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Sunday, April 23, 2017

The hubris of the unknowing

Whittier is closing its law school, as all of us in our corner of the academic and profession universe now know.

I do not work, and have never worked, at the Whittier Law School, whether as a faculty member, a senior administrator, or in any other role.  I am not an alumnus, nor am I affiliated in any way with the university.  Therefore, whatever I might think about the law school's capacity to survive or even thrive in this difficult climate, I would not presume to know nearly enough to opine about this issue in any public fashion.

But this does not appear to deter various pundits -- Prof. Stephen Diamond most recently.

What makes knowledgeable professionals so confident that they would quickly rush to judgment?  Whittier's sudden closing is obviously a tough thing for current students and faculty.  Perhaps the decision will be unraveled in the face of public pressure or via littigation.  Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle.  Perhaps bloggers should neither aid nor abet these efforts.

The hubris of the unknowing. 

 

Posted by Dan Rodriguez on April 23, 2017 at 03:06 PM in Daniel Rodriguez, Life of Law Schools | Permalink

Comments

Hi. With respect, Professor Diamond's piece seems like a straightforward analysis of the situation, with as much information that can be known at the moment as well as with some context on the legal market. There is no doubt that the faculty filing the TRO and who are expected to file a lawsuit are upset and feel aggrieved for a number of reasons, as Professor Diamond noted. Finally, he stated an opinion based on the above.

I do not see what is wrong with his article and I certainly don't see what value a post brings to the table when it contains no facts, no analysis, and no opinion on the subject at hand. That said, I do like the "hubris of the unknowing" phrase and have long recognized it in people. In fact, Exhibit A resides at 1600 Pennsylvania Ave., but I digress.

Cheers.

Posted by: Andy | Apr 23, 2017 3:38:59 PM

The managing partner of my law firm years ago (one of the most dynamic and charismatic people I've ever known) used to say that he proceeded with all of the confidence that ignorance was capable of providing.

Posted by: Jeff Lipshaw | Apr 23, 2017 4:00:20 PM

I was more puzzled by the suggestion that the law school may have to be kept open to avoid violating the professors' tenure contracts. I don't quite see how this works, given that (a) shutting down the law school is directly about terminating degree programs rather than terminating professors; (b) it's not at all clear that the relevant tenure contracts incorporate the financial exigency definition from the AAUP; and (c) the caselaw seems to be deferential to schools in their determinations of what programs can be justified economically (and as a result, what faculty need to be employed at that school), see, e.g., Scheuer v. Creighton University, 260 N.W.2d 595 (Neb. 1977) (noting, in a case brought by a tenured professor who was fired in light of a claimed financial exigency, that "[t]he rapidly changing needs of students and society demand that university administrators have sufficient discretion to retrench in areas faced with financial problems.").

Maybe others can enlighten me on the merits of the contract claim, as it isn't my area.

Posted by: Orin Kerr | Apr 23, 2017 4:46:40 PM

Maybe becoming a dean has instilled in you a font of wisdom that the rest of us are denied, Dan. But if not I do not see any basis for you claiming my blog post is based on a lack of facts. The point I made is simple: the labor market for lawyers in Orange County has been steadily improving. That undermines the credibility of the basis for closing a law school with a long standing reputation in that community.

Posted by: Steve Diamond | Apr 23, 2017 5:17:44 PM

"The point I made is simple: the labor market for lawyers in Orange County has been steadily improving."

But has the labor market for *Whittier grads* been steadily improving? Spending a few minutes looking at LST's stats on Whittier will definitively answer that question. Those stats startle.

Posted by: anon | Apr 23, 2017 5:54:36 PM

Steve: No font of wisdom at all. The point of my post wss quite the opposite. To wit, folks removed from the front lines might have some humility in making pronouncements about the state of the Whittier situation. I wouldn't presume to make a claim about a matter that I am confident I know precious little about. You obviously have some confidence undergirding your claims here. Employment prospects for Whittier grads in the OC is presumably one of those facts you seem to have a good sense about, by contrast to the folks actually at Whittier and making decisions. But it's a free internet, so certainly don't let me deter you!

Posted by: dan rodriguez | Apr 23, 2017 6:23:09 PM

Please identify one claim for which there is no publicly available support. Otherwise, I think you owe me a retraction and an apology.

