Public School of Law in Massachusetts Questioned

Turns out I'm not the only person wondering what kind of math those Trustees at the University of Massachusetts are using to figure that they can pick up Southern New England School of Law (SNESL), and expand it, keep the tuition to $23,500, offer about half the student body scholarships that cut their tuition in half, and still achieve ABA accreditation by 2012, all without costing the taxpayers of Massachusetts or the University a dime. In fact, they expect the University of Massachusetts at Dartmouth, the new mothership, to end up making money on the deal, somehow.

Now, you can say that I'm deeply prejudiced in the matter, being as how I work at Suffolk University, one of the three private law school in Massachusetts that will be most challenged, most put on the competitive edge by this new plan. Just because I am a law librarian and have some idea of what it costs to enlarge and maintain a law library, though, I am deeply skeptical that U. Mass Trustees are not playing with loaded dice when they are rolling these numbers out to the press and the legislature and governor, telling everybody that this is possible. The biggest problem for SNESL accreditation has been insufficient funding. They have a great dean, and some pretty decent faculty, I think. They just have trouble funding the thing properly and that's been a huge barrier to them, and it leads to all the other problems that have prevented accreditation, as far as I can understand.

There are two blog posts at The Faculty Lounge by a couple of Drexel faculty members (not librarians), who have the same questions I have. Today, December 3, Associate Dean and Prof. Dan Filler of Drexel's law school posted, in part:

As more details surface, the whole project becomes more curious. For example, we learn that the $23.2 million dollar gift from SNESL includes a 140,000 volume library collection worth $11 million. The problem, it seems to me, is that a huge part of a law library's cost comes from ongoing subscriptions (this is a digital age, after all) and salaries. I doubt that UMass would pay $11 million for library resources if it were to start a new law school; I wonder if it would even pay a third of that amount. Dean Roger Dennis had further questions here.

That link to Drexel Law Dean Dennis' post of November 30, titled "U Mass Dartmouth-SNESL Merger: Questions That A Board Ought to Ask." His essay refers to an earlier post by Filler about the SNESL-UMass merger which I cannot locate, but says Filler...

properly suggested that from an academic quality perspective if the UMass system wants a law school it would best be advised to create the program from scratch and place it on a research-intensive campus (i.e. the Amherst site).

Dan’s brief blog post nevertheless got my juices flowing. So I want to ask Dan’s question from the perspective of the UMass Dartmouth campus rather than the UMass system. In my analysis I assume UMass Dartmouth wants to seek ABA accreditation promptly.

UMass Dartmouth is an intriguing entity. The university has over 9,000 students, 4,000 of whom live on campus. The UMass Dartmouth campus has academic ambition. It currently has a good but not outstanding reputation. It is ranked 61st (and 16th among state supported institutions) in its US News cohort. The campus has a broad range of undergraduate and graduate offerings, including a selected number of Ph.D. programs. The campus wants to increase its research footprint and desires to be an engine of regional development. The campus faces significant economic stress as a consequence of reduced state funding. This has resulted in layoffs and hiring freezes.

The first question a board should ask is what the likely economics of acquiring SNESL be? Would the campus have to contribute operating funds to make the law school a go? Press reports suggest that the law school intends to charge about $23,000 for in-state tuition. There is good data available on what it costs to run an ABA accredited law school. The average direct expenditure per student for publicly approved ABA schools is in excess of $31,000. Typical indirect expenses raise the average fully allocated expenditure per student to at least $35,000. On a fully allocated cost basis only a handful of ABA state-assisted law schools spend less than $23,000. All of these law schools are in very low cost communities outside the Northeast. And none of the low expenditure schools face the financial aid demands that UMass Dartmouth would face.

Publicly available data suggests SNESL has a bar pass rate in the low 40s. The ABA bar pass standard is particularly convoluted, but in shorthand the standard requires a pass rate of 75%. To attract students at the quality that leads to an acceptable ABA law school bar passage rate, UMass Dartmouth would need to discount heavily, raising its costs in a dramatic manner. Moreover, press reports suggest that the law school would have to invest significantly in new faculty, library and technology to meet ABA standards. So a skeptical board ought to think that the near-term per student costs of running SNESL as an ABA school would significantly exceed the planned tuition level. Hence, UMass Dartmouth will have to subsidize the law school from other campus resources at least for some number of years.

So is it in UMass Dartmouth’s strategic interest to merge with SNESL? It would be far from a costless transaction. Major fiscal and other resources would have to be contributed to the law school to create an academic program that adds luster to the campus. Thus the opportunity cost is high and realistically the returns are likely to be many years in the future. My advice: move with caution!!

