Court Battles Could Expose ‘Secretive’ Law School Accreditation (Corrected)


•Four law schools are suing American Bar Association for arbitrary enforcement of accreditation standards
•Lawsuits have some merit even if for-profit schools suing are problematic, scholars say


The American Bar Association’s law school accreditation standards are at the center of a court fight that could shed light on its review process alleged to be secretive and unconstitutionally punitive.

Criticism of ABA compliance enforcement and sentiment that law school certification may be ripe for change are a backdrop for lawsuits brought by three for-profit schools singled out for underperformance.

The ABA is the official accrediting body for law schools. Only some states allow students from non-accredited law schools to take the bar exam, which is required to practice law.

Legal professionals interviewed by Bloomberg Law say Florida Coastal School of Law, Charlotte School of Law, and Arizona Summit Law School should be held accountable. But they also see merit in complaints about the ABA’s process.

For-profit schools are “deeply problematic,” Deborah L. Rhode, a Stanford Law professor whose expertise includes the legal profession, told Bloomberg Law.

They “lure students in who will have no realistic prospect of getting a job that pays sufficiently to pay off their student loans,” Rhode said.

The problem gets even murkier because these law schools enroll more diverse candidates than other law schools. The ABA has said increasing law school diversity is an important goal.

Still, “most of us who have studied legal education would agree that the accreditation standards are arbitrary,” she said. They’re not evidence based and “that’s a huge problem.”

Allegations, Defenses

The ABA and two independent entities working with it that evaluate and certify law schools are named defendants in the suits filed this spring.

Florida Coastal, now-defunct Charlotte, and Arizona Summit form a consortium run by the Infilaw System. The ABA found the schools didn’t comply with its accreditation standards. The schools sued, saying the ABA didn’t give them enough guidance on how to comply, which is a “due process violation.”

The schools, represented by Kirkland & Ellis, allege ABA accreditation standards are vague and arbitrarily enforced. Former Solicitor General and Supreme Court veteran Paul D. Clement is one of three Kirkland attorneys on the case.

The ABA said in a statement that its practices have survived previous legal challenges, and it expects that to be the case this time.

A U.S. Department of Education advisory committee recently decided to re-up the bar association’s accreditation council for another three years, a move that could bolster its side in the suits. The ABA, which is represented by Sidley Austin, wants to consolidate the cases in the U.S. District Court for the Western District of North Carolina.

The ABA also filed a motion to dismiss the Florida Coastal lawsuit at the beginning of July saying the suit isn’t ready to be reviewed by a court. The school has filed an appeal to the ABA’s accreditation findings, which the ABA will consider in August, the ABA said.

The ABA declined to comment on how a dismissal would affect its move to consolidate the three lawsuits.

Long-Running Controversy

The ABA previously has been in legal and administrative tangles over its accreditation practices.

It settled Justice Department accusations in the 1990s that it restrained competition through its accreditation process. The government also accused the ABA of keeping that process “from public view,” claiming it was governed by those “with a direct economic interest in its outcome,” such as legal educators.

The final judgment prohibited the ABA from refusing to accredit for-profit schools.

For-profit law schools played a central role 20 years later in another action by the government against the ABA.

The same Education Department advisory committee that green-lighted the ABA’s practices this year recommended in 2016 that the government temporarily suspend its ability to accredit new law schools because the ABA wasn’t focused enough on student achievement and law student debt levels and for other alleged infractions.

The recommendation was withdrawn several months later, after it was found that the scope of non-compliance wasn’t as large as initially thought.

The ABA also was criticized in past years for accrediting too many schools, including for-profits that underperform, without paying enough attention to student achievement. This led to a glut of underqualified law students who racked up big debts and couldn’t get jobs.

Infilaw was founded last decade in part to give “underserved” students more access to legal education. That mission echoes an ABA goal of increasing diversity in the legal profession.

But the Infilaw schools, which statistics show have a higher minority representation than the average law school, also have average Law School Admission Test and bar passage rates that are lower than national averages.

The LSAT score is the best predictor of bar passage, said Kyle McEntee, executive director of Law School Transparency, which provides information and analysis on legal education.

 

There’s a “tension for the ABA” between ensuring adequate diversity in the bar and ensuring that students who don’t “have a realistic prospect of passing the bar” aren’t out a lot of money, Rhodes said.

Cooley Sets the Stage

ABA’s handling of Western Michigan University’s Thomas M. Cooley Law School frames the current suits. Cooley’s been called one of the nation’s worst law schools with a 2017 first-time bar passage rate of 46 percent.

