The Empty Threat of 2Ls and 3Ls Transferring To Receive In-Person Instruction

Students would be foolish to transfer to another school in the middle of a pandemic when there is no guarantee in-person instruction will continue anywhere.

|The Volokh Conspiracy |

Many law schools may decide to bring 1Ls on campus, but hold 2L and 3L classes online. The thinking here is at once compassionate, but also pragmatic. The first-year of law school is a surreal experience. The pressure of classes forms something of a crucible: students are forced to acclimate to a brand new environment in a short period of time. By the time students get to the second year, they have developed a certain familiarity with the process, and are able to deal with classes more efficiently–even though they do not prepare as well for class. I see a world of difference between Property I students (in the second semester) and Property II students (in the third semester). If law schools have to make tough choices about who to admit on campus, objectively, 1Ls should be given priority.

There is also a pragmatic dimension to this choice. Incoming 1Ls, who feel they will be shortchanged by online instruction, may not enroll. Maybe they will decide to defer a year. Or maybe they'll pick a law school that promises in-person instruction. Rural campuses over urban campuses may be more desirable. These promises should be taken with some caution. Shut-down orders may come in October, requiring everyone to go back online. And the experience in class may soon become intolerable. But, incoming 1Ls demand in-person instruction. And law schools, dependent on tuition, will be pressured to oblige.

But what about 2Ls and 3Ls? Do they need the same in-person experience? The old adage may have some truth: 1L scares you to death; 2L works you to death; and 3L bores you to death. But 2Ls and 3Ls will be quite upset if their classes move entirely online. What can they do? Some will demand tuition refunds. This option is not viable. A school's costs stay roughly the same, whether operations are inside our outside the building. You can only save so much money by turning off the lights and lowering the air conditioner.

For sure, some students will threaten to transfer to another law school. Let me voice some skepticism for that option. As a general matter, transfers pose several risks. In normal times, transfers after 1Ls have limited opportunities. There are fewer slots for law review and moot court for transfers. Fall recruiting may be limited due to the timing. And credits may not transfer precisely, requiring students to retake certain classes. Also, grading curves vary, so your class rank may not transfer accurately to your new school. Students also lose the chance to gain recommenders from 1L professors, whom they get to know well. (I am always skeptical when a student who transfers out asks me to write a letter of recommendation.) Plus, you are entering a new school, without any network of support. You may not know any students, and most study groups and cliques have already formed. Often, teachers at lower-ranked institutions may provide more personalized attention than those at higher-ranked institutions. (A topic for another day.). Students should not be so certain that things will get better. The grass is not always greener on the other side of the U.S. News & World Report rankings.

But transfers now in the time of COVID-19 are especially risky. First, consider the timing. No school can guarantee they will have any in-person instruction. The standard line now is "We plan to be on campus." Plans are great. Students would be foolish to transfer schools based on a "plan." There are costs to apply, and costs to move your life to a new campus. Second, even if some upper-level classes are in-person, others may not be. This decision will turn on the availability of faculty–many of whom are in at-risk groups–as well as availability of space. No matter where you go to school, you may still be stuck with a bulk of Zoom classes. Third, if you transfer, you may never meet your professors in person. At least at your current institution, you will have built some personal bonds. But at Zoom University, you will have no connections. Fourth, I fully expect most jurisdictions to issue shut-down orders at some point this fall. No matter where you transfer, you will finish the semester online. So why bother? Threats to transfer are empty. Students would be advised to stay where they have a network.

The more credible threat is students ask to defer their second or third years till the situation stabilizes. In other words, they simply opt out of the law school until the current crisis passes. This plan may make sense if we are sure that this situation will be over next year. But who knows? We may be stuck in Zoom purgatory for two or three years. Corona will not vanish quickly. Outbreaks will come in waves. Taking such a big gap between first-year and second-year will make re-acclimation very difficult. Think how rusty students are after 1L summer break. Imagine taking a two year break between classes! And good luck remembering anything from 1L for the Bar if you take it six years later.

I understand the frustration from students. I get it. They did not sign up for a correspondence course, while paying full-freight tuition. For those already in this mess, where possible, they should push through to graduation. For incoming 1Ls, read with caution any promise for in-person classes. I think ultimately, most law schools will be in the same boat.

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  1. Is this a thing? Enroll at South Texas and then try to get a transfer spot at UH or even UT?

    1. Yes. In part because U.S. News doesn’t take transfer student’s LSATs into account in its rankings.

  2. They did not sign up for a correspondence course, while paying full-freight tuition.

    They can sue for damages after graduation.

    1. Or before — there are already suits being filed over this spring.

  3. I’m sure students would be more happy to pay full tuition for a remote law class if tuition wasn’t so astronomic. Most students don’t want to pay 50k a year for in class instruction with the collaborative student environment and a rich law review room an ideas bouncing all around. I certainly wouldn’t have attended without a scholarship.

