Revisiting the ABA Section of Legal Education as a Captured Agency

Senator Chuck Grassley, the Ranking Member of the Senate Committee on the Judiciary, recently sent a letter to Stephen Zack, President of the American Bar Association. The letter focuses on a recent accreditation review of the ABA Section of Legal Education conducted by the National Advisory Committee on Institutional Quality and Integrity (NACIQI), which found numerous problems with the Section in its Department of Education-delegated regulatory capacity. While many of the problems are technical and easy to correct, NACIQI members were frustrated with the level of noncompliance and a few were vocal with their concerns.

Senator Grassley’s Letter

Senator Grassley’s letter contains a list of questions regarding whether and how the ABA regulates certain aspects of J.D. programs, intimating that the ABA needs “stronger oversight controls.” The Senator inquired into the collection and disclosure of scholarship retention rates (which recently gained public awareness), the collection and disclosure of loan default rates, ABA programs dedicated to educating consumers about debt repayment, and disciplinary proceedings against individual law schools.

But perhaps most interesting is the line of questioning concerning whether the ABA “track[s] the professional background of its committee membership” for “committees related to the accreditation of law schools.” Qualifying committees include not only the Accreditation Committee but also the Standards Review Committee and the Questionnaire Committee, both of whom are actively involved in redesigning how law schools collect and report employment data about graduates. It also includes the supervisory Council of the Section of Legal Education, which must vote to approve or reject committee proposals before they become enforceable.

These committees and the Council consist primarily of law school academics, deans, former deans, university presidents, and legal counsel who have been employed or are currently employed by law schools or universities. Some of these designations skirt conflict of interest rules even though they still indicate involvement in the law school model.

The ABA submitted its responses to Senator soon afterwards, one from Mr. Zack and another from the ABA Section of Legal Education. As both the letter and the responses indicate, we are seeing the reemergence of an old discussion about the professional backgrounds of ABA committee members and their role in the adaptation and development of legal education. This is a decades-long discussion about the nature of legal education and the arguably protectionist image of its accrediting body. With two U.S. senators now turning the public’s eye on these issues, Mr. Zack and the ABA cannot be comfortable with the level of congressional scrutiny regarding the Section of Legal Education and its various committees.

U.S. v. American Bar Association, 1995

As The Legal Dollar points out, committee membership rules were established following a 1995 settlement between the ABA Section of Legal Education and the Department of Justice. The rules aim to limit the number of committee members who can be directly employed by a law school at the time they serve on the committee. The Legal Dollar offers some interesting commentary as to why the Section of Legal Education has not complied with the spirit of the settlement.

We won’t repeat that discussion here. Rather, we call attention to two passages from the DoJ’s Competitive Impact Statement that we believe add context to the Section’s response to Senator Grassley:

The Complaint also alleges that the ABA allowed its law school accreditation process to be captured by those with a direct interest in its outcome. Consequently, rather than setting minimum standards for law school quality and thus providing valuable information to consumers, the legitimate purposes of accreditation, the ABA at times acted as a guild that protected the interests of professional law school personnel.

. . .

Legal educators, including current and former law school deans, faculty, and librarians, control and dominate the ABA’s law school accreditation process. Approximately 90% of the Section of Legal Education’s members are legal educators.… All current members of the Standards Review Committee and a majority of the current members of the Accreditation Committee are legal educators.

The Department of Justice thus drew two important distinctions regarding the accreditation of law schools in making its complaint. The first distinction is between the goals of a legitimate accrediting agency and the goals of a captured one: providing consumers with valuable information about the quality of a law school (the legitimate goal in this instance), vs. protecting the interests of law school faculty and staff. The second distinction is between the types of committee member employment that lend themselves to the existence of a captured agency and the types that do not. It’s important to note that the “legal educators” whom the DoJ accused of capturing the Section of Legal Education back in 1995 included former law school deans and faculty. The final consent decree also included law school staff but excluded former employees and university employees from the set of “captured” employment. As we argue below, these distinctions cause the Section’s committees to possess an appearance of impropriety, although whether actual impropriety exists is up for debate.

