Leaner, faster ABA section ready for troubled law schools

Among the legal education resolutions the American Bar Association’s House of Delegates considered during the August annual meeting, the failed attempt to sideline the LSAT and the successful effort to increase the number of hours allowed for distance education captured the most attention. Overlooked was the adoption of three resolutions characterized as bringing the “most fundamental changes” to the accreditation process in several decades.

This transformation is said to streamline the system for accrediting and monitoring law schools. It comes two years after a committee for the Department of Education questioned whether the ABA as an accreditor was doing enough to protect law students and ensure quality legal education.

Along with causing little interest within the legal community, the resolutions apparently created no stir within legal education. The Council of the Section of Legal Education and Admissions to the Bar reported it received neither written comments nor testimony at a public hearing held in April. Also, because the deans were introduced to the changes and provided no negative responses, the council believes the law schools support the restructuring.

Jeffrey Lewis, chair of the council, said the new process would expedite the accreditation process and make it more efficient, rather than having multiple layers of appeals to different committees. Law schools that are experiencing difficulties, Lewis said, will be addressed in a straightforward and quick manner.

Under the former system, the council relied on the Accreditation Committee and the Standards Review Committee to help with its work of watching over the 200 accredited law schools in the United States. But now, those two committees have been eliminated and the 21-member council will be solely responsible for ensuring law schools comply with ABA education standards.

Although the change will mean additional work, Lewis is confident the council is equipped to handle the workload. It is stocked with “very experienced” judges, lawyers and law school academics, he said, many of whom have served on either the accreditation or standards review committees in the past.

“We think the end product is going to be excellent,” Lewis said.

Sarah Correll, a third-year law student at Indiana University Robert H. McKinney School of Law who is the lone Hoosier voice on the council, supports the changes. She officially joined the group at the 2018 annual meeting and was not involved in crafting the resolutions.

Emphasizing she was speaking only for herself and not on behalf of the ABA, Correll sees the consolidation of the accreditation and monitoring work as enabling the council to better protect students. The feedback to law schools will be faster and the process fairer to the institutions and students, Correll said.

Students will be less likely to find themselves stuck paying tuition to a law school that does not have good outcomes, Correll continued. Instead, issues of concern will be brought to the surface earlier and schools will be able to adjust in a timely manner, rather than letting the problem fester.

Two Indiana law schools

At the June 2016 meeting, the U.S. Department of Education’s National Advisory Committee on Institutional Quality and Integrity expressed concern when reviewing the council’s petition to renew its accrediting authority. Ultimately the committee approved the petition, but it had questions about the council’s compliance with certain standards, including monitoring and re-evaluation of accredited schools.

Committee members looked at the upheaval in the legal market. They highlighted media stories and data showing law schools admitting more academically questionable students and graduates buckling under loan debt while being unable to pass the bar exam or find jobs.

The council acknowledged it had not denied accreditation to any law school because too many students were failing the bar.

NACIQI member Simon Boehme pointed out to the council, “… (I)t seems like many things are going well … but when we look at these low-performing schools, you guys are doing absolutely nothing.”

When the council appeared before the committee in May 2018, chair Maureen O’Rourke was prepared with a list of actions the ABA group had taken.

Specifically, the council had placed three law schools on probation, directed six to take specific remedial actions and requested nine to appear at a show cause hearing. Also, two law schools had closed, another was in the process of closing and one school had opted not to enroll a 1L class in the fall.

O’Rourke did not identify the schools by name, but among the closures would have been Indiana Tech Law School in Fort Wayne, which locked its doors in June 2017, less than four years after it had welcomed its first incoming class. In addition, Valparaiso Law School was publicly censured for one year in 2016 for admitting poor achieving students, and it did not accept a 1L class for the 2018-2019 academic year.

O’Rourke said steps were being taken against several law schools at the time of the 2016 meeting, but the matters were confidential and could not be discussed. O’Rourke shied away from NACIQI’s interpretation that the ABA had become more aggressive, saying the council was responding to the “dramatic shift” in the market.

Speaking to Indiana Lawyer, Lewis said he does not see the resolutions as hinting at a decline in the quality of legal education.

“I wouldn’t say there’s been a crisis in legal education,” he said. “The vast majority of law schools are doing well with great faculty and high success of bar passage.” But, he noted, “some schools are having more difficulty in adapting to the economics” of practicing law today.

Long process

As the list of law schools facing reprimand has grown, the ABA has found itself as a named defendant in at least four lawsuits.

The for-profit institutions run by InfiLaw — Charlotte School of Law, Florida Coastal School of Law and Arizona Summit Law School — are suing the association after they were deemed out of compliance. Another lawsuit filed by a former student and a former faculty member at Charlotte claims the ABA was negligent in accrediting that law school in the first place.

Barry Currier, ABA managing director of accreditation and legal education, acknowledged in a public statement that litigation over law school accreditation standards is “extremely rare.” He stood behind the process for determining compliance and said he expects the ABA will be “successful in any future litigation challenging the actions of the council.”

Retired Indiana Chief Justice Randall Shepard does not anticipate the revamping of the accreditation process to increase the risk of law schools getting mistakenly penalized. Instead, Like Correll, Shepard sees the restructuring as enabling the council to engage more quickly to remedy bad situations. If a newly admitted class appears to be in trouble, he said, the council does not have to wait until those students graduate and get the bar exam results before taking action.

Shepard has previously served as chair of the council and led the ABA’s Task Force on the Future of Legal Education, which issued its report in 2013.

“I think the consolidation of the accreditation committee and the standards review committee into the council almost certainly will have the effect of shortening the time in which various decisions get made,” he said. “The long-term trend was that most people complained about how long it took.”

Moreover, under the new process, Shepard said, law schools will no longer have to keep telling their story again and again to the same ABA representatives.

An example of how long the process could take comes from Charlotte under the leadership of former Valparaiso dean Jay Conison. In December 2016, the Department of Education dealt the fatal blow to the for-profit institution when it stopped the flow of federal student loan money. However, a report from the Department of Education highlighted that the ABA had concerns about the North Carolina law school dating back to the spring of 2014.

The ABA did a site evaluation and issued a report in 2014, and in January 2015 the Accreditation Committee announced it had “reason to believe” Charlotte was not in compliance. What transpired next was a series of hearings and appeals until finally, in November 2016, the council placed the school on probation.

In February 2018, six months after the law school had closed, the council withdrew ABA approval.

Students are paying attention. Correll, who was in her last year of studies at Purdue University when she decided to apply to law school, studied the data the ABA requires each school to disclose, including bar passage rates and job placements. She also looked closely at the financial information from each school because she did not want to graduate with a heavy loan burden.

“Anecdotally, most law students and prospective law students are doing at least as much as I did, if not more,” Correll said. “I think students do their due diligence.”•