ABA head has little sympathy for jobless lawyers

Transcript from William Robinson’s August 2011 video on law school transparency:

In America, we have absolutely the best system of legal education anywhere in the world. We also have some of the best students in the world. And we have in this country a wonderful opportunity to practice law in a free democracy.

In the face of current economic realities, the ABA supports making financial and job information complete and transparent for students and the public. We want to assure, in working closely with our deans and dedicated faculty members, that these students get all of the needed information to make informed decisions.

We want them to be comfortable that when they take on debt they understand the terms and the dimensions and the responsibilities that go along with that debt.

Senator Boxer Questions ABA’s Resistance to Basic Change

U.S. Senator Barbara Boxer has once again reached out to the ABA to express concern about the ABA Section of Legal Education’s regulatory failings. This is the third letter from Senator Boxer. The first and second letters, addressed to immediate past ABA President Stephen Zack, both called for the ABA to shore up its oversight responsibilities as it pertains to the provision and verification of consumer information provided by law schools to prospective law students. This letter (full text below), sent to current ABA President William T. (Bill) Robinson III, follows the same themes, though it specifically criticizes the Section’s decision not to require law schools to disclose their legal employment rates for the Class of 2010. It remains clear that the Senator’s interest in law school transparency is not fleeting, but rather the product of genuine concern and disbelief that law schools habitually provide misleading employment information and that the Section of Legal Education is not doing enough to curb institutional misbehavior.

This letter comes in the wake of an editorial we wrote in the National Law Journal. We criticized the Section’s proposed changes to the annual questionnaire because they did not require law schools to disclose their legal employment rates for the Class of 2010.

On Sept. 23, the Section’s Questionnaire Committee will finalize the 2011 questionnaire, which asks about the class of 2010. Additional reforms are slated for 2012. If nothing changes, the section will collect fewer job characteristics data than it has collected in prior years. Apparently, whether a job requires bar passage or only prefers a J.D., or whether a job is full- or part-time, are now too obscure to define without many more meetings.

After the Sept. 23 meeting, nothing changed. In fact, during the meeting certain committee members actually proposed additional ways to count graduate outcomes as desirable, including counting unemployed graduates as employed so long as they had declined a legal offer. While other committee members refuted this attempt to favor law schools over graduates, this sort of protectionism runs counter to basic notions of consumer protection and has no place in the regulation of our country’s law schools.

The 2011 questionnaire, which will no longer ask whether a job is legal in nature, is now active and due at the end of this month. While we believe that Senator Boxer’s letter will eventually force the schools to provide the Class of 2010 legal employment rates at each law school, it should not take congressional hand-holding to get the Section to require such basic consumer information.

As Senator Boxer points out in her letter:

In a year when a number of lawsuits alleging consumer protection law violations have been filed against ABA law schools, when major newspapers have devoted thousands of words to problems with law school reporting practices, and when two United States Senators have encouraged significant changes to your policies, it is surprising that the ABA is resorting to half measures instead of tackling a major problem head on.

The letter also follows an announcement yesterday that two law firms are planning to file class action lawsuits against 15 additional ABA-approved law schools. Taken together, the events of this week may indicate that the Section of Legal Education has less time than it thinks to start turning things around.

Senator Boxer’s Letter

Dear Mr. Robinson:

Following the previous correspondence between your predecessor and me concerning law school reporting practices, I am writing to address some unresolved issues. While I applaud the American Bar Association’s Section of Legal Education for addressing other deficiencies with current post-graduation employment and salary reporting requirements, I was very disappointed to learn that the Section decided not to require that law schools report the percentage of their graduates working in the legal profession or the percentage of graduates working in part-time legal jobs in its upcoming questionnaire.

In my two previous letters to your predecessor, I indicated my strong belief that the ABA should ensure that post-graduation employment data provided to prospective law students is truthful and transparent. His responses appeared to indicate a similar interest, but unfortunately it is difficult to square those previous statements with the Section’s recent decision.

According to The National Law Journal, a Washington University law professor has determined that for the Class of 2009, at least thirty law schools had 50 percent or fewer of their graduates in jobs that required a law degree. Data published by the National Association for Law Placement indicates that since 2001, only two- thirds of graduates from all ABA-approved law schools obtained legal jobs.