Posted by: Steve Diamond | Apr 23, 2017 6:37:26 PM

I have replied to Dean Rodriguez here: http://stephen-diamond.com/2017/04/23/from-the-shores-of-lake-michigan-came-a-howl/

Posted by: Steve Diamond | Apr 23, 2017 9:10:20 PM

Wow, what a sad post. I owe an apology for sure -- to folks on this blog for stirring up a subject that generated this very peculiar and defensive missive on Professor Diamond's blog and for those who felt drawn to read it in all its glory. Egad. On a more meaningful note, I do wish the faculty, alumni, and students at Whittier Law the very best, in whatever turn the events take in the future. We are all in this difficult period of time for legal education together, and for the well-being of our students and the profession.

Posted by: dan rodriguez | Apr 23, 2017 9:47:57 PM

I couldn't help but read Diamond's reply.

I think calling something an "ad hominem attack" on the internet should go the way of comparing people to Nazis. Whenever someone writes on the internet, "X committed an ad hominem attack against me" the discussion is terminated.

We'll call it YIKAM's Law.

Posted by: YesterdayIKilledAMammoth | Apr 23, 2017 10:36:12 PM

Dan, I applaud your original post -- the "reply" is ridiculous.

Posted by: LawProf | Apr 23, 2017 10:58:17 PM

Dan,

Do you favor the closure of Whittier because it will help you in the effort to push back the ABA intrusion on bar passage rates?

Steve Diamond

Posted by: Steve Diamond | Apr 23, 2017 11:55:50 PM

This escalated.

Are all attorneys so thin-skinned and quick to engage in public squabbles that leave them both looking rather adolescent? Or is that a special place taken up by those in academia?

Asking for a friend.

Posted by: Andy | Apr 24, 2017 1:04:05 AM

Some good commentary here (i.e., read the comments) to Diamond's ridiculous post: http://taxprof.typepad.com/taxprof_blog/2017/04/diamondwhittiers-decision-to-close-its-lawsuit-violates-aaup-tenure-protection-rules-harms-diversity.html#comments

Posted by: anonprof | Apr 24, 2017 9:34:42 AM

Steve Diamond said: "The point I made is simple: the labor market for lawyers in Orange County has been steadily improving."

But the 2016 bar passage rate for Whittier was 22 percent, a decline of about 15 percent from the year before. In 2014, it was still well below 50 percent.

How is the labor market data relevant for folks who don't make it into the labor market? Anyone have stats for Whittier second-time test takers?

Posted by: Curmudgeonly Ex-Clerk | Apr 24, 2017 10:11:42 AM

Curmudgeon please see Prof. Bill Patton's critique of Dean Rodriguez effort to squeeze lower ranked schools with inaccurate analyses of bar passage rates for minority JDs. Links are in my posts. Question remains: did AALS and ABA want Whittier to close to help solve their "California Problem" on backs of minority students?

Posted by: Steve Diamond | Apr 24, 2017 11:55:08 AM

prof diamond: you have now written thousands of words about Whittier on your blog and here and have mentioned Donald Trump and cited rumors of racism.

why have you not discussed Whittier-specific data -- the debt loads, the 75th% LSAT of 149 (!), the bar passage rates, the declining enrollment, the employment outcomes?

even if you do not wish to acknowledge those facts, would it be improper for Whittier to consider those factors in making those decisions?

Posted by: anon | Apr 24, 2017 2:32:55 PM

Anon,

It is true that schools that are lower ranked have a tougher time (Whittier's FTLT rate has been around 30% for the past few years). That has always been true. But when one of those schools achieves ABA accreditation (and keep in mind here in California we allow non-ABA schools) it is an important milestone and a recognition of their capability as a law school.

Thus, it is not an unimportant question whether or not pressure was exerted on Whittier to exit the market to solve someone else's political problem and whether or not Dean Rodriguez favored that outcome. He did opine last fall in favor of higher bar passage rates for law schools but then moderated his position to sign the Law Dean letter asking the ABA for a delay in raising the bar passage rate pending resolution of what has become known as the "California problem." The ABA agreed in February to a delay. Plans for Whittier to sell the school to a non-profit then somehow went awry and they abruptly announced closure.

