As online education has become more and more popular, law schools have largely been on the sidelines. The American Bar Association will not accredit distance programs, and has strict limits on the use of distance education in traditional programs.
On Tuesday, however, the online only Concord School of Law  -- which has managed to grow without ABA recognition -- announced a merger with Kaplan University. In terms of corporate ownership, this isn't much of a change -- both Concord and Kaplan are divisions of Kaplan Inc., a major player in for-profit higher education. But because Kaplan University is regionally accredited (which Concord is not), the merger will make Concord students eligible for federal student loans and to defer repaying their past student loans when enrolled. These are seen as advances for Concord -- whose officials say that they believe law school's efforts will eventually change attitudes about distance legal education.
While the ABA has not changed its rules, it has quietly approved an unusual variance from its procedures to allow the Penn State Dickinson School of Law  to offer many more courses at a distance than ABA rules permit. While the effort relates in part to particular characteristics of the Penn State program (which makes use of two physical campuses), the ABA waiver represents the broadest experiment to date in the association giving its blessing to the extensive use of distance education.
Concord and Kaplan
Barry Currier, dean of Concord, said that the link to Kaplan and its accreditation would be helpful in a number of ways -- some of them having nothing to do with federal aid programs. "Additional credibility and recognition" come from regional accreditation, he said, and that helps the law school.
Only California, where Concord is based, allows Concord graduates to take the bar exam automatically -- other states generally require ABA recognition of a student's law school. (Many Concord graduates are seeking careers in which a law degree helps them, but for which they don't plan to practice, so for them, lack of ABA accreditation isn't much of an issue.) In states outside of California, Currier said, graduates sometimes apply for waivers, and the regional accreditation should help.
While Concord students will be able to borrow through federal programs, Currier said he didn't see that as a huge advantage. Concord is less expensive than other private law schools ($36,000 will cover costs for a full degree), so he said he didn't believe the law school lost students because they could not take out federal loans. But he said that when professional students enroll in federally eligible institutions (as Concord will now be), they can defer payment on their undergraduate student loans -- and the law school has lost students for not being able to offer that option, he believes.
Currier said that it was "not our strategy to take on the ABA," but that he continued to believe that a ban on completely online programs was wrong. He noted that students arriving at law schools today "have experience with distance education" and that the concept has well tested methods and pedagogies. He also noted that even at the most traditional of in-person law schools, "professors are communicating with their students with e-mails and text messages" these days, not just face-to-face chats. While regional accreditation from the merger doesn't force an ABA change, Currier said it was all part of changing attitudes.
"We think that eventually people will understand that we're serious and have a rigorous program," he said.
Carl C. Monk, executive director of the Association of American Law Schools, said his group too was unlikely to let in an entirely online member. While the association's rules don't explicitly bar that, various rules would make it very difficult. Concord is permitted to pay the association a fee for various services, like interviewing at faculty recruitment conferences.
Monk said that he believed that there "is a role for some distance education in the law school curriculum," but he sees it restricted to specialized instruction or programs that might not be otherwise available. "An example I have often used is that not every law school can afford to have a faculty member who is an expert on Chinese law or South African law or whatever. If it is structured properly, having a professor at one school offer a course on the Chinese legal system to students other than those with whom that professor would come face to face with every day, that's a constructive use of online education."
That's also the kind that the ABA would permit. Its rules  permit only four credit hours a semester of distance education, not more than 12 credit hours in total, and no distance education in the first year of law school. An ABA spokeswoman said that there were no current plans to change those rules, but that the ABA had last year approved a variance for Penn State.
The Penn State Experiment
Penn State's law school is the result of the university's merger with what until 2000 had been a freestanding law school in Carlisle, Pa., 90 miles away from Penn State's main campus, in University Park. From the time of the merger, a goal of the law school has been "to fully engage with the world class research institution and all the resources available at University Park," said Philip J. McConnaughay, dean of the law school.
The current arrangement, which required the special permission of the ABA, involves campuses of the law school in both Carlisle and University Park. Students are admitted to the law school and pick a campus at which to reside and take all of their first-year courses in person. Then, they are free to take courses offered at either campus -- with special classrooms designed for instruction by a professor to students at both campuses at the same time. Professors are also encouraged to spend some time during the first weeks of the semester at the campus that isn't their home base, so that they can personally meet all students.
Under the ABA waiver -- which has been granted for four years -- the Penn State students after their first year can exceed the four credit a semester and 12 credit total limit. In fact, a student at University Park could theoretically take entirely courses offered at Carlisle, although that's not likely. McConnaughay said that the ABA has been both "very cooperative" and "very exacting" in approving the variance, and he stressed that it was a "highly specific" exemption that applied only to Penn State's two campuses.
Penn State has no plans at this point, even if the experiment succeeds, to seek permission to offer the J.D. degree remotely. McConnaughay said that he believes in the value of an in-person first year -- and that Penn State didn't request an exemption from that rule because the law school believes that it is proper. "Our going-in assumption is that it's valuable for students to experience their first year of law school in the tried and true approach," he said.
At the same time, he said that what Penn State is doing will be "a good, controlled experiment for assessing the potential role of this variety of distance education." And in some law school programs aside from the J.D., he said he could imagine that in the future, law schools might want to explore ways "to reduce the residency requirement" for students from other countries or who are just far away, and that this experiment might point to ways to do that.