However, we know that most law schools report that nearly all of their students have jobs shortly after graduation. The difference between the information reported by schools and the real legal employment rate for recent graduates is very troubling. That is why requiring law schools to accurately report the real legal employment rate of their graduates is so important.

In a year when a number of lawsuits alleging consumer protection law violations have been filed against ABA law schools, when major newspapers have devoted thousands of words to problems with law school reporting practices, and when two United States Senators have encouraged significant changes to your policies, it is surprising that the ABA is resorting to half measures instead of tackling a major problem head on.

I also continue to have concerns about the lack of transparency for prospective law students in other areas:

Independent Oversight

The Section of Legal Education failed to address the overwhelming need for independent oversight and auditing of statistics reported by law schools. In September, the University of Illinois was found to have been inaccurately reporting law school admissions statistics, the second such school to have done so in recent months. In addition, many lawsuits have been filed alleging that law schools are violating various state consumer protection laws and false advertising laws.

These developments are very troubling, and without independent verification of the information reported by law schools, the opportunity to file inaccurate reports will remain.

Merit Scholarships

As I noted in a previous letter, the New York Times has detailed the recent increase in the number of merit scholarships offered by law schools and demonstrated how scholarships are being used to convince students with high LSAT scores to attend lower-ranked law schools.

While the opportunity to earn a very expensive law degree at a fraction of the cost can be an attractive option for many students, the Times exposed a major problem with scholarship transparency. Many law schools fail disclose how the school’s grading curve and scholarship conditions can combine to prevent the student from understanding the scholarship’s real value.

It was reported that at one school, 57 percent of first-year students in one class year received a merit scholarship, but only one-third of the students in that entire class could receive a GPA high enough to maintain their scholarships. Students should have more information about the risks of accepting merit scholarships so that they can make fully-informed decisions about their future.

I appreciate the ABA’s willingness to make some changes to its reporting requirements, but I believe it is in the best interest of law students everywhere for the ABA to address these remaining issues as soon as possible. I look forward to your response.

Sincerely,

Barbara Boxer
United States Senator

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.

ABA President Stephen Zack Responds to Sen. Boxer

From the National Law Journal:

Senator Boxer shares our concerns and we appreciate the ongoing dialogue we’re having about the important issues of how law students finance their educations and learn about their employment prospects post-graduation. We’re glad the Senator is “encouraged” and “pleased” by what the American Bar Association and its Council on Legal Education have been doing. – Stephen Zack

Senator Boxer Calls for Auditing, Better Access to Information

Scrutiny of the ABA continues today as Senator Barbara Boxer increases her pressure on the ABA Section of Legal Education’s regulatory failings. Moments ago, she issued her second letter to the ABA on the need for law school transparency (first letter). This letter to ABA President Stephen Zack addresses why Senator Boxer remains concerned despite the ABA’s current efforts, and asks the ABA to explain their plans regarding a few key concerns (full text below).

Senator Boxer would like to see the ABA address:

  • the auditing of law school data (noting that current proposals continue to allow self-reporting without auditing procedures);
  • better regulation of how prospective students can access information, focusing primarily on how law schools advertise employment outcomes on their websites; and
  • the need for more scholarship transparency.

The letter is in response to Mr. Zack and the Section’s assurances that they are addressing what has become a widely-reported call for law school transparency. Over the past year, the Section has had two committees, the Standards Review Committee and the Questionnaire Committee, both tackling the issue of better informing prospective law students. The Questionnaire Committee will recommend changes to the annual questionnaire to the Section’s Council in June. The Standards Review Committee will recommend its changes to the Section’s Council as early as August.

Senator Boxer and her staff are well-informed on the lack of law school transparency and understand the impact it has on our profession. With this understanding, Senator Boxer is in a position to acknowledge that these committees are off to a good start. Committee members have prioritized these issues and have taken input from all sides in formulating their proposals. However, as Senator Boxer’s letter indicates and as we have outlined before, the proposals currently on the table still need work.

Section Committee members need to continue exploring how best to adequately inform prospective students about the significant investment of earning a law degree. There also needs to be substantial pressure on the Council to approve the committee proposals in June and in August. Finally, Council members will also have to determine whether the proposals go far enough in terms of content, access, and auditing. And as we wrote earlier this week, additional Congressional involvement may be appropriate if the ABA doesn’t do its job.

