ABA responds to accreditation panel's threat to suspend its role
Facing a Department of Education panel recommendation that the ABA’s accreditation power for new law schools be suspended for one year, the association has responded by filing a confidential comment.
“We think we’re in compliance with the standards,” says Barry Currier, ABA managing director of accreditation and legal education. “The Department of Education staff found us in compliance with the standards.”
A June discussion by the National Advisory Committee on Institutional Quality and Integrity swirled around enforcement of accreditation standards and the need for a response to law school costs, student debt and the lack of lawyer jobs. The fact that no law schools have had ABA accreditation withdrawn over the past five years and that the organization continues to accredit new ones while law school tuition rises and the number of jobs in the profession shrinks were all part of the debate.
“This feels like an agency that is out of step with a crisis in its profession,” said Paul LeBlanc, a committee member and president of Southern New Hampshire University, “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.”
The discussion (PDF) was wide-ranging, including whether the panel even had the power to make such a recommendation under the rules set for it. And after the vote, it was noted that, should the Department of Education endorse the recommendation, the council of the ABA Section of Legal Education and Admissions to the Bar could appeal, delaying any action.
“I think there’s no story here,” Currier told the ABA Journal in July, “until the decision is made by the department. It’s premature to speculate on the outcome of a process that’s ongoing.”
Two years ago, the Department of Education tied career-college student aid to recent graduates’ income/loan debt ratios, and some wondered whether law schools might be next. At the same meeting that brought the ABA accreditation suspension recommendation, the panel voted to de-recognize the Accrediting Council for Independent Colleges and Schools, a large group that accredits many for-profit colleges.
“The fact that the department is doing this to the ABA signals that there’s going to be a convergence on accountability looking at outcomes,” says David Mulligan, the CEO of Eduvantis, a business and marketing group that works with universities.
“The practical implication of this recommendation is not significant other than it’s a warning shot to accreditation bodies—not only the ABA—that the department is going to be holding them much more accountable,” says Mulligan, who advises law schools on downsizing as well as building nondues revenue.
In January 2017, the legal education section is to visit the University of North Texas Dallas College of Law, which has applied for provisional ABA accreditation. If the advisory committee recommendation is adopted by the agency, it’s unclear what that will mean for UNT Dallas, says Pete Wentz, a former associate dean at Northwestern University’s Pritzker School of Law.
“If it’s not the ABA, then who would accredit law schools?” asks Wentz, now an executive director with the strategic communications group APCO Worldwide. “I’d think the department would do its best to not accept the recommendation, or at least allow the ABA to meet the challenges or questions in the staff report.” Wentz thinks it’s unusual for the panel to make a recommendation different from the one made by department staff.
“The broader challenges to the ABA’s authority were a complete surprise,” says Deborah Merritt, a law professor at Ohio State University. “Nothing in the staff reports preceding the meeting suggested that there were serious concerns about the ABA’s status as an accreditor.”
That being said, Merritt notes the ABA has been under pressure about outcomes for law school graduates and accurate reporting by the schools. A pending ABA proposal seeks to require that 75 percent of ABA-accredited law school graduates who sit for bar exams pass the tests in two years, rather than the existing five-year requirement. An open hearing on the proposal was scheduled for Aug. 6 during the ABA Annual Meeting.
“I suspect the Department of Education recommendation will make this proposal more likely to get favorable comments,” Merritt says. The existing five-year standard is easy to meet, she adds, and has many loopholes.
Also, the ABA announced in June that for the first time it would be conducting random audits of jobs data provided by law schools for the class of 2015.
The committee’s recommendation could also nudge law schools, through ABA accreditation, to offer a more up-to-date legal education, which better serves the public’s needs, some law school critics say.
“To the extent that law schools and the ABA continue to want to create these elite institutions that all look alike, they’re living in the past, and the future is something different,” says George Critchlow, a professor emeritus at Gonzaga University School of Law. He’s the author of Beyond Elitism: Legal Education for the Public Good.
If the Department of Education were to take the same approach with law schools as it has with for-profit colleges, it could be “game changing,” says Paul Caron, a Pepperdine University School of Law associate dean. But he’s also skeptical about whether the ABA will vigorously enforce any student standards that they put into place.
“They need to move from task forces and reports to concrete action,” Caron says. “They’ve been good about having blue ribbon commissions put out thoughtful reports. Translating that into action, I suspect, is what the Department of Education would like.”
This article originally appeared in the September 2016 issue of the ABA Journal with this headline: “Accreditation Question: ABA responds to panel’s threat to suspend its role.”