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Tuesday, May 5, 2015

The Blogosphere Responds to Our Series on Legal Education

ScholarYesterday's post has inspired quite a bit of traffic here and elsewhere.  Over on Brian Leiter's Law School Reports, Michael Simkovic asks whether conditional scholarships are good for law students.  

Deborah Merritt responds on the Law School Cafe and answers the question in the negative.  She thinks conditional scholarships mostly help law schools, and they hurt students by creating a stressful competitive environment.

Michael Simkovic (again on Leiter) disagrees.  He argues that conditional scholarships motivate students to work hard in law school and cites to studies linking motivation and academic performance.

Deborah Merritt shoots back on the Law School Cafe.

And Michael Simkovic again responds on Leiter.  

It is hard for me to keep up with the pace at which these people blog.

I have only a few quick points to make in response to Professor Merritt, whose remarks are largely critical of the position I have taken here:

  • It seems we are all agreed that the disclosure problems related to conditional scholarships have largely been addressed through the ABA website that enables students to comparison shop among scholarship offers from various schools and know their chances of retaining their conditional scholarships.  Some law schools routinely offer a lot of merit scholarships in the first year knowing that most students will not retain them thereafter.  But that information is now easily available, and we will see if students vote with their feet against such a model.
  • Professor Merritt properly chastises me for treating Wikipedia's listing of normalization curves as authoritative.  I think Wikipedia is a good place to start, but my main point is that information about normalization curves should be readily available for each school a student is considering attending.
  • I find the absence of curves in undergraduate grading perplexing, and I find it astonishing that anybody would think non-curves are better than curves.  I could easily design an exam that all my students would ace (above 90% correct) and an exam that all my students would fail (below 60% correct).  But there is nothing holy about base ten, and my aim should not be to design a test so perfectly calibrated that the difference between a 91% and an 89% is meaningful but the difference between 86% and 84% is not.  My aim in assessment is, among other things, to have a tool that helps me distinguish within a group of students who have had the same educational experience.  A curve helps me do that better than random divisions at every point at which the score passes a 0.  
  • Professor Merritt points to a study in which the J.D. placed only sixth in a  ranking of the best graduate degrees.  As if that were a bad thing!  Three of the degrees that ranked more highly are Ph.D. programs likely to take twice as long as the J.D. and the others likely require higher math or computer programming skills.  This extremely high ranking for the J.D. is terrific news.  By the way, the MBA, a frequent alternative to the J.D., ranked 14th.
  • Professor Merritt tells an anecdote about a student who decided not to pursue a J.D. when she learned of conditional scholarships.  She decided to take her graduate tuition dollars elsewhere, but where?  Unless she earned a Ph.D. in statistics, computer science or physics, or a Masters Degree in human computer interaction or  biostatistics, according to the study cited by Professor Merritt, she made a poor choice.

Professor Merritt's second post turns on an anecdote about teaching the same course (torts) the same way to different students and getting very different results.  As a consequence, she had to give students in the "smart section" who did better on the exam worse grades than some students who did worse on the exam in the weaker section.  Three thoughts:

First, one cannot step into the same river twice.  One semester when I taught history at the College of Charleston in the 1990s, I had four sections of Western Civ., all on a Tuesday/Thursday schedule (they were long days!).  Same readings, same outside materials, same assignments, same lecture notes.  Each section developed its own identity.  They were four different courses.

Second, in fifteen years of teaching at both the college and law school level, I have never had a similar problem.  An anecdote is not an argument.  No system of grading is perfect, and I can live with small injustices around the edges of grade normalization.  Whether or not a student retains a conditional scholarship is not determined by her performance in any one course.  

Third, consider the insight of Professor Merritt's plucky college student who decided against a J.D.  Knowing only undergraduate education, the student remarked, “It’s not like there’s a quota on the number of A’s or anything.”  In that world, the undergraduate professor gives A's to all of the students in the "smart section" who "earned" them according to some mysterious but fixed standard.  Outside of the STEM courses, the undergraduate professor can also give As to the best students in the weaker section, even though the same performance would have earned them a B in the "smart section."  Within the STEM courses, imagine the stampede of angry pre-med students from the weaker section who will decry the injustice that there were no A's in their section but eight in the other. I pity the department chair who has to sort out that mess.

Links to Related Posts:

The Current Series 

XI:Another Transparency Issue: Conditional Merit-Based Scholarships
X: Siloing: The Next Unneeded Import from Undergraduate Education
IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself? 

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

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You know, context matters. The schools that make use of conditional scholarships (with high forfeiture rates) aren't the Harvards or Northwesterns of the world. It is mostly the worst performing (from a placement standpoint) law schools that make use of these conditional scholarships.

So why is it just these schools that make use of conditional scholarships? Wouldn't the virtues of conditional scholarships apply to better programs?

Here's what we know. America's worst performing law schools are under huge financial pressure to put warm bodies in their halls because of a large decline applicants? The precipitous decline in entrance credentials over the last few years is a good indication of this. Is it really a stretch to believe that conditional scholarships are used by our worst law schools to get unsavvy applicants into the door? C'mon.