A thoughtful commenter at the site offers a link to a Boston Globe article in which SNESL defends itself against its detractors, but in the article, SNESL Dean Robert Ward (himself a Suffolk alum), admits that SNESL's three-year average bar passage rate for first time takers of the Massachusetts Bar is 43 percent, a ceiling they cannot seem to break. Understand that the most recent average passage rate for first time takers of the July, 2009 Massachusetts bar was 90.7%, and that the top three schools were

Harvard 98.9 %

Northeastern 97.3

Suffolk 94.3%

Now tell me that it ain't gonna cost me any money as a Massachusetts tax payer or as a supporter of the University system to bring that baby up to snuff. Even more interestingly, a Trustee of the University of Massachusetts has chosen to follow up an op-ed piece in the Boston Globe with another in the local legal newspaper, the Massachusetts Lawyers Weekly dated December 3, 2009. As in the earlier piece, Braceras calls out the offer of SNESL as being done in a suspicious manner. The Trustees themselves, did not know of the offer, as a group, until very shortly before the decision was due, according to both pieces:

Last month, Margaret Xifaras, chairman of the board of the unaccredited southern New England School of Law offered to "donate: the law school to UMass-Dartmouth. Although the deal had been in the works for months, the trustees learned about the proposal only a few weeks ago from a hastily drafted press release issued by the UMass president's office.

the timing of the announcement, and the truncated timetable for board review, raise serious red flags. When the UMass president's office failed to answer questions about the deal, my colleague Lawrence Boyle and I went public with our concerns in an op-ed in the Boston Globe.

The trustees are bound by the fiduciary duties of loyalty and due care, requiring careful due diligence when considering the creation of new professional schools, potential mergers and significant acquisitions. This is particularly true where such transactions can negatively impact and distract from the university's core mission and responsibilities to its students throughout the system.

In this case, due diligence necessarily requires that we ask such fundamental questions as: (1) whether, in this contracting legal economy, it is the right time for the university to venture into legal academia; (2) whether SNESL has anything to offer UMass, or whether UMass, if it is inclined to start a law school, should start fresh at UMass-Dartmouth or elsewhere; (3) whether the university can afford to bail out a failing law school, given recent cuts in the university's budget; and (4) what benefits or burdens would a law school add to the current UMass system and its students. (snip)

Yas (Lawyers Weekly editor David Yas, writing earlier in favor of the merger), however, condemns us for raising the questions, arguing in favor of the merger on the ground that it would provide greater "access" to legal education for "widows" and other non-traditional students.

But the "access" argument is a red herring. There are many ways to increase access for non-traditional students throughout the state, not just those in southeastern Massachusetts. Increasing financial aid, providing more low-interest student loans and fundraising for more private scholarships would all increase access for qualified students at accredited law schools more efficiently and more equitably than the proposed merger.

More importantly, as Xifaras has bragged, SNESL already serves a non-traditional population. There is no evidence that the acquisition of SNESL by the University of Massachusetts would increase access beyond that which already exists.

The access argument is, therefore, irrelevant to the question of whether SNESL and UMass should merge. Put another way, if SNESL already provides access to legal education to non-traditional students, we don't need UMass to step in - unless, of course, SNESL is on the verge of collapse. In which case, SNESL's "gift" becomes a bit of a Trojan horse.

Even assuming, for the sake of argument, a verifiable lack of "access" that would be remedied by this merger, we must ask ourselves, access to what?

Access to legal education is meaningless if that education leads nowhere. The bar passage rate for SNESL graduates is abysmal (6 percent in one recent administration of the exam). Many SNESL grads who pass the bar still have trouble finding work.

Without an infusion of millions of dollars to improve the faculty and the quality of teaching, slapping the UMass name on this enterprise will provide access to nothing but false hope.

Yas argues alternatively, that the proposed UMass law school "could supply the state with countless community lawyers." Yet, he acknowledges that "the question may be moot, since there aren't too many public service jobs to be had anyway."

That was true even before the financial collapse. In these economic times it is not only the private law firms that are downsizing; non-profit legal groups, government agencies and legal services offices are cutting jobs as well. The problem is not a dearth of attorneys willing to do good work. The problem is a lack of funding for public interest work and a shortage of public interest jobs.

To say that the creation of a state law school will increase the number of public interest lawyers begs this question: for whom will these newly minted lawyers work? The creation of a public law school might increase the supply of attorneys seeking such jobs, but it will not increase the demand for their labor. (snip)

Jennifer Braceras is a graduate of UMass-Amherst and of Harvard Law School and serves on the board of trustees of the University of Massachusetts.

(from the Mass. Lawyers Weekly op-ed, which I had to copy out by hand, sadly, due to their stupid digital rights management software. Any typos are my own!)