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ABA about to pass potentially significant law school reform measure

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pigs flying

The ABA’s Section of Legal Education has approved a revision of the organization’s accreditation standards in regard to bar passage rates. The old formula was a complex multi-part test that was subject to all sorts of statistical distortions and strategic gaming. The new standard, while not completely immune to those factors, is far more straightforward, and will (if it’s actually enforced) be nearly impossible for a large number of ABA-approved law schools to meet, given the current composition of their student bodies.

The new standard requires at least 75% of a school’s graduating class that takes the bar to pass it within two years of graduation. That’s it. Dozens of law schools are not, given how severely they’ve slashed admissions standards over the past three or so years, going to be able to meet this standard, even if they — to the extent they haven’t already — transform themselves into essentially three-year $150,000 bar review courses, “incentivize” graduates not to take the bar, etc.

Of course this raises the question of what is going to happen when a whole lot of law schools not only fail to meet the new standard, but miss doing so by a country mile (and that will happen: you can’t take a law school class with a median LSAT in the mid-to-low 140s and get anywhere close to 75% of its graduates to pass the bar within two years of graduation, no matter how many proactive out of the box actionable entrepreneurial strategies you employ).

The new standard does give schools the opportunity to beg for another chance, on the basis of a bunch of dubious criteria, to wit:

(b) A law school found out of compliance under paragraph (a) and that has not been able to
come into compliance within the time period set by the Accreditation Committee under Rule
14(b) of the Rules of Procedure for Approval of Law Schools, may seek to demonstrate good
cause for extending the period the law school has to demonstrate compliance by submitting
evidence of:

(1) The law school’s trend in bar passage rates.

(2) Actions by the law school to address the inadequate bar passage results of its
graduates in the form of academic support and bar preparation efforts involving the
entire faculty.

(3)
Actions taken by the law school to implement a program to assist its graduates who
did not pass the bar examination in addressing their deficiencies.

(4) Efforts by the law school to provide broader access to legal education while maintaining academic rigor.

(5) Temporary circumstances beyond the control of the law school, but which the law school is addressing.

(6) Other factors that the law school considers relevant.

Obviously there’s a lot of potential wiggle room in there for just not enforcing the new standard, but one would think that, as a PR matter, that will be difficult to do when you have schools missing the required mark by twenty and thirty percentage points or more, which again is going to happen. (For instance Cooley had a 40% bar passage rate on the Michigan exam in July, and their latest entering class has far lower entrance credentials than the graduating classes that racked up that number).

What all this shows, I think, is that the politics of law school regulation are somewhat more complicated than critics of the status quo sometimes claim. While the Section of Legal Education has often acted as a textbook example of an administrative actor under the influence of regulatory capture, there are people inside the law school regulatory apparatus who actually want to do something about the scandal that so many lower tier law schools have become. Whether they win out over straight-up scamsters like Don LeDuc and Ken Randall remains to be seen, but at least there’s a battle taking place.

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  • so-in-so

    Can they just make the last semester classes hard enough that students don’t graduate, but still pay up front for the entire program?

    I mean, this is highly unethical; and eventually potential students will figure it out, but maybe the top administrators can cash out and move to another grift by then.

    • Ken

      I can’t decide if that would be more or less unethical than the Mount St. Mary case, where they evaluated and cut freshmen. I think the latter because of the way they (ab)used psychological evaluations, but I may be biased by the Glock remark.

      • Scott Lemieux

        As an aside, one odd thing about the Mount St. Mary case is that the much more typical response from non-elite schools has been to try to keep the customers on the used car lot for as many semesters as possible. I’m not sure gaming the U.S. News rankings like a law school makes sense on the undergrad level even on its own dubious terms.

    • Lurker

      My senior high had a practice like that. They accepted almost anyone and at the start of the year, when the state contribution was fixed, the number of students was pretty high. Usually, if there was doubt whether a student would be able to pass the national matriculation exam at the end of the third year, the teachers would make sure that the student could not advance academically and would not be eligible to take the exam, but forced to drop out. In a normal cohort, about 15 % of the class would be culled but I know year classes where about a third were forced to drop out. (The exam board gives a failing grade to 5 % of examinees in each subject, resulting in a national failure rate of about 10%.)

      It was a pretty well known issue inside the school and, perversely, a source of pride: no one failed the matriculation exam in our school.