For these reasons we are renewing our call for the Section of Legal Education to establish a new disclosure standard that meets LST’s criteria, while at the same time improving access to (and understanding of) employment and cost information. Continued congressional scrutiny is making it ever more obvious that the public is demanding accountability. We look forward to hearing the ABA’s response.

Senator Boxer’s Letter

May 20, 2011

Dear Mr. Zack:

Thank you for your response to my letter regarding the transparency and accuracy of post-graduation employment and salary information reported by law schools.

I was encouraged to learn that in June the Section on Legal Education and Admission to the Bar will be considering recommendations on how the ABA can improve access to accurate and transparent information for prospective law school students. I view this as a positive step toward improved standards, but before completing its work on these important recommendations, I urge the Section to address some other important issues.

1. Independent Oversight

It is troubling that the recommendations do not address the need for independent oversight of the data law school deans submit to the ABA and publications like U.S. News and World Report. The Section’s recommendations would allow law schools to continue to submit unaudited data, despite the fact that a lack of oversight has been identified by many observers as a major problem.

The editor of U.S. News and World Report wrote a letter to all law school deans, noting a “crisis of confidence in the law school sector” and asked deans to be more vigilant in their data reporting. This letter and the recent news that a well-known law school admitted to knowingly reporting inaccurate data to the ABA for years indicates that independent oversight must surely be a part of any reform proposal.

2. Easy Access for Students to Information

The ABA should undertake efforts to ensure that students have easy access to post-graduation employment and salary information. Prospective students should not have to search far and wide for information so critical to determining their futures. To achieve this goal the ABA should make it standard practice for law schools to post links to this information on website homepages, and to include these documents in acceptance notices.

I would be remiss not to mention a very troubling New York Times article on law school merit scholarships. The article detailed the recent increase in the number of merit scholarships offered by law schools and demonstrated how scholarships are being used to convince students with high LSAT scores to attend lower-ranked law schools.

While the opportunity to earn a very expensive law degree at a fraction of the cost can be an attractive option for many students, the Times exposed a major problem with scholarship transparency. Many law schools not only fail to make it clear that prospective students must meet minimum GPA requirements, they also do not disclose how the law school’s grading curve can prohibit all students offered scholarships from maintaining the benefit every year.

It was reported that at one school, 57 percent of first-year students in one class year received a merit scholarship, but only one-third of the students in that entire class received a GPA high enough to maintain a scholarship. In the Times article, an ABA official admitted he was unaware of any problems with merit scholarships, and noted that the ABA does not ask schools to report how many students lose their scholarships each year and does not publish any information for prospective students on this subject.

I look forward to reviewing the results of the Section’s June meeting, as well as your response to the merit scholarship issue.

Sincerely,

Barbara Boxer
United States Senator

SBA President Coalition Endorses Ideas Behind New Bill

The last two months have seen two notable actions concerning oversight of the ABA Section of Legal Education, which accredits law schools and regulates their behavior. At the end of March, California Senator Barbara Boxer put some pressure on the ABA President, Stephen Zack, to ensure that the ABA Section of Legal Education appropriately addresses the lack of quality employment information. The underlying idea: put the ABA on notice that a Senator is watching and that the Section of Legal Education needs to produce results.

Adding to the discussion, the outgoing president of the student bar association at BC Law School, Nate Burris, made public yesterday the creation of a coalition of 55 law school student bar association presidents. The coalition seeks congressional relief for the lack of law school transparency. (The full text of the press release is below. h/t Above the Law.)

Mr. Burris began contacting SBA presidents en masse about a month ago. (The full text of one of these emails, which we received from a tipster, is also below.) In this email, Burris made the following key points:

  • Mr. Burris aims to use the support of law school SBA presidents for momentum
  • The SBA president coalition planned to present the bill, for introduction, to four U.S. Senators (from Massachusetts and Vermont)
  • The bill would require that law schools submit an annual report of employment information to the Department of Education
  • The bill would empower the Department of Education to audit these reports

The initial draft of the bill would create a new reporting standard for employment data, with the Department of Education as the collecting body instead of the Section of Legal Education. This standard is the same as the LST Standard, except that it does not indicate who pays the salary, which is now an important distinction given the development of school-funded bridge programs. Perhaps more importantly, it does not protect graduate and employer privacy by separating employers from the salaries they pay.

