WITH apologies to show business, there’s no business like the business of law school.
The basic rules of a market economy — even golden oldies, like a link between supply and demand — just don’t apply.
Legal diplomas have such allure that law schools have been able to jack
up tuition four times faster than the soaring cost of college. And many
law schools have added students to their incoming classes — a step that,
for them, means almost pure profits — even during the worst recession
in the legal profession’s history.
It is one of the academy’s open secrets: law schools toss off so much
cash they are sometimes required to hand over as much as 30 percent of
their revenue to universities, to subsidize less profitable fields.
In short, law schools have the power to raise prices and expand in ways
that would make any company drool. And when a business has that power,
it is apparently difficult to resist.
How difficult? For a sense, take a look at the strange case of New York
Law School and its dean, Richard A. Matasar. For more than a decade, Mr.
Matasar has been one of the legal academy’s most dogged and scolding
critics, and he has repeatedly urged professors and fellow deans to
rethink the basics of the law school business model and put the
interests of students first.
“What I’ve said to people in giving talks like this in the past is, we
should be ashamed of ourselves,” Mr. Matasar said at a 2009 meeting of
the Association of American Law Schools. He ended with a challenge: If a
law school can’t help its students achieve their goals, “we should shut the damn place down.”
Given his scathing critiques, you might expect that during Mr. Matasar’s
11 years as dean, he has reshaped New York Law School to conform with
his reformist agenda. But he hasn’t. Instead, the school seems to be
benefitting from many of legal education’s assorted perversities.
N.Y.L.S. is ranked in the bottom third of all law schools in the country, but with tuition and fees now set at $47,800
a year, it charges more than Harvard. It increased the size of the
class that arrived in the fall of 2009 by an astounding 30 percent, even
as hiring in the legal profession imploded. It reported in the most
recent US News & World Report rankings that the median starting
salary of its graduates was the same as for those of the best schools in
the nation — even though most of its graduates, in fact, find work at
less than half that amount.
Mr. Matasar declined to be interviewed for this article, though he
agreed to answer questions e-mailed through a public relations
representative.
Asked if there was a contradiction between his stand against expanding
class sizes and the growth of the student population at N.Y.L.S., Mr.
Matasar wrote: “The answer is that we exist in a market. When there is
demand for education, we, like other law schools, respond.”
This is a story about the law school market, a singular creature of
American capitalism, one that is so durable it seems utterly impervious
to change. Why? The career of Richard Matasar offers some answers. His
long-time and seemingly sincere ambition is to “radically disrupt
our traditional approach to legal education,” as it says on his
N.Y.L.S. Web page. But even he, it seems, is engaged in the same
competition for dollars and students that consumes just about everyone
with a financial and reputational stake in this business.
“The broken economic model Matasar describes appears to be his own
template,” wrote Brian Z. Tamanaha, a professor at Washington University
Law School in St. Louis, in a blog posting about Mr. Matasar last year. “Are his increasingly vocal criticisms of legal academia an unspoken mea culpa?”
A PRIVATE, stand-alone institution located in the TriBeCa neighborhood
of downtown Manhattan, New York Law School was founded in 1891 and
counts Justice John Marshall Harlan among its most famous graduates. The
school — which is not to be confused with New York University School of
Law — is housed in a gleaming new 235,000-square-foot building at the
corner of West Broadway and Leonard Street.
That building puts N.Y.L.S. in the middle of a nationwide trend: the law
school construction boom. As other industries close offices and
downsize plants, the manufacturing base behind the doctor of
jurisprudence keeps growing. Fordham Law School in New York recently
broke ground on a $250 million, 22-story building. The University of
Baltimore School of Law and the University of Michigan Law School are
both working on buildings that cost more that $100 million. Marquette
University Law School in Wisconsin has just finished its own $85 million
project. A bunch of other schools have built multimillion dollar
additions.
N.Y.L.S. has participated in another national law school trend: the
growth in the number of enrollees. Last year, law schools across the
country matriculated 49,700 students, according to the Law School
Admission Council, the largest number in history, and 7,000 more
students than in 2001. N.Y.L.S. grew at an even faster clip. In 2000,
the year Mr. Matasar took over, the school had a total of 1,326 full-
and-part-time students. By 2009, the figure had risen to 1,596.
