Thomas Joseph Bentey flunked out of St. Thomas University School of Law of Miami, and claims it was a conspiracy of the school to admit students it knew would flunk out, and wants his tuition and room and board back (as well as damages for lost wages and “embarrassment”). (The complaint also complains that Bentey’s mother called the law school, but that it refused to review his C grade in Contracts II, and seeks an injunction for a review of the grade.) The attorneys seek class action status, which is frivolous on its face, because the individualized issue of whether a St. Thomas student flunked out because of their own underachieving would clearly predominate any group inquiry even if the conspiracy theory had any basis in rationality. One might also make some adverse inferences about Bentey’s attorney, Michael Lombardi of Lombardi & Lombardi, for coming up with such a cockamamie theory of recovery that will only result in more embarrassment for his client, but he is a “Super Lawyer.” Other defendants in the shotgun complaint include the ABA and the Department of Education, suggesting hopes for a number of nuisance settlements. (Bentey v. St. Thomas University School of Law, No. 2:06-cv-03463-PGS-RJH (D.N.J.); Leigh Jones, “Law School Sued for Expelling Students”, National Law Journal, Sep. 1).
Update: Orin Kerr comments at the VC blog.
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It worked in England, about six months ago.
I haven’t read into it too deeply, but there was a series of posts on the Volokh Conspiracy accusing law schools of admitting people who were statistically likely to fail just to keep the diversity numbers up, so it doesn’t seem completely outlandish.
Mr. Cooper: I vehemently disagree. The statistics are not the whole story–the issue is also giving people a chance. If 5 out of 10 people with a set of LSAT scores and grades will fail, that means that 5 out of 10 will succeed (at least until the bar). I refuse to believe that most people of average intelligence cannot pass lasw school.
Loads of irony and plenty of opportunity for gags here, needless to say.
Still, the over-admission of law students is a problem. Especially for mid and lower-tier law schools, where landing in the bottom or even middle of the class results in a non-starter of a legal career (plaintiff’s “C” situation probably sounds laughable to non-lawyers, but a “C” in a big, first-year class in a non-Ivy League law school can pretty much put the kibosh on your chances of landing a job). And plaintiff’s theory here is at least plausible: admit a bunch up front for the cash, trim ’em at the other end to bump up the bar pass rate = some kind of fraud. They’re right that law schools aren’t supposed to be admitting too many can’t-passers. Ideally, almost everyone who gets into law school should be able to pass the courses and the bar – I’m thinking that no more than about 5 percent should be shut out totally like this. The place they should be culled is BEFORE THEY’RE ADMITTED TO LAW SCHOOL. Because the time, effort and expense of law school and the bar is considerable – a big ol’ chunk of your life. Admission to law school is a very bad time to be kindling false hopes.
But there’s pressure for increased opportunities for a shot at a legal career today. Because, you know, lawyers are big cheeses in our society, they can do so much “good” (liberal view) with their litigating, etc. In the egalitarian society said to be so grand, everyone’s got to be a lawyer, right? The liberal establishment doesn’t want to keep the next Johnnie Cochran kept from a law career because of some nasty ol’ grades, bar exams or otherwise elitist standards.
Does anyone who grants that the theory of this suit might be remotely plausible disagree that an equal number of suits would be filed if these marginal students were “culled before they’re admitted”? I mean, we’ve all read Overlawyered long enough to know that a litigious student will file whether they are cut before or after admission.
And plaintiff’s theory here is at least plausible: admit a bunch up front for the cash, trim ’em at the other end to bump up the bar pass rate = some kind of fraud.
Am I being naive to suggest that “fraud” requires some misrepresentation upon which the victim reasonably relied? (Yes, if Overlawyered teaches us anything, it’s that modern consumer protection law requires only that the defendant have deep pockets; you don’t even need a victim.) What “kind of fraud” is it?
Pete, there would be nothing deceptive about denying admission. Further, there would be no justifiable reliance.
I don’t understand why a C average should result in expulsion. Many top litigators were C students.
This case is delicious since both sides are heinous.
It appears that Mr. Bentey should have taken to heart Groucho Marx’s famous quip that he wouldn’t want to join any club that would have him as a member.
Bob, the suits that would be filed by the marginal students who didn’t get in to law school wouldn’t be reliance/fraud based. The basis would most likely some sort of discrimination, probably from some white kid who had the same grades and scores as the non-white kid who was admitted. You could probably even work in some sort of reliance claim based on admission numbers from previous years. These are wannabe law students we’re talking about here. Of course they’ll find a way to sue if their feelings have been hurt.
Law school is in a way, like a business scam. Think about it,
A section (of say 80 students) pay $2.4 million ($30,000 each) and what to they get?
(1) Five professors for one year,
(2) access to Westlaw (which the school gets for free any way),
(3) access to a library
(4) a place to sit while the professor talks.
(5) access to the school’s job placement powers (including career services, contacts made at the school, school prestige and so on.)
There is no way the five items above cost $2.4million. The margins on law school have to be huge.
As long as there is no fraud (the student isn’t being promised something the school doesn’t deliver) then this is perfectly legal in our economic system.
However, in my opinion schools inflate the 5th item above, and in that sense con students into attending law school when in fact it might not be the best decision for them.
If the plaintiff’s lawsuit draws attention to this problem, then more power to him.
P.S. I didn’t explain how the plaintiff’s lawsuit relates to what I wrote above. Most people probably caught on but, so there is no confusion:
The scam eventually unfolds when your bar passage rate falls below the ABA’s accreditation requirements. One way to game this is by letting students in for a year but making sure to fail them out before they can affect the school’s bar passage rate. You don’t get the full benefit of the scam (3 years’ revenue) but you still get a year of revenue.
I’m sympathetic to this claim, if only because the plaintiff will be precluded from sitting for the bar. In my opinion, every state should permit potential lawyers to learn the trade by some means other than attending law school. A few states such as Washington still allow this, but most have opted to permit a monopoly on the means of admission to the bar under the guise of protecting consumers. I think it’s a crock.
[…] We wrote about this lawsuit when it was first filed in 2006, and were curious what was up with it. Bentey flunked St. Thomas U Law School; he then retained an attorney, Michael Lombardi, to sue numerous defendants alleging that it was consumer fraud for St. Thomas to admit him in the first place and seeking an injunction over Bentey’s contracts grade, suggesting a second person who should’ve flunked law school. The case was transferred from New Jersey to the Southern District of Florida in December 2006, and the multiple defendants filed a joint motion to dismiss in March 2007. The parties then apparently agreed that Bentey would voluntarily dismiss his case in April 2007; the terms of the settlement were not publicly discussed, but I’d be surprised if they weren’t simply a walk-away. […]