In what could mark a potential turning point for U.S. legal education, the American Bar Association faces serious questions about its future as the federally-recognized accreditor of law schools.
Misleading job statistics, increasing enrollment of students who from the start appear at risk of not graduating or passing the bar exam, higher debt loads — those were just a few problems raised at the June 24 meeting of the federal committee that oversees higher education accreditation, according to a transcript released this week.
“This feels like an agency that is out of step with a crisis in its profession, out of step with the changes in higher ed and out of step with the plight of the students that are going through the law schools,” Paul LeBlanc, president of Southern New Hampshire University and a member of the committee, said of the ABA at the meeting.
“I wish we had something other than the nuclear option,” he said.
As Big Law Business reported in June, the U.S. Department of Education’s National Advisory Committee on Institutional Quality and Integrity (NACIQI) voted 6-4 to recommend suspending the ABA’s authority to accredit new schools for one year.
The ABA has been recognized as the accreditation authority by the Department of Education since 1952. Accreditation is critical in order for students to receive federal loans.
Despite the harsh words from LeBlanc and others, the ABA still could maintain its accreditation authority.
Within ten weeks, a senior official at the Department of Education will decide whether to accept the NACIQI recommendation. If the decision is to suspend ABA accreditation for one year, it could use that time to rectify concerns about inadequate standards and policies.
Either way, the suspension would only affect law schools that are seeking accreditation. The ABA would still retain its authority over the 204 law schools that are already accredited.
The ABA’s problems occur as the U.S. legal profession experiences a broad transformation.
“The whole legal profession has gone through tremendous upheaval,” said Ralph Wolff, an independent policy consultant focusing on accreditation and quality assurance processes.
Enrollment shrinkage is causing many law schools to run huge deficits, Wolff said. To minimize revenue woes, he said many schools are “admitting students who are less qualified and therefore perform much [worse] on the bar exams.”
Over the past year, law schools have been under fire for potential exploitation, with critics accusing schools of enrolling high-risk students — because of their academic performance – in order to fill budget gaps.
One indication that all is not right with legal education is that bar exam passage rates have plummeted around the country.
“The enormous loan rates of law graduates and salaries are no longer keeping up because the jobs aren’t there in the legal profession,” said Wolff.
At the hearing in June, another member of the NACIQI, Simon Boehme, a Mitchell Scholar at Maynooth University’s Kennedy Institute for Conflict Intervention, asked her fellow committee members “to at some point … start making a stand.”
Dr. Jill Derby, a governance consultant for the Association of Governing Boards of Universities and Colleges, agreed.
Derby said “rubber stamping a recommendation” to the senior Department of Education official was not enough.
“[It] doesn’t feel adequate to me or probably most of the people on this panel” to “look at it again in five years,” she said.
Arthur Keiser, chancellor of Keiser University, said he’s concerned with “a lack of institutions placed on probation even though there have been misrepresentations.”
Nevertheless, four members of the NACIQI did not favor revoking accreditation authority from the ABA. They contended the ABA has made progress in combatting some of these problems, as evidenced by a $250,000 fine imposed on the University of Illinois College of Law in 2012 for inflating LSAT scores and average GPAs of an entering class, as well as by changes to the accreditation standards and a slate of new standards that are on their way.
“I don’t see frankly the legal basis or even the substantive basis to deny recognition of this agency,” said Wolff, the consultant on accreditation.
Over the past few years, the ABA said it has responded to the calls for greater law school transparency in job statistics and scholarship retention. This past December, the ABA asked its standards review committee to revise its standard on what percentage of a school’s graduates must pass the bar in order for the school to keep its accreditation, known as Standard 316.
The ABA also asked the committee to consider how to create an enforceable rule so that schools do not enroll students incapable of completing school or passing the bar exam. This is currently covered under Standard 501, which the ABA has not enforced due to a lack of an objective test with which to monitor law schools.
The revisions to both Standard 316 and Standard 501 are currently out for notice and comment. The ABA will vote in October on whether to adopt the changes, though the strengthened standards will not take effect until the ABA House of Delegates acquiesces in February 2017 at the earliest.
Rebecca Berch, the chair of the ABA Section of Legal Education’s Council and former Chief Justice of the Arizona Supreme Court, acknowledged at the June 24 meeting that many law schools started taking chances on lower-performing students in recent years.
“Things have gotten rockier in the last few years,” said Berch.
Barry Currier, the ABA section’s managing director, also acknowledged that current bar passage standards for accredited law schools are full of loopholes. One makes it impossible for law schools in 14 states to fail the standard, he said.
The ABA representatives also acknowledged that there are no standards for job placement, costs, or debt — although it does not appear the Department of Education has the statutory authority to require standards for costs or debt.
“If the law requires that we have a standard on placement we will have a standard. At the moment it doesn’t and we have followed a disclosure path,” Currier said. But he acknowledged that low placement rates are a problem.
Some of the debate at the NACIQI related to whether the panel had the regulatory authority to do what was best for students and the public.
Members of the NACIQI said they felt powerless to take actions that would truly rectify the problem, because none of the available options including suspending the ABA’s accrediting authority guarantee that all desired changes will take place.
“The framework we have been given by Congress is really quite inadequate to deal with these issues,” said NACIQI member Anne Neal, president of the American Council of Trustees and Alumni. “It needs to be looked at systematically because we find ourselves almost frozen each time we face difficulties with accrediting bodies.”