Which of course helps solve the "California problem" - for remaining California deans, sure, but at the cost of excluding one of the most diverse student bodies in the country from the legal profession. Orange County is 30% hispanic. A large percentage of hispanic law students in California attend low ranked schools like Whittier. The arbitrary bar passage rate cutoff originally pushed by Dean Rodriguez - facially neutral - would have had disparate impact on those students, as will this closure. Some people call this institutional racism.

So you have to ask, what is the motive behind trying to dismiss a law professor who raises these issues as arrogant and ignorant?

Posted by: Steve Diamond | Apr 24, 2017 5:41:48 PM

Professor Diamond you should be ashamed of yourself. A law school that has less than 25% of its graduates pass the bar or get a job does not help minorities. Rather, it exploits them by putting them into debt they will never be able to pay off. Even those students who get jobs probably won't be able to pay off their loans. Shame.

Posted by: Anon2 | Apr 24, 2017 8:44:10 PM

I thought I'd wade into these inviting waters with some thoughts of my own:
http://witnesseth.typepad.com/blog/2017/04/who-really-killed-whittier-law-school-the-shocking-truth-that-you-wont-believe.html

Posted by: Rob Anderson | Apr 24, 2017 9:16:41 PM

Anon2, I suggest you follow the links to Professor Patton's research collection which notes that what you think of the bar passage rate is precisely the problem. Also look at post on bar passage by Mike Simkovic at: http://leiterlawschool.typepad.com/leiter/2015/11/failed-the-bar-exam-try-again-michael-simkovic.html

Until you understand what you are spouting off about, why don't you keep your Church Lady finger in your pocket?

Posted by: Steve Diamond | Apr 24, 2017 9:27:01 PM

I have read Professor Patton's unconvincing defense of Whittier's low bar passage rate before. I am also very familiar with Professor Simkovic's sloopy work. I will say it again: A law school that has less than 25% of its graduates pass the bar or get a job does not help minorities. Law schools with graduates like Whittier are exploiting minorities, not helping them. The debt loads of graduates from Whittier are shameful.

I now understand why Dean Rodriguez used the word "hubris."

Posted by: Anon2 | Apr 24, 2017 11:18:51 PM

Keep fighting the good fight Steve! It's only a flesh wound!

I'm sure that Whittier's 22% bar passage just means that the people who failed have to keep trying. I mean if they have a 22% chance of passing, then if they take it five times they're sure to pass eventually, as 22 x 5 = 110% amirite?

Posted by: Brave Sir Robin | Apr 24, 2017 11:22:46 PM

Oh lord, now you're retreading old Campos jokes. They were barely funny the first time. And since this is now looking like TFL I think I will say good night.

Posted by: Steve Diamond | Apr 24, 2017 11:46:46 PM

Came for the comments.

Was not disappointed.

Posted by: Derek Tokaz | Apr 25, 2017 10:29:03 AM

Steve, what happened to the 70 Santa Clara students who were completely unemployed after 10 months?

That's 32% of the 2015 graduating class (70/219).

Posted by: terry malloy | Apr 25, 2017 10:38:27 AM

Terry,

Why are you bringing Santa Clara into this discussion? This is about Whittier, which had a 19% Employment Score, not Santa Clara, which was more than doubled with a 39% Employment Score.

And Whittier had a sub 40% first time pass rate in 2012. Meanwhile, in 2012 Santa Clara had a respectable 68% first time pass rate. Those are nowhere close. Whittier had a 25/50/75 LSAT of 148/151/153 in 2012, while Santa Clara was much higher at 156/158/160.

And sure, for the class of 2016, Santa Clara's numbers are 151/154/157, and the numbers are in steady decline. But I fail to see how what's happening to Whittier has anything to do with Santa Clara.

Posted by: Derek Tokaz | Apr 25, 2017 10:59:25 AM

If anyone wants a break from the ranting and ravings about my role in worldwide domination, Prof. Mueller has some interesting data on the Whittier situation. http://excessofdemocracy.com/blog/2017/4/examining-whittier
Data seems useful in this important discussion, as was the point of my now long-lost post.

Posted by: dan rodriguez | Apr 25, 2017 11:16:23 AM

dan,

This is Prawfs Blawg. No one wants a break from ranting and raving.

