Steven Harper
Steven Harper (Karen Hoyt)

On the heels of my recent post about two struggling law schools, The New York Times published a column by Professor Steven R. Davidoff that focused on one of them.

In his piece, Davidoff argued that those, like me, who are critical of the proposed acquisition of the for-profit Charleston School of Law by InfiLaw are missing a key point: Would the private equity firm that owns InfiLaw really be worse than Charleston’s current owners, who have already taken millions of dollars out of the school?

In fact, Davidoff wonders whether a move by the school to affiliate with the state-run College of Charleston—as some have suggested as a possible alternative—would really be preferable to an InfiLaw takeover. Profit is profit; what difference does it make who gets it?

Here is Davidoff’s money quote: “Lost among the dispute is the fact that a lower-tier law school like Charleston—whoever owns it—can not only produce capable graduates but help students start careers they couldn’t have without a law degree.”

Really?

As I have reported previously, even the dismal market for new attorneys hasn’t slowed the growth of InfliLaw’s three law schools (Arizona Summit, Charlotte and Florida Coastal), from a combined 679 graduates in 2011 to 1,191 in 2013. According to the American Bar Association, only 36 percent of those who graduated from those schools last year obtained full-time, long term J.D.-required employment.

Disaggregation doesn’t make things look any better for the company (unless, perhaps, if you’re one of its private equity owners). Responding to what he labels a “fear about the acquisition—that a private equity firm will lower standards,” Davidoff cites Florida Coastal’s improvement in the percentage of graduates who pass the bar, from 58.2 percent to 76.4 percent, as evidence of InfiLaw’s “track record of improving schools.”

Davidoff doesn’t cite a source for his 76.4 percent number. According to the Florida Coasta website, only 67.4 percent of first-time exam takers passed the bar in July 2013—down from the 75.2 percent who passed the test in July 2012. Among those sitting for the exam in February 2014 [ PDF], 72.9 percent of the first-time takers passed, down from the 79.3 percent who passed in February 2013.

The lack of a source to support the 76.4 percent figure is a minor issue compared with a major problem that Davidoff opted not to focus on: Only 31 percent of last year’s Florida Coastal law graduates obtained full-time, long-term jobs requiring that degree. The rest are simply not starting “careers that they wouldn’t have without a law degree.”

Debt

And while most InfiLaw graduates aren’t getting full-time, long-term law jobs, they are acquiring a lot of education-related debt. Annual tuition and fees at each of the three InfiLaw law schools exceeds $40,000. At Arizona Summit, median federal law student debt between July 1, 2012, and June 30, 2013, was $184,825. At Florida Coastal, it was $162,549. Charlotte Law School’s median was $155,697, plus another $20,018 in private loans.

Davidoff’s defense of InfiLaw ignores the combination of big debt and poor employment outcomes that afflict most of its recent graduates.

He does make a valid point when concluding his thoughts on the subject: “Instead of arguing about who will profit from them, Charleston’s students may instead want to ask who will give South Carolina’s residents the best opportunity to succeed as lawyers at an acceptable price.”

Based on its track record to date, the answer isn’t InfiLaw. And I would reframe the question: Why should anyone profit at all when nondischargeable student loans are the source of those profits?

The new ABA Task Force on the Financing of Legal Education has an unprecedented opportunity to straighten out this mess and take the profession to a better place. But with the chairman of InfiLaw’s National Policy Board, Dennis Archer, also chairing the ABA Task Force, don’t hold your breath waiting for that to happen.

Steven J. Harper is an adjunct professor at Northwestern University and author of “The Lawyer Bubble: A Profession in Crisis” (Basic Books, April 2013) and other books. He retired as a partner at Kirkland & Ellis in 2008, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at http://thebellyofthebeast.wordpress.com/. A version of the column above was first published on The Belly of the Beast.