Charlotte School of Law not alone in facing an uncertain future
LOW STANDARD?
ABA Standard 316 outlines a few ways that a law school can meet its requirements. The simplest is that, for the five most recent years, at least 75 percent of those graduates who took a bar exam passed it. If for three of those years the 75 percent rate is reached, that also is acceptable.
Some schools demonstrate compliance by having a first-time bar passage rate within 15 percentage points of the first-time bar passage rate of the state (or governmental jurisdiction for Puerto Rico and the District of Columbia) for which the school is required to report. In doing these calculations, schools have to account for at least 70 percent of their graduates, beginning with the state in which the highest number of graduates took the bar exam.
Many think the standard is too lax—indeed, no accredited law school has ever been found to be out of compliance with it. The Section of Legal Education and Admissions to the Bar recently presented a revision to the standard that would require 75 percent of a law school’s graduates pass a bar exam within a two-year period. In February, the proposal failed to get approval from the ABA House of Delegates.
Shortly before that vote, the deans steering committee of the Association of American Law Schools urged the legal education section to withdraw the revision. Out of 3,247 applicants who graduated from ABA-accredited law schools and took the California bar exam last July, only 62 percent passed. Law schools with bar passage rates under 75 percent included the University of California at Davis School of Law and the University of California’s Hastings College of the Law in San Francisco.
“The California bar results, if they become the ‘new normal’ for graduates of ABA-accredited law schools in California, could potentially imperil the accreditation of a very large number of law schools—law schools whose history and profile have demonstrated over many decades an ability to educate and graduate successful law students by any reasonable measure,” the Jan. 13 letter from deans steering committee reads.
In March, the Los Angeles Times published an opinion piece by David Faigman, dean at Hastings. He argued that the “cut score” (how it sets the line for passing and failing) for the California bar was too high.
Faigman and Judith Daar, interim dean of Whittier Law School, were among more than 90 people who signed the document. Whittier’s July 2016 California bar passage rate was 23 percent.
Diversity in the profession was another concern opponents of the proposal mentioned. According to information submitted by William Patton, a professor emeritus at Whittier, 33 percent of African-American law students in California attend the state’s five schools that would be most at risk if the accreditation proposal is implemented. He also found that 29.8 percent of the state’s Latino law students attend those five schools.
Data shows significant ethnic disparities with first-time bar passage rates, says Aaron Taylor, executive director of the AccessLex Center for Legal Education Excellence in Washington, D.C.
Taylor says one solution could be giving schools the five years to meet the 75 percent passage standard. Another could be cutting the compliance window to three years with a more stringent requirement regarding passage rate minimums.
“Everyone wants to have a more diverse legal profession in theory, but no one wants to do the work to make that happen,” says Taylor, who has a doctorate in higher education. “It’s a thin line between providing opportunities and exploiting people.”
Also, some suggest, poor-performing law schools should use diversity as a shield.
“I’m offended by that,” said Raymond Pierce at an October meeting of the legal education section’s council. “I think a bar pass rate is a fair, accurate assessment for any law school. If 25 percent of your students can’t pass a bar with four chances, it does call into question your admissions.”
Pierce, a council member of the legal ed section, was speaking at the meeting where the council approved the proposed revision. He previously was the dean of the North Carolina Central University School of Law, which is associated with a historically black college.
“If anything, the [proposed] two-year time frame will only cause all law schools at [historically black colleges and universities] to work harder, and that’s not going to be anything new,” Pierce said.
Constance Iloh: “We’re talking about a legal market after a recession. A lot of law firms are firing associates, and less people are thinking about hiring legal counsel.” Photo by Osose Oboh
THE FEDS STEP IN
A scolding from a federal panel that oversees higher-education accreditors, which in June 2016 accused the legal ed section of being “out of step with a crisis,” has added pressure for change.
The National Advisory Committee on Institutional Quality and Integrity recommended that the ABA’s accreditation power for new law schools be suspended for one year. It argued that accreditors failed to implement its student achievement standards and probationary sanctions while also not meeting its audit process and analysis responsibilities regarding students’ debt levels.
Last September, the Department of Education announced it would not implement the recommendation. Department staff did not find enough evidence that the ABA was out of compliance with its mandates.
A few months after the national advisory committee’s finding, the ABA granted full accreditation to the University of Massachusetts School of Law at Dartmouth. The school’s bar passage rate for July 2016 first-time test-takers was 69.4 percent. Out of all the school’s graduates who took the Massachusetts bar last July, there was a 50.9 percent passage rate.
But the school met the current bar passage standard. Its first-time passage rate was within 1 percentage point of the school’s peer institutions. Its ultimate bar passage rate, which includes test taker data outside Massachusetts, was 83.6 percent, says Eric Mitnick, the school’s interim dean. Annual in-state tuition at the school is $26,466.