    • Richard Gadsden

      Change the graduation rule so you can’t graduate and receive your JD until you pass the bar. 100% bar passage.

  • Todd

    And so the pressure will increase (again) to make the bar exams easier.

    • Dr. Ronnie James, DO

      Perhaps – however, something similar happens with medical schools, and the response is more like “pre-test all your students, strongly encourage low performers take an academic leave to bring their scores up, force them into a cram program if they fail.”

      Something similar happens with the International med schools (eg Grenada, Guadalajara, etc.) – those graduates have a minimum board score to obtain residency in the US (higher than what domestic students need) & as a result a significant pool of students has to spend 1-several years just studying for boards. Some never do…

    • Woodlark

      Although, the Bar Examiners are not subject to the same degree of regulatory capture as the ABA Section on Legal Education. Yet.

      • Breadbaker

        Coming next: the antitrust case against the board of bar examiners claiming that demanding competence among the profession is solely to reduce the number of competing lawyers.

    • That’s already happening: New York, historically one of the bar exams regarded as being the most difficult, is switching to the “National Bar Exam”.

  • Morse Code for J

    And only 8 years after the bottom fell out, too.

    • Ken

      The wheels of law grind slowly…

  • yet_another_lawyer

    The “that take the bar” portion is key. Law schools are going to become extremely creative in finding ways to encourage people not to take the bar. I can hardly wait for the articles about why the various job options that don’t even require the bar exam are way, way better than biglaw. Why, did you know all sorts of employers that don’t require the bar exam value the sort of rigorous thinking one can only find in holders of a law degree?

    • AMK

      I really look foward to the op-eds from law school deans saying the practice of law is overrated.

      • yet_another_lawyer

        “Lawyers have an above average rate of depression and substance abuse, but people in JD-advantage jobs report a high quality of life. That, along with some placement assistance, are why the graduates of Devry Legal Academy choose not to take the expensive and ultimately pointless bar exam . . .”

        • AMK

          “….which, as it turns out, they don’t even administer in the debtor’s prisons where our graduates spend most of their working lives.”

    • Craigo

      If I’m reading right, that wouldn’t help their case – the ABA rule would require 75% of all graduates to pass the bar, not 75% of bar-takers.

      EDIT: I’m not reading it right. Jesus, that’s a bit of a loophole, no?

  • jim, some guy in iowa

    I was always kind of grateful flying is the one thing pigs can’t do. they can raise a lot of hell with the skill sets they have

    • DrS

      Yeah, nightmare fuel. Porcine death from the skies!

      And if you think getting hit by pigeon crap on your head is a problem…

  • Peterr

    Of course this raises the question of what is going to happen when a whole lot of law schools not only fail to meet the new standard, but miss doing so by a country mile (and that will happen: you can’t take a law school class with a median LSAT in the mid-to-low 140s and get anywhere close to 75% of its graduates to pass the bar within two years of graduation, no matter how many proactive out of the box actionable entrepreneurial strategies you employ).

    It’s obvious. The dean at Cooley will go after the faculty for failing to properly teach all these wonderful students they’ve admitted. “We brought you all these bright young minds, and by the end of their time with you as their teachers and mentors, most are unable to pass the exam that certifies them as having mastered what you’ve taught them. You. Are. Failures. Abject and complete Failures.”

    Surely the axe is about to be swung in a big way at these faculty layabouts, right?

    • Dr. Ronnie James, DO

      See comments elsewhere – the med schools have expanded greatly the past 30 years (much needed, in their case), with a resulting spike in students who can’t pass their boards. The response has basically been to pre-test every student, then academically divert low performers until they demonstrate the needed improvement.

      Qualified med school faculty are *highly* resistant to becoming glorified board prep instructors (I have to imagine law professor are, too, if not worse), and if the med schools could find a way around that, they would have done so already. Schools I’m aware of typically just give students 1-2 months to do board prep, and then bring in somebody like Kaplan for students to use on an optional basis.

    • Srsly Dad Y

      Put. The coffee. Down. Coffee is for educators.

    • Denverite

      Cooley already laid off about 60% of their faculty. I actually practiced with one of them in a prior life. S/he is a solo now. No clue whether that’s code for “unemployed.” It’s a shame, too. S/he was a pretty senior biglaw associate when s/he left and I think probably would have made partner.