    1. To be honest, I don’t think they’ll care much. They’ve still been admitted, they’ll still get a degree, and they’ll still actually learn how to be a lawyer on the job.

  4. I think Professor Blackman is engaging in wishful thinking.

    What I see happening is what I am seeing amongst the assorted undergrads I know — upperclassmen who are on scholarship will be obedient and do what they are told, while those who are paying full price will say “Firetruck You! (with 5 fewer letters) and not write the check for ZoomSkool. They can say and do lots of things, and maybe part with a couple hundred dollars in fees and deposits, but I doubt they will write the *big* check without some assurance that they will be getting in person education.

    Look at the opportunities that this gives the 2Ls and 3Ls — they can try out the job market for a year and retain the option of returning to law school if it doesn’t work out. Those who are only there because their parents insisted on it (and that’s more than a few) have the perfect excuse to to work in Daddy’s Company where they never were going to be practicing law, anyway. Others can point out the courses they have taken and market themselves as someone who has been to law school.

    How many law school grads aren’t practicing law? How many never pass the bar or don’t even take it? Why *shouldn’t* those students leave now and save the money and work? (I’m thinking of the kids who dropped out of High School to go fight in WWII — and no one ever cared that they didn’t have a high school diploma.) The Wuhan Pandemic is a credible excuse, something that every employer will understand.

    And then you’re assuming that they will *have* the money to attend. Their Fall-2020 FinAid awards will be based on their (and often their parent’s) 2019 income tax return. When the economy was booming, before the Wuhan Shutdown. The FinAid regs project that income forward at the same level, and that ain’t happening — and a lot of assets are valued at their 2019 level and not today’s diminished value. This will impact on even loans — both the type students can get and even if they *can* get them.

    So tuition-dependent law schools could find themselves in a situation where their scholarship students show up and their tuition-paying ones don’t. That’s going to be problematic for even the universities with large endowments, and I don’t think most law schools are that well endowed.

    1. And what will the ABA do when concerns about the quality of ZoomSkool law education is raised. This spring was one thing, an unexpected emergency like a building burning down, and doing the best you can under those circumstances. But if some law schools enter the fall in Zoom mode, why won’t their competitors be complaining to the ABA about it? Why won’t students — 3Ls aren’t competitive enough to want to improve their chances of employment by reducing the number of people eligible for the bar exam?

      The ABA requires a lot of things — large law libraries come to mind — and while we can argue about the merits of such requirements, how can ZoomSkooled students benefit from these things????

      1. The main difference between law schools is how smart the people sitting next to you in class are. On the Internet, nobody knows you’re a dog.

  5. >A school’s costs stay roughly the same

    I’d have a bit more sympathy if law schools weren’t enormous profit centers for their broader institutions.

    And, based on my last campus visit, those broader institutions have enormous room to cut.

    1. And if, judging by this blog, anyway, faculty members didn’t spend quite so much time writing lengthy blog posts, and submitting amicus briefs, and traveling to make presentations, and what not, rather than teaching.

      I get it. It’s a cush gig, but the students are the ones paying.

  6. Genuine question: Why on earth are you skeptical when a student (transferring out) asks for a letter of recommendation. You teach at a 4th rate school, which apparently has an excellent trial advocacy/moot court programme. Why would you not encourage and applaud a student who did excellently in your class, and did well enough overall to transfer to a better law school? I get why a dean might not love the transfer–she’d want to keep the best 1L’s at her school, for future ranking purposes. But you’re a teacher, and (I’ve taught, my sister teaches, and my dad taught), and we’ve always had a reaction to this request of, “Of course. You did great in my class; I love your desire to graduate from the best possible school, as this will have profound impact on your career choices for the next 5 years; and it will be my pleasure to write this letter for you.”
    Can you explain why your reaction is one of skepticism?

    1. [One thousandth time I wish Reason had an Edit button.] 🙁

  7. Fairness within law schools is a tenuous proposition. Transferring, especially if everyone isn’t on board with the idea, can sometimes pierce that veil.

    Sometimes, doing the right thing isn’t the right thing to do, and, if professional success is what you’re after, it might be best to slog through the situation you’re in, however unfair.

    Mr. D.

  8. So, Prof Blackman,

    I started to look into this. And one of the items that struck me was the limitation on online learning by the ABA or by various states (including New York). Last I saw, the ABA only allowed 30 credit hours online (2018), while some states (New York) limited this to just 15 credit hours online (also 2018). There are a few experimental programs (IE, Syracuse school of law) that have exceptions. Again, I just have the 2018 laws, these may have changed.

    So, given your support for online learning, it may be worth squaring this support with the current ABA/State exceptions. to online learning. While an argument can be made for online learning in law school, if the courses do not actually count for the required course load to take the bar exam, they are of extremely limited value for the students. For example, if the limit in NY State still exists at just 15 credit hours, that may be exceeded in many law schools, by having online learning for this spring and next fall. Students who attend such law schools may suddenly find their degrees make them unable to sit for the New York Bar…

    1. Force Majeure?

      I know the bottle bill is not on the level of the bar exam, but stores are no longer required to refund deposits, notwithstanding laws to the contrary.

