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Almost exactly five years ago, Supreme Court Justice Ruth Bader Ginsburg said in a speech that she was “troubled” by Concord Law School, the nation’s first online law school. “The process inevitably loses something vital when students learn in isolation,” Ginsburg lamented in remarks at Rutgers Law School in Newark. Fast forward to June 25, 2004. From his chambers at the Supreme Court, Ginsburg’s colleague Justice Antonin Scalia conducts an hourlong online colloquium with more than 400 Concord Law School students, answering their questions and expounding on the rule of law. From chilly disdain to the warm embrace of the members of the nation’s highest court: not a bad arc of change in five years. Its significance was not lost on Barry Currier, Concord’s dean. “We’ve certainly come a long way,” Currier said after the Scalia colloquium. In many ways, the online law school has made huge strides. The year before Ginsburg was pooh-poohing it, Concord opened its virtual doors to 35 students and six faculty members. The Concord Law School Scalia “visited” now boasts roughly 1,700 students. More than 70 faculty members — including Harvard Law School’s Arthur Miller on civil procedure — teach through a variety of methods. Mass lectures are taped and video-streamed; real-time online classroom discussions are conducted through a combination of Real Player audio and a form of instant messaging that allows teachers to direct oral questions to individual students — and demand immediate answers, Paper Chase-style, except that the students type the replies in for all to see. “It really blows you away how much like a fixed-facility classroom experience it is,” says Currier. “It is extremely dynamic and every bit as good as a regular environment.” All classes and discussions are archived so students can watch — and re-watch — anytime. (One notable exception: at his request, Scalia’s talk with students was not archived or recorded.) Concord has attracted a diverse and older student body — average age 43 — from all 50 states and 12 foreign countries. Around 40 percent already hold at least one advanced degree. Fifteen of the 28 Concord graduates who have taken the California bar exam have passed — a pass rate comparable to statewide statistics. At 59, Clifford Crowder of Winchester, Va., is one of the Concord students who boosted the average age. A training and quality assurance specialist at the U.S. Patent and Trademark Office in Crystal City, Va., Crowder graduated in December and was valedictorian at the graduation ceremonies — real, not virtual — in Los Angeles, where the school has offices. Concord is owned by Kaplan Higher Education, a division of Kaplan Inc., which in turn is owned by the Washington Post Co. Crowder couldn’t help thinking of the contrast between Scalia’s and Ginsburg’s reaction to Concord, since it was through a news report on Ginsburg’s 1999 speech that Crowder first learned about the school. “I’m thankful to Justice Ginsburg in a way,” he said recently. Even though Ginsburg was critical, Crowder said, “My wife looked into it, and I thought, ‘This is something I can do.’ It was a whole new option in life.” A long-ago graduate of North Carolina State with an engineering degree, Crowder had, through his work, developed an interest in patent law. But because of his long commute from rural Winchester, “attending a local fixed-facility law school was beyond possibility.” By enrolling at Concord, Crowder was able to devote evenings and weekends to his studies, logging in when he had the time. He also made it a practice to watch every lecture twice — something you can’t do in a traditional law school. Crowder says he did not feel that he had missed anything important by not having face-to-face interaction with students and faculty. The real-time discussions kept him on his toes, and he was able to schedule phone time with instructors whenever he needed help on an issue he did not understand. In one advocacy class, Crowder videotaped his own presentation. “They have a very nurturing philosophy of education, and seemed really anxious to help people learn,” said Crowder. “But it was a grueling four years. It was hard.” It paid off in May when Crowder learned he had passed the California bar — the only state bar exam Concord students can take, because only California allows graduates of unaccredited, non-classroom “correspondence” schools to sit for the exam. When he retires from the federal work force soon, Crowder plans to practice patent law — a federal jurisdiction for which a California license will suffice. For others, the fact that Concord grads may only take the California bar exam is a bigger hurdle. ABA EASES UP The accreditation issue is one sign that as far as Concord has come, it has a considerable way to go. The accrediting agency for law schools, as recognized by the U.S. Department of Education, is the Council of the American Bar Association Section of Legal Education and Admission to the Bar, which, like most gatekeepers, has been criticized for making life hard for those seeking to join the club. To discourage correspondence schools, the council’s accreditation standards traditionally required law students to stick to classroom learning. But with the rise of Concord and other law schools’ experimentation with so-called distance learning, the council eased up in August 2002, allowing all but first-year students to earn up to 12 out of 80-plus credit hours through distance learning. That doesn’t come close to the Concord model, but is a reasonable nod to new technologies, according to the council’s consultant and executive director, John Sebert. “Certainly the council does not want the standards to be unnecessary barriers to legal education,” he says. He acknowledges that distance learning can be a “significant point of access” for students who, for example, live far from a law school and cannot relocate. But the council’s concerns remain that distance learning won’t help students — especially in the first year — “think like a lawyer,” as Sebert puts it, and won’t adequately convey practical, interpersonal lawyering skills. “Face to face is important,” Sebert says, adding, “I don’t know of any distance-education medical degrees.” When it is pointed out that lawyers don’t perform surgery, Sebert says that many legal skills require practical, hands-on training. Asked if the apparent success of Concord is creating pressure for further loosening of the ABA standards, Sebert says, “Deans scream if they think the standards should be changed, and I haven’t heard any screams on this issue.” Mark Tushnet, until recently president of the Association of American Law Schools, foresees a range of slow but steady experimentation with distance learning, now that the ABA standards have been relaxed. He points to courses taught online by Cornell Law School professor Peter Martin, available to students in several law schools, and other proposals that might allow final-year students to take some courses online while moving into the work world. Tushnet thinks a soup-to-nuts online law school education raises questions about “the extent to which in-person interaction is truly an important part of legal education — and, even if it is important to some extent, whether increasing access to legal education offsets whatever educational losses there are.” Tushnet, a professor at Georgetown University Law Center, adds that the AALS has no official position on Concord. Currier, Concord’s dean, is familiar with the skeptics and their arguments; he once was a skeptic himself when he served as Sebert’s deputy at the ABA. “I’m now on the other side of the fence,” he notes. Before he became dean last December, Currier told the National Law Journal in a story on Concord, “It would be irresponsible to abandon our guidelines just because someone says they have a new thing.” Part of what converted Currier — and a major attraction for students as well — is the relative low cost of a Concord education. At $31,980 for four years, Currier thinks, Concord will produce graduates more willing to go into public interest law, unsaddled by huge debt. As it has evolved, Concord has also begun to meet some of the critics’ objections, Currier says. In cooperation with William Mitchell School of Law, Concord is expanding its trial advocacy offerings, with intense assessments of students’ videotaped presentations. Fourth-year students can participate in externships. And Currier is trying to win eligibility for Concord students to take bar exams in states other than California, exploiting exceptions already in place. Some states, for example, in some circumstances allow foreign law students to take their bar exams. But Concord has chosen not to do battle with the ABA, and has not even applied for accreditation. “We used to blame the ABA” for being too slow to grasp the concept of Concord, says Currier. “We’ll continue to do all we can to open up the standards, but there’s nothing in it for us” to be at odds with the ABA. Instead, Currier says he is committed to “developing the quality of the program” — a sort of “build it and they will come” approach. With the likes of Antonin Scalia and scores of students already responding to the idea, Currier thinks that, ultimately, the ABA and other states will come around.

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