Accreditation

July 31st, 2016 / By

Earlier this summer, a federal panel recommended suspending the ABA’s power to accredit new law schools for one year. The transcript for that meeting has now been published, so we can examine in detail what happened. It’s clear that the panel intended its action to “send a signal” to the ABA Council that accredits law schools. All of us in legal education need to hear that signal: It affects the standards we adopt for accrediting law schools, as well as the eligibility of our students to take the bar exam.

Background

Let’s start at the beginning. The ABA’s Council of the Section of Legal Education and Admissions to the Bar, as most of us know, accredits law schools. Schools seek that accreditation to attract potential students, qualify existing students for federal loans, and assure that their graduates can sit for the bar exam in every state.

The Department of Education, however, won’t accept just any organization as a bona fide accreditor of educational institutions. The Department has its own process of accrediting the accreditors (aka “turtles all the way down“). Just as law schools have to renew their accreditation periodically, the ABA Council has to renew its credentials with the Department of Education. Our ABA Council is going through that process this year.

A fifteen-member advisory panel, the National Advisory Committee on Institutional Quality and Integrity (“NACIQI”) plays a key role in the Department’s accrediting process: It reviews materials compiled by Department staff, holds a hearing with the agency seeking accreditation, and provides recommendations to the Secretary of Education.

Student Debt and Outcomes

For the last decade, NACIQI has pushed accrediting agencies to gather more data on student costs and outcomes, as well as to monitor those criteria when accrediting educational institutions. Those issues lay at the heart of the ABA Council’s very bad day: NACIQI members hammered the ABA representatives with questions about law student debt, employment outcomes, and bar passage.

In the end, NACIQI concluded that the ABA wasn’t paying enough attention to these issues when accrediting law schools. Committee members discussed the “nuclear option” of recommending denial of the ABA’s reaccreditation, but recognized that would withdraw federal loans from all law students. Instead, to assure that the ABA took its concerns seriously, NACIQI adopted one of its other options: It recommended that the Secretary suspend the ABA’s power to accredit new law schools for one year and requested that the ABA return after that year to update the Department on steps it had taken to better protect students and government lenders.

That’s where the matter stands. The Secretary has not yet acted on NACIQI’s recommendation. If he adopts the recommendation, the ABA could appeal the decision administratively. Pending completion of that process, the ABA’s Council retains full accreditation powers. But how did the ABA get into this mess? And what should we as legal educators do about it?

Four Flaws

NACIQI recently released the transcript of its June 22 meeting with the ABA’s representatives and I’ve read the full discussion. There were four points, I think, that proved particularly damaging to the ABA’s case.

First, the ABA had to concede that our accreditation standards offer students and lenders little protection against schools that charge high tuition while generating weak bar passage rates and employment outcomes. The standards now require law schools to be more transparent on these issues, but transparency alone may not achieve NACIQI’s aim of protecting both students and federal taxpayers. As NACIQI’s website notes, students enrolled in postsecondary institutions “receive an estimated $158 billion in Federal student aid annually.” The Department of Education has a strong interest in ensuring that its money is well spent.

Second, NACIQI questioned the ABA’s enforcement of its current standards. Law student debt has been rising, while job outcomes and bar passage rates have been declining, for some time now. At least a few law schools, NACIQI members noted, appear to produce very high debt for very poor outcomes. Why hadn’t the ABA done anything to put those schools on probation or otherwise enforce its standards?

In response to these questions, ABA representatives explained that they look closely at schools that raise “flags.” They also noted that proposals are pending to tighten the Council’s standards with respect to bar passage and admission of poorly qualified students. They conceded, however, that none of these efforts had come to fruition.

This exchange led to the third flaw: NACIQI members stressed the glacial pace of the ABA’s attempts to address problems in legal education. When an ABA representative reassured the committee that the Council recently began auditing law school employment statistics for accuracy, a committee member observed:

I went back to look at the 2011 transcript [from the ABA’s last review] where you said at that time that you would be designing a protocol so in fact it has taken a very long time and in fact it is just in time to meet with us that you have come up with this auditing so I just want to point that out.

