Law Partners

It may not seem like the best time for public universities to go shopping for private law schools, but at prices like these -- “free” to taxpayers -- who can resist?

Such was the argument this week from the University of Massachusetts at Dartmouth, which accepted the unaccredited Southern New England School of Law as a “gift.” Negotiations between the University of California at San Diego and California Western School of Law have a similar feel, as officials on both sides say a merger won’t cost cash-strapped Californians a penny.

If these deals sound too good to be true, some critics suggest that’s because they are. But supporters of the mergers say there’s no better time to act, and in Massachusetts that argument has won the day. The state’s Board of Higher Education approved a plan Tuesday that allowed for Dartmouth to acquire Southern New England, thereby creating the state’s only public law school.

“The possibility of a world class affordable public law school exists now in Massachusetts,” said Jean F. MacCormack, chancellor of the Dartmouth campus.

The merger of private law schools into public institutions isn’t without precedent. In making their cases, Dartmouth and San Diego officials have both cited Pennsylvania State University’s partnership with Dickinson School of Law as one example of just such a happy marriage, and Michigan State College of Law is also the product of a private-public partnership.

Talk of a merger also continues between the University of New Hampshire and Franklin Pierce Law Center. The New Hampshire discussions have been underway for some time, and the road to Tuesday’s approval in Massachusetts was long as well.

In 2005, the Board of Higher Education rejected a similar proposal for Dartmouth to acquire Southern New England. Leaders of some of the state’s nine private law schools, whom MacCormack would suggest are fearful of having to compete with a public school, were adamant in their opposition to the idea, saying a quality school couldn’t be established under the funding model Dartmouth presented. Dartmouth officials, however, note that Southern New England has saved the university the significant startup costs of building a law school from scratch. Indeed, the school’s donations of real estate, buildings and library resources are estimated at a value of more than $22 million.

“What I’m confident in is that we can have a quality affordable law school without any state money now or in the future, and I don’t have any intention of transferring money from other existing programs,” MacCormack said.

Dartmouth is not only swearing off state funds, but also planning to charge in-state students about $23,500 – about $16,000 below the median tuition and fee rate for existing law schools in Massachusetts. Only Massachusetts School of Law at Andover, which like Southern New Hampshire lacks ABA accreditation, has lower tuition than Dartmouth has proposed.

For an institution that has yet to undergo the costly process of accreditation from the American Bar Association -- a prerequisite for its graduates to take the bar exam in most other states, but not necessary with approval in Massachusetts -- it will be impossible for Dartmouth to provide a sound education to students at such reduced rates, critics charge.

“This is supposedly about access for students who can’t afford to pay more money, so it’s either going to be that they’re going to have to charge more money or the state is going to have to subsidize it,” said John F. O’Brien, dean of New England Law.

“You’re essentially claiming that you can do something that nobody else has been able to do -- put together an ABA-(accredited) law school at $23,000 tuition with no state subsidy and provide (quality),” he added.

O’Brien was careful to clarify that he was speaking as a dean, and not in his capacity as vice chair of the ABA’s Council of the Section on Legal Education and Admissions to the Bar, which reviews accreditation candidates. O’Brien noted, however, that his expertise “informs my opinion” on the matter.

Tuition and Required Fees for Massachusetts Law Schools

Other lawyers have expressed enthusiasm for the proposal in letters to the Massachusetts Department of Higher Education, but Dartmouth faculty have shared concerns that the proposal put forward may be overly rosy.

“In general, everybody is cautiously optimistic,” said Michael Baum, Dartmouth’s Faculty Senate president. “But we’re faculty; we’re supposed to be skeptical.”

The 53-member Dartmouth Senate voted unanimously in support of the proposal, but Baum acknowledged that the meeting had a “pretty typical” turnout of just 21 members.

“There certainly has been legitimate worry on the campus,” said Baum, an associate professor of political science. “But overall I don’t think most of the faculty are paying attention to it. We didn’t have a huge turnout at all at that meeting. It’s scary from a shared governance perspective.”

While it would be impossible in the current economic context to pitch a law school funded by the state, Baum said some are concerned about the tactical decision to declare that subsidies won’t be necessary to for a successful school.

“What remains a contentious issue is obviously this short-term idea of painting yourself in a corner, saying we’re not going to spend any state money or even spend any UMass money,” he said.

The most vigorous debate on the matter came from faculty at other law schools, including Leonard Strickman, founding dean emeritus of the Florida International University College of Law. Strickman was retained by New England Law when Dartmouth first proposed the acquisition years ago, and he concluded then -- as he has again -- that the model wouldn’t work financially.

“I believe in public legal education; it’s just the budgetary plan they have makes no sense,” he said.

It is that belief in public law schools, shared by many in the profession, on which Dartmouth and Southern New England seized in their campaign for approval.

“The tagline here is that 44 other states have public law schools, and Massachusetts does not,” said Robert V. Ward Jr., dean of Southern New England School of Law. “Massachusetts is the place where public education began, and so how can that be? We’re coming into the 21st century.”

The need for more public law schools, however, is a more difficult case to make in California, where five already exist. Indeed, the state’s most recently established public law school -- housed at the University of California’s Irvine campus -- was approved amid considerable rancor, because many argued that four public law schools were already enough. Given that sentiment, supporters of a merger between San Diego and California Western say they are fully aware they’ll get full backing only if they can convince skeptics that the school will truly be cost neutral to taxpayers.

“This would be a unique model in the University of California, so we would have to convince the University of California that this is a smart way to do things,” said Paul Drake, senior vice chancellor for academic affairs at San Diego. “There are no professional schools in the University of California that do not rely on state funding, and we’re saying this will not rely at all on state funding.”

San Diego and California Western already have established partnerships in research and teaching, and -- unlike Southern New England -- Cal Western is ABA-accredited.There have been efforts in the past several years to bring California Western fully into the fold of San Diego, and those conversations predate the economic turmoil that has the California system slashing budgets. Even though the merger in California is being touted as a zero cost proposition, Drake concedes that edginess over the economy has increased trepidation.

“I think the impact of the current dire budget situation could derail this, not in a calculated since, but in a psychological sense,” he said. “A lot of faculty are feeling beaten up, and they are fighting to save their own programs. I just think it creates a psychological backdrop that’s going to make it a little harder to win over [everyone].”

A joint task force of faculty and administrators from both institutions, hailing from disciplines as varied as theater and engineering, are now reviewing the possibility of a merger. Drake expects a decision on approval, which would be required by California regents, in the 2010-11 academic year.

Much like faculty at Dartmouth, San Diego faculty are not of one mind on the proposal, said Bill Hodgkiss, chair of the campus’s academic Senate. That said, Hodgkiss sees some real potential.

“It’s hard to judge [what faculty think],” said Hodgkiss, a professor at Scripps Institution of Oceanography, at San Diego. “I think that there could always be a sense in a large university, particularly with the budget cuts we’ve taken recently and that seem to be looming in our future, of just retrenchment and don’t think of new things.

"On the other hand, a research university -- just by its very nature -- evolves and thrives on change. There is a segment of faculty, myself included, that says you can’t turn a deaf ear toward change, even in a time of desperate budget situations. Because you are always growing toward your future and you need to keep your eyes open and take up opportunities that are in front of you. I personally look at Cal Western as an opportunity.”