Arizona Summit Law School: Noble intentions, poor results

In the early 1990s, Donald Lively had a vision for a new type of law school.

Lively then was a law-school professor who wanted to establish a school focused on underserved minorities. His broader goal was to diversify lawyering — one of the nation’s least diverse professions.

On his days off, Lively would leave his Ohio home and drive as many as 1,000 miles to pitch his idea to the leadership of traditional universities.

He would tell them the new law school should be willing to accept students with less-than-stellar Law School Admission Test scores, and offer parttime degrees and evening classes so working adults could pursue law degrees.

If the deans were at first intrigued,

they would suddenly lose interest once Lively pointed out that to build a more diverse student body, the new school would have to forgo the influential lawschool rankings — widely associated with prestige by prospective students, professors and law firms.

After two years of exhausting his options, Lively turned to a group of investors who were willing to bankroll such a school as a for-profit operation.

Florida Coastal School of Law opened in 1996 as the first for-profit law school accredited by the American Bar Association. It was soon followed by Phoenix School of Law (later renamed Arizona Summit Law School) and Charlotte School of Law.

Some in the legal community were skeptical of the schools’ for-profit status. But it didn’t hurt recruitment. Enrollment boomed.

Then the Great Recession hit. There were fewer jobs for law-school graduates, and schools competed for a dwindling pool of applicants.

The Arizona school made changes that would ultimately be detrimental to students.

It changed from a traditional lawschool curriculum to a blend of subjects that shorted students on the knowledge they needed for the bar exam. And to build diversity, the school began accepting more students with lower grades and test scores.

For some students, the results were disastrous.

Nearly 70 percent fail the Arizona Bar Exam on the first try, delaying becoming practicing attorneys.

Other students never make it through law school. They get dismissed for academic reasons and wind up saddled with student-loan debt and no law degree.

Arizona Summit has the most expensive tuition and worst employment record among the state’s three law schools.

The one law-school metric where the school shines is diversity. Consistent with its mission, Arizona Summit’s student body is 41 percent minority, compared with 33 percent at the University of Arizona and 26 percent at Arizona State University.

‘I want to see turnaround’

Arizona Summit officials acknowledge they made mistakes.

“Our first-time bar pass (rate) really sucks for the past few years,” said Lively, Arizona Summit’s president. “I don’t want anyone running away from it. I don’t want anyone rationalizing it. I want to see turnaround.”

But those moves have threatened the Arizona school’s survival.

The American Bar Association, the national accrediting body for law schools, put Arizona Summit on a twoyear probation in March 2017 for being out of compliance with admissions policies and academic standards and for failing to maintain a rigorous program. In January, the Bar Association notified the school that it was also out of compliance for having insufficient finances.

Arizona Summit officials said they believe the school now fully complies with the association’s standards and are asking to have the prohibition lifted.

The school has raised its admission standards, requiring higher test scores. It also added counselors to help students and is emphasizing bar-exam preparation. Officials said they have completed a multimillion-dollar fundraising campaign to strengthen the school’s financial position.

The Charlotte school closed last year after being put on probation by the ABA and losing its federal student-loan funding.

Florida Coastal sued the American Bar Association earlier this month after the association found the school out of compliance in October with its accreditation standards. The lawsuit accuses the ABA of arbitrary and inconsistent enforcement of those standards.

Lively, 70, has spent the past year trying to craft a succession plan for Arizona Summit and Florida Coastal. That plan includes trying to affiliate them with a non-profit university.

He said he never envisioned that the for-profit model that made the schools possible would open the schools to such criticism and scrutiny, eventually threatening their very existence.

He always assumed people would just see his good intentions: to fulfill the school’s mission of student diversity.

Skin in the game

Lively started a school primarily because of what he saw as the legal profession’s hypocrisy. Although talk about needing to be more diverse abounded, it didn’t match the reality at law schools, he said.

The problem, he said, is most law schools are driven by the U.S. News &

World Report rankings, which are based partly on grades and LSAT scores and also on how selective a school is in its

admission process.

Lively contends law schools cannot prioritize rankings and pursue diversity — as historically disadvantaged minorities often have lower test scores.

In 1992, while a tenured professor at the University of Toledo College of Law, he began to pitch his idea for a new type of law school.

His first focus was on historically black colleges and universities, which were established before the Civil Rights Act to mainly serve African-Americans.

They would become interested, said Lively, who is white. But the conversation would shift to how quickly Lively could get a new law school up in the rankings.

Lively knew this would be a problem area. To include underserved students, the school would have to take students who had lacked access to good education systems and were in catch-up mode. Their test scores wouldn’t be among the top.

From 1992 to 1994, Lively tried unsuccessfully to get university officials interested in his vision.

