Accreditation

July 31st, 2016 / By Deborah J. Merritt

Earlier this summer, a federal panel recommended suspending the ABA’s power to accredit new law schools for one year. The transcript for that meeting has now been published, so we can examine in detail what happened. It’s clear that the panel intended its action to “send a signal” to the ABA Council that accredits law schools. All of us in legal education need to hear that signal: It affects the standards we adopt for accrediting law schools, as well as the eligibility of our students to take the bar exam.

Background

Let’s start at the beginning. The ABA’s Council of the Section of Legal Education and Admissions to the Bar, as most of us know, accredits law schools. Schools seek that accreditation to attract potential students, qualify existing students for federal loans, and assure that their graduates can sit for the bar exam in every state.

The Department of Education, however, won’t accept just any organization as a bona fide accreditor of educational institutions. The Department has its own process of accrediting the accreditors (aka “turtles all the way down“). Just as law schools have to renew their accreditation periodically, the ABA Council has to renew its credentials with the Department of Education. Our ABA Council is going through that process this year.

A fifteen-member advisory panel, the National Advisory Committee on Institutional Quality and Integrity (“NACIQI”) plays a key role in the Department’s accrediting process: It reviews materials compiled by Department staff, holds a hearing with the agency seeking accreditation, and provides recommendations to the Secretary of Education.

Student Debt and Outcomes

For the last decade, NACIQI has pushed accrediting agencies to gather more data on student costs and outcomes, as well as to monitor those criteria when accrediting educational institutions. Those issues lay at the heart of the ABA Council’s very bad day: NACIQI members hammered the ABA representatives with questions about law student debt, employment outcomes, and bar passage.

In the end, NACIQI concluded that the ABA wasn’t paying enough attention to these issues when accrediting law schools. Committee members discussed the “nuclear option” of recommending denial of the ABA’s reaccreditation, but recognized that would withdraw federal loans from all law students. Instead, to assure that the ABA took its concerns seriously, NACIQI adopted one of its other options: It recommended that the Secretary suspend the ABA’s power to accredit new law schools for one year and requested that the ABA return after that year to update the Department on steps it had taken to better protect students and government lenders.

That’s where the matter stands. The Secretary has not yet acted on NACIQI’s recommendation. If he adopts the recommendation, the ABA could appeal the decision administratively. Pending completion of that process, the ABA’s Council retains full accreditation powers. But how did the ABA get into this mess? And what should we as legal educators do about it?

Four Flaws

NACIQI recently released the transcript of its June 22 meeting with the ABA’s representatives and I’ve read the full discussion. There were four points, I think, that proved particularly damaging to the ABA’s case.

First, the ABA had to concede that our accreditation standards offer students and lenders little protection against schools that charge high tuition while generating weak bar passage rates and employment outcomes. The standards now require law schools to be more transparent on these issues, but transparency alone may not achieve NACIQI’s aim of protecting both students and federal taxpayers. As NACIQI’s website notes, students enrolled in postsecondary institutions “receive an estimated $158 billion in Federal student aid annually.” The Department of Education has a strong interest in ensuring that its money is well spent.

Second, NACIQI questioned the ABA’s enforcement of its current standards. Law student debt has been rising, while job outcomes and bar passage rates have been declining, for some time now. At least a few law schools, NACIQI members noted, appear to produce very high debt for very poor outcomes. Why hadn’t the ABA done anything to put those schools on probation or otherwise enforce its standards?

In response to these questions, ABA representatives explained that they look closely at schools that raise “flags.” They also noted that proposals are pending to tighten the Council’s standards with respect to bar passage and admission of poorly qualified students. They conceded, however, that none of these efforts had come to fruition.

This exchange led to the third flaw: NACIQI members stressed the glacial pace of the ABA’s attempts to address problems in legal education. When an ABA representative reassured the committee that the Council recently began auditing law school employment statistics for accuracy, a committee member observed:

I went back to look at the 2011 transcript [from the ABA’s last review] where you said at that time that you would be designing a protocol so in fact it has taken a very long time and in fact it is just in time to meet with us that you have come up with this auditing so I just want to point that out.

