The Uncertain Landscape for Online Legal Education

In late 2013, the American Bar Association gave a private nonprofit law school in Minnesota permission to create a part-time Juris Doctor program that blended online courses heavily with face-to-face instruction. The question Inside Higher Ed posed in our article at the time was “whether it marks an experiment or a turning point for how legal education is delivered in the U.S.”

More than four years later, the answer remains unclear, with a mixed record for law schools seeking approval to create programs with significant online presences and the ABA apparently contemplating a loosening of its standards.

The Minnesota law school, now called Mitchell Hamline School of Law, just turned out its first two graduates this month. And a handful of other law schools, including those at Seton Hall University, Loyola University Chicago and Touro University, have recently introduced part-time programs that allow students to take up to 15 credits online, the maximum now allowed by the American Bar Association.

According to the ABA's website, five other law schools have since 2013 sought an exemption from the accreditor's limitations on the use of distance education in J.D. programs.

The most visible of them, Syracuse University College of Law, was supposed to get its program off the ground this month. But its petition to the ABA was shot down last spring in a way that led to the collapse of its high-profile partnership with 2U, the publicly traded company that helps selective institutions take their academic programs online, "Inside Digital Learning" has learned.

Syracuse officials confirmed the ABA's rejection (for reasons that neither they nor anyone else interviewed for this article would characterize) and the disintegration of the deal with 2U. But Dean Craig Boise said in a statement that Syracuse still plans to pursue an online J.D. with "substantial live instruction online … not simply a condensed weekend format" like the other recently announced hybrid programs.

Two other law schools also had their petitions for "variances" (as the ABA calls them) rejected, according to ABA materials: Rutgers University School of Law and Vermont School of Law.

But in November the law school accreditor (in an under-the-radar decision that went mostly unreported) approved Southwestern Law School's request for a waiver similar to Mitchell Hamline's. Southwestern, which is working with a technology company called Blueprint Learning Systems, expects to get its program up and running next year. (The University of Dayton School of Law has also requested a variance, according to the ABA site.)

The mixed results about the fates of law schools seeking to expand their online footprints left some legal education observers uncertain about the prospects for online and other innovations in legal education. The ABA is expected to consider as soon as next month some loosening of its rules on online learning, but exactly how remains unclear.

The State of Play

At a time when nearly a third of all college students take at least one course online, and the number of fully online degrees and programs is growing slowly but steadily, digital formats have been slower to penetrate legal education.

The ABA is a major reason why. Although a small number of fully online law programs exist without ABA approval, institutions that seek accreditation need to tailor their programs to a set of standards that have been in effect since 2002. The program itself needs to consist of at least 83 credits, but no more than 15 can be granted from pure distance education. Of the remaining credits, one-third of the course work can also be completed remotely.

Many law school educators have defended the ABA's (and the legal profession's) conservative approach to distance education, given legal education's heavy dependence on the Socratic method, which is difficult to replicate in non-face-to-face settings. Many legal educators also share the general concerns about quality that skeptics of online learning have about many levels of education.

But advocates for nontraditional modes of delivery in legal education say the time is right for more experimentation in reaching students -- and not just because many law schools have seen enrollment declines amid escalating student debt and growing doubts about the value of a law degree.

"Part of our mission is to expand access to legal education, and we're delighted that by having this hybrid program we're enabling [access for] nontraditional students," said Mark C. Gordon, president and dean of Mitchell Hamline.

Early indicators from the Mitchell Hamline experience are positive, Gordon said. While acknowledging that it's too early for arguably the most important pieces of evidence -- the bar passage and job placement rates that are top of mind for people accumulating many tens of thousands of dollars of debt -- Gordon said that students in the hybrid program are showing learning outcomes equivalent to or better than those of their peers in the traditional brick-and-mortar program. Student and faculty satisfaction are strong, too, he said.