Now, please explain why I have not heard you deny that you are part of a national conspiracy to undermine the rule of law by eroding faith in our law school industry which is necessary to producing legal scholarship which forms the backbone of democracy. I sense a plot to collapse the United States government behind your post. Also, you may by a Sith Lord.

Posted by: Derek Tokaz | Apr 25, 2017 11:21:10 AM

Exactly! How can I deny what is so plainly true?
True, the ranting is harmless fun. But the raving???

Posted by: dan rodriguez | Apr 25, 2017 11:26:13 AM

Dean Rodriguez,

Please don't confuse Professor Diamond with facts.

Posted by: Anon2 | Apr 25, 2017 11:49:27 AM

Anon2,

It's tough because diamonds are hard, and (apparently) facts are also hard.

Posted by: Derek Tokaz | Apr 25, 2017 11:52:14 AM

I bring up Santa Clara because it is the school that pays Steve Diamond.

Steve is a defender of the status quo, which includes the abysmal employment outcomes of his students.

I'd like to know how he justifies the outcomes of 70 real human beings being totally unemployed 10 months after graduation from a school that charges $48,916 per year in tuition.

What happened to those graduates?

Posted by: terry malloy | Apr 25, 2017 12:07:50 PM

Well, finally, with his most recent comment, Dean Rodriguez has taken a pause from his cyber-harassment of faculty to imply with his link to data that Whitter should indeed have closed. I will just remind the good Dean that my post was based on data, too. Data which show a clear strong trend line of improvement in employment and incomes in ORANGE COUNTY itself where Whittier is located.

Thus, it is a perfectly reasonable question to debate whether, since there is no financial exigency at the school and they have ABA accreditation as well as a fifty year record of producing good lawyers, should they have closed? They certainly appear to have breached their commitment to the AAUP Statement on shared governance grounds.

Since they will now be taking heat legally and politically the open question is whether there was any pressure on the Whittier trustees from the ABA or AALS. I think that is a reasonable question and I am sure the faculty and students at Whittier will try to find out. Unfortunately they won't get any help from at least one past president of the AALS despite his leading role in pushing for a racially insensitive bar passage standard.

Posted by: Steve Diamond | Apr 25, 2017 12:12:03 PM

"racially insensitive bar passage standard."

It is insensitive to the needs of tenured faculty to pray on racial minorities.

Posted by: terry malloy | Apr 25, 2017 12:20:15 PM

Yes, Professor Diamond you do have facts backing up your argument. However, you are ignoring the much stronger case against your argument. The strongest one: it doesn't matter how much the legal employment rate is improving in the area if the Whittier students aren't getting those jobs. 21% is an abysmal employment rate!

Posted by: Anon2 | Apr 25, 2017 12:47:13 PM

the employment rate for linebackers in orange county is up %1000 in Orange County!
- Dean of Orange School for Athletes under 135lbs

Posted by: terry malloy | Apr 25, 2017 12:54:21 PM

Terry,

I think bringing up the school just because Stephen Diamond teaches there is unfair. This is a post about a failing law school, and to bring Santa Clara into that discussion is at a minimum three years premature.

Posted by: Derek Tokaz | Apr 25, 2017 1:03:59 PM

"Data which show a clear strong trend line of improvement in employment and incomes in ORANGE COUNTY itself where Whittier is located"

Steve, this argument makes a huge leap that renders it logically invalid, notwithstanding your capitalization of Orange County. Law school location is not particularly relevant; most employers in Orange County are not going to hire Whittier Law graduates simply because they go to a school close by. More prestigious firms will look nationwide for associates; less prestigious local firms are far more likely to recruit from the wide assortment of better-ranked local law schools than Whittier (e.g., UC-Irvine, USC, Loyola Marymount, even Santa Clara).

Posted by: twbb | Apr 25, 2017 1:41:49 PM

"This is a post about a failing law school, and to bring Santa Clara into that discussion is at a minimum three years premature."

Ouch.

Posted by: twbb | Apr 25, 2017 1:43:56 PM

twbb, I imagine you do not live in California and do not understand hiring dynamics here, at least that's the charitable explanation. Dean Rodriguez on the other hand has an intimate personal and lifelong familiarity with the area so there is no excuse for his data-free attack on me only to point to a post that ignore the actual reliable data on the improving market for employment in the OC over the last several years. But, again, there is another agenda here, so no need to let facts get in the way.

