Attrition May Jeopardize Accreditation Status Of Dozens Of Law Schools

February 24th, 2016 / By Kyle McEntee

This column originally appeared on Above the Law

Earlier this month, the ABA Section of Legal Education and Admissions to the Bar took an important step towards holding law schools accountable through the accreditation standards. The committee charged with writing the law school accreditation standards voted to send a slate of accountability measures to the Council of the Section of Legal Education — the final authority for law school accreditation.

Last week I wrote about the proposed changes to the minimum bar passage standard and the transparency standard. This week, I discuss the Standards Review Committee’s proposals for refining the non-exploitation standard, Standard 501.

A Little Context

Dozens of law schools around the country have made unethical admissions choices in the face of financial pressure over the past few years. As a result, bar exam rates have already fallen dramatically, with the worst yet to come.

Fortunately, the ABA has at its disposable an accreditation standard that stipulates that a school shall not enroll a student who does not appear capable of completing the JD program or passing the bar. Unfortunately, the ABA has not publicly wielded its power. In part this is due to the ABA’s mystifying interpretation of how to assess “capability” for the purposes of the standard, Standard 501(b). In part it is also because drawing a bright line between capable and not capable presents a very difficult task, especially when bar exam difficulty varies across the country. A bright line is not necessary, but the lack of one seems to have paralyzed the ABA from acting on its current standard.

A New Middle Ground on Standard 501

The SRC has submitted two proposals to the Council. Both proposals require schools to “adopt, publish, and adhere to sound admission policies and practices” instead of “maintain[ing]” those policies. The effect: schools must be have a written policy that the ABA can evaluate for substance and adherence. This sounds really great in theory. Yet no school will write a policy that immediately puts its accreditation status in danger. The schools violating Standard 501(b) will issue boilerplate policies that insulate them from any and all risk.

Both proposals also add a sentence to Interpretation 501-1. (Note: There is no practical difference between Interpretations and Standards.) The change provides that “Compliance with Standard 316 is not alone sufficient to comply with [Standard 501].” Technically this language is not necessary, but it does signal to schools that they cannot point to bar passage outcomes alone — which reflect admissions choices many years ago — to justify the admission standards for students who have yet to take the bar exam. The SRC added this sentence because equating Standard 316 compliance with Standard 501 compliance has become the norm.

From here the first proposal and the second proposal diverge. The first proposal takes no meaningful steps towards addressing the exploitative admissions policies at dozens of law schools across the country. It provides no new tools for the ABA to combat its self-inflected paralysis on the non-exploitation standard.

The second proposal tries something new, however.

Proposed Interpretation 501-3
A law school having an attrition rate for purposes other than transfers above _____ percent bears the burden of demonstrating that it is in compliance with the Standard.

The effect: create a rebuttable presumption that a school that fails out a certain percentage of students has made exploitative admissions choices. The SRC left the percentage open for the Council to determine, but during the SRC meeting the committee discussed a 10% threshold.

A rebuttable presumption of non-compliance from high attrition is a novel approach. This attempts to stop schools from enrolling too many people who don’t complete school. The downside is the incentive to keep struggling students in school.

Of course, schools taking unethical admissions risks already succumbed to the monetary incentive of admitting and retaining students. With this change, not only do they get more tuition money, but they have the additional incentive of avoiding accreditation trouble.

But the incentives from the attrition presumption are only part of the picture. Unless a school can convince graduates who should have been failed out not to take the bar exam, e.g. by paying them, the school will risk violating the bar passage standard. The question is whether the whole apparatus produces strong enough disincentives to combat the games schools will be tempted to play with real lives. Part of that equation is the vigor with which the ABA enforces its accreditation standards.

Real World Impact

Let’s look at some numbers to get a rough idea of what would happen now.

The ABA changed its attrition data collection procedures recently, so our dataset is limited to attrition for students who started in 2013 and 2014. For both years we have data about forced “academic” attrition and “other” non-transfer attrition. Under the proposed Interpretation, the combined academic and other attrition above a certain percentage trigger the rebuttable presumption of non-compliance.

The datasets for 2013 and 2014 differ in another way. The 2013 matriculant group reflects two years of possible attrition. The 2014 group reflects just one year. Third and fourth-year attrition does happen, albeit at lower rates.

Using the 10% threshold discussed at the SRC meeting, 62 law schools would be presumed non-compliant with Standard 501 for students starting in 2013. The number — again, reflecting one fewer year of attrition — for students starting in 2014 is 58.

As you might expect, the overlap between the schools with very high attrition and very low incoming predictors is quite significant. In 2013, 36 schools enrolled a class where the students were at very high or extreme risk of not completing school or passing the bar exam. More than 80% of these schools fail under the proposed standard.

This is a strong response to the problems outlined by my organization’s investigation into law school admissions and retention policies. Combined with the proposed changes for the minimum bar passage standard, the ABA is well on its way to surprising a lot of people. Several years ago the ABA came through when we asked them to change how they regulate job statistics and related disclosures. I’m optimistic success is again right around the corner, but we’re not there just yet.