LST and the SBA president coalition

We’ve spoken at length with Mr. Burris about our thoughts on the bill’s content and timing. Notwithstanding our concerns, which we discuss below, Mr. Burris is committed to improving law school transparency and we look forward to the conversation the proposal will generate. It will add to the collective understanding of the issues and encourage others holding leadership positions to express their comments publicly.

However, as we communicated to Mr. Burris, LST believes the decision to bypass the ABA Section of Legal Education (“Section”) is jumping the gun. While it is both understandable (and correct) to think that the Section has been too slow and too reticent to change, institutional sluggishness is not enough to justify seeking legislation just yet.

These actions are not yet warranted

Passing this legislation would essentially require a congressional determination that both the Section and the Department of Education are incapable of executing the job that Congress previously delegated. Accreditation authority was assigned to the Section by the Department of Education, to which Congress delegated the authority to appropriate accrediting power.

To alter this relationship, Congress would require enough evidence that the Department of Education has failed to adequately oversee the Section and that the Section has failed to adequately regulate law schools. The situation must be such that Congress feels compelled to do more than simply ask the ABA what the status is on increasing transparency. As Senator Boxer’s press release indicated, the political viability of more involvement is presently low.

This is not to say that attempts to get members of Congress involved aren’t a good idea. Certainly, they can exert substantial public pressure; Senator Boxer’s letter of inquiry may be just the beginning of congressional scrutiny. Presenting a bill to the four Senators may result in more investigation and present another opportunity to influence the ongoing conversation, perhaps ensuring that the Section fully addresses the lack of law school transparency sooner rather than later.

But the SBA president coalition is up against a very strong presumption that the Department of Education and the Section are capable of solving the problem once identified, and that they are willing to take the steps that are necessary to fix it. This presumption is derived from the decision to delegate regulatory authority in the first place. Now that the Section has prioritized employment reporting shortcomings, rebutting this presumption before they take final action (or before it becomes clear they are delaying taking final action) is unlikely. It is far too easy for the Section to reiterate what it told Senator Boxer: ‘rest assured, we are on it.’

Still, we are hopeful that the coalition’s proposal will result in further recognition from political leaders, along the lines of what Senator Boxer has already contributed. We also look forward to seeing more from SBA coalition leaders as they explore ways to improve law school transparency.

Shifting the focus

The most productive action at this time will be ensuring that the Council of the Section of Legal Education, which will eventually vote on any Standard 509 reforms proposed by the Standards Review Committee, considers and accepts a standard that adequately improves the quality of employment information. To this end, the coalition leaders should focus their energy on lobbying the Section to solve the issues that the coalition was formed to address. We hope to continue engaging with Mr. Burris and other coalition leaders to rally support for proposals that can do the job, such as the LST Supplemental Proposal.

This is not to say that engaging the Department of Education and Congress for direct action will never be appropriate and more politically viable. Continuous, national attention has unambiguously put the Section of Legal Education on notice that it has inadequately regulated law schools. But the pressure is first on the Section’s Standards Review Committee and next on the Section’s Council to accept the Committee’s new Standard 509 this year.

The Section must adequately remedy the lack of law school transparency if it wants to fulfill its responsibilities, both to the legal profession and under its delegated authority. If the Section falls short of fulfilling these obligations, it will be time to seek governmental reform. The political viability of getting Congress to reconfigure the current regulatory framework will be highest after the Section of Legal Education fails, not while it is in the process of establishing and voting on reforms.

Press Release

Student Body Presidents of 55 Law Schools Call for Reform in the Reporting of Data Pertaining to Legal Education

NEWTON, MA – The student body presidents of 55 law schools across the country joined together today in a call for enhanced accuracy, accountability and transparency in the reporting of data pertaining to legal education. The presidents, from 27 states, proposed legislation to reform the current system of reporting in order to ensure the receipt of sufficient information – necessary for prospective law students to make informed decisions as to where, or whether, to attend law school – that is both clear and accurate.

The proposed legislation would require law schools to submit annual reports to the Department of Education, and would further require the Dean of each law school to endorse such reports. Federal funding provided to schools would be contingent on both the submission and accuracy of the reports, which would include an array of post-graduation employment data. The legislation does not take the role of accreditor from the hands of the American Bar Association. Rather, it aims to strengthen oversight by giving authority to the Department of Education to ensure that current and prospective students receive sufficient, accurate information. The proposed legislation parallels the body of law governing corporations, where annual reports are submitted to the Securities and Exchange Commission.

