Assuring Transparency

August 3rd, 2013 / By Deborah J. Merritt

Law School Transparency (LST) made news last week when several blogs reported that the organization had designed a certification program for law schools. For an annual fee, LST is offering to vet a school’s website and marketing materials for consistency with ABA standards and other best practices; create user-friendly graphics that would inform potential applicants; and certify the school’s transparency to those applicants. The proposal evoked charges that LST was operating a Mafia-like protection scheme, and even violating the Hobbs Act.

Really? Let’s revisit the history behind LST’s proposal.

ABA Requirements

In August 2012, the ABA’s Section of Legal Education and Admissions to the Bar adopted new standards governing law school disclosure of employment outcomes and scholarship retention rates. The Section explained these requirements in a memo distributed to all schools, and directed schools to comply with the mandates by October 5, 2012. Schools already possessed the information required by the new standard; they needed only to publish the data. To make that task as easy as possible, the ABA gave schools two simple templates for displaying data.

In late December of 2012 and early January of 2013, LST’s executive director (Kyle McEntee) and research director (Derek Tokaz) checked compliance with these requirements and issued a report. Despite the ABA’s clear mandate–and the ease of complying with those requirements–LST found that only one-third of accredited law schools had complied. Three months after the mandate took effect, 65.3% of schools had failed to publish at least one of the required tables. One in five schools (20.6%) had not published either chart.

The required charts were not mindless boilerplate. The ABA designed them to offer prospective students (1) key information about the percentage of students retaining conditional scholarships, and (2) basic employment outcomes for recent graduates. The information was essential to balance claims schools were making about scholarships and employment outcomes. Despite widespread recognition of the need for increased transparency, two-thirds of law schools failed to meet the ABA’s minimum standards.

After gathering this disheartening information, McEntee sent customized information to the dean, career services office, and admissions office of each accredited school. Those memos indicated whether the school had posted the ABA-required charts, whether other potentially misleading information appeared on the school’s site, and whether the school “went above and beyond the minimum regulatory standards” by publishing additional accurate, useful data for prospective students. After receiving this information, individuals from 102 different law schools communicated with McEntee, requesting more information about their school’s compliance or counseling on how to improve transparency. [You can find all of these details in the LST report cited above.]

After LST’s feedback, the percentage of schools complying with the ABA requirement doubled. Ninety percent (90.5%) of schools published at least one of the charts required by the ABA, while two-thirds (65.3%) provided both. Numerous schools improved other aspects of their communications with potential students, adopting some or all of the best practices suggested by LST.

In sum:

1. Despite frequent protestations of their improved transparency in communicating with potential applicants, two-thirds of accredited law schools had not complied with the ABA’s minimal disclosure requirements by early January of 2013.

2. Intervention by LST substantially improved compliance.

3. Even after that intervention, one-third of schools still failed to provide basic, required consumer information to law students.

How Do We Secure More Compliance?

As a legal educator, I find that lack of compliance astounding. How could so many law schools fail to comply with the ABA’s minimum transparency standards? These issues aren’t new. The press began spotlighting disclosure gaps in spring 2011, more than a year before the ABA issued its simple requirements. Law deans had vowed adherence to a new era of transparency, suggesting quick compliance with the new standards.

Some schools matched deeds to these words, but a majority did not. The foot dragging hurts the reputation of all law schools, but it hurts compliant schools more than the careless ones. We can’t regain the public’s trust, or recruit students to our programs, if we don’t adhere to our own accreditation standards governing transparency. Rules and lip service aren’t enough; we need compliance.

Who is going to take responsibility for achieving compliance? Do we as faculty have to police law school websites, sending polite notes to deans, admissions directors, and career services directors about omissions? If our own schools are in compliance, will we hound colleagues and deans at other schools about their failures? As scholars, we care about data integrity; as legal educators, we care about the reputation of our community. But how much time are we going to spend vetting the communications of 200 law schools?

LST proposed a solution: It would check transparency on law school websites, assuring consistency with ABA requirements as well as best practices in presenting data. Schools that followed those practices would receive a certification signaling their compliance with LST standards, which would be clearly identified to schools and the public. LST would charge for its time doing this work. That’s not a surprise: Most of us charge for our time when we work. The only surprise was that LST performed this work for free over the last few years.

This solution also addressed a request that LST had received from several deans. After receiving a high rating on LST’s transparency index, some deans asked if LST would give them a letter attesting to their transparency. Others blogged, tweeted, or posted about their success (see footnote 23 of this review). Schools clearly wanted to demonstrate their commitment to transparency, a desire that LST could fulfill–as long as someone was willing to pay for their time.

LST’s certification program is designed to fill the above needs. The price, $1,925 for the first year, would cover modest salaries for the individuals doing this work. For a price comparison, consider that the ABA is paying $75,000 for an advisory firm simply to design a protocol for reviewing the integrity of data generated by law schools (a somewhat different need than the one LST proposes addressing). That $75,000 fee won’t cover any actual reviews; it will support only design of a protocol. LST has already created its protocol–for free. With $75,000, it could apply the protocol to assure that thirty-nine different law schools are providing accurate, transparent data to prospective students.

What Now?

Will LST’s certification program go forward? Fortified by a few negative blog posts, law deans may decide to forego certification and the best practices it requires. If they do, I hope that faculty at their schools will be willing to pick up the slack. Slipshod practices in reporting data are embarrassing to all of us. For years, I shook my head at the way schools reported salary information without noting response rates. We wouldn’t tolerate those practices in scholarly papers; they’re even less appropriate when urging potential students to attend our schools.

I hope some deans will embrace LST’s certification process. It’s a good way to move forward, demonstrate a real commitment to transparency, and give prospective students the information they need.

Personal Disclosure

LST doesn’t have investors; it’s a nonprofit without shares to sell. It does, however, have some donors and I am one. I gave the organization $500 in 2012 and $5,000 earlier this year; the latter is a bit less than the amount I have been giving each year to the law school where I teach (with that money going to summer fellowships for students). In addition to my financial gifts, I have served as an unpaid adviser to LST.

What do I get for my donations and free advice to LST? No football tickets, mugs, stickers, or expectations of profit. All I “get” is the satisfaction that potential law students will receive the information they need to make good decisions about their careers–and that law schools themselves, encouraged by LST, will volunteer that information more freely.

LST never solicited me for my donations. I was impressed with their work and offered the support I could afford. I am paid well for the work I do, and I think LST deserves to be paid for their work. They have done much to create needed transparency at law schools and to serve prospective law students. I wish other law professors would support LST, even at much lower levels than I have provided. With more donations, LST would not need to charge for the transparency work that it does.

I was sufficiently impressed with Kyle McEntee that I invited him to moderate this blog with me. I don’t agree with everything he writes (and he doesn’t agree with everything I write), but I thought it was important to include a recent graduate’s perspective in a blog about legal education. There are blogs written by professors, and blogs written by recent graduates, but I believe we are one of the few sites trying to combine those perspectives.

And, yes, this blog is “as purely non-profit as the driven snow.” It’s not just non-profit; it’s non-income. No advertising, no trinkets for sale, just ideas to discuss.