The jump seems to contradict one of Mr. Matasar’s core tenets.
“Can class size be increased without damaging quality?” he asked in a
1996 Florida Law Review article. “Can class size be increased without
assurances that jobs will be available for the increased number of
graduates? Can class size be increased without also providing more
staff, faculty, books and service? Increase class size? No!”
Did Mr. Matasar change his mind? In an e-mail, he cited the
unpredictability of yield rates, which is the percent of students who
accept an offer of admission. There was more than one year of yield
surprises under Mr. Matasar, the largest of which came in 2009, when the
incoming class leapt by 171 students.
It was a very profitable surprise, worth about $6.7 million in gross
revenue. Mr. Matasar would not discuss the added costs of teaching what
became known at the school as “the bulge class.” But faculty members,
some of whom were offered the chance to take on additional courses,
estimate that, at most, the school had to spend about $500,000 more that
year on teaching.
This windfall, it turns out, was perfectly timed. Because as all those
students were signing up for their first year at N.Y.L.S., a
little-noticed drama was unfolding that involved the financing for that
brand-new building.
THREE years earlier, in 2006, the school had floated $135 million worth
of bonds to finance construction of the new building, at 185 West
Broadway. At the time, Moody’s rated the bonds A3, placing them squarely
in the “come and get ’em” category for investors. The rating reflected
N.Y.L.S.’s strong balance sheet and the quality of its management,
Moody’s said.
Equally important, N.Y.L.S. was — and is — in a very lucrative business.
Like business schools and some high-profile athletic programs, law
schools subsidize other fields in universities that can’t pay their own
way.
“If my president were to say ‘We’ll never take more than 10 percent of
your revenue,’ I’d say ‘God bless you,’ and we’d never have to talk
again,” says Lawrence E. Mitchell, the incoming dean of the Case Western
Reserve University School of Law in Cleveland. “But having just come
from a two-day meeting of new and current deans organized by the
American Bar Association, I can tell you that some law schools pay 25 or
even 30 percent.”
Among deans, the money surrendered to the administration is known
informally as “the tax.” Even in the midst of a merciless legal
downturn, the tax still pumps huge sums into universities, in part
because the price of a law degree continues to climb.
From 1989 to 2009, when college tuition rose by 71 percent, law school tuition shot up 317 percent.
There are many reasons for this ever-climbing sticker price, but the
most bizarre comes courtesy of the highly influential US News rankings.
Part of the US News algorithm is a figure called expenditures per
student, which is essentially the sum that a school spends on teacher
salaries, libraries and other education expenses, divided by the number
of students.
Though it accounts for just 9.75 percent of the algorithm, it gives law
schools a strong incentive to keep prices high. Forget about looking for
cost efficiencies. The more that law schools charge their students, and
the more they spend to educate them, the better they fare in the US
News rankings.
“I once joked with my dean that there is a certain amount of money that
we could drag into the middle of the school’s quadrangle and burn,” said
John F. Duffy, a George Washington School of Law professor, “and when
the flames died down, we’d be a Top 10 school. As long as the point of
the bonfire was to teach our students. Perhaps what we could teach them
is the idiocy in the US News rankings.”
For years, it made economic sense for smart, ambitious 22-year-olds to
pay the escalating price for a legal diploma. Law schools have had a
monopolist’s hold on the keys to corporate lawyerdom, which pays
graduates six-figure salaries.
But borrowing $150,000 or more is now a vastly riskier proposition given
the scarcity of Big Law jobs. Of course, that scarcity hasn’t been
priced into the cost of law school. How come? In part, it’s because
schools have managed to convey the impression that those jobs aren’t
very scarce.
For instance, although N.Y.L.S. is ranked No. 135 out of the roughly 200
schools in the US News survey, it asserts in figures provided to the
publisher that nine months after graduation, the median private-sector
salary of alums who graduated in 2009 — which is the class featured in
the most recent US News annual law school issue — was $160,000. That is
exactly the same figure cited by Yale and Harvard, the top law schools
in the country.
