The current existential threat to many law schools represents the canary in the coal mine for higher education.
Law schools have typically long enjoyed budget surpluses, and the universities in which they sit have benefited. But over the last few years, the financial situation of most law schools has reversed. Facing multiple years of declining enrollment and public support, alongside increasing costs and tuition discounting, law schools often are no longer a source of surplus revenue. Many law schools now are relying on financial support from their universities to stay afloat. This reversal is a harbinger for the rest of higher education, which is beginning to face some of the same challenges.
The steps law schools are taking -- in the hope they can survive just long enough for precrisis status quo conditions to return -- represent a doubling down on their traditional strategies. What’s so punishing is that because the precrisis status quo is gone forever, they are only worsening the overall outlook for the sector.
As we write in our new research paper published by the Clayton Christensen Institute, “Disrupting Law School: How Disruptive Innovation Will Revolutionize the Legal World,” the precrisis status quo is gone in large part because of the disruption of the traditional business model for the provision of legal services. Simply put, disruption is lessening the need for lawyers, which means law schools are producing too many lawyers for positions that increasingly do not exist.
Disruptions are bringing three significant changes in the legal services market.
First, from LegalZoom to Rocket Lawyer, more affordable, standardized and commoditized services now exist in an industry long dominated by opaque, highly customized and expensive offerings only accessible on a regular basis to a limited part of the population.
Second, from ROSS to the Practical Law Company, to e-discovery and predictive coding, disruptive innovations are allowing traditional law firms and general counsel’s offices to boost their productivity and perform the same amount of work with fewer lawyers. New technologies are able to do tasks that lawyers -- particularly entry-level lawyers -- performed traditionally. This is hollowing out the job market for newly minted lawyers.
And third, disruptive innovations are breaking the traditional rationale for granting lawyers a monopoly on the practice of law. Just as disrupters like Southwest Airlines and Uber changed who could operate in highly regulated industries, if a nonlawyer aided by software can provide the same service as a lawyer, then it is not the public but the lawyers who are being protected by the legal profession’s monopoly on the provision of legal advice.
State regulators of bar licensure are taking note. Some states are beginning to experiment with providing non-J.D.s limited licenses to provide legal services that until now only J.D.s could provide. The state of Washington was the first to license legal technicians -- non-J.D.s who are specially trained to advise clients in a limited practice area, in this case family law. Akin to a nurse-practitioner, under new regulations, a limited license legal technician (LLLT) can perform many of the functions that J.D.s traditionally performed. Only two years old, this new model is already gaining traction outside of Washington; the bars in California, Colorado, Massachusetts, New York, Oregon and Utah are each considering similar steps.
Because there are fewer jobs for lawyers, fewer people are seeking to enroll in law schools -- hence the crisis.
When disruption is afoot, incumbents typically remain tethered to their longstanding habits to sustain themselves. In the context of an increasingly competitive marketplace for law students, this is playing itself out in a quest to retain prestige in the legacy system for ranking law schools, the U.S. News & World Report rankings. Law schools continue to chase prestige by luring students whose LSAT scores and undergraduate grade point averages will help them move up the rankings. They are attracting students by offering tuition discounts -- during the 2013-14 school year just under 40 percent of law students paid full tuition.
But this push to retain prestige in turn reduces revenues and places the schools in a vicious cycle as the expenditures to remain competitive and improve continue to escalate, as has been true in all of higher education.
Lawsuits challenging the veracity of claims that law schools make around job placement are increasing, and if a verdict goes against a law school, the floodgates against them could open that much wider.
On top of all these challenges, higher education itself is, of course, seeing a variety of potential disrupters emerge, all powered at least in part through online learning.
To this point, disruptive innovators have not directly attacked law schools by offering new versions of a legal education. But were entities to emerge that paired online learning, with its flexibility and competency-based learning attributes, with place-based boot camp-type clinical experiences that trained students to practice law in a more affordable and practice-oriented fashion, the pressure on law schools would only increase.
We see four possible solutions for nonelite law schools.
First, launching an autonomous entity is a proven way to combat the impact of disruption. By harnessing an existing law school’s superior resources to pioneer the disruption and create enough separation so the parent entity’s existing processes and priorities do not stifle the new entity, a law school-based educational start-up could itself become the first disrupter.
Second, schools could use online learning technologies as a sustaining innovation to improve learning and control costs. By blending online learning with face-to-face instruction, law schools could incorporate more active learning and professional skills development into the existing three-year educational model.
Third, they could specialize by creating programs that allow J.D. students to focus deeply on a particular area of law. Students could learn core subjects through online, competency-based programs and their in-person experience would focus on extensive training in a particular area of law through experiential learning courses, live-client clinics, simulations, capstones, directed research and writing, moot court and trial advocacy exercises, and field placements.