      • Crusty

        While I sympathize with anyone who is unemployed, its a shame that she left providing legal services in exchange for money to teach roomfuls of law students who will never practice law?

        • Denverite

          It’s a shame that my one-time friend (we didn’t have a falling out or anything, we both just left the firm and city) traded a likely chance at making craploads of money (though with a horrible quality of life) for a law professor gig, and then that fell through.

  • Mike in DC

    Well, that’s one problem partially dealt with. The others include what to do with the existing glut of unemployed and underemployed lawyers, and how to address the crippling debt they’re burdened with.

    • yet_another_lawyer

      I think we can agree that the ABA should have acted sooner to prevent many of those people from ever going to law school, but I’m not sure what they can do now about those graduates. Broadly speaking, they fall into two camps: People capable of being lawyers who fell victim to a lack of demand for legal services and people who were never capable of being lawyers in the first place. For the first, the ABA has limited ability to create more demand for legal services. For the second, it’s really not clear how the ABA could help them. Nor does the ABA have any power over extant debt, even if they wanted to act.

      • Mike in DC

        They have a lobbying arm. They can lobby the government for debt relief for recent law school grads.

        • Lurker

          From ABA point of view, the best possible relief would be making law school loans dischargeable in bankruptcy with a condition that anyone using this provision would be permanently ineligible to serve as an officer of court in any federal, state or territorial jurisdiction.

          Such benefit would help haplessly debt-burdened law grads while limiting the supply of lawyers.

          • Unemployed_Northeastern

            I don’t know if this is true. Keep in mind that the ABA-accredited law schools jointly own the private student lender AccessGroup. If the ABA or the law schools ever complained about the retroactive nondischargeability of private student loans in 2005, I haven’t been able to find it. And even though Access is a non-profit, they bundled their private student loans into asset-backed securities (SLABS) and sold them on Wall Street, no different than Sallie Mae. I wonder if the ABA and law schools were quietly in favor of gutting bankruptcy protections.

        • if not debt relief, then at least rise the cap & phase out limits for deducting interest on student loans… jeez.

          the income levels they set for caps might sound high, but for a single person, $75K or even $90K doesn’t go as far as you think when you’ve got $750-$1000 in monthly loan payments on top of all your other bills.

        • twbb

          The problem is debt relief doesn’t put any pressure on the law schools to reduce tuition and cut expenses.

          • Mike in DC

            Perhaps not, but it would help alleviate the suffering of tens of thousands of people.

  • twbb

    Prediction: lawsuit filed on due process and/or equal protection claims, motion to stay implementation of the new rule until the court decides on its validity, followed by an intentionally prolonged lawsuit and appeals.

    • FOARP

      I can see it now:

      Don Le Duc, Dean of Western Michigan University Cooley Law School slammed ABA proposals today in a fiery speech:

      “By making the continued accreditation of our law school contingent on our graduates passing a test that is not available in Ebonics, the ABA is essential implementing a Jim Crow law blocking access to the profession to any but a privileged elite of people with a pulse who can speak English”

  • justrmor

    My law school had abysmal bar passage rates. Their solution was to prevent anyone who did not get above a 2.3 in their final semester from graduating. The school graded on a strict curve, so they ensured that the bottom 5% of the class would not graduate and would not be able to take the bar. The school also guaranteed that the bottom percentage of the class would have to pay for one more semester. It was all very convenient for the law school administrators.

  • justrmor

    FWIW, it also increased the school’s bar passage rates.

  • Yankee

    If only there were some way to get applicants to pay attention to school standards.

  • Jackson87

    Instead of 75% of graduates, how about say, 50% of First Year students pass the bar within 5 years of enrolling?

    • Craigo

      I like that much more. If admins want to argue that this punishes them for 1Ls dropping out, then I say their admissions process has failed.

  • I would cheer if the ABA dispensed with all this rule-making mumbo-jumbo, and instead sent a committee to burn Cooley Law School to the ground, dancing on the rubble when done.

    That sends a much clearer message.

  • Quite Likely

    So what will be the consequences of a ton of lowest tier law schools losing their accreditation? I guess it will just stop being possible for a lot of people with too-low LSAT scores to go to law school anywhere. And given what we know about those people’s prospects after law school, that seems to be a positive result. What are they going to do instead?

    • Craigo

      The same thing they’re doing now – entry-level service and clerical jobs, but without crushing six figure debt.

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