ABA legal ed section set to send various standards and rules revisions to House of Delegates
The council of the Section of Legal Education and Admissions to the Bar, which met at the Park Hyatt Chicago in an open session Friday, approved various proposed revisions to accreditation rules and standards, but tabled, for further discussion, a suggested change to Standard 206, which addresses diversity and inclusion.
The standard states that law schools should show their commitment to diversity by providing underrepresented groups, “particularly racial and ethnic minorities,” full opportunities to study law and enter the profession. The proposed revision to the standard suggests adding language to make clear that a law school’s commitment to having a diverse faculty and staff includes part-time and adjunct faculty, Barry Currier, managing director of ABA Accreditation and Legal Education, told the ABA Journal.
In the coming year, the council’s standards review subcommittee plans to look at Standard 205, which addresses nondiscrimination and equal opportunity in law school admissions policies and employment, and it makes sense to include the other diversity standard with that examination, Pamela Lysaght, a retired professor from University of Detroit Mercy School of Law and chair of the standards review subcommittee, said at the meeting.
In May, the council adopted Standard 316, which tightened bar passage requirements for ABA-accredited law schools. The standard was not on the agenda when the council met Friday, but the new mandate, and what it will mean for diversity in the profession, came up frequently.
For instance, four diverse bar groups, along with James McGrath, the president and dean of Western Michigan University Cooley Law School, submitted letters about the diversity standard and its relation to Standard 316 at a notice and comment hearing, which look place Aug. 21 in Chicago.
The bar groups’ letter, which was written jointly, also mentioned the newly revised bar pass standard, which as of May 2019 requires that at least 75% of a law school’s graduates who sat for a bar exam pass within two years of graduation. Previously there were various ways to meet the standard, and law schools had five years to do so.
“The amendment [to Standard 206] is devoid of any measurement tools or measurement language. Among other guidance, given the outcome of Standard 316, we expected the proposed amendments to Standard 206 to focus on strategic attention to areas such as the improvement of bar passage rates and equity in financial resources for all law students,” the letter states. It was signed by presidents of the National Bar Association, the Hispanic National Bar Association, the National Asian Pacific American Bar Association and the National Native American Bar Association.
Also, the proposed revision to the diversity standard states that law schools should be able to show their commitment to diversity through “concrete action,” which is vague, according to McGrath’s memo. He told the ABA Journal that Cooley Law has significantly reduced its Fall 2019 entering class to meet the requirements of the newly revised bar pass standard. According to ABA bar data, Cooley Law had a bar passage rate of 69.02% for students who graduated in 2016.
The law school’s fall 2019 entering class as of Aug. 16 has 162 students, and the percentage of students of color in that group dropped by 12.1%, Paul Zelenski, its vice president of enrollment and student services, told the ABA Journal. Last year, the fall 2018 entering class had 359 students.
A memo explaining all of the proposed standards and rules revisions, which with the exception of the diversity standard were approved by the council, can be found here. Approved proposed revisions include updates to rules regarding administrative hearings, listing a specific date for when law schools should have student transcripts on file and clarifying a standard regarding study outside the United States.
Under ABA rules, proposed revisions to law school standards and rules go to the House of Delegates following council approval. The House can send the proposed revisions back to the council twice for review with or without recommendations, but the council has the final decision on matters related to law school accreditation. It is expected that the proposed revisions approved by the council will go the House of Delegates at the February 2020 midyear meeting, Currier said.
Also on Friday, the council, after much discussion, approved a motion to not include law school bar pass rates by race and gender in the Standard 509 public reporting forms this year. The council added the race and gender question in May to its bar passage outcomes questionnaire, and will discuss the matter again in May 2020, Currier said.
Many groups opposed to the new bar passage standard stated that its implementation would hurt diversity in the profession, and before the revision was adopted, the council was often asked if there was public information that breaks out law school bar pass rates by race, said Daniel Thies, an Urbana, Illinois, lawyer.
“There are two reasons to report the data, and one is for consumer protection. For members of various minority groups, this is a relevant data point for them,” said Thies, who added that the data is also important for policymakers and stakeholders, including the council.
“It tells us something about a law school that’s consistently having poor bar passage data for minority students, and not white students. That would be relevant to our function,” he said.
U.S. District Court Judge Solomon Oliver Jr., a council member who sits in the Northern District of Ohio, expressed concern about disclosing the data.
“Anytime you collect racial data—and sometimes it’s really necessary—it can also be used in very pernicious ways. It can be used in discouraging students to go to law school, and it could also allow people to use the information in a mischievous way. If it turns out that minority students pass the bar in lower rates than others, the kinds of mischief people can make, in terms of racist comments and exchange, can be pretty serious and detrimental,” he said.