Mr. Matasar stood by that number, but acknowledged that it did not give a
complete picture of the prospects for N.Y.L.S. grads. He noted that the
school takes the over-and-above step of posting more granular salary
data on its Web site.
“In these materials and in our conversations with students and
applicants,” he wrote, “we explicitly tell them that most graduates find
work in small to medium firms at salaries between $35,000 and $75,000.”
Determining exactly how many graduates make even those relatively modest
salaries isn’t easy. The information posted online by N.Y.L.S. about
the class of 2010 says that only 26 percent of those employed reported
their salaries. The nearly 300 students who reported being employed but
said nothing about their salaries — who knows?
Like all other law schools, N.Y.L.S. collects this job information
without anyone else looking at the raw data or double checking the math.
Which gets to another dimension of the law school business that other
companies might envy: a lack of independent auditing, at least when it
comes to these crucial employment stats. It’s kind of like makers of
breakfast cereal reporting the nutrition levels of their products,
without worrying that anyone will actually count the calories.
THOUGH astoundingly resilient as businesses, law schools have always had
a glaring liability: they generally sell just one product, legal
diplomas. This lack of diversification means that if enrollment drops, a
school’s balance sheet will suffer.
Like all stand-alone institutions, N.Y.L.S. is even more dependent on
student tuition than those attached to universities, and Moody’s
highlighted this fact in its 2006 appraisal of the school’s bonds. Under
a section about potential “challenges” that could lead to a downgrade,
Moody’s cited “significant and sustained deterioration of student market
position.”
A downgrade would be expensive for the school because it would mark the
bonds as riskier, which would force the school to pay higher interest
rates in the future.
In May of 2009, a month before the official end of the recession,
Moody’s issued a new report and suddenly, a downgrade seemed like a real
possibility. One problem was that applications to the school for the
upcoming class of 2009, Moody’s reported, were down 28 percent compared
with the volume the year before. The rating agency changed its outlook
on the bonds from “stable” to “negative,” which is bond-speak for “If
current trends continue, a downgrade is coming.”
But just three months later, the enrollment scare was over. In the fall
of 2009, the incoming class was N.Y.L.S.’s largest ever — 736 students.
(Only one law school in the country, Thomas M. Cooley in Michigan,
matriculated a greater number.)
Some faculty members were happy to enhance their salaries by teaching
another course. Others were appalled at what the super-sized class would
mean for students.
“At a school like New York Law, which is toward the bottom of the
pecking order, it’s long been difficult for our students to find
high-paying jobs,” said Randolph N. Jonakait, a professor at N.Y.L.S.
and a frequent critic of Mr. Matasar’s. “Adding more than 100 students
to an incoming class harms their employments prospects. It’s always been
tough for our graduates. Now it’s tougher.”
Was Mr. Matasar more worried about bond ratings than the fortunes of his
new students? Several faculty members said, and he confirmed, that the
bonds were part of discussions about the financial health of the school
in 2009.
“However,” Mr. Matasar wrote, “N.Y.L.S. never promised (nor needed to
promise) anyone that it would increase enrollment to meet debt service
obligations.” The size of the 2009 class, he went on, was “unplanned,”
again referring to a surprise in yield.
But given that interest in graduate school typically spikes during
economic slumps, wasn’t a sharp rise in yield foreseeable? It was to
N.Y.L.S.’s rivals. There are about 40 other schools in what US News has
long categorized as its third tier, and the average increase in class
size at those schools in 2009 was just 6 percent. (At 10 of those
schools, enrollment declined.) That is dwarfed by the 30 percent uptick
at N.Y.L.S.
Whether Mr. Matasar had bond ratings in mind at the time, Moody’s liked
what it saw. In August of 2010, the company issued a new report that
included news of the 736-student class, which was described, in the
classic understated style of bond reporting, as “particularly large.”
The Moody’s outlook for the N.Y.L.S. bonds changed once again — this
time from negative to stable.
THE incoming class of 2009 won’t hit the job market until next year, but
if the experience of recent N.Y.L.S. graduates is an indication, many
of them are in for a lengthy hunt. Mr. Matasar offered an inventory of
N.Y.L.S.’s career services office, which he says includes 15 employees
and provides development and mentoring programs and oversees a series of
networking events.
