Wednesday, December 16, 2015
Our guest post today is by Louis N. Schulze, Jr., Assistant Dean and Professor of Academic Support at Florida International University College of Law. He served on the faculty of Suffolk University Law School (2004-07) and New England Law | Boston (2007-14), earning tenure at the latter in 2012. He is a former Chair of the AALS Section on Academic Support.
Outsourcing Academic Support is a Problematic Proposition
I have been intrigued recently by the discussion occurring on the Academic Support listserv. One member of our community posted a request for information about whether, and to what extent, schools partner with and/ or outsource bar preparation and academic support to bar prep companies. Some schools have dabbled with partnering, and other schools report full-scale immersion. What I took from all of these reports (and my own discussions) was that bar prep companies seek not only to have a hand in for-credit bar prep courses but also in the area of traditional academic support. This troubles me.
I write to express my belief that the wholesale outsourcing of academic support to bar prep companies, though perhaps an attractive proposition for some deans, is a questionable one when viewed through the lens of assessing what is best for our students, our institutions, and the legal profession.
I. Some Preliminary Matters.
First, I think a dichotomy exists between bar prep companies’ role in curricular bar preparation during law school and bar prep companies’ role in academic support during law school. Unsurprisingly, bar prep companies are quite good at bar prep. For reasons explained infra, I believe that bar prep companies are less able to meet the unique goals of academic support.
Part of my thesis relies on this distinction; while I am somewhat more optimistic about partnering with bar prep companies for curricular bar preparation during law school, I am far less sanguine about the increased presence of bar preparation companies in the area of academic support. I think this dichotomy is a crucial one for deans and academic support professionals to digest, as there is a material difference between these two realms.
Second, I think a distinction exists between “partnering” with a bar prep company and the “wholesale outsourcing” of courses or programs. Unlike the bar prep/ academic support dichotomy I posit above, I see this distinction more as a spectrum than a binary choice. The lightest form of “partnering” would likely be adopting a bar prep company’s materials and questions in a course, while the opposite end of the spectrum (the “wholesale outsourcing”) would entail having a bar prep company fully teach and administer some facet of a law school’s offerings.
In my view, as a law school’s choices increase from “partnering” towards “wholesale outsourcing,” those choices become more questionable. While there are no doubt many acceptable points along the spectrum, law schools ought to think carefully about crossing the threshold between partnering and outsourcing, especially in the area of academic support.
II. My Arguments.
My thesis is that law schools should not outsource academic support, per se, to bar prep companies. I am less concerned about partnering/ outsourcing law school bar prep courses. I am even only mildly concerned about partnering with bar companies in the area of academic support. But what I fear is that bar prep companies, in the name of diversifying product lines and increasing profits, will seek to dominate not only the bar prep market and the law school bar prep course market, but also the field of academic support. In my view, such a result would do more harm than good to our students.
But why is this so?
1. First, one-on-one academic support is the most effective academic support, but it is not the most cost-efficient. Anyone who teaches law school academic support has had the experience of watching a student’s eyes light up as they have the big “ah ha!” moment. Some call this “the law school click.” It occurs when a student suddenly makes multiple connections, all at once, and realizes exactly what her professors are getting at – why we use cases to teach law; why creating outlines is important; why we test the way we do; why one must “argue both sides”; why all these methods make students better lawyers.
Usually, this moment occurs in an office with both student and ASP professor huddled over a desk, reviewing an exam, a paper, or some other work product. This moment is usually preceded by other less fruitful in-person moments, but the point is that the “ah ha” moment is one that happens over time and in a one-on-one setting. While it’s true that our ASP classes facilitate these moments, and give the framework and coursework for the moments of enlightenment, I’ve found that the “ah ha” moments happen in-person.
This is much less likely to happen if academic support is provided by bar prep companies. Why? Bar prep companies are corporations, and as such they owe fiduciary duties to their investors. They do not owe fiduciary duties to the students they are teaching. As a result, if they can cut costs by reducing costly endeavors they can and must do so. The first item on the chopping-block would be the costly method of one-on-one, individualized meetings.
2. Academic support is not one size fits all, but one size fits all is cost-efficient. Each law school’s academic support methods differ significantly from the methods of others. This has a lot to do with the differences in administrations, faculties, students, and missions of each law school. Applying the methods of one school to that of another would be ineffective because academic support must be tailored to the environment of the law school. An approach to the contrary waters down the effectiveness of the program, plain and simple.
But, one size fits all is cost-efficient. If a corporation could fashion an academic support program that could be installed as-is into multiple law schools, such a program would increase the profit margin of the endeavor. By contrast, tailoring an academic support program to the unique needs of individual schools (let alone students) would be cost-inefficient. Changing aspects of the curriculum to account for differences in faculties, students, and other stakeholders would require person-hours, and person-hours come with a price tag. As a result, because bar prep companies are corporations, and corporations have a fiduciary duty to the bottom line, academic support would likely become one size fits all.