Prior to the consent decree, the Department of Justice noted that a majority of the Accreditation Committee were current or former legal educators. Seventeen years later, we still have a majority of current and former legal educators running the show. The 2010-2011 Accreditation Committee is comprised of 19 members. In the Section’s response to Senator Grassley, the Section breaks down committee membership as consisting of nine academics (law school professors or deans), five practicing lawyers, three public members, one judge, and one university president. Under the strict terms of the settlement decree, this does not violate the rule against having a majority of academics serving on any particular committee.

In reality, more than half of the members labeled as something other than “academics” have a direct interest in the present law school education model. For starters, four members have been associated with university systems that contain affiliated law schools (two as general counsels, one as vice chancellor, and one as a university president). Universities play an important role in law school finances, driving up the costs of attendance by depending on law school tuition dollars to fund other programs within the system. Additionally, two of the other non-academics are former law school deans. Perhaps former deans aren’t collecting a paycheck from one of the schools they are now regulating, but one would be naive to assume these accomplished leaders within the academy have severed all ties and allegiances. When nearly 80% of a regulatory committee consists of people who built their careers within a law school or an affiliated university, it is no surprise to see people questioning the committee’s independence.

While Senator Grassley has not yet explained why he is so interested in examining the professional background of committee members, it’s reasonable to assume his concern deals with agency capture by “those with a direct interest” in the accreditation process. His entrance into the debate has put an interesting twist on the breaking trust relationship between law schools and their students, their graduates, and the profession, something we’ve pointed out before.

The Breaking Trust Relationship

We do not dispute that some faculty members involved in accreditation are dedicated proponents of reform. LST has acknowledged the Section of Legal Education’s important prioritization of law school transparency over the last year, and we are supportive of the individuals who have dedicated so much time attempting to resolve some of the most pressing issues. But as the public debate about education continues to unfold, law schools cannot and should not be viewed separately from their role as the gateway into the legal profession.

In this role, both the schools and the ABA Section of Legal Education are failing in their responsibilities. Schools have a duty to adequately inform potential consumers about the value of a degree program. And the Section of Legal Education has a duty to reform legal education when the schools it accredits do not meet the needs of the profession. As the Department of Justice made clear in its antitrust suit nearly two decades ago, the purpose of an accreditation committee is to protect consumers by ensuring a level of quality. Necessary to this protection is determining how to measure the quality of a program, which is intrinsically linked to the outcomes of its graduates in the entry-level job market (for reasons we have discussed before). Those involved in law school accreditation must be more diverse in their backgrounds, particularly as the academy’s constituents do not have more than a nominal amount of experience in legal practice.

Next Up: Improving Legal Education

Senator Grassley may call for the legal profession to play a different role in regulating law schools directly. Further investigation could lead to structural reforms in how the Section of Legal Education operates. This prompts an interesting question: what’s the appropriate mix of professional backgrounds for people serving on these committees?

For starters, more consumer representation is critical. The consumer group includes not only prospective and current students, but also employers who hire or would like to hire recent graduates. The Section of Legal Education currently allows for only one member of the Council to be a Law Student Division Member. No other student representatives serve on any of the other committees. How can one consumer representative be enough to ensure fair play, given that the majority of the accusations levied against law schools deal with how they are misleading and defrauding students? A better mix might therefore mandate greater student (or perhaps recent graduate) membership to protect the rights and needs of consumers.

