Gleason, D --- "Distance Education in Law School: The Train Has Left the Station" [2008] LegEdDig 3; (2008) 16(1) Legal Education Digest 10

• Distance education in law school: the train has left the station

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Distance education in law school: the train has left the station

D Gleason

U Nev, LV Research Paper No. 07-09, 2007, pp 1–14

In this paper I explore the reasons why law schools are slow to accept distance education and the changes signalling the switch that will propel law schools down the distance education track.

Three converging economic developments in the late 1990s resulted in the distance education explosion. Tax revenues were reduced with the end of the Cold War and concomitant reduction of the defence industry; downsizing of businesses and industry enabled by the maturation of information technology; and the slow recovery from the recession of the early 1990s. Concurrently, at state- supported systems of higher education enrolment was increasing as the children of the baby boomers reached college age. Thus, the advent of distance education was primarily driven by public institution administrators seeking revenue sources and ways to meet growing demand not addressed by existing brick and mortar infrastructures. Coincidentally, the maturation of information technology that enabled business and industry to downsize also provided cost effective methods for developing online curricula and class delivery.

The economic and student demands that prompted public institutions to board the distance education train did not impact law schools similarly. Three significant reasons explain the difference. First law schools do not generally suffer a dearth of applicants. In other words, the law school with the highest acceptance rate still turned down 31.5 applicants for every 100 that applied.

During periods of decreased enrolments such as the mid 80s the solution was to raise tuition and accept students with a lower GPA-LSAT index.

Second, law faculty have not embraced distance education. Some who would otherwise consider teaching an online class may be reluctant to invest the extra time and work required for an online forum. More likely, however, faculty are hesitant to offer distance education due to concerns that law schools offer a ‘sound’ program of legal education. These concerns were reflected in the commentary made when the ABA standard on distance education was changed in 2002 to allow 12 units toward a J.D.

The third reason law schools were not subjected to the same demands that prompted public institutions to offer distance education is that legal education is not a competitive market. Since graduation from an American Bar Association (ABA) accredited law school is required for admission to the bar in most American jurisdictions, compliance with ABA-accreditation standards is essential for most law schools. The ABA accreditation standards thus erects significant barriers to new entrants into the legal education business. Further, these barriers result in limiting forms of competition between existing institutions such as curricular changes, including distance education.

This is not to say that curricular changes have not been made.

Between the competition created from an abundant applicant pool, concerns for a sound legal eduation, and the lack of competition in the legal education industry, the law school environment is marked by a conservative status quo without motivation for change and innovation. This is not an environment that will experience change driven by administration or faculty. This is an environment where students as consumers will drive change.

Three changes are worth noting that signal the switch to distance education in law schools. First, students expect more. They expect to be engaged in active learning, receive feedback, use technology, and have 24/7 electronic access to materials and services. Second, there is a growing demographic of non-traditional students for whom is not economical or practical to leave homes and jobs to attend a brick and mortar school. In addition, some of those non-traditional students are attending law school for reasons other than practicing law. Third, the rising debt for law school is motivating students to find less expensive law school options.

Based on the dual premises that learning by nature is an active process and that different people learn in different ways, active learning produces more lasting value because it requires students to undertake higher-order thinking, forcing them to engage in analysis and evaluation.

Closely connected to the active learning principle is the requirement that professors provide prompt feedback to students. On the surface, the Socratic teaching method appears to fit an active learning model since it provides both student engagement and professor feedback. However, a closer look leads to a different conclusion. The Socratic method assumes that all students, not just the one on the ‘hot seat,’ are following the dialogue. In other words, all students except one are expected to learn vicariously. In addition, law professors seldom test skills until the final exam. Thus, students are neither engaged in active learning nor do they receive feedback on which to evaluate their progress.

Enter Concord Law School, the first institution to offer a J.D. entirely through Internet technology. Because the American Bar Association Standards do not allow a program that relies substantially or completely on distance learning, Concord is not eligible to apply for ABA approval.

At Concord, professors broadcast audio in live classrooms, can call on students, and receive text responses. Professors can then either share the response with the class, anonymously or not, or respond to the student privately. In addition, Concord monitors all questions received by students, and professors try to respond within 24-48 hours.

Increasingly, students expect to use technology in educational venues. If the statistics on the growing number of students taking postsecondary classes is not convincing, consider the generation or two behind them taking distance education in elementary and secondary school. In addition, school districts with students already enrolled in distance education courses were also very likely to have plans for expanding courses in the future.

With technology in place, students expect 24/7 access to materials and services. Certainly this autonomy is a big attraction for students attending Concord Law School.

Enrolment increases at Concord regardless of the fact that it is not ABA accredited.

Last but not least, the rising debt for law school is motivating students to find less expensive law school options. According to the Law School Survey of Student Engagement (LSSE), ‘(t)he nine out of 10 JD student who incur debt to attend law school indicated they will owe more than USD$77,000 when they graduate. Further, the ‘profession has danced around the problem of debt and whether people are getting out of law school what they want to get.’

Dean Currier believes that ABA accreditation for online law schools ‘eventually will happen’ and would like to see it done in a ‘professional, intelligent, collegial way.’ But because the ABA process is deliberate, and because the ABA may not have the ultimate authority to change distance education standards without U.S. Department of Education approval, Dean Currier says change may not evolve as quickly as Concord would like. However, the Dean believes it is possible for a state bar admission process to base a waiver of its requirement that an applicant have a degree from an ABA approved school on a set of criteria that would acknowledge (1) that the ABA has not chosen to regulate in the area of online law school programs and; (2) that under certain circumstances a graduate of an online law school might be found to be qualified by education and experience to sit for the bar in that state and to be admitted if the person passes the state’s bar exam. In any case, Dean Currier says distance education is here to stay, ‘the ABA and the bar admissions committees around the country cannot ignore it and hope it will go away.’