Despite news of Alaburda v. Thomas Jefferson School of Law breaking the day before the holiday weekend, the legal community has been abuzz about what the first class action suit filed against a law school for misleading consumer information means for TJSL, prospective law students, and the legal profession. This post looks at some of the responses thus far.
Many commenters have been debating the merits of this suit and whether the class will be certified. Others are wondering whether more lawsuits will follow in other states against other schools. And many commenters suggest that the ABA and/or U.S. News should be joined as defendants. Social media traffic to our website alone was substantial, suggesting that members of the legal profession are very interested in the case and may continue watching it closely.
Comments from the Parties
Ms. Alaburda’s attorney, Brian Procel, had this to say to Sara Randazzo when she first broke the story at the Daily Journal (subscription required):
This lawsuit is about ensuring that law schools are held to the same standard as other businesses and that they are not permitted to misrepresent information.
Ms. Randazzo also reports that:
Beth Kransberger, associate dean of student affairs at Thomas Jefferson, said the school has always “reported honestly and with integrity” when providing data to various agencies, including the American Bar Association and the National Association for Law Placement.
Ms. Kransberger then added:
A law degree remains an amazingly versatile degree, and that continues to be what drives us.
Ms. Kransberger made additional comments to Karen Sloan in the National Law Journal:
The school has always followed the guidelines established by the ABA. We’ve always been accurate in what we report, and we’ve always followed the system given to us by the ABA.
This lawsuit is very much about a larger debate. This is part of the debate about whether it’s practical to pursue a graduate degree in these difficult economic times.
The Reality of TJSL’s Comments
Ms. Kransberger’s comments about the ABA Section of Legal Education are not surprising, as they will represent a crucial part of TJSL’s substantive legal argument. In particular, the law school hopes to show that it has acted properly by responding truthfully to the ABA questionnaire and NALP survey each year.
This conflates two separate acts by TJSL: reporting and presenting employment data. Although false reporting would be problematic for TJSL for each cause of action, as they focus on misrepresentations, acts of concealment, and misleading statements, TJSL could have reported true data to the ABA, NALP, and U.S. News and Ms. Alaburda would not be precluded from recovering under any of the actions.
As we have continuously emphasized, the issue is how law schools present consumer information to the public, not only what they report to the ABA, NALP, and U.S. News. (Although truthful reporting may be an issue at some schools, especially in light of the Villanova Law scandal, many, many more law schools mislead prospective students, intentionally or unintentionally, with how they choose to present consumer information.)
Law schools deserve the brunt of the blame for the current lack of quality employment information, including the provision of misleading information, even though the ABA Section of Legal Education has a responsibility to regulate under its accreditation authority. It is worth noting, however, that the Section only has to act because schools do not voluntarily release the information prospective students need to make an informed investment. The responsibilities of law schools to prospectives and the profession are not absolved or delayed because the Section regulates law schools; nor does it matter that the Section is considering more careful regulations. The failure of the Section to monitor whether schools are behaving legally is an argument against the Section, not in favor of a particular law school.
These responsibilities are confirmed by Standard 509, the ABA’s (minimum) consumer information standard. Standard 509 is just one of the Section’s standards that law schools must meet to obtain and retain ABA approval. Compliance with this standard in particular is at the core of Ms. Kransberger’s claim that “[TJSL] has always followed the guidelines established by the ABA.”
Standard 509: Basic Consumer Information
(a) A law school shall publish basic consumer information. The information shall be published in a fair and accurate manner reflective of actual practice.
Standard 509 requires a law school fairly and accurately to report basic consumer information whenever and wherever that information is reported or published. A law school’s participation in the Council-designated publication referred to in Interpretation 509-2 and its provision of fair and accurate information for that book does not excuse a school from the obligation to report fairly and accurately all basic consumer information published in other places or for other purposes.
In addition to the Interpretation above, Interpretation 509-1 provides a list of what information is considered “basic.” Concerning employment information, only the “any job at all” employment rate and bar passage statistics are included in the list, leaving it up to the interpreter to determine whether the list is exhaustive or whether other basic employment information must also be reported in a fair and accurate manner. We think it does. Under Standard 509, for example, it is not explicitly stated that a law school must fairly and accurately report the number of graduates employed in a fulltime legal job. However, it would be absurd to think a law school can unfairly and inaccurately report the number of graduates employed in legal jobs should the school volunteer that information. It is in part due to the inadequacy of this list that we have pushed for a revision of Standard 509.
Grounding a defense against misrepresentation by pointing out that a school complies with an ineffective standard should fail, particularly if the school is arguably not even in compliance. If a law school is aware that the information it shares does not adequately explain its post-graduation outcomes and is aware that the information misleads consumers, the law school is open to an investigation and potential sanctions by the Accreditation Committee. The fact that no sanctions have yet been issued is only a sign that the ABA hasn’t received any complaints, which hardly makes TJSL unique. In an email response to LST last month, Consultant Bucky Askew informed us that during his tenure as Consultant to the Accreditation Committee (since December 2005) there has not been a single complaint filed against any law school alleging violations of Standard 509. You can read more about the complaint process and how to file a complaint against your law school here
Perhaps most telling is that even the ABA doesn’t seem to think that TJSL’s tactics are in compliance. The Subcommittee on Standard 509, charged with improving Standard 509, also asserts that the kind of behavior that TJSL engages in is in fact misleading. According to the subcommittee, “a school that touts median salary information, without appropriate qualifiers, is misleading prospective students.”