Between 1985 and 2009, tuition rates have increased over 800% at private law schools, and over 500% at public law schools. As a result, the average graduate of a private law school in 2009 incurred over $100,000 of debt, while the debt of public law school graduates was over $70,000 – not including debt incurred from an undergraduate education. As of 2008 – prior to the recent recession affecting the legal job market – the American Bar Association reported that 42% of graduates would by employed at salaries below the level necessary for a positive return on the investment in a legal education. However, many schools report employment rates approaching 100% and average salaries as high as $160,000.

“Tuition rates are rising, debt levels are historic, while job prospects for many are slim,” said Nate Burris, President of the Law Students Association at Boston College Law School and author of the proposed legislation. “This isn’t a bailout, nor is anyone asking for a ‘refund’ – more modestly, we are proposing the reform of a broken system that jeopardizes the future for many bright minds. We are proud of the education we have received, and it is our zeal for the legal profession, which we will soon enter, that drives this effort.”

The legislation builds on previous calls for increased transparency by such organizations as the Law School Transparency Project, and will be sent to congressional leaders later this week. “Since the federal government is providing the bulk of these loans,” said Burris, “the question is: does the federal government want to be the underwriter of this financial distress and discontent?”

Letter to SBA Presidents

Hello [redacted],

My name is Nate Burris and I am the President of the Law Students Association (essentially the same thing as the Student Bar Association at most law schools) here at BC Law. My understanding is that you are the President of the student body at [redacted], is that correct?

I am working on a project for which I am hoping to get the support of as many SBA Presidents as possible – in short, I was hoping you might be willing to add your signature, as President of the student body, to this bill.

Here are the details:

I’ve attached a draft bill which will be presented to Senators Kerry and Scott (who both graduated from BC Law) as well as the Senators from my home state of Vermont (Leahy and Sanders, who happens to be on the Health, Education, Labor & Pensions Committee). My hope is to expand from there – in this climate, I think the bill has a chance at serious attention. I that spirit, I am hoping to get as many student body Presidents – such as yourself – to co-sign the bill. If you’re interested in doing so, I am hoping to have all “signatures” by Friday (if you just email me an ok, along with your official title, that will do).

In essence, the bill aims to do a few things: first, it would require that law schools submit an annual report to the Department of Education, similar to the reports submitted to the ABA and NALP (though more comprehensive) – this is a fundamental change, but will hopefully improve accountability. Second, it would require that the information in the report be true (this seems like a no-brainer, but here is some background on why this is necessary: http://blogs.wsj.com/law/2011/02/08/is-the-sec-the-answer-to-the-villanova-syndrome/). And third, given the pressures imposed by rankings, etc, the bill would require that the Dean of each law school and the university President sign off on the report – the aim here is to counteract these institutional pressures and enhance incentive for accurate reporting. Lastly, to ensure all of this is happening, the Department of Education would be given the ability to audit the reports.

My belief is that all law students should be entitled to accurate information when they are making their decisions as to where (or whether) to attend law school (this information would be publicly available and free of charge). Anyone purchasing stock is given certain guarantees – given that law school is undoubtedly an investment, the question I think this bill poses is, shouldn’t law students be entitled to similar guarantees on their investment?

BC Law and [redacted] are similarly situated in the sense that the student bodies at both schools would undoubtedly benefit from – and I think be in support of – a bill like this. I’m happy to discuss this further if you’d like – if you’re willing to add your signature, please let me know, and hopefully we can make some headway on this issue.

Best,

Nate Burris
President, Law Students Association
Boston College Law School

Breaking: Senator Boxer Calls on ABA to Ensure Accurate and Transparent Reporting by Law Schools

Senator Boxer has sent LST a statement on the need for law school transparency.

Washington, D.C. – U.S. Senator Barbara Boxer (D-CA) today called on the American Bar Association (ABA) to improve its oversight of admissions and post-graduation information reported by law schools across the country.

Boxer’s letter follows news reports that have highlighted several law schools allegedly using misleading data to enhance a school’s position in the competitive and influential U.S. News and World Report annual rankings. Such inaccurate post-graduation employment and salary data can mislead prospective students into believing they will easily be able to find work as an attorney and pay off their loans despite a sharp decline in post-graduation full-time employment.

