Law School Deans Ask For Extension On Exploitation

January 18th, 2017 / By Kyle McEntee

Originally published on Above the Law.

More than 90 law school deans have asked their accreditor to halt new standards that would hold schools accountable for very low bar passage rates.

Last October, the Council of the ABA Section of Legal Education & Admissions to the Bar approved two new standards to stop exploitative admissions and retention practices. At a time when demand for law school decreased significantly, a minority of law schools began admitting swaths of students who, after three or more years of legal education, were not adequately equipped to pass the bar exam.

Why would a law school choose to do this? To keep tuition dollars flowing.

The bar exam carnage began in 2014, reflecting admissions choices in 2011 that would only worsen each year. Bar passage rates fell substantially in 2015 and 2016, with no signs of improvement because law schools still need the revenue to remain open and face only minimal pressure from the current ABA accreditation standards.

The two new standards are simple. Within two years, 75 percent of a school’s graduates who took the bar exam would have to pass it. (Note: 99.9 percent of graduates who pass the bar do so by their fourth attempt.) Moreover, a school could not fail more than 20 percent of its entering students without a great reason. Together, these standards would require schools to acknowledge and confront the impact of their admission and retention of students.

When the Council approved the new standards, it did so overwhelmingly via voice vote. More serious than the debate to approve was the debate about whether a 75 percent minimum bar passage rate was high enough. As I have outlined previously here on Above the Law, the current bar passage standard is nearly impossible to fail because it is riddled with loopholes. For example, a school’s own poor performance can help the school stay within compliance of the current standard. Moreover, it’s a near mathematical certainty that schools in 14 states cannot fail the current standard.

At this point, one final hurdle remains for the two new standards. At the ABA mid-year meeting, the ABA House of Delegates must vote to acquiesce to the new standards or to send them back to the Council for further consideration. (If sent back, the Council can re-approve the standards.)

The letter from these law school deans asks that the Council withdraw the new standards from consideration. If the Council declines, the letter then asks the House of Delegates to send the standards back to the Council.

[W]e urge postponement for one year for additional consideration and study. This issue is simply too important to be rushed unnecessarily.

Of course, the matter has not been rushed. The Council and its committees considered this exact bar passage standard several years ago before it was quietly quashed. This time around, the discussion has been far noisier. A full year elapsed between when my organization released a widely-covered, bombshell investigation (which involved ample communication between us and the ABA) and when the Council approved changes. During that year, the Council held hearings and the proposed standards went through notice and comment.

During that period, a handful of deans and other interested parties requested more time to study the matter. Of course, in the public policy world, that usually means a let’s-defer-and-hope-it-goes-away strategy. The letter from these law school deans showcases that strategy.

The reality is that we know what we need to know. Several dozen law schools, in response to financial pressure, drastically lowered admissions standards. Now those same schools want a pass when their bar exam rates plummet beyond any reasonable measure.

To the credit of opponents of these accountability standards, they did invent a controversy to buttress the latest delay attempt.

We believe this Council action requires further consideration and scrutiny in light of significant issues raised by member deans and by legal education organizations, and, more recently, by the results of the July 2016 administration of the California bar examination.

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.

As reported by Lyle Moran in the Los Angeles Daily Journal, the first-time bar passage rate dipped six percentage points this year in California. This is the new information that the ABA, according to these deans, should consider. But of course, this was just the predictable result of the California law schools’ declining admissions standards.

Still, enacting new standards will imperil several law schools. But holding failing law schools accountable is precisely the point.