The statewide average that year was 74 percent and the national average was 77 percent.

In 2016, the ABA put the school on notice for potential non-compliance with several of its standards, including Standard 501(b), which forbids law schools from admitting applicants who don’t appear “capable of satisfactorily completing” a legal education and being admitted to the bar.

Cooley sued last year, saying the policies were arbitrary because the ABA changed its position about non-compliance without explanation.

In May 2016, the ABA monitored the school for possibly being out of compliance with 501(b) even though the school had submitted the same data it did when it was found in compliance in December 2015, Cooley says.

The same thing happened in December 2017 when the ABA determined Cooley was in compliance with the standard but then found in April 2018 that it wasn’t, based on roughly the same data.

A judge ordered the parties to explore a settlement.

A law school professor who does accreditation visits on behalf of ABA worries that the ABA flip-flop on Cooley was a red flag.

“My concern is that by re-accrediting Cooley without a discernible rationale,” the ABA gave the Infilaw schools a “plausible argument” that the process is a “black box,” Richard Bales of Ohio Northern University’s Pettit School of Law said.

“The ABA’s Cooley decision—and the lack of an obvious explanation for it—has led to unfortunate conjecture about whether the ABA will continue to be a meaningful accrediting body and whether its lines are consistent and defensible,” Bales said.

The schools in the Infilaw legal action want a nationwide injunction barring ABA from enforcing 501(b) until certain conditions are met. This could, for example, require it to rewrite the standard.

Secret Formula

Accreditation is overseen by the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association. The group includes deans or faculty, practicing attorneys, judges, and a law student. Two committees on accreditation and standards assist the council.

Accreditation criteria include program curriculum, faculty, facilities, fiscal and administrative capacity, student retention, bar passage rates, and student placement.

But what frustrates some legal professionals and the Infilaw schools is exactly how all that information is reviewed, weighted, and enforced.

ABA is using “some sort of formula” to determine compliance but they’re being very secretive and the lawsuits are saying that the standards need to be clear,” said David Frakt, an attorney and blogger whose practice includes higher education.

The formula is “heavily reliant” on LSAT scores and likely also factors in undergraduate grades, attrition rates, and bar passage rates, said Frakt, who was a finalist for deanship at Florida Coastal in 2014.

One attorney representing the schools in the suits told Bloomberg Law that the fuzzy standards leave schools “scratching their heads” because they don’t know where they went wrong or what they can do to comply.

The ABA determined that Florida Coastal wasn’t in compliance with three standards last year, while Arizona Summit’s accreditation was withdrawn in May, and Charlotte closed last year. Charlotte also lost its accreditation—after closing—for failing to comply with standards, including ABA Standard 501(b). Charlotte and Arizona Summit were put on probation in recent years.

Donald E. Lively, president of Arizona Summit, told Bloomberg Law that the school plans to appeal the ABA’s decision to withdraw accreditation.

“Regardless of what anyone thinks about our school, there is a serious due process problem with accreditation criteria that are vague, are indeterminate, and invite double standards—not to mention a process that requires a school to guess what the ABA wants,” said Lively, who was also a co-founder of Florida Coastal.

What puts you in legal jeopardy is if standards are enforced unequally, McEntee said.

High Stakes, Possible Outcomes

There are a few possible scenarios for what could happen as a result of the lawsuits.

The ABA’s accreditation formula might come to light, which could lead to changes, Frakt said.

“There might be good reasons for the ABA not to publicize its precise formula,” but there is “some value to giving schools a fairly good idea of where the lines are,” Bales said.

McEntee hopes any change would involve establishing a balancing test. He advocates using a variety of factors like LSAT scores, bar pass rates, and grade point average.

However, the LSAT may not be around much longer. The ABA’s legal education council in May approved a proposal to end the requirement, throwing a wrench in the current standards.

Another possible outcome of the suits is that the ABA loses the ability to enforce Standard 501(b), McEntee said, noting it would be “really bad” if the suits result in a de facto deregulation of the industry.

Rhode thinks there should be more dramatic changes, suggesting that the suits are an opportunity to “rethink the model of legal education.”

She proposed two- or even one-year schools that would offer students restricted licenses to practice in specialized areas like immigration law or family law, where there’s a “desperate need for trained attorneys.”

This could be “a step in the right direction,” Rhode said.

(Corrected seventh paragraph under ‘Secret Formula’ subhead to reflect that Florida Coastal was found out of compliance with three standards)

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com