I am glad you have gotten it done but it is amazing to see what a meeting can do to focus one’s attention because I remember back in 2011 we had some pretty heavy conversations prompted by [Senators] Grassley and Boxer and others who were deeply disturbed about this representation of placement rates and duping of students and at that point you promised us [to] keep up and try to work a little faster.

This observation, I think, was key to NACIQI’s decision to put the ABA on a shorter leash. Concerns about the integrity of law school employment statistics were widespread by 2011. Why did it take 5 years for the ABA to develop an auditing process? And why did the Council implement that process only when it was up for reaccreditation? NACIQI members respected some of the ABA’s efforts, but they were frustrated by the pace.

Finally, NACIQI contrasted the ABA’s slowness to protect students and lenders with its vigorous enforcement of standards that benefit full-time faculty while increasing the cost of legal education. Committee members, for example, focused on Standard 403, which requires full-time faculty to teach “substantially all” of the first-year coursework, as well as more than half of all credit hours or two-thirds of the student contact hours.

While acknowledging that full-time faculty offer benefits to students and institutions, a NACIQI member wanted to know: “do you have data that show these time frames are absolutely critical to legal quality education or does it–or regrettably am I forced to wonder if it is [again] something I used earlier, a little bit more of a guild mentality than one that is focused on educational quality and providing it in an affordable way?”

In response to this very candid question, the ABA representatives conceded that there are no “metrics” showing that a substantial portion of the first year must be taught by full-time faculty, or that half of all credit hours must be taught that way. Educators believe that this is necessary for quality education, but there is no hard evidence supporting that particular line.

Where Do We go From Here?

Members of the ABA Council will continue their struggle with NACIQI and the Department of Education. It seems clear that, even if the Secretary continues the ABA’s full accrediting power, the Department wants to see bigger, faster progress on issues related to debt and student outcomes. This, in turn, has implications for all legal educators.

Most professors, I think, measure educational quality by the opportunities we offer students for cognitive development. A high quality program, we think, offers a rich array of courses that teach critical thinking skills, expose students to new perspectives, and expand their understanding of the world. We’re not accustomed to including metrics like cost, job outcomes, or bar passage in our definition of “quality” education.

It’s clear, however, that students, lenders, and the general public do care about these metrics. These groups value the same quality indicators that we cherish, but they also care about costs and jobs. Given the very rapid increase in educational costs, combined with shifting occupational demands, they’re right to care about those issues.

This is especially true for law schools. Our tuition levels very high–some of the highest in the academy. Rather than keep pace with that tuition, our placement and bar passage rates have fallen. At the same time, we haven’t been able to produce graduates who can affordably serve the legal needs of low/moderate-income individuals and small businesses. Students, taxpayers, and the general public are right to worry about these discrepancies.

In the long run, of course, we might all be fine. Over their lifetimes, today’s law school graduates might earn a sufficient premium to offset the high costs of their education. If so, most of them will repay their loans–along with sufficient interest to make taxpayers very happy. At the same time, technology and entrepreneurial spirit might empower those graduates to create new affordable means of providing legal services. If the future unfolds this way, everyone will applaud the quality of today’s legal education.

But the future might not be that bright. Our profession has a particularly poor record of serving low- and middle-income clients. Will we really improve that service at the same time that students pay (and borrow) more than ever for their legal education? Twenty years from now, we might find that a significant number of law graduates have not recouped the cost of their education; that government lenders are not recovering their loans; and that individuals and small businesses are more desperate than ever for affordable legal assistance.

I think students, lenders, and the public want law schools to bear some of that risk. Rather than assert that all is well, they want us to acknowledge the risks they face. They also want us to share those risks by adopting accreditation standards that offer some protection to students, lenders, and the public on matters of cost and outcomes.