I am glad you have gotten it done but it is amazing to see what a meeting can do to focus one’s attention because I remember back in 2011 we had some pretty heavy conversations prompted by [Senators] Grassley and Boxer and others who were deeply disturbed about this representation of placement rates and duping of students and at that point you promised us [to] keep up and try to work a little faster.

This observation, I think, was key to NACIQI’s decision to put the ABA on a shorter leash. Concerns about the integrity of law school employment statistics were widespread by 2011. Why did it take 5 years for the ABA to develop an auditing process? And why did the Council implement that process only when it was up for reaccreditation? NACIQI members respected some of the ABA’s efforts, but they were frustrated by the pace.

Finally, NACIQI contrasted the ABA’s slowness to protect students and lenders with its vigorous enforcement of standards that benefit full-time faculty while increasing the cost of legal education. Committee members, for example, focused on Standard 403, which requires full-time faculty to teach “substantially all” of the first-year coursework, as well as more than half of all credit hours or two-thirds of the student contact hours.

While acknowledging that full-time faculty offer benefits to students and institutions, a NACIQI member wanted to know: “do you have data that show these time frames are absolutely critical to legal quality education or does it–or regrettably am I forced to wonder if it is [again] something I used earlier, a little bit more of a guild mentality than one that is focused on educational quality and providing it in an affordable way?”

In response to this very candid question, the ABA representatives conceded that there are no “metrics” showing that a substantial portion of the first year must be taught by full-time faculty, or that half of all credit hours must be taught that way. Educators believe that this is necessary for quality education, but there is no hard evidence supporting that particular line.

Where Do We go From Here?

Members of the ABA Council will continue their struggle with NACIQI and the Department of Education. It seems clear that, even if the Secretary continues the ABA’s full accrediting power, the Department wants to see bigger, faster progress on issues related to debt and student outcomes. This, in turn, has implications for all legal educators.

Most professors, I think, measure educational quality by the opportunities we offer students for cognitive development. A high quality program, we think, offers a rich array of courses that teach critical thinking skills, expose students to new perspectives, and expand their understanding of the world. We’re not accustomed to including metrics like cost, job outcomes, or bar passage in our definition of “quality” education.

It’s clear, however, that students, lenders, and the general public do care about these metrics. These groups value the same quality indicators that we cherish, but they also care about costs and jobs. Given the very rapid increase in educational costs, combined with shifting occupational demands, they’re right to care about those issues.

This is especially true for law schools. Our tuition levels very high–some of the highest in the academy. Rather than keep pace with that tuition, our placement and bar passage rates have fallen. At the same time, we haven’t been able to produce graduates who can affordably serve the legal needs of low/moderate-income individuals and small businesses. Students, taxpayers, and the general public are right to worry about these discrepancies.

In the long run, of course, we might all be fine. Over their lifetimes, today’s law school graduates might earn a sufficient premium to offset the high costs of their education. If so, most of them will repay their loans–along with sufficient interest to make taxpayers very happy. At the same time, technology and entrepreneurial spirit might empower those graduates to create new affordable means of providing legal services. If the future unfolds this way, everyone will applaud the quality of today’s legal education.

But the future might not be that bright. Our profession has a particularly poor record of serving low- and middle-income clients. Will we really improve that service at the same time that students pay (and borrow) more than ever for their legal education? Twenty years from now, we might find that a significant number of law graduates have not recouped the cost of their education; that government lenders are not recovering their loans; and that individuals and small businesses are more desperate than ever for affordable legal assistance.

I think students, lenders, and the public want law schools to bear some of that risk. Rather than assert that all is well, they want us to acknowledge the risks they face. They also want us to share those risks by adopting accreditation standards that offer some protection to students, lenders, and the public on matters of cost and outcomes.

Where is the accreditation standard that requires law schools to devote more of their scholarship money to need than to high LSAT scores? Or the one that requires schools to educate students in practice methods that can reduce client costs? Why have we tolerated a bar passage standard that allows schools to maintain full accreditation for years after their bar passage rate dips alarmingly? Why don’t we vigorously enforce our standard that prohibits admission of “an applicant who does not appear capable of satisfactorily completing its program of legal education and being admitted to the bar?”

The Department of Education wants answers to questions like these, and we should be asking those questions as well. Talented institutions, like talented students, can coast for a very long time. Eventually, though, a day of reckoning arrives.

For further updates, see this story in the ABA Journal.