The Florida Times-Union published a story about his idea, which caught the attention of Bernie and Rita Turner, a retired couple living in Naples.

In the 1970s, the Turners, both former teachers, had co-founded Walden University, one of the first online graduatedegree programs for adults. They were looking for a new venture.

“Typically, the leaders of society have a legal background,” Bernie Turner told the Naples Daily News in a 2014 interview. “This was very meaningful to us because we wanted that institution to convey the importance and the responsibility of those graduates to make society better.”

The Turners assembled investors. Lively was also required to put in money so he had “skin into the game.”

He said he drained his bank account, borrowed from his father and maxed out credit cards. He resigned his tenured faculty position.

Colleagues thought he had lost his mind, he said.

‘Legal gamble’

The investor group chose Jacksonville as the site for the first school, Florida Coastal, because the closest law school was about 75 miles away, at the University of Florida in Gainesville.

A 1995 Florida Times-Union article described the school as a “legal gamble” because of its relatively high tuition ($12,550 a year for part-time students and $15,500 for full-time students) and its lack of track record.

The school wasn’t yet accredited by the ABA, and there was no guarantee it would be. Without accreditation, graduates would be unable to take the bar exam in most states.

Lively said the investor group encountered hostility from the Florida bar. The association couldn’t kick the school out of the state but made it known that the school wasn’t welcome, he said.

But Florida Coastal benefited from a lawsuit filed by another law school that had been turned down for ABA accreditation. A consent degree from the U.S. Justice Department forced the association to begin allowing for-profit institutions.

In 2002, Florida Coastal became the first for-profit school to receive Bar Association accreditation.

The school needed an influx of capital for a more modern building and to grow operations. Plus, the investor group was fracturing.

Lively teamed up with Sterling Partners, a private equity firm, which set up a company to oversee the schools called InfiLaw.

Two more schools followed: Phoenix School of Law in 2004, and Charlotte School of Law in 2006 in North Carolina.

Why Phoenix?

In Arizona, InfiLaw chose Phoenix because the Valley had only one law school.

“Legal education in this city is so impoverished,” Lively told The Arizona Republic in 2004. “There’s a market here, but it’s more than just ‘Here’s a market opportunity.’ There’s also an opportunity to do our type of legal education.”

That included an emphasis on the practical, rather than the scholarly. Graduates would be readied for work in small or midsize firms, or to become sole practitioners.

One of Lively’s first hires was Penny Willrich, an attorney who had served as Arizona’s first African-American woman trial-court judge.

“It was and has remained a very close-knit school,” said Willrich, who is still with the school as interim dean.

The inaugural class had about three dozen students. For Shari Miller, it was the only option.

“I wanted to go to law school, and ASU was not interested in offering an evening program, and I needed to work full time,” said Miller, who attended classes from 6 to 10 p.m. Monday through Thursday.

Her smallest class had only four students.

Then 48 years old, she was one of the school’s oldest students and had no aspirations to become an associate in a big law firm.

“It was going to serve the needs I had,” said Miller, who became the school’s first graduate in December 2007. She passed the bar exam on the first try and opened a private practice in Flagstaff.

Enrollment grew steadily, especially after the school received provisional accreditation from the ABA in 2007, making graduates eligible to sit for the bar exam.

The first class boasted a 97 percent passage rate, the highest among the state’s three law schools, on the Arizona bar exam in July 2008.

School officials also were at a crossroads. If they focused on admitting students with higher scores, they would never fulfill the mission of diversity.

But Lively’s mission came with an inherent risk: To build a diverse student body, the school had to accept students with lower credentials.

Lower admission standards

The Arizona school added hundreds of students over the years. Enrollment reached the 700s by 2011. By 2013, it had peaked at around 1,000.

The school accepted students with lower grade-point averages and lower LSAT scores. From 2009 to 2016, incoming students’ median LSAT score declined from 153 to 143 (on a scale of 180).

There is a statistical relationship between LSAT score and the chances of succeeding on the bar exam, said Kyle McEntee, executive director of Law School Transparency, a non-profit group tracking data on the nation’s law schools.

Students who score below 145 are considered “extreme risks,” he said.

“Those students are less likely to be able to pass the bar exam, which is a minimum expectation for someone who spends three years and hundreds of thousands of dollars on law school,” he said.

The school also began allowing students with lower LSAT scores to be admitted if they passed a five-week program called the Alternative Admission Model Program for Legal Education, or AAMPLE. The program consisted of two intensive law-school courses.

School officials later discovered some students admitted under AAMPLE had poor first-time passage rates on the bar exam.

After the share of students passing the Arizona bar exam on the first try plummeted to 25 percent in July 2016, Arizona Summit officials made changes.

