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
(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
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.