Posted by: Nathan A. | May 5, 2015 1:31:11 PM

Nathan A, in support of your observation, here are the leaders from Organ's 2011 list: Akron (21%); St. Mary’s (21%) ; Howard (24%); St. Thomas in Florida (24%); Texas Wesleyan (28%); George Mason (32%); Rutgers-Camden (32%); Barry (39%); Florida A&M (40%); Santa Clara (40%). Personally, I don't care if the schools fix the odds of retaining a scholarship at 100%, 10%, 1%, or less, so long as they disclose that to the applicants.

Posted by: John Steele | May 5, 2015 3:01:06 PM

According to Nathan A., we should see the use of conditional scholarships increasing since the economic downturn because "law schools are under huge financial pressure to put warm bodies in their halls because of a large decline applicants." [He suggests that the worst-performing law schools feel this pressure, but I think that most schools are.] Of course, many law schools are increasing the amount of scholarship dollars they are offering. So, we would need to see not just an increase in the absolute amount of conditional scholarship offers, but an increase in the percentage of total scholarship dollars offered in conditional form. If no one has done so, this seems like a fruitful area of research for the "law school is a scam" types.

John, I think the presence of George Mason undercuts the support you think this list provides to Nathan. George Mason is not just one of the top50 ranked law schools (according to USNews), but they are more highly ranked than many other schools in their local market (Catholic, American, Howard, UDC, etc.). It would seem that they could enroll more students if they lowered admission standards. They are not one of "the worst law schools" (by rank) and would appear not to need to engage in any sort of deception to fill their class.

Also, are you saying that law schools must affirmatively disclose to a particular applicant how likely that applicant is to retain his or her scholarship? Or is it enough to indicate that, say, the scholarships retention requires the student to be in the top15% of their class and, if asked, to disclose how many of last year's scholarship recipients retained those scholarships? There's been a lot written recently that suggests that more disclosure does NOT lead to better decision-making, which makes me skeptical of the need to affirmatively warn students that they are likely to lose their scholarship. After all, requiring a student be in the top of their class to keep their scholarship already seems like a warning to me.

Posted by: Matthew Bruckner | May 5, 2015 6:45:08 PM

For heaven's sake! There will be one or two "good" law schools on this list. That doesn't take away the fact the vast majority of schools that make extensive use of conditional scholarships are the worst performing ones. Here's a better list - ( Look at the schools with 50% or more of the 1L student body on conditional scholarships.

Posted by: Nathan A | May 6, 2015 3:25:14 AM

Nathan, you've suggested (if not claimed) that certain law schools are actively misleading their students by offering conditional scholarships. I'm a law professor but no law school apologist. Nevertheless, I don't think the data proves anything like you think that it does.

For example, it shows that American offered 9 conditional scholarships last year and all 9 students lost their scholarships. Is that bad? What if each of those students were told that to keep their scholarship, they had to be #1 in their class? Is that using conditional scholarships to get unsavvy applicants in the door? And can we agree that because this data is publicly available, no potential student should--today--feel misled, even if the school does not affirmatively disclose that, for example, it gives 9 scholarships conditional on becoming the #1 student in your class? Clearly this information is available.

Finally, I think that calling lower-ranked law schools the "worst performing" ones is a contentious claim. Is a school a "worst performing" school merely because its students have poor employment outcomes? [i.e. an output-centric model] Or do we need to consider the inputs as well?

Posted by: Matthew Bruckner | May 6, 2015 4:51:27 AM

Matthew, thanks for replying.

I think everyone who knows legal education and who looks at that list immediately identifies the schools most actively engaged in this game as being schools at the bottom of the ladder—schools whose students, by the way, have fewer options to avoid being caught up in that sort of gamesmanship. True, George Mason is the odd item in the list, but one “sport” doesn’t disprove the trend. Here’s the non-retention list from the most recent LST data (and you’ll see that George Mason has once again distinguished itself).
American University 100%; Howard University 85%; St. Mary's University 79%’ University of Akron 79%; St. Thomas University - Florida 68%; George Mason University 68%; Rutgers State University - Camden 68%; Texas A&M 64%; Western State University 61%; Barry University 61%; University of Arkansas - Fayetteville 60%; University of the Pacific 58%; Charlotte School of Law 58%; Chapman University 56%; University of Nevada - Las Vegas 54%; Seattle University 54%; Brooklyn Law School 53%; Hofstra University 51%; University of Idaho 51%; Santa Clara University 51%; Golden Gate University 50%
It also seems to me that you argue that it’s better not to disclose this information? Why don’t we ask the folks taking out the large loans if it’s information they’d like to see. For now, I’d make the schools publish the non-retention rates themselves. If schools are going to game these things like carnies gaff games on the midway, the least they owe the applicants is adequate disclosure.
Finally, I wonder if the public schools on the list aren’t subject to FOIA. I’d be very interested to see how the plan these rates. I

Posted by: John Steele | May 6, 2015 8:01:19 AM

Glad to engage, John.

