Questionnaire Committee Hearing Recap

I had the great fortune of attending last week’s ABA Questionnaire Committee hearing in Florida. It’s tough to boil down seven hours of presentations and discussion about employment outcome transparency to a single, readable post. However, a few themes emerged that I think are worth highlighting. Additionally, some great ideas were tossed around at the end of the hearing that may have established a foundation for a new proposal.

Basic Themes

First, the committee members appear to understand the problem. Prospective law students have an extremely frustrating time determining what sorts of employment opportunities different schools give law school graduates, causing the prospectives difficulty in making informed decisions. As many of the speakers pointed out, this is a consumer protection issue in part because significant investments should be made on an informed basis.

One crucial aspect of the J.D. investment, which commenters throughout the day emphasized and reemphasized, is the opportunity to get a job that allows loan servicing 6 months after graduation. Nearly everyone in attendance–from career services deans to committee members to advocates for prospective and current law students–acknowledged that prospectives are generally uninformed about the nature of the entry-level job market. Beyond the financial consequences, this means students embark on a career they know little about.

Second, the committee members appear to understand the implications of ignoring the problem. As the gateway to the legal profession, schools are dangerously close to damaging the public’s view of the profession. The trust relationship between schools and their students is under pressure, and with it the trust relationship between schools and their prospective students.

As Indiana professor Bill Henderson exclaimed during his presentation, “We have a potential scandal on our hands.” He stressed that it’s only a matter of time before a lawsuit filed by disgruntled graduates gives the profession “a black eye,” even if the lawsuit can’t survive a motion to dismiss. Kimber Russell then shared with the committee that she has twice been approached to be the lead plaintiff in a class action suit. As such, it might be too late in some respects, but the risks escalate each year nothing is done.

Third, the committee members appear to be committed to helping to resolve these problems. It’s important to remember that ABA committee members serve on a voluntary basis; they have chosen to take time away from their jobs to be involved with the ABA because they have an interest in upholding the values of the profession. When they realize those values are being compromised, they will do what they can to restore them. I think everyone in attendance, including people advocating against increased transparency, was interested in maintaining maximum credibility for the profession. Fortunately, most attendees recognized that honest disclosure of graduate employment outcomes by schools is a crucial step in limiting the appearance of impropriety, while simultaneously obliging schools to fulfill their responsibilities to applicants as consumers, investors, and students.

I’ve qualified these three themes with “appear” because the commitee members didn’t give attendees any assurances that they will make the kinds of changes people called for at the hearing. It is one thing to pay lip service to the problem, its implications, and plausible solutions, but another to actually help solve the problem and stay the consequences. This committee is in its early stages. They are gathering facts about the issue and listening to interested parties’ concerns about whether, and how, to solve the problem. So far, the committee is headed in the right direction. The committee Chair, Dean Art Gaudio, sought significant input from both consumer organizations like LST and from the schools, which were well represented at this first hearing. Committee members were also attentive, engaged, and asking the right questions to distinguish the legitimate concerns from the illegitimate.

It’s worth reiterating that the Questionnaire Committee has very limited, though extremely important, jurisdiction. The committee gets to determine which questions to ask schools on the annual ABA questionnaire. The answers then become the source for the ABA employment information available in the Official Guide. Despite this limited purview, the conversation often extended beyond the committee’s regulatory authority and looked at what the ABA as a whole might be able to do. This discussion was useful because members from other ABA committees were in attendance, notably representatives from the Accreditation Committee and the Standards Review Committee. Moreover, the extended discussion demonstrated an air of excitement for solving an important problem that requires dedicated collaboration. All three committees can, and must, work together towards a common solution.

A foundation for a new proposal

Finally, perhaps the best and most productive part of the hearing happened at the end of the day. Participants discussed a real solution about how best to demonstrate some of the economic value of a J.D, ignoring a few outlier concerns raised throughout the day. (These outliers included claims that “the ABA is seduced by data,” that current and suggested reporting standards wrongly focus on the first job, and that there is no need to share more information because prospectives have a so-called inability to understand it anyways.) Instead, we focused on a very specific solution: leveraging NALP’s considerable salary data to create a centralized website that will help prospectives make accurate estimates of how much entry-level legal jobs pay.

Jerry Organ, professor at University of St. Thomas School of Law and Vanderbilt Law alumnus, suggested early in the day an alternative to LST’s salary list for demonstrating the short-term economic value of degrees. He recommended using aggregated salary data along with narrow categories instead of salaries on a graduate-by-graduate basis. Immediately, I agreed that it would be better if done correctly. After NALP’s Executive Director Jim Leipold spoke at the end of the day, the appropriate partner for the ABA became apparent. If the ABA can effectively couple their reform efforts with NALP’s mass of salary data from across the United States, we will have a tenable solution. LST will build a mock webpage over the next few weeks based on our discussion with fellow attendees, which we will share as soon as we have a workable solution.

Prior to the NALP presentation, the room was not without friction. Law school administrators were particularly concerned about the new costs they would incur in complying with a heightened disclosure standard, particularly those representing under-staffed career services offices. Many were also concerned about other costs to their programs, such as a detrimental impact on recruiting because new methods of reporting might disproportionately impact the perception of the true, unique value of their schools’ degrees. Ironically, schools were quick to point the finger at how other schools inflate their true value under the current methods.

One of the reasons that the ABA-NALP partnership solution is so attractive is that it can meet prospectives’ needs without increasing costs for schools too much (as always, reform will cost money) and without risking privacy norm violations. But even beyond a partnership, Mr. Leipold pointed out that the committee should not look beyond the NALP survey for the questions they ask. We’ve been saying this for a long time. The NALP survey data are very high quality because NALP has done a great job figuring out the right questions to ask and schools have done a great job responding. But schools can’t pretend they don’t have these data anymore. They do and the committee members know it.

The committee listened to these concerns (which are not new to us) and asked difficult questions. Despite the fact that some schools tried to absolve themselves of any responsibility to do things differently, the committee members held their ground and seemed intent on mandating change. Their line of questioning pretty quickly moved on from figuring out the problems to focusing on which solutions were tenable and accordingly worth further examination.

What remains to be seen is whether the ABA Questionnaire Committee continues showing that willingness to engage in the issues as time goes on. Knowing that most attendees appear to be on the same page is important as we move the discussion forward. It focuses future discussions on arriving at a solution that balances the interests of both the schools and prospectives, keeping in mind the legitimate interest prospectives have in understanding the short-term job opportunities that tend to await graduates of particular programs. There is a long way to go, but we are getting there. The ABA, for its part, only needs to flex its muscle and not cede to the demands of those who wish to maintain the status quo.