And, finally, innovative law schools could build new, non-J.D. degree programs that specialize in training students for careers that combine elements from law, business and government -- in international trade, for example -- but do not fit neatly into existing law, business or government schools and are less time-consuming and expensive than, say, a joint J.D.-M.B.A. Or they could offer new credentials that prepare non-J.D.s for the many fields that intersect with the law but do not require a J.D. degree, such as regulatory compliance.
The future is coming for law schools; the question is whether law schools themselves will play a role in shaping that future or be shaped by the cascading circumstances surrounding them.
Michele R. Pistone is a professor of law at Villanova University's Charles Widger School of Law and an adjunct fellow at the Clayton Christensen Institute. Michael B. Horn is a cofounder and distinguished fellow at the Clayton Christensen Institute and a principal consultant for Entangled Solutions, which offers innovation services to higher education institutions.
Margaret McKenna (right), told Thursday that the board of Suffolk University was about to fire her, resigned. A Suffolk statement confirmed the resignation but offered no details. Earlier this year, board members were planning to fire McKenna even though she has strong backing from students, faculty members and alumni. Amid numerous protests on her behalf, the board and McKenna reached a compromise under which the board would adopt governance changes and McKenna would remain as president until the start of the 2017-18 academic year. Board members criticized some of McKenna's spending decisions, but many on campus supported those decisions and said that the board was engaged in micromanaging and trying to dictate the public relations firm with which Suffolk should work. Many of McKenna's supporters have also said that the board criticisms of her are sexist, in that some trustees appeared uncomfortable with a strong woman making decisions.
In a statement to The Boston Globe, McKenna said, “I fought a good fight against entrenched interests and a board that did not understand university governance.”
The former head men's basketball coach at Westchester Community College was indicted Thursday on charges that he forged transcripts of players to help them earn scholarships at National Collegiate Athletic Association programs.
According to the indictment, the former coach, Tyrone Mushatt, falsified the transcripts of eight star players to make it appear as though they received grades in courses they never enrolled in. He forwarded those transcripts to several Division I institutions, including St. John's University, Florida A&M University and Quinnipiac University. Mushatt's lawyer said the former coach is innocent.
"The defendant abdicated his responsibility as a college coach and brazenly and methodically subverted the integrity of the college athletic system," Catherine Leahy Scott, New York's inspector general, said in a statement. "His repeated abuse of his authority violated the trust instilled in his position and undermined students who work hard, both academically and athletically, to achieve their dreams."
University of Louisville President James Ramsey officially resigned late Wednesday, ending a 14-year tenure that descended into controversy.
Ramsey's resignation, effective immediately, was accepted at a special Board of Trustees meeting that stretched roughly seven hours and included extensive negotiations, according to The Courier-Journal in Louisville. The university president’s contract would have run through 2020, but he agreed to offer his resignation earlier this year when Kentucky Governor Matt Bevin overhauled Louisville’s Board of Trustees. Ramsey also offered to serve for a year as interim president, but the new board rejected the idea. The two sides reached a deal that will pay Ramsey $690,000 -- the equivalent of two years of his university salary.
But Ramsey plans to continue at the University of Louisville Foundation, he said in a statement issued through his lawyer. Ramsey is the foundation’s president, earning about $8 million between 2012 and 2014 in the role. He said he plans to continue to work “in whatever capacity the foundation board thinks best.” Ramsey’s future with the foundation will not be decided until September at the earliest, according Ulysses “Junior” Bridgeman, who chairs both the foundation and university boards.
Ramsey’s resignation comes amid a legal battle over whether Kentucky’s governor had the power to dismiss and replace Louisville’s Board of Trustees. Louisville Provost Neville Pinto will lead the university while it searches for a new president.
The University of Michigan will settle with a former graduate student for $165,000 over her dismissal from an engineering program in 2011, the Associated Press reported. Michigan denied Jennifer Dibbern’s claims that it retaliated against her for her efforts to unionize research assistants and to change the campus antiharassment policy, but said it wanted to end a lengthy, expensive legal battle.
A federal judge had dismissed most of Dibbern’s claims prior to a trial scheduled for June, based in part on documents suggesting she had been warned repeatedly that she wasn’t spending enough time in the lab, according to the AP. Yet U.S. District Judge Sean Cox reportedly said Dibbern had shown evidence of a “casual connection” between her dismissal and union activities. Dibbern also reported being sexually harassed by male students. “We resolved the case to everybody’s satisfaction,” said Dibbern’s attorney, David Blanchard.
A student at Emmanuel College has used a public Facebook post to say that she'll be leaving the college because of its finding that a student she accused of rape was not responsible for sexual assault. “It is clear to me that you value your reputation more than you value your community. The compassion that you spoke so strongly about in the beginning of my time with you was only skin-deep. You host events that 'empower' women like myself to speak freely of issues like sex and race, but these are just empty words,” says the Facebook post by Joanna Vandyke. The post is being widely shared, along with comments criticizing the college.