Where is the accreditation standard that requires law schools to devote more of their scholarship money to need than to high LSAT scores? Or the one that requires schools to educate students in practice methods that can reduce client costs? Why have we tolerated a bar passage standard that allows schools to maintain full accreditation for years after their bar passage rate dips alarmingly? Why don’t we vigorously enforce our standard that prohibits admission of “an applicant who does not appear capable of satisfactorily completing its program of legal education and being admitted to the bar?”

The Department of Education wants answers to questions like these, and we should be asking those questions as well. Talented institutions, like talented students, can coast for a very long time. Eventually, though, a day of reckoning arrives.

For further updates, see this story in the ABA Journal.

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  • Unemployed_Northeastern

    “MS. ALIOTO: I guess my final concern is with all of the press attention that has been given to what’s happening in the legal profession I know a huge part of it is that we don’t have as many jobs anymore but the other piece of it is that there are some schools that are failing students that you are accrediting and I think that is a problem for…”

    “MR. CURRIER: Failing them in what sense? Failing to give them a decent education or what do you mean by failing them?”

    “MS. ALIOTO: Failing them in terms of giving them a decent education, failing in terms of helping them get employment, failing them in terms of gouging them.”

    OUCH.

  • Chuck

    Wow, that ABA Journal article linked is ridiculously defensive and one-sided.

    • Unemployed_Northeastern

      …And as predictable as the sun rising tomorrow.

  • Sy Abelman

    No one would ever accuse me of being a supporter of Court Appointed George Bush. I give him tremendous credit and look more favorably upon him for “decertifying” the ABA’s veto power and influence over Supreme Court nominations. The ABA is just another trade group and is no different than the Retail Federation or American Trucking Association, etc, etc… The ABA is tone deaf and out of touch with reality on the ground.

  • Guest

    I thought the ABA was taking the position that their old settlement with the Justice Department on antitrust grounds does not allow the ABA to take into account employment outcomes of law graduates in accrediting law schools.

    Maybe you covered this issue before, but does the Department of Education Committee’s position on what the ABA needs to do, and specifically taking into account employment outcomes, square with what the ABA has said in the past as to its obligations to continue accrediting more and more law schools under the antitrust laws to promote competition, without regard to employment outcomes?

    The Justice Department was acting in a very different time under very different circumstances, but can the ABA come back and raise the antitrust laws as prohibiting them from taking into account employment outcomes of law graduates?

    Does the Justice Department need to update or clarify its position on antitrust laws and the ABA’s taking into account employment outcomes of law graduates, as well as perhaps debt and bar passage results, when it acts as accreditor, in light of the current employment and debt crises faced by many law graduates?

  • Guest

    http://abovethelaw.com/2010/01/aba-defends-itself-and-explains-why-it-cant-stop-new-law-schools/

    ABA Defends Itself — and Explains Why It Can’t Stop New Law Schools

    aba_logo_K.gifEarlier this month, Mark Greenbaum penned a blistering op-ed in the Los Angeles Times, blasting the American Bar Association for not exercising greater regulatory control over law schools. Obviously, I’ve been publicly begging the ABA to do something about the proliferation of new law schools and new law students, hoping against hope that lawyers would be afforded the same kind of professional protection that doctors enjoy.

    Apparently, ABA President Carolyn B. Lamm is sick of hearing lawyers and commentators complain about the ABA’s lack of regulatory oversight over the law schools they accredit. Lamm shot back at Greenbaum (and anybody else who thinks there are too many law schools). If you’re hoping for the ABA to step up and stem the tide of new lawyers, Lamm’s message is clear: don’t hold your breath. Here’s the opening to her full-throated defense of the ABA:

    To the Editor:

    You published a recent opinion piece by Mark Greenbaum. His analysis is premised on incorrect facts from which he draws flawed conclusions. He misstates the number of American Bar Association-approved law schools, ties it to what he describes as a “flood of graduates,” and insists the ABA should “block” new schools. He fails to acknowledge that in fact existing law schools have reduced voluntarily class size and therefore despite a minimal increase in the number of accredited law schools (7% over a 5 year period) first year enrollment grew by only two percent. Hardly producing a “flood of graduates”.