The full text of the Senator’s letter is below:

March 31, 2011

Stephen N. Zack
President
American Bar Association
740 15th Street, N.W.
Washington, DC 20005-1019

Dear Mr. Zack:

As you know, recent news articles have raised concerns about the reporting of admissions and post-graduation information by the American Bar Association and law schools across the country. It is essential that students deciding if and where to attend law school have access to information that is accurate and transparent. The ABA, as the accrediting body charged with oversight of the nation’s law schools, must ensure standards and accountability.

As the economy continues to recover from the recession, many new law school graduates are struggling to find jobs as attorneys. According to Northwestern University, at least 15,000 legal jobs with large firms have disappeared since 2008. The Bureau of Labor Statistics indicates that the number of people employed in legal services has decreased from a high of 1.2 million in 2007, to less than 1 million in 2009. Experts predict that fewer than 30,000 new attorney positions per year will be available to the more than 44,000 law school graduates entering the marketplace each year.

This very serious problem takes on greater significance when viewed in the context of news articles highlighting law schools that allegedly falsify post-graduation and salary information in attempts to increase their position in the annual U.S. News and World Report rankings.

Most students reasonably expect to obtain post-graduation employment that will allow them to pay off their student loan debts, and rely on this information – which may be false at worst and misleading at best – to inform their decision.

As reported in the New York Times and other publications, the ABA allows law schools to report salary information of the highest earning graduates as if it were representative of the entire class. Also, when reporting critical post-graduation employment information, law schools are not distinguishing between graduates practicing law full-time from those working part-time or in non-legal fields.

I understand that some ABA members have been pressing for reform, that the ABA has appointed committees to review ways to increase oversight and transparency, and that U.S. News and World Report has requested greater transparency from law school deans. These are good first steps, but more must be done to ensure potential students have a full understanding of the costs and benefits of a legal education.

I am requesting that you provide me with a detailed summary of the ABA’s plans to implement reforms to its current procedures to ensure access to accurate and transparent information for prospective law school students.

Thank you for your attention to this matter.

Sincerely,

Barbara Boxer
United States Senator

[also available on her website]

ABA’s Young Lawyers Division Adopts Transparency Resolution

The ABA Journal is reporting that the ABA’s Young Lawyers Division (YLD) voted to press for greater law school transparency. (View the resolution.) This is a positive development, but it is important to point out just what it really means for consumers.

Before diving into the text of the YLD’s resolution, it is worth revisiting where the law school transparency movement stands with the accrediting authority within the ABA Section of Legal Education, which operates independently from the rest of the ABA in its capacities.

Last year, Dean Donald Polden, Chair of the Standards Review Committee, appointed Dean David Yellen to chair a special subcommittee on Standard 509 (the “basic consumer information” standard). Dean Yellen has been working with his three-member committee to revise Standard 509. The timeline for approval by the Standards Review Committee is not set, but it will meet in both April and July. We expect that much of the work on the new standard will be completed by the second meeting, if not the first. This means that any proposed 509 revisions would be ready for public comment before August 2011.

Meanwhile, Dean Art Gaudio, Chair of the Questionnaire Committee, conducted a very thoughtful hearing this past December “to review and revise where appropriate the reporting of placement data by law schools.” Despite an invitation from Dean Gaudio, no YLD representatives attended the questionnaire hearing. The timeline for improving the annual questionnaire is unsettled, but it was clear from the hearing that the committee intends to resolve the questionnaire’s shortcomings sooner rather than later.

These two committees, along with the Accreditation Committee, are the most important in the Section of Legal Education. One committee sets the standards for accreditation, one collects data from law schools in light of accreditation needs and other considerations, and the third administers the accreditation process. If these three committees are going to regulate law schools successfully, the amount of cooperation among them, along with sound policy, will dictate the level of success.

The best way to understand what the YLD can do, and how useful each of its resolutions can be, is to understand how the YLD fits into the overall picture. The YLD may make recommendations to the ABA House of Delegates, which can adopt policy on behalf of the entire ABA. But because the accreditation arm of the ABA operates independently, a resolution on law school transparency is not binding authority. Any influence that such a resolution could have is a function of its substantive contributions and political prowess.

As we explain more thoroughly below, the YLD resolution does not add much substance to the ongoing discussions on law school transparency. Essentially, the “Truth in Law School Education” resolution is supposed to represent the concerns of young lawyers. The YLD will present the resolution at August’s ABA House of Delegates meeting. If adopted, it will also represent the concerns of the entire ABA.