Catherine L. Carpenter, academic dean of Southwestern Law's fledgling hybrid-online program and the Hon. Arleigh M. Woods and William T. Woods Professor of Law there, said school officials were excited about becoming just the second program to win ABA approval for a true hybrid J.D. program -- and believe their approach has the potential to "be good not only for us, but for legal education."

Southwestern, which focuses on making legal education accessible to diverse populations, Carpenter said, has built its digital expertise through an online L.L.M. in entertainment law and its professors' significant embrace of the flipped classroom throughout the curriculum. The hybrid J.D., built on the principles of learning science and "microlearning," can improve on Socratic dialogue, she said.

"There's a feeling in legal education that one needs to be in the classroom to repeat the Socratic dialogue, but we've come to appreciate -- and I think the [ABA] council has as well -- that this isn't necessarily true," Carpenter said. "If I'm a professor in a class of 50 or 75, and I create a Socratic dialogue with one student, 49 others pay attention, or not. In online education, if done really well, you can be posing [problems] to all 50 students, and nobody is a passive audience member. Everybody's involved."

The Syracuse Scenario

Most of the experimentation in online education is taking place at law schools that focus on access for nontraditional students rather than prestige. Syracuse, ranked comfortably in the top half of law schools, is the outlier, and its proposed partnership with 2U -- which works mostly with selective if not highly selective universities -- contributed to making its planned hybrid J.D. closely watched (2U works with Syracuse on other graduate programs, too, in information studies and management).

“This partnership will enable the College of Law to reach talented students nationwide and allow us to grant unprecedented access to Syracuse Law’s outstanding legal education,” Kent Syverud, chancellor and president of Syracuse University, said in a 2016 news release about the initiative. (Syverud had worked with 2U to begin a fully online law master's degree when he was law dean at Washington University in St. Louis.)

An article in Syracuse's student newspaper last spring (cited on the TaxProf blog in May) said in passing that the ABA had rejected the law school's "first version" of its planned hybrid J.D. No other mention was made of the program in other news media.

But in 2U's earnings call for the second quarter last summer (which also went unreported until now), Chip Paucek, the company's chief executive officer and co-founder, acknowledged that the ABA had rejected Syracuse's waiver request and that as a result, "we decided to cancel that contract with Syracuse … It became very apparent that the law school's appetite for dealing with the ABA on something scalable once the denial came through wasn't really there, so we’re moving on."

Through a spokesman, Boise, the Syracuse dean, said the law school had decided to "pursue the hybrid J.D. program without a corporate partner," thanks to the university's "decision to invest resources in providing technological and production support for our proposed program." Despite the ABA denial, Boise said, Syracuse officials remain "confident that the ABA will recognize the value of our approach and allow the college to innovate in this area."

(For its part, Paucek said, 2U is continuing to discuss the law school space with their partners, but "for now, J.D. is off the books … I still believe that this vertical and others that are complicated will be part of our future. But change is hard and some will be harder than others. You can't win them all. It takes patience. We do intend to address the J.D. vertical longer term.")

What About the ABA?

As the primary arbiter of all things legal education, the bar association itself is being closely watched for its smoke signals on digital learning.

The ABA council is due to meet next month in San Antonio to begin considering possible changes to its standards in advance of an April hearing in Washington. Among the changes expected to be considered are adjustments to its standard related to distance learning. The council is supposed to release proposed language for that standard in advance of the February meeting.

Paul L. Caron, Duane and Kelly Roberts Dean of Pepperdine University School of Law and publisher and editor of the TaxProf blog, said that with many law schools facing enrollment difficulties and lots of interest in diversifying student bodies, he "could see [the ABA] loosening the reins a bit on the traditional model" of delivery. But he said any adjustments would carefully balance such innovation with concerns about quality.

Carpenter, of Southwestern, said that if legal education has "lagged" in embracing online and other digital education, "those who follow it traditionally would say, 'for good reason.'"

And whether the ABA council "moves slowly or more quickly" now, Carpenter said, she is confident that it will do so thoughtfully, "examining experiments and seeing how they work, and giving schools an opportunity to move outside the parameters they've traditionally operated in."