See You in 18 Months
It’s normal for the American Bar Association to come in for criticism when the U.S. Department of Education holds hearings every five years or so to consider whether to extend its recognition of the ABA as the national accrediting body for law schools in the United States.
After all, law schools and other groups interested in legal education standards use the hearings as a forum for offering their critiques of various aspects of the ABA’s accreditation process.
But at the most recent hearing, held in early December, the accreditation process came in for even tougher criticism than usual. Notably, much of it was contained in a 36-page report prepared by staff members of the Education Department.
The upshot is that the ABA will be coming back for another accreditation reauthorization hearing by the DOE in 18 months, rather than the standard five years.
While the staff report identified 16 “issues or problems” with the ABA’s accreditation process, the primary focus of its ire—and the main topic of discussion at the hearing—was the recently amended standard for measuring the commitment of law schools to achieving diversity in their student ranks.
Revised Standard 211 of the ABA Standards for Approval of Law Schools states that “a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity.”
The revision was approved last February by the council of the Section of Legal Education and Admissions to the Bar, the ABA entity responsible for law school accreditation. In August, the association’s policy-making House of Delegates concurred in the council’s revisions.
the legal education section’s report to the House says revisions to Standard 211 and related provisions in the law school standards don’t require schools to consider race, ethnicity and gender in their admissions decisions. (Schools may, however, do so as permitted by the 2003 U.S. Supreme Court decision in Grutter v. Bollinger, 539 U.S. 306.)
But the Education Department staff report characterized revised Standard 211 as “vague and ambiguous,” thus making compliance difficult.
At the hearing conducted by the department’s National Advisory Committee on Institutional Quality and Integrity, staff members testified that the ABA standard unfairly pressured law schools to adopt affirmative action policies that could violate the laws of at least four states that outlaw or restrict the use of affirmative action.
Staff members asked the advisory committee to recommend to Secretary of Education Margaret Spellings that the legal education section’s council be subject to strict reporting requirements about its new standard.
Ultimately, the committee rejected the DOE staff recommendation in a 6-2 vote. The recommendations of the committee and staff both have gone to Spellings, who has discretion to make a final decision in the matter. A department spokesperson said there is no time limit for Spellings to take any further action.
In the meantime, however, it was clear that the advisory committee was sending a message when it voted to extend only an 18-month reauthorization to the Education Department’s recognition of the ABA as the national accrediting body for law schools.
“What they want to do is get us back in there and talk about diversity, which is why there is a short leash on this,” says William R. Rakes of Roanoke, Va., who chairs the ABA’s legal education section.
Rakes says there may have been a certain “laxness” on the part of the legal education section’s council in dealing with the DOE and the advisory committee in the past.
But he also says the council already had taken steps to resolve nearly all of the 16 compliance issues raised in the staff report. Many of the complaints, he says, involved practices of the council that simply had not been committed to writing. “We’re doing what’s required to be done, but we just don’t have [procedures] appropriately documented,” says Rakes, who acknowledged that it’s “a bit embarrassing to me to hear the committee say lawyers ought to be able to read the regulations and comply with them.”
Rakes says he does not want a repeat of December’s hearing. “There will always be detractors,” he says, “but we are not going to go before the committee again and shoot ourselves in the foot with small compliance issues that we can easily correct. We’re putting together a plan to make absolutely certain that does not happen again.”
Shortly after becoming chair of the section in August, Rakes appointed a task force to “look at the philosophical underpinnings of our standards.” The task force scheduled public hearings for January in Washington, D.C., and February in Miami during the ABA Midyear Meeting. Rakes says he expects to receive the task force’s final report by June.
The ABA doesn’t officially derive its authority to accredit law schools from the Department of Education, but the department’s recognition of the association’s accreditation function lends it significant credibility.
The ABA began accrediting law schools in 1923, and that function was first recognized by the Education Department in 1952. The ABA now accredits 195 law schools, 180 of which rely on that accreditation for their students to sit for the bar in their respective states. Seventeen law schools are freestanding institutions that use ABA accreditation as a basis for receiving federal funding from the Education Department.
While Rakes and other representatives of the Section of Legal Education and Admissions to the Bar have expressed contriteness about some past breakdowns in dealings with the Department of Education, they stand by the law school approval standard on equal opportunity and diversity that triggered most of the criticism from the DOE staff report.
They also have raised concerns about whether some of the staff criticisms at the hearing were politically motivated.
“We’re troubled that our petition and our diversity standard may have been prejudged by certain political appointees within the Department of Education, which has controlled the staff analysis which was ultimately presented,” Rakes told the advisory committee, according to transcripts of the hearing.
Mary C. Daly, dean of St. John’s University School of Law in New York City, was one of several deans who testified in favor of the association. She said after the hearing that while many of the opponents who showed up had some valid criticisms, those who spoke against the diversity standard were “misguided.” Daly also characterized the debate over the diversity standard as overly political.
“I think there’s more politics mixed in than there should be,” she said, noting that much of the conflict at the hearing stemmed from a “fundamental hostility to affirmative action remedies.”
No law schools testified in opposition to the ABA diversity standard at the hearing of the Education Department’s advisory committee. But organizations that have long opposed affirmative action, including the Center for Equal Opportunity, testified against reauthorizing the legal education section council because of the diversity standard.
Several deans—even some who appeared in favor of the ABA—complained at the hearing that the association’s accreditation process lacks transparency, and that there isn’t a consistent procedure for using bar passage rates when deciding whether a law school should retain its accreditation.
INFLATION AND INNOVATION
John Nussbaumer, associate dean of the Thomas M. Cooley Law School’s Rochester, Mich., campus, was among those who testified that the ABA accrediting procedures actually drive down minority enrollment by inflating the cost of legal education and stifling innovation.
But the concern of others is that bar passage rates are way too low compared to other graduate-level examinations. Bar passage rates have hovered in the 75 percent range for years, while many other professions have rates in the 90s. A law school’s first-time bar passage rate would have to fall below 60 percent before it would find itself in trouble under ABA accreditation standards.
“For a selective graduate school, for 25 percent of graduates not to be able to pass the threshold exam, my own judgment is that’s not acceptable,” says George Pruitt, president of Thomas Edison State College in Trenton, N.J., and a veteran member of the Education Department advisory committee. “It raises the question of the validity of the standards.”
Rakes has identified bar passage rates as a priority for study by the council. “For someone to spend three years going to law school, incur expenses and debt, then only have a two-thirds chance on average of passing the bar exam the first time they take it is risky, and is particularly risky for minority students,” he says.