Posted by: Steve Diamond | Apr 25, 2017 2:02:24 PM

How about this fact, Steve: 70 out of 219 graduates from Santa Clara's 2015 class were completely unemployed 10 months after graduation. Add to that the fact that your school charges 48K sticker tuition, probably to those least likely to succeed (see the above 70).

What happened to those 70 people?

This is data disclosed by your school in an required ABA report.

Posted by: terry malloy | Apr 25, 2017 2:17:48 PM

"twbb, I imagine you do not live in California and do not understand hiring dynamics here, at least that's the charitable explanation"

Steve, if you have data showing that otherwise unemployed Whittier graduates will benefit from a theoretical increase in Orange County law jobs, I would love you to present it.

I would also be curious where your expertise in hiring practices of law firms in Orange County comes from.

Posted by: twbb | Apr 25, 2017 2:25:31 PM

Steve Diamond, are you seriously going to try and characterize Dean's comments as cyber-harassment??? Geez -- toughen up, snowflake.

Posted by: LawProf | Apr 25, 2017 2:31:51 PM

Prof. Diamond: Could you identify a set of circumstances under which you would agree that an ABA accredited law school would be justified in closing? I'm very curious to see where, if anywhere, you would draw the line.

Posted by: Former Editor | Apr 25, 2017 3:11:48 PM

As Dean Rodriguez has finally seen fit to provide a more rational explanation of his thinking on bar passage in hte wake of the unfortunate decision by Whittier, I suggest well meaning law faculty (if there are any who meet that definition any more) engage constructively with his comments.

Posted by: Steve Diamond | Apr 25, 2017 3:31:22 PM

Steve Diamond is banana pants crazytown.

Posted by: Vast Deference | Apr 25, 2017 6:34:16 PM

Psst- Steve! Using people of color as a meat shield to preserve your cushy gig is a bad look! Walk away, keep your head down, and pray your school isn't the next to go. I understand the stress of potentially getting back into the VAP circuit can cause you to act out. But let's leave the arguments related to minority opportunities out of this, ok?

Posted by: NotAnAcademic | Apr 25, 2017 9:33:00 PM

Santa Clara used to park huge numbers of its students in the "not employed and not looking for a job" category, thereby boosting their employment stats -- until the loophole was closed. In fact, Santa Clara led the nation by a huge margin in that loophole category -- until the loophole was closed, whereupon their numbers magically dropped down to normal levels.

Santa Clara was also a national leader (top ten) in revoking scholarships. The students realized that scholarship students were herded into one section and graded on a curve, thereby ensuring that lots of them lost their scholarships. It's colloquially known as "section stacking."

Steve Diamond and Santa Clara (a religious school) have never apologized for either practice.

Posted by: Anon 3 | Apr 25, 2017 11:35:23 PM

Here's something you're all missing. To the extent you are attorneys and academics (I understand some commenting here are not), you're likely a part of the problem. On this thread alone we have cynical arguments based on race and class as well as shots at one another's employers or alma maters and whatever tactics they used to game the system.

What you're missing is the opportunity to change the system itself. Only the least honest among us will argue that the US News rankings are the product of some open, honest, and desirable method of trying to do a solid for the American people and shed light on the best and the worst. No, it's arbitrary, often nonsensical, and sometimes downright unfair. This isn't limited to law school rankings, either, by the way.

So continue to bicker amongst yourselves while ignoring what you purport to stand for, according to the Preamble of the ABA Model Rules of Professional Conduct. If you don't know what I'm talking about, you've sort of helped prove my point!

Posted by: Whoa, guys, settle down now! | Apr 26, 2017 12:52:30 AM

I just can't believe Steve Diamond gets paid his yearly salary for being so ignorantly wrong about everything. He's a laughing stock at this point. I would love to see him on the open market, and when Santa Clara shuts down, it will be glorious (other than the fact that he has grifted hundreds of thousands from doomed students to profligate his own ignorance for years at a time).

Posted by: SteveDIamondIdiot69 | Apr 26, 2017 1:12:55 AM

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