How Soon Before One Law School's Troubles Spread?

, The Am Law Daily

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Steven Harper

Albany Law School has attracted some unwanted publicity recently, but many other schools would do well to pay close attention to the problems its leaders are confronting.

On February 3, the law school offered buyouts to as many as eight of its tenured professors. While that may not sound like a lot, it represents nearly 20 percent of the school’s full-time faculty.

Reversal of Fortune

Notwithstanding its relatively modest status within the law school universe (U.S. News rank: #132), Albany enjoyed a nice run from 2005 through 2011—as did most of its peers. During that period, the school enrolled an average of about 240 first-year students annually. Tuition, meanwhile, rose steadily from $30,000 in 2005 to the current $42,000, and the school's student-faculty ratio dropped from 16:1 to 13:1.

It's been a different story over the last few years. Even as Albany accepts almost 70 percent of its applicants, enrollment for the class of 2016 has plummeted to 182—a 25 percent drop from 2005.

As for what becomes of Albany's students once they enter the workforce, just over half of those who graduated in 2012 had full-time long-term jobs requiring a J.D., according to the most recent ABA data. That's close to the overall national average for all law school graduates. Of course, until recently, the ABA allowed all schools to fudge that number—reporting graduates as employed even if they held part-time or short-term jobs that required no legal education whatsoever. As soon as the detailed ABA–mandated employment outcomes first appeared—in 2012, for the class of 2011—dramatic declines in law school graduate employment rates followed.

Tough Choices

Albany’s current dean, Penelope Andrews, began her tenure on July 1, 2012. Even a thorough understanding of the school’s problematic application and enrollment trend lines could not have prepared her for the challenges she soon confronted.

On Dec. 16, 2013, Daniel Nolan, chair of the Albany board of trustees, circulated an email [ PDF] stating that “relevant financial circumstances facing the school require a head count reduction, including faculty.”

A week later, at the request of the recently formed—as of November 2013—Albany Law School chapter of the American Association of University Professors, national AAUP associate secretary and director Gregory Schultz wrote a lengthy letter to Andrews in which he claimed that the law school’s economic circumstances didn’t qualify as the kind of “financial exigency” requiring (or permitting) that tenured faculty be terminated.

Instead, Schultz wrote, Albany’s threatened action appeared to be a pretext for the school to carry out actions that “would eviscerate tenure at the Albany Law School and, with it, the protections for academic freedom.”

He Said, She Said

According to JDJournal, “one of the professors at the school said that there is a ‘small but vocal minority’ of faculty at the school who want standards lowered in an effort to increase enrollment. This would then prevent layoffs. … It’s a very selfish, selfish endeavor. They are really trying to save their jobs, but they’ve ginned this up to make it look like we are denying academic rights.”

Am Law Daily sibling publication New York Law Journal reported that “several angry Albany Law School professors deny the faculty ever suggested the school should lower standards to boost enrollment and avert layoffs.” On Feb. 3, 2014, according to JDJournal, the board of trustees reportedly quashed the idea anyway:

“A review of our declining bar passage statistics (we are now the second- lowest law school in New York State for bar passage), combined with the extremely difficult employment market for our graduates, compels us to believe that we must focus on quality of applicants, not quantity. To admit students in order to increase revenues due to projected operating deficits would be both unethical and in violation of ABA standards.”

A Way Out?

Presumably, offering voluntary buyouts to tenured professors could solve Albany's financial problem for now. If a sufficient number of faculty members accept, layoffs won’t happen. That would defer for another day the fight over whether the school truly faces “financial exigency” and must proceed with justifying involuntary terminations of tenured faculty.

Others can debate whether Albany is operating at a loss and/or should draw down its endowment to cover shortfalls. The more interesting questions relate to any law school’s possible responses to the larger phenomenon of declining applicant pools.

Some Albany Law School professors have reacted indignantly to the suggestion that a colleague might have urged the school to counter declining applications with lower admission standards. Many schools, however, have responded in exactly that way. Overall acceptance rates have risen from 50 percent in 2003 to 75 percent in 2012. (As noted above, Albany's most recently reported acceptance rate is just under 70 percent.) It’s a cynical strategy, but it keeps seats filled with tuition-paying students supported by federally backed loans.

Other schools are reining in costs where possible. Those efforts are laudable, but they are short-term fixes. Any long-run solution requires the involvement of tenured faculty who now have a choice: be part of the solution or become a growing part of the problem. Tenure is an important and valuable aspect of higher education. But it won’t be worth much to those whose institutions disappear.

In the end, the question is whose interests matter most. Dean Andrews deserves praise for confirming what sometimes gets lost in the noise as various stakeholders scramble to preserve their positions in the legal academy: “Cutbacks are very, very hard. But what is motivating everything about what I’m doing is my student-centric approach,” she told a local reporter. “Albany Law School and law schools exist to train students, and it’s all about the students.”

Indeed it is.

Steven J. Harper is an adjunct professor at Northwestern University and author of "The Lawyer Bubble: A Profession in Crisis" (Basic Books, April 2013), and other books. He retired as a partner at Kirkland & Ellis in 2008, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at http://thebellyofthebeast.wordpress.com/. A version of the column above was first published on The Belly of the Beast.

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