But many of the recommendations are either too late or too abstract to have much impact on the Section of Legal Education, which is already well underway in the revision process. We can only hope that the ABA’s potential decision to adopt the YLD resolution in August can exact political pressure on the Section of Legal Education to improve disclosure policies at ABA approved law schools.

Last year, little was known about what the YLD intended to do. Now that the YLD has released its resolution, we can more clearly analyze how this will affect the flow of consumer information from schools to prospective students.

Predictably, the YLD has taken a principled stance on law school behavior, suggesting that schools need to change both what they report and how they report it. According to the YLD’s press release (provided in full below), “the proposal . . . is expected to be influential,” so the YLD certainly expects that the resolution will make change more likely. But as we explain below, the substance and timing of the YLD’s recommendations leave much to be desired.

The resolution urges six recommendations to various parties, including ABA-approved law schools and the Section of Legal Education. These recommendations are similar to many comments (Note: The ABA has changed its website and the documents are currently unavailable. This link points to the Google cache.) made at the questionnaire hearing in December.

Additional Employment Rates

BE IT RESOLVED, that the American Bar Association urges all ABA-Approved Law Schools to report employment data in a manner that accurately reflects whether graduates obtain full- or part-time employment within the legal profession, both in the private and public sector, or employment in alternative professions, as well as whether such employment is permanent or temporary.

To people who have not spoken with career services deans about the difficulties in categorizing employment outcomes, the YLD’s recommendation may sound robust. But it lacks clear definitions and structure. Such a simplistic set of terms provides little guidance. What qualifies as a job within the legal profession? Is it a job that requires bar passage? What about international legal jobs or other jobs that are arguably “legal” but simply prefer a J.D.? What if the job requires a J.D. but not bar passage? What characteristics determine whether a job is temporary or permanent? Are clerkships temporary, seeing as most are year-long appointments? Are contract attorneys temporary, even though their positions are likely with legal temp agencies, which may be considered permanent even though the individual projects are not? Is a job at McDonald’s as a manager temporary? Should a job be considered temporary based on whether a student affirmatively answers that “I intend to find another job within X months (or as soon as possible)?” Should schools use NALP’s definitions and policies?

Many of these questions would be resolved through the adoption of a more rigorous disclosure standard, such as the one we proposed. There are also problems with the structure of aggregate reporting rates, which the YLD does not address. For these rates, what will be the denominator for these employment categories? Will it be all graduates or just employed graduates, or just employed graduates for whom the employer type is known? Should schools count those pursuing graduate degrees towards the denominator? Does it matter for the denominator whether a graduate is unemployed and not seeking employment?

This resolution raises more questions than it answers. Without answering the above definitional and structural questions, this resolution adds little substantive to the discussion. More analytical rigor is needed to push the substantive discussion forward.

Structurally, what they might be getting at is something like the following:

Employment Category % of Class FT PT Legal Non-Legal Temp. Perm.
Law Firms 55% 95% 5% 90% 10% 0% 100%
Business & Industry 10% 75% 25% 40% 60% 65% 35%
Government 10% 100% 0% 65% 35% 0% 100%
Public Interest 5% 60% 40% 90% 10% 20% 80%
Judicial Clerks 2% 100% 0% 100% 0% 100% 0%
Academia 3% 50% 50% 0% 100% 50% 50%
Unemployed 12% - - - - - -
Unknown 1% - - - - - -
Graduate Degree 2% - - - - - -

This suggestion assumes away the above-mentioned ambiguities. It would do a passable job at increasing transparency, but if this is the intended suggestion it is not at all clear from the text of the resolution.

Access to Employment Information

FURTHER RESOLVED, that the American Bar Association urges all ABA-Approved Law Schools to include this employment information data on their websites, in their catalogues, and in their acceptance notices sent to applicants for admission, or include in each of those locations a conspicuous notice of where such data can be obtained

Access is key, but it is currently of secondary importance. The Questionnaire Committee and Standard 509 Subcommittee are currently considering a central location for employment information (one that is conceptually similar to LSAC’s Official Guide website). This website necessitates that the Standards Review Committee and Questionnaire Committee work together—the former via an accreditation standard and the latter executing that standard via the annual questionnaire. This goes directly to what the YLD wants to do with the resolution: put employment information into the hands of the consumers.