    Greenbaum says that there are 200 ABA approved law schools. The ABA website also tells us that there are 200 ABA approved law schools. Lamm explained to Above the Law where she disagrees with Greenbaum’s numbers:

    Mr. Greenbaum said: “Today there are 200 ABA-accredited law schools in the U.S., with more on the way, as many have been awarded provisional accreditation.” There are 200 ABA-approved law schools. That number includes the six provisionally approved schools. And while he complained about an increase in the number of schools, as we pointed out, the relevant number is of students. Due to self-restraint by the schools, that number did not increase significantly. Greenbaum is even inaccurate in identification of ABA-approved schools in California. He says the new law school at UC Irvine is among ABA-approved schools. That school has not yet even applied for ABA approval.

    Well, in fairness UC Irvine will seek provisional accreditation from the ABA in 2010 — which is the earliest possible time for them to do so.

    Still, these are fair points, but not really the heart of the debate here. More from Carolyn Lamm after the jump.

    Really, the debate isn’t just about raw numbers. It’s about the control and oversight the ABA exercises over the law schools that are already here, as well as the ones that insist on coming in the future.

    The central concern is that the ABA accredits too many law schools. But Lamm disagrees. From her letter to the editor:

    Greenbaum’s proposal to erect barriers to entry in the profession and/or to new law schools would violate the antitrust laws of the United States, something the ABA cannot and will not attempt to do. To violate our nation’s laws as we strive to teach new lawyers ethical and responsible practice would offend public trust and disserve future clients. Before so causally dismissing antitrust “concerns,” Greenbaum should consider the basic precepts of antitrust law that ban concerted action to bar entry to a public profession.

    He proposes to protect income of lawyers already in practice by clamping the pipeline for bright, committed, energetic and talented new lawyers preparing to serve the public. Rather, the ABA is working to ensure that our profession is open to all from our communities who wish to serve the public. Our profession and those involved in our justice system must reflect our communities. It is a difficult time for all given the economic crisis.

    Lamm’s letter didn’t specify how exactly the ABA would violate antitrust law should they make the accreditation process more rigorous. But her response to Above the Law expanded on her concerns:

    Neither I nor ABA oppose appropriate and responsible regulation. The antitrust restraint in which we cannot participate is in erecting artificial barriers to entry or limiting students’ entry to the profession. What we oppose is regulation with a goal of restricting the number of law schools, an approach that Greenbaum clearly is advocating. He suggests the American Dental Association “assiduously guards the profession and has allowed respected dental schools … to close for economic reasons and to prevent market saturation.” We can’t speak for the ADA, of course, and the ADA might well quibble with Greenbaum’s description of its practices and rationale. But there is a huge difference between allowing a school to close and his suggestion that the ABA should “curtail the opening of new programs and perhaps even shut down unneeded schools.”

    The ABA is responsible to the Department of Education in fulfilling its accrediting function, and a key principle in DoE recognition of an accrediting agency is that it be demonstrably independent of the profession served by the schools it accredits, to prevent the profession from imposing protectionist policies on behalf of those already practicing. That is why the ABA Section of Legal Education and Admissions to the Bar is actually the recognized accrediting agency, and

    not the ABA as a whole. The section is required to maintain financial and policy independence from the association, and while it advises ABA governing bodies of its accreditation policies, those bodies do not have veto authority over section decisions. A check of your news archives

    will likely show the ABA entered a consent decree with the Department of Justice in 1996, and submitted to 10 years of compliance oversight, over just those kinds of issues.

    It makes perfect sense that the DoE has an interest in preventing practicing professionals from choking off the influx of younger, cheaper competitors. But doesn’t the DoE also have a compelling interest in preventing educational institutions from duping young people into incurring educational costs that they can’t afford in a profession that doesn’t have enough jobs for them? The proliferation of law schools doesn’t just hurt lawyers already on the market. It hurts future students, who go to law school relying on a salary that most of them will never achieve, expecting jobs that do not exist.