The college issued a statement to Boston.com in which it said, “We are deeply concerned about the statements recently presented by a student on social media. There were more aspects to the account than what was shared on social media by this single party. The facts in this case overwhelmingly supported the Student Conduct Board’s conclusion.”
Vandyke told Boston.com she met the student she accused of rape on Tinder and that she was sexually assaulted after they were drinking and smoking pot together. The student whom Vandyke accused of rape, in a written statement that she released to Boston.com, said they had sex three times that night. He said that they did not formally discuss consent, but that she pointed at and grabbed his genitals.
Lincoln University -- a historically black university located in Jefferson City, Mo. -- suspended its major in history on its 150th anniversary. Explaining why that step was necessary, the president of the university emphasized, “We must make decisions like these as we look toward the future and the needs of the changing workforce.” Embedded within that statement is a declaration about higher education and its purpose: higher education should make good, high-paid workers. We should step back and ask whether this is really what we want from higher education.
Since I took my first academic position in 2010, I have continually heard in the news media, from visiting speakers and many other people that transforming students into employees is the purpose of higher education. Whenever I hear this, I cannot help but recall one particular graduate seminar when we discussed the writings of Marxist Louis Althusser. The discussion turned to higher education, and some people in the class claimed higher education was little more than part of a plot to provide good and obedient workers to the bourgeoisie. At the time, I thought that was overly reductive. I mean, we were talking about the supposed conspiracy of the bourgeoisie in class at an institution of higher education; surely this was not part of the plan.
Once I got my first academic job, however, I learned that this really was the perennial question in higher education. What should our general education curriculum look like? On which majors should we focus our resources? The answer was always put in the form of another question -- what do employers want from our graduates?
Perhaps because of the rising costs of higher education, politicians have increasingly said that the point of higher education is for students to make lots of money in their chosen careers. Is that what we want from higher education? Maybe a better question would be is that the only thing we want from higher education?
In her recent article in The American Historian, Nancy F. Cott indicates it is hard for humanities degrees -- like history -- to compete with degrees related to engineering if the only significant variable is potential earnings. One study found that throughout their careers, engineers consistently earned more than graduates in the humanities. But then, not everyone wants to be an engineer. As Cott phrased it, neither would we really want “to see an educated world populated by engineers only.” The fact is people educated in the humanities go on to important, although often not quite as lucrative, careers in education, government, law and a host of other interesting and relevant occupations.
Since students enter into significant debt to earn their diplomas, it seems reasonable for students to expect some return on their often significant investments. I hope as we review what we value in education, however, we do not simply ask which majors lead to the most lucrative careers.
Du Bois and Shaping Lives in the Present
What is higher education for? Should it exist solely for the purpose of manufacturing workers who make the greatest amount of money? It’s not a new question. It’s one that the renowned African-American historian W. E. B. Du Bois wrestled with in his speech commemorating Lincoln University’s 75th anniversary in 1941. He worried that the temptation would “come and recur to make an institution like this, a means of earning a living or of adding to income rather than an institution of learning.” Du Bois believed the kind of students Lincoln produced would end up changing the world for the better -- that it would be Lincoln students who would “show the majority the way of life.” Not from privileged and “powerful groups which from time to time rule the world have come salvation and culture,” he said, “but from the still small voice of the oppressed and the determined who knew more than to die and plan more than mere survival.” In short, Du Bois hoped that Lincoln would become “a center where the cultural outlook of this country is to be changed and uplifted and helped in the reconstruction of the world.”
Why did Du Bois believe that students at a university like Lincoln would be so influential? Du Bois recognized the power of history to shape lives in the present, and he rightly believed that this nation needed more diverse students if the status quo was ever going to change. In Du Bois’s day, history was being used to justify violence against African-Americans. In 1915, the original version of The Birth of a Nation premiered in the United States. In that movie, President Woodrow Wilson’s book History of the American People was regularly quoted. Audiences around the country saw Wilson declare through this movie that Reconstruction had been a misguided failure during which “the negroes were the office holders, men who knew none of the uses of authority, except its insolences.”
Wilson and many other people in the academy were part of what eventually became known as the Dunning School of Reconstruction History. For William Dunning, the historian for whom the broader school was named, Reconstruction was a failure because great numbers of the recently emancipated slaves “gave themselves up to testing their freedom. They wandered aimless but happy through the country.”
According to Dunning, it was Southern whites who “devoted themselves with desperate energy to the procurement of what must sustain the life of both themselves and their former slaves.” Lesson learned: black political participation meant misery for all, but exclusive white control meant the best for both black and white Southerners. The Dunning School of Reconstruction History justified the exclusion of black people from politics, and it implicitly justified the violence used to maintain that exclusion.