      Gould a Governor ORDER the Board of Bar Examiners to ignore both the laws and ABA regs? I mean, like, if he can shut down churches…..

    2. There may be a way in which law schools can comply this fall with the letter of the law (Standard 306) if necessary – even if a variance under 107(a)(1) cannot be obtained – while still protecting those at extraordinary risk (primarily older faculty with a variety of medical conditions).
      Standard 306, which limits for law schools the number of credits their students can earn through what it calls “distance education,” defines that “distance education” with some precision; precision which lawyers may take advantage of by reading it carefully and applying its terms precisely.
      Standard 306 says that “A distance education course is one in which students are separated from the faculty member or each other for more than one-third of the instruction AND the instruction involves the use of technology to support regular and substantive interaction among students AND between the students and the faculty member, either synchronously or asynchronously.”
      To meet the very specific requirements and multi-pronged conjunctive (as contrasted with disjunctive) definitions of “distance education,” suppose a law school has students (who are generally young, not in great danger, and probably willing to accept the small risk) seated in a classroom, presumably separated from each other according to social-distancing standards (imposed by governmental requirement or the school) in their seating locations.
      In a small nearby room (which can be carefully and thoroughly disinfected before each use) is the professor, who uses a microphone connected to the public address (loudspeaker) system in the larger room where the students are assembled and hopefully eager to hear his words.
      Arguably, such instruction is not limited in any way by 306 because it does not meet 306’s precise definition of “distance education” for several reasons.
      (1) One of the necessary (but not sufficient) conditions for something to constitute “distance learning” is that “the instruction involves the use of technology to support regular and substantive interaction among students.” But, since the students, all of whom are seated in the same room, would simply be talking face-to-face to each other, there is no “substantive interaction AMONG students” which “involves the use of technology.”
      (2) If the professor uses the same microphone and loudspeaker system he would normally use in a classroom where the students are seated, it arguably does not constitute the “use of technology” – any more than the use of a slide projector, movie projector, electric pencil sharpener, etc. in a classroom – since amplified sound systems have been in widespread use in classrooms and elsewhere for more than 50 years and probably are no longer thought of as “technology.” The most reasonable – as well as common – reading of “use of technology,” especially in this context, would be distance learning over the Internet, which is not occurring in this hypothetical example.
      (3) Similarly, the requirement that the students be “separated” from the faculty member can hardly be said to apply if the professor (in another nearby room) is no more than 50-100 feet from the students. In this context “separated” obviously applies to a very significant physical separation – measured in miles and not in feet – which is bridged by Internet connectivity.
      After all, in large law school lecture halls, professors may often be more than 100 feet from some students. Also, if a professor is in a classroom full of students, and it is necessary to “pipe” both the video and audio into another different “overflow classroom”, few would suggest that it now suddenly constitutes “distance learning,” subject to 306, simply because the students in the overflow classroom are not in the same room as the professor.
      Although those charged with enforcing 306 may not have intended this type of application (students in one classroom, with the professor in another) to be excluded from its application, they also did not anticipate teaching in a situation in which exposure within a classroom would seriously threaten the life of the professor.
      As lawyers, they should be and are bound by the words they chose to put down on paper to guide hundreds of law schools and thousands of law professors, not what they hoped or intended to accomplish.
      This is an elementary legal principle.
      Lawyers are paid handsomely to find ways to permit a client to do what he wants to do (e.g., reduce taxes) even if a law or regulation seemingly was designed to prevent him from doing it.
      And if those enforcing 306 think that even the teaching in a separate nearby room suggested by this hypothetical should be limited to any specific number of law school credit hours, they are certainly free to redraft the rule to make its new words conform to their previously unvoiced intentions.

  9. Or we could just write off the whole government induced panic, and allow individual freedom and individual choices.
    Or just declare law school non-essential until 2 years after a vaccine is developed and proven.
    I am sure the court system will not collapse from a lack of lawyers.

    1. Let’s go further.

      Shut down the courts, like Daniel Shays intended.

      Somehow, I somehow suspect that this purported “emergency” would end forthwith.

  10. The division between 1L classes and 2L classes isn’t obvious, except that most 2L and 3L classes use knowledge earned in 1L classes, which is why 1L classes ARE 1L classes. The real difference is between lecture classes and seminar classes. Then there are the things that definitely require time in the library, like moot court, clinics and law review. Many classes can be readily transitioned to online, and some absolutely cannot be. Learning the law can be done via multiple avenues, But learning the practice of law really can’t be.
    I am not a law prof but I was working as an undergraduate instructor when I started law school. I taught IT and a big part of some IT class could be, and was, taught in a straight lecture format. But some parts really need to be taught hands-on.

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