There are those, he wrote, “who rave about the career services office.”
But he added that a recent poll of law schools found that a little more
than half of third-year students were unsatisfied with the job search
help. “We have a similar experience,” he wrote.
Among the unsatisfied is Katherine Greenier, of N.Y.L.S.’s class of
2010. As she neared graduation, she organized an informational meeting
for students interested in public-interest law, the kind of get-together
she thought the career services office should have offered. To her
amazement, a rep from that office showed up, took a seat and asked
questions.
“She was asking about the process, like how you go about applying for
public-interest fellowships,” Ms. Greenier says. “Things that you would
have hoped she already knew.”
Ms. Greenier, who wound up with a job at the American Civil Liberties
Union in Richmond, Va., ultimately decided that the school had what she
called a “factory feel.”
The size of the incoming class of 2009 only sharpened that conclusion.
“There were people wondering, why did the school take on this many
people in a job market this terrible?” she asked. “How many of these
folks are going to find jobs? And what does it say about the school?”
IN April, Mr. Matasar stood in a lecture hall on the third floor at
N.Y.L.S. and delivered the keynote at Future Ed, the third of three
conferences about legal education that he’d helped organize, in
partnership with Harvard Law School. A few dozen professors and deans
were in attendance as he argued for a more student-centric approach to
education.
“The focus shifts from us — we the faculty, we the administration, we
the permanent employees of the school — to those we serve, our
students,” he said. “Things are seen through a lens that says ‘What will
this do for the students?’ ”
Nearly all the people who have worked with Mr. Matasar say he means what
he says about reforming legal education. N.Y.L.S. professors recall
meetings where he urged the faculty to be more responsive to students —
to return calls faster, meet more often, whatever would help.
“He put a huge, beautiful student dining area in the top floor of that
new building,” says Tanina Rostain, a former N.Y.L.S. professor, now at
Georgetown University Law Center. “But it doesn’t have a faculty lounge.
We were a little nonplussed, but it was clear that the students were
Rick’s priority.”
How does one square that priority with the inexorable rise of N.Y.L.S.’s
tuition, its population growth, its eyebrow-arching job data?
The question has puzzled more than a few academics and has produced a
variety of theories. Perhaps the most compelling is that as both a
crusader and a dean, Mr. Matasar has conflicting, even incompatible
missions. The crusader thinks that law school costs too much. The dean
has to raise the price of tuition or get murdered in the US News
rankings. The crusader worries about the future of all those unemployed
graduates. The dean has interest payments to make on a gorgeous new
building.
“I’m 100 percent convinced that Matasar believes in his reformist
agenda,” says Paul F. Campos, a professor at the University of Colorado
at Boulder School of Law and a Future Ed attendee. “But all reformers
discover that they can’t change a system by themselves. And by trying to
survive in the current structure, he has ended up participating in the
perpetuation of its most indefensible elements.”
The tale of Mr. Matasar’s career is not primarily about a gap between
words and actions. Rather, it is a measure of how all-consuming
competition in the legal academy has become, and how unlikely it is that
the system will be reformed from within.
To be clear, there is little about the way N.Y.L.S. operates that is
drastically different from other American law schools. What’s happened
there is, for the most part, standard operating procedure. What sets
N.Y.L.S. apart is that it is managed by a man who has criticized many of
the standards and much of the procedure.
In fact, Mr. Matasar has been quoted about wanting to upend legal
education for so long it is impossible to believe he is doesn’t mean it.
But he can’t act unilaterally. And what industry has ever decided that
for the good of its customers, it ought to charge less money, or shrink?
“My salary,” Mr. Campos said, “is paid by the current structure, which
is in many ways deceptive and unjust to a point that verges on fraud.
But as a law professor, I understand that what is good for me is that
the structure stay the way it is.”
DECRYING a business and benefitting from it at the same time — it puts
you in a tough spot, Mr. Campos said, and one he speculated is even
tougher for a dean. But it is not a spot that Mr. Matasar will be in for
much longer.
Several weeks ago, Mr. Matasar sent an e-mail to his faculty stating
that he would step down in the next academic year. He was considering a
few different job options, he explained, all of them “outside of legal
education.”