The ABA has been the official federal accrediting body of law schools since 1952, a task it undertook informally after the issuance of the Root Committee Report in 1921. A law school approved by the ABA can remain in business because its students are eligible for federally guaranteed loans and because every state’s licensing authority has made graduates of ABA-approved law schools eligible to take its bar exam. Thus, a law school wants to please the ABA inspection teams that visit every seven years (and more often if the school is new) for a determination of whether to re-approve the school.
Has the existence of the ABA as accrediting body aided legal education? Before 1995, the answer was a qualified yes. The ABA demanded law schools invest in resources that aided students (for example, requiring more full-time faculty), and inculcated a professionalism in legal education that provided for enhanced (though flawed) training of lawyers. The system had its faults, particularly the ABA’s use of its monopoly approval power to 1) push for faculty pay increases, 2) make demands regarding size of libraries and secure tenure status for librarians, and 3) make excessive capital demands of new law schools. On the whole, though, as Robert Stevens concluded in an article on American legal education, the ABA deserved two cheers. See Robert Stevens, Two Cheers for 1870: The American Law School, in Law in American History 405 (Donald Fleming & Bernard Bailyn eds. 1971).
This ABA’s understanding of its role and its actions regarding it authority has changed markedly since the entry of the consent decree in the antitrust matter filed by the DOJ against the ABA.
It appears that the ABA prefers the title of official accrediting agency to the actual beneficial public role it might have to play. In other words, the ABA is more interested in looking good than in doing good.
For example, the ABA recently issued a new Interpretation, 301-6, which supplements Standard 301 requiring law schools to prepare students to pass the bar and become successful participants in the legal profession. (I assume it is written in that order because you have to pass the bar to become a member of the profession, but given the concerns with the reliability of the bar exam in creating a fair barrier to entry, one might think a different order would be used.) Interpretation 301-6 creates a 75-percent bar pass rule as a condition of maintaining approval, that is, that 75 percent of a school’s graduates in any three of five years must have passed the bar exam (repeaters included). Section (2) of the interpretation provides that if the law school’s first-time pass rate is 15 percent below the average of all ABA-approved schools in three of the past five years, it may issue some sanctions (eventually) against the school. The Interpretation sure looks good, ensuring parents and nosy media types that the ABA will not allow schools approved by it to dun students and give them just a modest chance of obtaining a law license. But what does it do? The Interpretation falsely suggests that some law schools may be admitting students who cannot pass the bar, selling seats (and their integrity) for revenue. This seems highly unlikely. And the schools the Interpretation is most likely to fall on are majority-minority schools, schools that for decades have fostered the increase in the number of minority lawyers in the United States. For nearly all law schools, this is a non-solution to a non-problem. But it looks like the ABA is holding the metaphorical feet of law schools to the fire, telling them, “teach better and teach to all students.” Rubbish.
Second, the ABA (and the AALS to a greater extent) have been tone-deaf on the goals and missions of religiously-affiliated law schools. Standard 211, titled Non-Discrimination and Equality of Opportunity, begins section (c) with the helpful statement, “This Standard does not prevent a law school from having a religious affiliation or purpose and adopting and applying policies of admission of students and employment of faculty and staff that directly relate to this affiliation or purpose . . . [provided] (ii) the religious affiliation, purpose, or policies do not contravene any other Standard, including Standard 405(b) concerning academic freedom.” How nice of the ABA to allow such institutions to exist! Given the lack of interest by the courts to intervene in the internal affairs of religious institutions, does the ABA really think it can determine whether a “policy” “directly relates” to a law school’s “affiliation” (nice word) or “purpose” (let’s avoid “mission” at all costs)? Does the ABA fail to understand that “academic freedom” (an idea whose sell-by date passed long ago) is not just an individual matter but also applies to institutions? Maybe the ABA is not tone-deaf; maybe this is its way to sneer in writing. Its attitude suggests the smugness of the secular “holier than thou”. (BTW, in banning “discrimination” in Standard 211, how did the ABA miss “marital status”?)
Third, does Standard 212, titled Equal Opportunity and Diversity, really provide the correct call for (maybe) affirmative action? The ABA offers the curious Interpretation 212-2: “[A] law school shall take concrete actions to enroll a diverse student body that promotes cross-cultural understanding, helps break down racial and ethnic stereotypes, and enables students to better understand persons of different races, ethnic groups and backgrounds.” It beggars belief that law schools will actually be able to enroll a mix of students who can promote cross-cultural understanding. Even if possible, is it the case that the students are responsible for promoting “cross-cultural understanding”? Don’t they have enough to do? If not, are faculty (especially those a generation or more older than the students) to undertake this job? Is this a job for law schools? Does the Interpretation beg the question whether it is true that the cultures of law students of different races and ethnicities (however troublesome such a definition may be) are so different that such understanding is crucial to their development as lawyers? And if it is, do models exist showing how this is done? The ABA’s Standard and Interpretations of the Standard create incentives that fail to account for the specific histories and locations of law schools that can benefit the ABA’s goal in Standard 212, but which may in particular not satisfy the ABA.
Fourth, the ABA bullies law schools for faults that it excuses in other, more powerful law schools (see Northwestern and its tiff with the ABA).
Fifth, its demands regarding the status of clinicians ensure higher costs for students and reduce flexibility in curricular matters, with calcification already a growing problem within the American law school. Too often the ABA’s role appears to be about encouraging more, about law schools being bigger (not in student size but certainly in bureaucracy) and thus better. But not only does better not necessarily follow bigger, bigger costs money, which is paid by students through annual substantial increases in their tuition.
Once the ABA entered into the consent decree, it refused to test or even exercise its power to refuse to approve new law schools. It occasionally made a threat to do so when it thought the new law school lacked the power to respond, but it quickly withdrew its objection when challenged. More law schools may work to the advantage of students. But the ABA’s minimal oversight suggests the slight value provided the public by the ABA’s monopoly on approval of law schools.
It is interesting is that a toothless ABA is now thinking about making a drastic move in the direction of controlling law schools. The ABA is considering amending its Standards to require assessment by law schools focusing on the “outputs” of graduated students regarding “what lawyers do.” While law schools need to improve the lawyering skills of its students, it seems clear that if the ABA is successful in this heavy-handed approach it will cause a rapid spike in tuition. The ABA assures law schools that the costs of an “output”-centered approach won’t increase costs, but risk-averse deans will make sure to increase the number of non-faculty staff to protect their schools from any possible ABA attack during re-inspection. A second unintended consequence might be a shift in the admissions process to exclude some types of “at-risk” applicants who might otherwise be considered for admission, on the ground that those students might be less likely to meet the ABA’s outputs requirements. It may be the case that the impact of this move might lie most heavily on underrepresented minority students, a consequence that should be avoided if possible.
The ABA as accrediting agent has seen its day pass. As a cartel it is a disaster; as a catalyst for innovation in legal education it has sparked little educational diversity; as a judge of law schools it is a paper tiger. It is time for the ABA to remove itself from the legal education business.