They ended AAMPLE in December 2016. They also raised admission standards; the median LSAT score was 148 for 2017.

Departure from tradition

The school also changed its first-year curriculum in 2012, in a departure from traditional law schools.

First-year students typically take Torts and Civil Procedure as separate courses. But the Arizona school combined them. School officials would later find that students weren’t getting enough instruction in either subject.

The school also made optional some courses that were tested on the bar exam. Students, for example, could choose one of three courses: Business Associations, Commercial Paper or Secured Transactions. All three are tested on the bar exam.

The result, Lively said, was that graduates lacked a solid foundation.

“You can’t take the bar exam successfully if you haven’t been exposed to the subject matter,” he said.

The school’s former dean, Shirley Mays, said the changes were a “well-intentioned but misguided” effort to have fewer requirements. It was also hoped that offering more flexibility would keep students from transferring to ASU’s law school.

Each January, phones would ring in the admissions office at ASU’s Sandra Day O’Connor College of Law. It was Arizona Summit students calling about transferring after just one semester at the school.

The state university, blocks away in a new building, is less expensive, has a better employment record and is ranked No. 27 in the nation by U.S. News & World Report.

ASU typically takes the top 25 percent of Arizona Summit’s class each year, Lively said. In 2016-17, ASU accepted 24 Summit students out of a total 56 transfer students that year.

Michael Markos, a 2017 graduate of ASU’s law school, spent a year at Arizona Summit before transferring to ASU.

Cost wasn’t a factor for the Glendale resident. He had a partial scholarship at Arizona Summit; transferring to ASU cost him about $1,000 more a year. He said school reputation was the deciding factor.

“It’s a no-brainer,” said the 25-yearold, who is working at a Tempe firm, practicing trademark law.

The biggest fallout from the changes at Arizona Summit: More students have trouble passing the bar exam on the first try.

The percentage began declining in 2013 and continued until reaching a low of 25 percent in July 2016.

The ABA released a new analysis in March that for the first time looked at bar-passage rates over two years. By that measure, Arizona Summit had the lowest passage rate in the country for its 2015 graduates, at 60 percent.

School officials said they are confident the changes they have made will result in fewer students having to take the bar exam multiple times.

But a question lingers: Will the changes improve the school’s reputation with prospective students?

Willrich, the interim dean, said the school’s probationary status with the ABA has resulted in fewer applications and fewer students enrolling. And if prospective students get accepted to more than one law school, they generally accept the other school’s offer rather than taking the risk of a school on probation, she said.

Arizona Summit once enrolled as many as 1,000 students, occupying eight floors of One North Central (formerly the Phelps Dodge building) in downtown Phoenix. A spacious, streetlevel lobby greeted visitors.

Enrollment has shrunk to 145 students. And the school has consolidated onto three floors of the high-rise. The roomy lobby is gone.

Willrich predicts an even smaller enrollment of 130 students for the fall, although that likely will increase if the Bar Association takes the school off probation.

With fewer students paying tuition, revenue has fallen.

Audited financial statements filed with the state’s licensing board show the school had $12 million in revenue in fiscal 2017, down from $22 million the previous year. After expenses, the school had a net loss of $3.3 million in 2017.

The school is on stepped-up monitoring from the Arizona State Board for Private Postsecondary Education, the licensing agency for for-profit colleges. The board required Arizona Summit to post a $1.5 million surety bond to guarantee students would be repaid should the school fail.

School officials in January told The

Republic that the parent company had completed a multimillion-dollar capital campaign to strengthen the school’s finances and had cut costs to reflect lower enrollment.

Lively said he believes the school is financially viable and added that it’s not unusual for a law school to experience periodic deficits.

“It makes me sad they are struggling so much,” said Phoenix attorney Jessica Burguan, who was in the first graduating class in 2008.

She likely never would have pursued a legal career without Summit. She had been a teacher for 12 years and wanted a more lucrative career. She had a husband and two children. Moving to go to school wasn’t possible.

She passed the Arizona bar exam on the first try. The 48-year-old, an attorney for the past decade, specializes in juvenile and employment law.

“My experience there was absolutely amazing,” she said of the school. “We had super-small class sizes, and everything was geared toward being practiceready.”

Kyle McEntee, the executive director of Law School Transparency, sees a confluence of factors working against Arizona Summit: low bar-exam passage rates, falling enrollment, probationary status and recent troubles with its sister schools. “I don’t see how the school can survive,” he said.

School officials said they are committed to keeping the school open. Willrich likens the changes to the start of a new era for the law school.

Lively, the founder, said he wants Arizona Summit to have the impact he originally envisioned — including a more-diverse legal profession.

To survive, though, he recognizes the school will have to throw out the financial model that made it possible.

“‘For-profit’ is such an albatross,” he said.