3. There are many purposes for academic support, but bar passage is the ultimate purpose of any bar prep company. Law schools provide academic support for myriad reasons: to decrease dismissal rates; to support students from traditionally underrepresented backgrounds; to humanize the law school environment; to communicate performance expectations more expressly; to increase bar passage rates; and to make students better lawyers. Each institution may emphasize these purposes differently, but at the very least each of these is likely on the table in terms of justifying expenditures for academic support.
But, the purpose of a bar prep company is solely to promote bar passage. While this purpose might coincide with some of the other purposes, it likely subordinates them to a “lesser” status. Moreover, setting bar passage as the sole or primary purpose of academic support could actually be antithetical to the other goals. For instance, one could argue that to increase bar passage rates, a law school should actually increase its dismissal rates. That way, only the strongest students “count” in terms of bar passage rate. An academic support program focused solely on bar passage, therefore, might spend little time on saving 1Ls and all of its time on those who managed to get through. Although this approach might increase a school’s bar passage rate, it would utterly fly in the face of schools’ duties to the students they admit.
4. Successful academic support relies heavily on an ASP faculty’s engagement with other faculty. If academic support is outsourced to bar prep companies, whose employees would not be embedded in the institution full-time (under the proposal with which I am familiar), the academic support program would lack the crucial element of connection to the institution’s faculty.
This point relates to “buy-in,” and a successful academic support program must have it from both faculty and students. Students buy in to an academic support program if they know that there is a regular and positive collaboration between their doctrinal faculty (who will grade their work) and their academic support faculty. Meanwhile, doctrinal faculty buy in to an academic support program when they know, among other things, that the academic support faculty will help students with more than just passing the bar and that the academic support faculty will not re-teach the doctrine or teach in a way that conflicts with their course. Because a cost-efficient bar prep company academic support provider must pop around between multiple law schools, neither students nor faculty can be assured that the support program will embody the type of multi-stakeholder synergy necessary for success.
5. Another crucial element of successful academic support is knowledge of one's students’ strengths and weaknesses and providing counseling that helps enhance the former and mitigate the latter. This happens over time and requires a great deal of relationship building. The level of trust required to develop these relationships seems unlikely to exist if the academic support provider is not imbedded within the institution.
This point relates to the murky intersection of academic support and counseling. While ASP faculty are (mostly) not trained psychological counselors, a great deal of our most effective work occurs on the personal level. An outsourced academic support program might be able to determine that a student is weak on essays, but a true academic support professional will know WHY the student developed this weakness and how to help work the student toward mastering the problem – both on the academic and personal level. An outsourced academic support program simply will not have time to work on this holistic (but critical) endeavor. In short, an outsourced program teaches students; a true academic support program teaches people.
6. Subtle conflicts of interest. ASP faculty are often called upon to be unofficial advocates for the student body. Because we know our constituency so well, we provide robust input in institutional conversations that could impact students. Because we have certain employment protections (and this is just one reason why ASP professionals should be eligible to earn tenure and long-term contracts), we can advocate for students in ways that outside contractors cannot. Because bar prep companies will likely have their own pecuniary interests in mind, they likely will not advocate for students in the same way as ASP faculty.
For instance, many ASP professionals serve on their law school’s Academic Review Committee or provide data to those committees when they decide whether to readmit dismissed students. Student petitions for readmission often paint the rosiest picture for the students’ readmission, while grades and LSAT scores provide only a limited picture of a student’s potential. ASP professionals who have worked closely with the dismissed students can provide information that paints a clearer and more objective picture of whether a school should take a chance on readmitting dismissed students.
Outsourced academic support programs cannot possibly provide that level of objectivity and nuance. First, it is doubtful that an Academic Review Committee would permit an outside contractor ever to serve on such a committee. But even if the committee accepted data and observations from such a source, how could the committee ever trust that the information is objective when the outside contractor has a vested interest in ensuring that no “borderline” student ever sits for the bar and possibly harm the school’s bar passage rate? Why would an outside contractor ever take such a chance when their future contractual relations rely on bar passage? As a result, law schools lose an opportunity for clearer information about their students when they outsource academic support.
Law schools should not outsource academic support to commercial bar prep companies, a proposal that at least one company is marketing. At many schools, in-house academic support programs provide a genuine and effective source for student support. Partnering with such companies in the area of academic support and even outsourcing curricular bar prep courses might be reasonable, but the wholesale abrogation of a law school’s fiduciary duty to prepare its students for success is deeply problematic. Should law schools follow this slippery slope, they slide one step closer to outsourcing clinical, legal writing, and even doctrinal teaching.