W. E. B. Du Bois labored to contradict those impressions. In his now widely read TheSouls of Black Folks, Du Bois argued that it was not the irresponsible silliness of black people that doomed Reconstruction but rather the impossible problems facing the recently freed slaves. Reflecting upon the failure of efforts to make Southern African-Americans truly free, Du Bois noted that the Freedmen’s Bureau could not even “begin the establishment of goodwill between ex-masters and freedmen,” and perhaps most important, it could not “carry out to any considerable extent its implied promises to furnish the freedmen with land.”
Adding to the impossible challenge was the fact that much of the legislation created during Reconstruction was intended to punish the white South rather than empower the recently emancipated. As viewed by Du Bois, black equality was a cudgel used to punish the rebellious South rather than a goal in and of itself. Without any real support for black equality in either the North or the South, how could we expect anything but failure from Reconstruction? Because of those failures, black people suffered under the weight of white supremacy.
White historians largely ignored Du Bois’s conclusions for years; it was not until higher education expanded to include a wide swath of the American population -- due in large part to the GI Bill -- that more historians came to accept what he had long argued. Today, the vast majority of historians of Reconstruction accept his premise that many capable black politicians participated in the Reconstruction. Many worked to expand roads and education to include a plurality of the Southern population. At the time, their opponents saw this as waste and corruption, but the vision of those black politicians more closely aligned with our own expectations. We -- like they -- expect our governments to maintain public roads and public education. History looks different from the bottom up.
Reversing Dominant Narratives
Du Bois did not mention the degree in history specifically in his speech in 1941, but his life’s work demonstrated the importance he placed upon the historical imagination. He correctly predicted that making the academy more diverse would change the world for the better. History has been used to justify white supremacy, and it has been used to undermine it as well. As the population of historians changed, so too has the accepted narrative of the academy. That’s why Du Bois did not ask what majors earned the most money upon graduation but had a loftier vision for Lincoln’s future. America needed impassioned graduates from schools like Lincoln. Someone had to help reverse the dominant narratives prevalent in 1941 about black inferiority.
On Lincoln University’s 75th anniversary, Du Bois provided a powerful argument in favor of empowering Lincoln’s students to go and change the world. I fear that the end of history at Lincoln University means students will have less ability to do so in the future. That saddens me, because our national history is particularly relevant today. In 2016, a reinterpretation of The Birth of a Nation is set to debut and likely make radically different claims than its 1915 namesake. Why did the creators of this new movie -- which will document the slave rebellion led by Nat Turner -- give it that name? In 2016, some people have suggested that the civil rights movement of the 1960s was relatively short and its goals were largely accomplished. How then do we explain the emergence of the Black Lives Matter movement? Do these protesters fail to understand just how racially progressive our country has become? In 2016, some politicians have suggested that the United States is a nation founded by white ideas -- or “Western civilization” -- and people of color are guests. Are they right?
Our history as a nation has been used to answer those kinds of questions, and someone is going to be answering these questions in the future. In addition to asking what employers want our graduates to do, we should also ask whom we want to answer such important questions.
Graduates -- whether in the humanities, sciences or engineering -- will continue to get relevant and interesting jobs. Some will get paid more than others. In finding the right major, students will have to make strategic choices about what they want for their lives. Having spoken with many students, I know many are not so single-mindedly focused upon profit. Many have more philanthropic purposes in mind for their education. By so circumscribing the range of possibilities, however, we are creating a future in which Lincoln’s graduates will be able to get jobs but maybe not make history.
J. Mark Leslie is an associate professor of history at Lincoln University.
Florida National University does not infringe the trademark of Florida International University, a federal appeals court ruled Tuesday. Florida International, a sprawling public university in Miami, successfully prodded what was then called Florida International College to change its name to Florida National College with a similar lawsuit in 1989.
But the U.S. Court of Appeals, backing a 2014 ruling by a federal district court, ruled Tuesday that the institutions' names are different enough to avoid confusion, given that there are 12 colleges or universities with both "Florida" and "university" in their names and that the words "international" and "national" are sufficiently different.
Fisk University sparked controversy several years ago when it tried to sell off parts of its collection of Georgia O'Keeffe paintings to help solve its financial problems; the sale was ultimately blocked by a judge and the university wound up sharing its collection with an Arkansas museum in exchange for an infusion of cash.
But as the university was negotiating that legal arrangement, its president at the time quietly sold two other paintings, The New York Timesreported. The sale was not reported at the time, and the Times quotes the director of another university's museum as saying that the Fisk sale was "very much against the ethics of our profession."
The Fisk situation was one of several in recent years that have raised questions of whether colleges or universities can try to transform art donated to them into assets they can use to support themselves.