I'm not arguing that it's better not to disclose (although disclosure is not a panacea). I take no position on whether or not schools should affirmatively disclose. Rather, my argument is that failure to affirmatively disclose (as opposed to disclosure upon request) is not--per se--inappropriate. Particularly at a time when very few may have been disclosing.

It seems that Nathan's logic went: (1) low ranked schools had a lot of conditional scholarships; (2) these schools failed to disclose that many students lost their scholarships; (3) therefore, these schools were engaged in false, deceptive or misleading practices and should be punished. That logic simply doesn't make sense to me. There are lots of reasons why lower ranked schools might have a high percentage of conditional scholarships offered and lost. For one, they might be thought of as retention scholarships to discourage successful students from transferring. Imagine giving every student a conditional scholarship that required them to be in the top10% of their class to keep that scholarship. 90% of students would lose their scholarship, but the 10% who didn't might be incentivized to stay rather than transfer. Besides, every student would have received a discount off of the nominal tuition for the first year. Why is this bad, let alone false and misleading?

Posted by: Matthew Bruckner | May 6, 2015 9:37:34 AM

Matthew, we’re operating against a backdrop of law schools previously being unregulated regarding these issues and of them using all sorts of gamesmanship to juke their rankings and mislead applicants. The best summaries of those practices can be found in Ben Trachtenberg’s law review article and the one published in Pace by the LST people. At my blog, which began in 2005, we’ve covered so many instances of that sort of behavior that it’s hard to gather them all in one place. I’m not one to put a Panglossian spin on all that.

That’s now mostly water over the bridge. Although the lawsuits against law schools were largely unsuccessful, the regulatory movement has been won by the reformers. When the law schools were using loopholes in misleading ways, the ABA finally shut most of them down (due to the efforts of LST, a few members of Congress, and a handful of professors) and the schools stopped using them. When the law schools were peddling half-true statements, they now must disclose the full set of data that applicants want to know. I’d prefer that law school professors and deans have a reputation for being forthright, candid, and honest, but I’m enough of a realist to know that that’s not going to happen. At this point, so long as the schools publish the retention rates—and not just the conditions for retention—we can warn the applicants, “caveat emptor.” And the admissions staff at rival schools can use that information against the outliers.

Posted by: John Steele | May 6, 2015 10:28:49 AM

M Bruckner,

"Nevertheless, I don't think the data proves anything like you think that it does." And the example you point to American? Hardly anyone thinks their 9 conditional scholarships are a problem. American does engage in a lot of underhanded stuff (paying back scholarship money if you transfer), but the conditional scholarship racket isn't one of them.

I get that lawyers are taught to squint just hard enough to see what they want to see or believe what they want to believe. You want to believe that there isn't any deceptive intent behind the use of conditional scholarships? Fine.

Here's what I said - "That doesn't take away the fact the vast majority of schools that make extensive use of conditional scholarships are the worst performing ones." Emphasis on EXTENSIVE USE. I pointed to schools where 50+% of the students are on a conditional scholarship. Guess which schools feature extensive use of conditional scholarships and have high forfeiture rates? St. Mary's, Akron, Texas A&M, Western State, and Barry. I'd be shocked if any of them feature decent employment outcomes. University of Minnesota and Emory don't count. Good standing is all that one needs to retain one's scholarship there. You can call those conditional scholarships, but they aren't anything like the ones at lower ranked law schools.

Also, have you ever read any of the stipulations that come attached with these scholarships? That fact that these stipulations can be negotiated down is in itself hilarious. Secondly, these stipulations don't come out and say you need to be in the top 10%. If they did, it might actually scare some applicants away. The scholarships tell you the GPA you need but don't tell you what the mandatory curve for first year classes is. In fact, these schools make it hard for you to find this information even if you wanted it. The whole situation is pretty f-ed up.

My only question to you is this - is your entire defense of this practice that students should know better? So basically schools should be free to take advantage of people who don't do their research? That's fine I suppose. I imagine this is how Federalist Society types sleep at night.

Posted by: Nathan A. | May 7, 2015 11:31:07 AM

No, I don't believe that constitutes my entire defense. But--standing alone--it's probably a sufficient one. I simply do not believe it is fraudulent if a school fails to affirmatively include disclosures about retention rates. Whether it would be somehow "better" is a different question and one that I don't know that it's even worth discussing, now that this information is actually available on websites like LST.

If it is clear that there are conditions on the scholarship, I agree that a simple, easy-to-understand set of disclosures is likely to improve some prospective students ability to decide whether to accept that school's offer of admission. But is in fraudulent not to include such representation? No, I don't think so.

Posted by: Matthew Bruckner | May 8, 2015 4:12:54 AM

"I agree that a simple, easy-to-understand set of disclosures is likely to improve some prospective students ability to decide whether to accept that school's offer of admission. But is in fraudulent not to include such representation? No, I don't think so."

No harm in preying 22 year olds' optimism bias/naivete, eh? At least you're willing to admit it. Fair enough.

Posted by: Nathan A | May 8, 2015 6:01:26 PM