Second, to the extent that law school employees continue to serve minority roles on these committees, we should consider drawing a distinction between classroom-focused academics and the people who develop and provide practical skills and job placement assistance. This latter group might include career services officers, bridge-to-practice administrators, adjuncts who spend the majority of their careers in actual practice, and clinical professors. A regulatory agency charged with overseeing institutions should have experience in all aspects of how those institutions work, and traditional classroom instruction and scholarship are only two aspects of a legal education. Further, these aspects are increasingly being called into question. Law schools offer a host of professional services designed to prepare students for actual practice or assist them in finding a job, for which a measure of quality necessarily includes providing the consumer with information about results. Even where faculty do play a role in developing these services (most often while serving as dean), they do not generally know how the results of those services are advertised to prospective law students.

Finally, the inclusion of more practitioners with relevant experience would inject new leadership into the Section of Legal Education. To accomplish this goal, the ABA should revisit whether its ethical and professional leadership requires a shift in how it oversees legal education. ABA members play an active role in many aspects of the profession, in ways that could be directed to the benefit of current and prospective students. Attorneys who understand the legal hiring market for new graduates can (and at some schools already do) offer guidance in fixing the educational model to be more apprenticeship-based. These fixes should be taking place at the accrediting level, not just within individual schools. Regulators experienced in handling consumer protection claims are well-situated to take a closer look at reviewing admissions brochures and determining whether schools are misleading applicants. Enforcement of the standards will only improve as committee membership includes more attorneys who are familiar with traditional consumer fraud claims. And judges and state bar leaders who enforce professional rules of conduct, particularly rules concerning advertising and ethical communications about a lawyer’s services, would be keen to review law school behavior in the same way they review how attorneys solicit clients.

We believe this last point is timely. A lawyer who makes a false or misleading communication about their services is subject to discipline not only because of the harm they can cause to clients but also for the manner in which their actions are perceived to extend to all lawyers, which reflects poorly on the profession and limits access to justice. Were we to examine law school advertising with the same concern for the damage schools are doing in the eyes of the public, we might see very different results coming out of the enforcement arm of the Section of Legal Education. Judging by the significant number of attorneys who have contacted LST to express their support for (and interest in) improving legal education in the U.S, we think there are many people out there who are both qualified and interested in serving on these committees.

A Call For a New MacCrate Report?

For Mr. Zack’s part, having the ABA take on a greater role in reforming legal education is not a new concept. One of the foremost contributors to legal education reform in the last twenty years is none other than former ABA President Robert MacCrate, who was later instrumental in creating the MacCrate Report and now serves as Senior Counsel at Sullivan & Cromwell. (Mr. MacCrate is being honored for his work at this week’s NYSBA reception in Toronto, scheduled to coincide with the ABA’s annual meeting.)

Is it time for another MacCrate Report, one that again grounds itself in consumer rights and the needs of the profession? Such a report could address many important issues: committee membership within the Section of Legal Education; the perceived lack of enforcement; and the advisability of developing new accreditation rules that prioritize cost reductions and efficiency, with an eye toward enabling law schools to reimagine the educational and professional services they offer. Many a law school dean has argued against rules that increase operating costs and prohibit flexibility in the educational model. Most problematic is the notion that while classroom instruction may be uniform across accredited programs and thus have about the same value, the quality of professional services and the job opportunities for students swing widely without a corresponding change in tuition. As Kimber Russell (formerly of Shilling Me Softly) explained:

The ABA accreditation standards require all law schools to operate, essentially, as “luxury models” despite the fact that students from lower-ranked schools have almost invariably never had the same opportunities afforded to graduates of the vaunted Top 14 schools as ranked by USNWR. What this means is that even the lowest-ranked ABA-accredited school with the very worst reputation will still cost most students the same in tuition as the Ivy League institutions.

The Standards Review Committee is already engaged in “outcome-based reform,” but much more will need to be addressed in the coming months.

In Closing

If U.S. senators are concerned that professional ties are limiting the Section’s ability to regulate law schools nearly two decades after the Department of Justice filed suit, perhaps the ABA and the Section of Legal Education should be worried about what’s on the horizon. We expect that Senator Grassley will respond to the ABA and the Section of Legal Education with continued pressure, and that he and his colleagues will continue to shape the debate on law school transparency.