched its capital campaign in January when the law school received an anonymous $15 million donation.
Niels Schaumann, president and dean of California Western University in San Diego, said his school was lucky to have a “rainy day” fund.
“We were very fortunate in that over the preceding 20 years, the law school had built up very substantial cash reserves for a rainy day. So, when the weather turned rainy, we had the money to tide us through,” he said. “One of the first things I did when I got here was to try to ask faculty who were able to retire, I asked them to retire and we offered them an incentive to do that.”
He said 14 faculty retired and it made a difference on the school’s bottom line.
“Financially, that was clearly a good move,” he said.
Autonomy
Dickerson said one historic benefit of private independent law schools is that they were often located in urban areas and served populations who needed flexibility in their legal education.
“They needed the night program or they needed to be able to go 12 months out of the year and we were able to provide that as a private independent,” she said. “I think we will be able to retain that as part of UIC because of UIC’s philosophy and who they serve as well.”
Ouellette describes how she views the law school’s independence in blunt terms.
“We control our own destiny,” she said. “If we want to launch a program, we make that decision and we don’t have to run it up any food chains other than through our own internal law faculty committees and through me.”
For Ouellette, independence makes sense, in part because they operate in the legal market of upstate New York.
“We may be uniquely situated to go it alone, but there are other independents that are doing well. It’s not for everyone but it’s a formula that is working for Albany Law School,” she said.
But even Albany Law School, like other independent schools in recent years, has formed an affilation with a nearby institution. The arrangement between Albany Law School and the State University of New York at Albany enables the schools to work together when it benefits both institutions.
When she and the school leadership considered the future of Albany Law School in the years following the enrollment decline, there was a consensus about moving forward with an affiliation with SUNY-Albany.
“I think like all schools, there was a tough period for legal education that required all law schools to make a decision about who they want to be,” she said. “We get to maintain our identity as an independent law school. Even though we are the oldest law school in the country, we get to act like a start-up in some ways.”
The law school established an affiliation with SUNY-Albany in 2015.
This affiliation allows for the schools to establish joint programming or new academic programs, collaborate on interdisciplinary research and work together to secure grant funding.
Ouellette described the relationship with SUNY-Albany as “transactional.”
For example, one result of the affiliation is the 3+3 program that enables students to complete their undergraduate degree and law degree in six years, at SUNY-Albany and Albany Law School.
The schools have independent governing boards and separate endowments but can share costs and revenues when it makes sense to do so.
“We looked long and hard and made what we think is a strong decision to go it alone,” Ouellette said.
“We think particularly with our affiliation, we’ve got the best of both worlds. We are really able to grow and innovate which is going to be critical to the future of all of the law schools. It puts us in a great position of strength to do that.”
New York Law School Dean Anthony Crowell said his school benefits from its nearly $200 million endowment, real estate holdings, strong connections to the New York City legal market and a 128-year history. New York Law School also has roughly $368.5 million in assets, according to 2017 public tax records.
“Our independent status has allowed us to be nimble and adaptive during challenging times. We’re focused on building the most successful and sustainable future for our institution, expanding access to legal education and providing our students with as many resources and opportunities as possible,” he said.
California Western’s Schaumann said there are still other barriers to change and innovation at a stand-alone law school.
“But it does mean that it’s easier at an independent school where I’m the president and the dean,” he said. “If I think we need to make a change, we can do that.”
California Western discussed the possibility of merging or creating an affiliation with the University of California at San Diego, most recently in 2010. But in 2011, those talks stalled.
Schaumann said he doesn’t have a strong preference regarding a merger or affiliation with UCSD.
“I think you’ve got to have faculty support for something like this. If you don’t have faculty support it’s going to become impossible to pull it off. I don’t think we’re there yet,” he said.
Kevin Cieply, president and dean of Ave Maria School of Law in Naples, Fla., said he appreciates that the autonomy allows him to make decisions quickly and not be bogged down in the academic bureaucracy.
“My decisions are focused just on the law school so I don’t have to take the university’s interests in mind,” he said. “I think some of my counterparts associated with the university have to be on committees, have to do investigations, have to go to different meetings — all things that are not associated with the law school and that are associated with the university at large. I don’t have to do any of that.”
Dickerson said being able to focus her time on a singular effort can be a benefit.
“I can give 100% of my service to the law school, whereas as dean of UIC John Marshall, some percentage of my time will be spent on matters at the university level that impact other schools and might not impact the law school at all,” she said.
But Cieply said, despite personally favoring autonomy, he hopes the law school would become part of the university at some point in the future.
“I think there is a lot of synergy that can be had. I think it would be very good overall down the road to do that. I think what a university provides a law school is stability,” he said.
Cieply also acknowledged that since Ave Maria University is undergoing a transition with the president resigning at the end of next year, there is uncertainty about any possible merger.
“I think a lot will have to do with who they select as the new president and what that person’s opinion is of any type of potential merger,” he said. “I think there is a lot that is unknown right now.”
Academic standards
The ABA’s national accreditation arm recently approved stricter standards for law schools, now requiring graduates achieve a 75% bar passage rate within two years instead of five. The change could put pressure on schools with low bar passage rates, including independent schools.
Kyle McEntee, founder and executive director of Law School Transparency, said he believes some additional school closures are inevitable, in part because of the new standards.
“When there are now accreditation standards that say you can’t just take anyone and the ABA is actually enforcing those standards, it’s a very different business proposition for schools,” he said.
“You have to find the money from somewhere and when you don’t have a central university to rely upon, that gives you one fewer option for how you can keep your doors open,” he said.
Scott Norberg, a professor at the Florida International University College of Law in Miami, said independent law schools tend to be considered less elite schools. (Only four independent law schools are ranked by U.S. News and World Report’s annual ranking of law schools).
“They would have been hit much harder by the downturn in applications,” said Norberg, a former associate dean for academic affairs at FIU law school. From 2011 to 2014, Norberg served as deputy managing director of the American Bar Association Section of Legal Education and Admissions to the Bar.
For most of these schools, Norberg said, when applications dropped and schools needed to fill their classes to keep the stream of income, some had to lower the credentials of their entering class.
“As a result of that, many have seen decreases in bar passage rate,” he said. “The fact that they are independent and tuition dependent as well has made it hard for them to cope with the downturn in applications and probably does put many of those law schools at risk under the new 316 [standard].”
The new bar passage standard the Council of the ABA Section of Legal Education and Admissions to the Bar approved in May will first be used to evaluate the Class of 2017 once numbers for that cohort are released in spring 2020.
Two-year bar passage data for 2016 graduates from the ABA shows that 24 of the 202 currently accredited law schools would not meet the new standard. Ave Maria School of Law is one of those schools.
But Cieply said he is confident his school will be in compliance with the new standard because the quality of students has improved since the 2016 cohort was admitted in 2013.
“Since that class, we completely changed our profile and created new programs, mandatory midterms, mandatory bar classes and post-graduation bar prep workshops. We feel that is making a huge change,” he said.
Some deans, such as Mitchell Hamline’s Knapp, reject the notion that independent law schools will have greater difficulty meeting the new ABA standard.
“I don’t think there’s any inherent reason that [the standard] would press harder on stand-alone law schools,” said Knapp.
“I think it’s something all law schools are going to have to be more mindful of but it’s something all law schools should be more mindful of. We want our graduates to succeed and step one for success is passing the bar exam.”
smansur@lawbulletinmedia.com
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