    If law schools were inexpensive, that would be one thing. But they’re not. Law schools are ridiculously expensive, and the costs of the education are going up even though we’re in a deflationary period with regard to legal salaries. New law schools — and the “unneeded” law schools that Greenbaum refers to — are conducting a bait and switch on their prospective students. The bait is high salaries and job security (an illusory promise for the vast majority of non-first tier law schools). The switch is hustling for personal injury work and other unsavory (and not particularly public-interest oriented) practices, as they struggle to maximize their income once they realize that immigration attorneys can’t afford a mortgage. And in the bargain, young students start out their professional lives saddled with enormous debt. I can’t imagine the DoE having a problem if the ABA wanted to step in and do something about that.

    Lamm’s letter claims that the ABA is doing what it can to make sure prospective law students know what they are getting into:

    On its web site (http://www.abanet.org/legaled/prelaw/prep.html) the ABA however does provide young people who wish to become lawyers with realistic information about the economy and their own prospects for employment. The ABA also strives to help lawyers already in practice to cope with an economy that is a challenge for everyone, and to help their clients weather the crisis until we all enjoy economic recovery.

    Lamm further explained to ATL that the ABA is looking into whether or not it needs to do more to keep law schools honest about the employment prospects of their graduates:

    Finally, with respect to your specific question about requiring changes in the way schools report salary and employment information on their recent graduates, the Section is in fact looking at ways it might revise its annual questionnaire to law schools to elicit additional information. While there is no evidence that we have seen that schools are inaccurate in their reports, we may not be asking all the right questions, and that is under review. But we also encourage prospective students to consider carefully their decision to attend law school, their choices of schools and how they finance legal education. We are concerned about student debt and the burden it places on graduates. But we do not equate that concern with limiting entry into the profession. As I said in my letter, we believe it is important that the legal profession be open to entry from all elements of society. The law is not and should not be a closed club.

    Obviously, the legal profession should not be the exclusive province of a select few. But the unmistakable truth is this: right now, the most important oversight over legal education in this country is performed by U.S. News & World Report, not the ABA. I say again, a magazine has more influence over law school deans than the American Bar Association. There is direct evidence from the federal government that U.S. News has significant influence on something as basic as law school tuition.

    And, given the importance of U.S. News, there have been many discussions about how law schools will massage the numbers in order to make themselves look pretty for U.S. News. Should being deferred for a year count as being “employed upon graduation”? What about getting an LLM? What about getting a contract attorney position? What about being a babysitter? I don’t know where the ABA stands on these issues, but I know where U.S. News stands on these issues (yes to all). And so long as U.S. News counts these people as employed, then it really doesn’t matter what kinds of questions the ABA is asking.

    Think about that for a second. From behind the veil of ignorance, would you really design a educational system where a magazine has more influence over school administrators than the professional organization?

    Somewhere between protectionist policies that aggressively suppress new lawyers and laissez-faire attitudes that turn a law degree into something that can be purchased at Wal-Mart, there has to be a middle ground of sensible regulation. Surely, there has to be some kind of way for the ABA to exert at least as much influence over legal education in this country as a magazine.

    Now, I have no idea how the ABA actually goes about exerting that influence. Reasonable people will disagree, and it certainly appears that Lamm is aware of the issues and looking for a way to help. But I think that’s what Greenbaum was getting at.

    Sadly, in the end, the only thing that is sure to work will be if prospective law students actually take their heads out of the sand and look around before they leap into three years of education. But have you ever tried to tell a 22-year-old who has grown up on Boston Legal episodes what it’s like to be a lawyer? It’s like trying to convince a dog to use a toilet bowl. Prospective law students just stare back at you as if to say: “Why would I carefully consider the most appropriate options for my life when I can just walk outside and pee all over myself?”

    So despite the best efforts of Greenbaum and Lamm and people like me, expect law school applications to keep flowing in.

    Earlier: No. More. Law Schools!

    New Villain in Law School Debt Tragedy

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