As ABA Legal Ed council awaits Dept. of Education accreditation decision, educators consider future
U.S. Department of Education Under Secretary Nicholas Kent’s decision regarding the accreditor status of the council of the ABA Section on Legal Education and Admissions to the Bar will come by year’s end, but legal education leaders are already preparing for what it might mean if the council is stripped of its powers.
Last Thursday, the U.S. Department of Education’s National Advisory Committee on Institutional Quality and Integrity voted not to make a recommendation regarding the council’s status as the sole national accreditor of law schools, a role it has held since 1952.
That came after six-plus hours of heated debate the previous day as part of the accreditor’s ongoing five-year review process. The bipartisan panel was ultimately deadlocked and unable to come to an agreement on several different options. One recommended the council lose powers entirely, and two others proposed limiting the council’s powers until it provided documentation that it met department regulations requiring it be separate and independent from the overall ABA.
Now, without a recommendation from the committee, Kent’s final determination will be made based on the transcripts from the committee hearing and an 86-page report from the Department of Education that recommended stripping the council of its national accreditor status. The council will be sending comments during the 10-day response period following the hearing.
The committee’s unexpected deferral is itself an answer, says Kellye Testy, executive director and CEO of the Association of American Law Schools. While many legal educators held their breath during the hearings, expecting the council’s powers to be clawed back, “most people expect there to be a denial” once the under secretary weighs in.
Law schools need accreditation by a nationally recognized body for their students to receive financial aid, and most states require bar candidates to have graduated from an ABA-accredited school. There are 198 ABA-accredited law schools.
If Kent, the No. 2 official in the Education Department, strips the council’s powers, the council will fight back.
“We will then pursue other available remedies, including an appeal to the secretary and, if required, judicial review to demonstrate that there is no factual or legal basis upon which to deny the council’s recognition,” Melissa Hart, council chair, said in a statement.
The committee’s unexpected deferral is itself an answer, says Kellye Testy, executive director and CEO of the Association of American Law Schools. (Photo by Yosef Kalinko)
Business as usual
Any potential appeals and lawsuits could take months to settle, and legal educators are sorting out what comes next in both the short and the long term.
Daniel R. Thies, immediate past chair of the council, told the ABA Journal in July that if the council lost its status, “we’d continue to serve as the gold standard of law school accreditation, as we anticipate that we will continue to be recognized by the state supreme courts.”
Still, legal educators were a bit stunned by the lack of recommendation and what it could mean.
Shortly after the hearing ended Thursday, the Association of American Law Schools held a webinar for law school deans and their leadership teams, Testy says. The educators had many questions, but “the law schools will continue to focus on the education of the students and licensure and getting them into practice,” she adds.
If law schools have a site visit scheduled in the next few months as part of their own reaccreditation, “they’ll wonder how that will impact them,” Testy says. “I think the council is trying to keep regular business going as best it can.”
Independents in limbo?
The most direct and immediate impact of a council status change would fall on freestanding law schools.
Most law schools are part of a university system and rely on the Education Department’s blessing of their parent university’s accreditation for financial aid, leaning only on the council’s separate accreditation to allow their graduates to sit for the bar exam in any state. But independent law schools, without parent universities, don’t have that backstop.
There are 15 independent law schools, and five currently remain without a second accreditor, Education Department committee members said several times during last week’s hearing.
While many of those have been scrambling to receive a nod by another accreditor, the National Association of Standalone Graduate Schools, the coalition representing independent law schools, plans to request a adequate transition period for those needing to secure institutional accreditation if the council’s status is not renewed, says Anthony W. Crowell, the association’s founding president.
The goal is to “avoid adverse consequences for both the institutions and, most importantly, their students,” Crowell, the president and dean of New York Law School adds.
Daniel R. Thies, immediate past chair of the council to the ABA Section of Legal Education and Admissions to the Bar. (Image courtesy of the ABA)
Declaration of independence
Last week’s department hearing came a month after it proposed rules for higher education accreditors, including more pointed criteria about independence.
The proposal states an accreditor must “prove it is fully separate and independent from any related, associated, or affiliated trade or membership organization.”
During its notice and comment period, which ended Sept. 21, that proposal attracted more than 2,800 comments, including a letter from the American Council on Education signed by AALS protesting the changes.
According to Testy, the big question right now is how the council will address that issue of independence. “Were those proposals to become enacted, it would make the case even harder for the council to stay in the ABA,” she says.
During last week’s hearing, the council’s independence, including how much input the ABA House of Delegates has on the council’s decisions on standards, came into focus. The committee considered but ultimately failed to pass two motions to give the council 12 months to prove it meets the current regulations as well as the recently proposed rules, should they become effective within that year.
“We will comply with the new rules if and when they come out,” Thies said during last week’s hearing.
This year, the council has made moves to underscore its autonomy. Before, proposed changes on accreditation standards could be considered by the House of Delegates twice before they could be enacted. That changed in August, when it was reduced to just once.
And in January, the council formed the Accreditation Council of the Section of Legal Education of Admissions to the Bar in an effort to emphasize that it operates separately from the ABA, the target of criticism from President Donald Trump’s administration for a host of issues, including law school accreditation.
More moves might be needed, some say.
“It may be that the council is considering whether there are things they can do to further establish independence beyond the independence that already exists,” says Austen Parrish, dean of the University of California at Irvine School of Law.
State supreme courts
While the council says it will continue to accredit law schools no matter the department’s decision, the key question remains if state supreme courts will recognize the council. Those courts determine who is eligible to sit for the bar exam in their states.
It’s not guaranteed. Earlier this year, the state supreme courts of the Republican-leaning states of Alabama, Texas and Florida made moves to break ties with the council. Other state supreme courts, including Ohio, currently are reevaluating ABA accreditation. Currently none ban ABA accreditation.
Short-term, Parrish expects most states will continue to recognize ABA accreditation as meeting the requirements for bar exam eligibility. “Over time, that could change,” he says. “You could see multiple accreditors, which would increase costs and duplicative regulation.”
It’s a scenario that would impact many aspects of legal education, Parrish says. “If the national system was to unravel, the harms for students, schools and the profession would be significant,” he adds.
Write a letter to the editor, share a story tip or update, or report an error.
