Charlotte School of Law sues ABA, arguing it was never out of compliance with bar pass rule
Charlotte School of Law. ABA Journal file photo by Albert Dickson.
Updated: Following the Florida Coastal School of Law lawsuit filed against the American Bar Association last week, another InfiLaw school, the now-shuttered Charlotte School of Law, has sued the organization, arguing the ABA violated the law school's due process rights when it placed the law school on probation in November 2016.
After the probation, the Department of Education pulled Charlotte’s federal student loans in 2017, and some former students claim that they were misled by the school about its accreditation problems. Charlotte School of Law closed in August 2017 after the ABA’s Section of Legal Education and Admissions to the Bar rejected a teach-out plan that the school submitted.
“In November 2016, the ABA took the unprecedented step of placing CSL on probation without providing any explanation for its decision. Moreover, in a complete departure from precedent, the ABA imposed the sanction of probation without a recommendation from the Accreditation Committee,” states a Charlotte School of Law press release about the lawsuit.
Florida Coastal, which is not on probation, has been found to be out compliance with various standards regarding admissions and academic support. It’s last hearing was in March.
In a statement posted May 16 to the section’s website, Barry Currier, managing director of ABA Accreditation and Legal Education, wrote that the accreditation process provides “meaningful opportunities” for law schools to establish that they are in compliance with the standards.
“Courts have regularly upheld the ABA’s law school accreditation process. We will continue to follow our established procedures and expect to be successful in any future litigation challenging the actions of the council,” Currier wrote.
Both law schools are represented by Paul D. Clement, a former U.S. solicitor general in the George W. Bush administration, who is now a Kirkland & Ellis partner; Viet D. Dinh, another Kirkland partner who served as an assistant attorney general during same administration, and Christopher Bartolomucci, a Kirkland partner who served as White House associate counsel to President George W. Bush and was associate special counsel to the U.S. Senate Whitewater Committee.
Like the May 10 lawsuit filed by Florida Coastal, Charlotte School of Law’s complaint hinges onto an October 2016 council member quote that accreditation standards were “fuzzy and hard to enforce.” It was made by Maureen O’Rourke during an open session discussion about tightening up Standard 316, the bar passage rule, to require that 75 percent of a school’s graduates must pass a bar exam within a two-year period.
O’Rourke, now chair of the council, voted in favor of the proposed revision, which the ABA House of Delegates shot down in February 2017. The matter is still under consideration by the council. Under ABA rules, the house can send a proposed rule back to the council twice for review with or without recommendations, but the council has the final decision on accreditation standards.
With the current version of Standard 316, there are various ways a law school can be in compliance, and no accredited law school has ever been out of compliance with the rule, Barry Currier, the ABA’s managing director of accreditation and legal education, told the council at the October 2016 meeting.
That includes both Florida Coastal, which had a 47.7 percent state bar pass rate for July 2017, and Charlotte School of Law, where the July 2017 bar state bar pass rate was 34.06 percent, Above the Law reported.
Both law schools were found by the ABA to be out of compliance with Standard 301(a), which states that law schools must have a rigorous program to prepare students to pass a bar exam and practice law, and Standards 501 (a) and (b). The first part directs that accredited law schools have sound admissions policies, while the second part mandates that people who don’t appear capable of graduating from law school or passing a bar exam should not be admitted as students. In March, the Legal Education Section’s accreditation committee found that Florida Coastal had come into complaince with come into compliance with Standard 501(a).
“In contrast to such Standards as 301(a), 501(a), and 501(b) and Interpretation 501, Standard 316 is a clear standard and sets forth objective metrics for assessing compliance. In the period of time relevant to this complaint, Charlotte was always in compliance with Standard 316, and the ABA never found Charlotte to be out of compliance with Standard 316. Charlotte’s compliance with Standard 316, the standard specifically governing bar pass, made it arbitrary and capricious for the Committee to rely on bar pass data to conclude that the law school is out of compliance with the ABA’s ‘fuzzy’ standards that lack objective metrics for assessing compliance,” Charlotte School of Law argues in its complaint, which was filed in the U.S. District Court for the Western District of North Carolina.
If you look at Charlotte over a period of more than 10 years, its overall bar passage rate was more than 80 percent, according to the complaint.
Also mentioned in the Florida Coastal lawsuit, but not in Charlotte’s action, is a recent accreditation finding about Western Michigan University Thomas M. Cooley Law School. In November, the ABA found Cooley was out of compliance with Standard 501(b) and Interpretation 501-1, and the law school sued the ABA. In April, the accreditation committee found that the law school had come into compliance with the standard. The lawsuit is ongoing, according to court information from PacerPro.
Florida Coastal describes the April finding as an “inconsistent same-day decision.” According to the complaint, both Cooley and Florida Coastal had hearings when the committee met in March.
“Like Cooley, Florida Coastal has taken ‘concrete steps’ with respect to its admissions policies and practices,” the lawsuit states. “A comparison of the two law schools’ objective metrics renders the committee’s decision on Florida Coastal arbitrary and capricious.”
Updated May 16 to add statement from Barry Currier.