It’s possible, the legal ed section’s Currier wrote, that a law school with a 51 percent passage rate for first-time bar exam takers would not be out of compliance with the standard because it has five years to reach the required pass percentage. Such a school also could be in compliance under the proposed revision, Currier added, because over two years schools would have four bar administrations to meet the standard.
“One of the shortcomings of the current Standard 316, which the council’s reform of the standard would go a long way toward curing, is how long the period is that must be considered in determining whether a school is or is not in compliance with the standard,” Currier wrote.
ANTITRUST ISSUES
Because there appear to be more law school graduates than available jobs, the question arises: Why not put new accreditation on hold? That simple solution likely would amount to an antitrust violation, according to lawyers who practice in the field. The Department of Justice sued the ABA for antitrust violations in 1995.
“Our theory was that the law school accreditation process was captured by faculty of law schools,” says James Tierney, a partner at Orrick, Herrington & Sutcliffe in Washington, D.C., who represented the DOJ. “They were using the process to feather their own nests.”
The filing alleged that legal educators used the accreditation process to fix their salary levels and other working conditions, and a boycott was directed at for-profit schools and students from non-ABA-approved schools.
“The concern wasn’t that lawyers were running the accreditation process. We weren’t even trying to eliminate the ABA as the accreditor,” Tierney says. “We were just saying that this process was captured by a narrow group, and they were using the process to protect their own proprietary interests.”
The case settled in 1996, and the ABA agreed to adopt structural changes meant to ensure that law school accreditation was not controlled by law school faculty. The association also created a special committee focused on finding a balance between antitrust and educational concerns for the accreditation process.
The consent decree was lifted in 2006, according to Currier, and the ABA section’s council agreed to continue to follow provisions listed in the agreement.
JOBS vs. accreditation
Tying accreditation to gainful employment could address more recent law school concerns, says Paul Gaston, a professor of English and higher-education administration at Kent State University.
“Gainful employment figures are not the only indicators of a law school’s effectiveness—and they may not even be the most revealing—but gainful employment rates coupled with bar passage rates offer an objective standard that is significant and easily understood,” Gaston says.
Michael Carrier, an antitrust professor at Rutgers Law School, agrees. “I would think that the ABA could have a goal of accreditation, giving consideration to student debt and students graduating without jobs, to set a higher bar that law schools would have to meet in order to receive approval,” Carrier says.
“Going back to the decree, my sense is that the ABA crossed the line at that point. Some things it was requiring did not really seem justified on competition grounds and perhaps raised some concerns,” he says.
Others argue that changes in legal education should come from schools, not accreditors.
“We reduced our JD program by 40 percent when the demand was rising,” says Ron Cass, the dean of Boston University School of Law from 1990 to 2004. “We did that for reasons that had nothing to do with bar passage but our sense of what would position the school to be a really good school, and give our students the best chance of getting really good jobs.”
The proposed revision for Standard 316 is still under consideration by the legal education section’s council. Under ABA rules, the House of Delegates can send proposed revisions back to the council twice for review with or without recommendations. But the council makes the final decision on law school accreditation—no matter what the ABA’s governing body says.
In March, the council heard a report about the actions taken by section delegates to the House and agreed that it would return to the matter, according to Currier. The proposed revision is not on the House agenda for the ABA Annual Meeting being held Aug. 10-15, he says.
go with THE GRE
The council also is considering whether a standard on admissions testing should be revised. The current Standard 503 directs law schools that use admissions exams other than the LSAT to demonstrate that those exams are valid and reliable.
The council is now considering whether LSAT alternatives should be accepted and, if so, how a process should be established to determine whether the other tests are valid and reliable.
Harvard Law School announced in March that it plans to accept the GRE or the LSAT for admissions testing, joining the University of Arizona’s James E. Rogers College of Law.
Over the last five years, ABA Standard 509 reports show, the number of Harvard Law applications has yo-yoed, with a decrease of more than 12 percentage points between the highest and lowest totals. But in 2016, applications increased by about 5 percentage points over the previous year.
Bloomberg.com suggested that the admissions test shift is likely a move to draw more foreign students, who took the GRE because they planned to study science or math.
Meanwhile, Blevins, the recent graduate of Charlotte Law, teaches public speaking at a North Carolina community college. He says he has no interest in seeking federal loan discharge.
“The money is inconsequential to me,” Blevins says. “It’s a significant amount. But if I just discharge my loans and don’t get the degree, I just wasted three years of my time.”
In terms of having wasted his money, Blevins isn’t sure. He told the Journal shortly before graduating that if he didn’t get to finish law school, he was “going to regret it.”
“But at this point, as long as I ... pass the bar, I’d probably do it again.”
This article appeared in the August 2017 issue of the ABA Journal with the headline "Troubled Passage: Charlotte School of Law faces an uncertain future, but it is not alone."
