On Friday, law.com posted a story on a recently filed lawsuit against St. Thomas School of Law in Miami. The plaintiff, a former student who is seeking to certify the suit as a class action, alleges that several St. Thomas administators violated federal anti-racketeering laws by admitting a disproportionately large 1L class with the intention of flunking out approximately 25 percent the following year (students with less than a 2.5 GPA).
The school purportedly benefitted from this scheme by (a) collecting first year tuition from more 1L students, and (b) improving its anticipated bar passage rate for feature classes because students with low 1L grades are much more likely to struggle on the bar. A St. Thomas official quoted in the story disputes the high attrition rate (only 40 of 330 1L's were dismissed) and called the revenue theory "illogical" because early dismissals reduce the school's income.
Setting aside the speculative nature of the lawsuit (and note that the ABA Section of Legal Education and Admission to the Bar has been named as a defendant on a negligent supervision theory), such a scheme would deliver clear economic benefits to many lower ranked schools.
Specifically, St. Thomas is a non-prestigious law school operating in Florida, which has lots of other law schools. According data published in the ABA-LSAC Official Guide, the bottom quartile of entering class at St. Thomas is--relatively speaking--academically weak: 147 LSAT (12th lowest out of 190 schools) and 2.58 UGPA (lowest of out 190 schools). Although these number bode poorly for bar passage statistics, this outcome can be mitigated by flunking out the bottom of the class after the 1L year. After all, law school performance is a better predictor of bar passage than an LSAT/UGPA admission index. Higher bar passage statistics could increase U.S. News rankings and applicant volume, thus setting in motion a virtuous upward cycle. Moreover, the plan becomes revenue-neutral if the 1L entering class is significantly increased--a fact alleged by the St. Thomas lawsuit.
This system represents a return to the past, albeit the economic drivers are quite different. As the modern law school hierarchy took shape in the second half of the twentieth century, one of the achievements celebrated by law school administrators was the very low 1L attrition. The reason was simple; the LSAT had effectively identified those students who lacked the aptitude to become lawyers. Prior to the LSAT, law schools relied upon the Wigmore method of trial and error, which winnowed classes based on first year exams. See John H. Wigmore, Juristic Psychopoyemetrology--or How to Find Out Whether a Boy Has the Makings of a Lawyer, 24 Ill. L. Rev. 454, 463 (1929).
Unfortunately, the Wigmore system seems destine to rise again as the number of ABA-approved law school continues to climb (+12 since the first complete U.S. News rankings in 1992), the applicant pool remains relatively flat or on the decline, and states continue to increase bar cut scores (at least a dozen states have done so in the last 15 years). Indeed, I have heard of second-tier law schools meddling with 1L cut-offs in order to improve bar passage results. Two observations:
- Where is the disclosure? One of the dangers here is that law schools don't bear the cost; rather, it is borne by former students who incurred the time and expense of attending one year of law school before getting the boot. At a minimum, academic attrition should be part of the data collected and disclosed by the ABA on an annual basis. If the market is going to sort out this significant risk, it needs adequate information.
- Can curricular innovation improve bar passage? An outsider to legal education might ask why curricular innovation is not the first line of defense for low bar passage. Actually, there is data that this approach might actually play large dividends for struggling law students. See Jellum & Reeves, Cool Data on a Hot Issue: Empirical Evidence that a Law School Bar Support Program Enhances Bar Performance, 5 Nev. L. J. 646 (2005) (exerpt reprinted in The Bar Examiner).
Perhaps the St. Thomas lawsuit will serve a catalyst for these two issues.