The most important issues are how the information is presented, whether the information is comparable, and whether it conveys something meaningful to those reading it. Without fixing the information, access only propagates low quality information.

Still, it is noteworthy to have yet another voice calling for schools to share the employment information they already have. Too many schools do not provide any information above and beyond what they report to the ABA, and too many others do not even include employment information on their websites.

Salary Information

FURTHER RESOLVED, that the American Bar Association urges all ABA-Approved Law Schools to increase transparency regarding their graduates’ salaries by displaying data regarding the salaries on their websites when such disclosures would not violate the confidentiality of graduates’ salary information, and to similarly display the national median salary information, by employment type, for all law school graduates, and the median salary information for the schools’ respective states and regions.

Concern for salary confidentiality is a widely acknowledged, important consideration. But currently, the ABA does not consider any salary information to be “basic consumer information” under Standard 509. This will change, as both the Questionnaire Committee and Standard 509 Subcommittee plan to require salary information as part of reform. The focus is therefore on how to share salary information while respecting privacy, in a way that helps prospective students to make an informed judgment about the short-term economic viability of a school’s law degree.

There is already a lively discussion going on about how to provide quality salary information, rather than whether to do it all. As such, this recommendation is an interesting contribution, if a little late. The real discussion at this point is about how to execute a suitable vision in Standard 509 and on the annual questionnaire.

Cost of Attendance

FURTHER RESOLVED, that the American Bar Association urges all ABA-Approved Law Schools to similarly publicize the actual cost of law school education, on a per-credit basis, and the average cost of living expenditures while attending law school.

As we wrote last week (this suggestion is precisely what Mr. Zack called for), this suggestion puzzles us:

Mr. Zack also emphasizes that the cost of attendance should play an integral role in an applicant’s calculus. However, his examples miss the point. He calls for information about “hourly credit cost” and the “standard of living in [the schools’] given areas . . . over a three year period.” The ABA already collects and distributes this information, and all schools provide it on their websites. School projections might serve some function, but they generally do not have any knowledge of or control over rising tuition. Mandating projections would be a waste of time and money because it’s something applicants can already do within a reasonable degree of specificity.

Mentioning cost transparency is an easy public relations win for Mr. Zack, but it has no substance as presently conveyed. To be fair, he does cite these suggestions as examples for how schools can share “what the real cost of their legal education will be.” But the real problem isn’t with understanding how much the degree costs. The difficulty is trying to comprehend what $200,000 looks like over the life of repayment, including interest. Requiring that debt service schedules accompany every law school application and acceptance letter might help, though this would be information that is already available via an internet search.

While it is good to see that the YLD and Mr. Zack agree, this suggestion diverts attention from far more important cost considerations. Perhaps their desire to say something that sounds meaningful outweighs their desire to contribute meaningfully to pressing for law school transparency.

Standard 509, the Annual Questionnaire, and a Model Questionnaire

FURTHER RESOLVED, that the American Bar Association urges the Section of Legal Education and Admissions to the Bar to consider revising the Standards for Approval of Law Schools to require law schools to provide on their websites, and in other reasonable methods of communication, additional data on employment and placement of graduates and collect more information from schools through the Section’s Annual Questionnaires to be published by the Section as part of its consumer-information function.

FURTHER RESOLVED, that the American Bar Association urges the Section of Legal Education and Admissions to the Bar to consider using and adopting a model questionnaire created by the American Bar Association which will incorporate the various provisions of this resolution.

The final two resolutions suggest that the Section of Legal Education do what it is already doing, and the YLD is exactly right. The Questionnaire Committee and Standard 509 Subcommittee are so far doing a great job. They take seriously the interests of all stakeholders, and understand why it is so important to get better information into the hands of consumers.

It is difficult to take the YLD seriously when their resolutions do not add anything new to the conversation. Why the YLD has chosen to highlight the contributions of the YLD, without acknowledging the contributions of the committees they are trying to influence, is beyond us. That simply is not an effective strategy.

The YLD is in a great position to advocate for the interests of new members to the legal profession, assuming they choose to become more engaged. Our ultimate hope is that the YLD revise its strategy by talking to those in the Section of Legal Education who are already working on these issues, and then provide useful input on behalf of the YLD’s members. Law schools have plenty of advocates on their side of the argument, ready to explain why reform is too expensive or why it doesn’t matter; the legal profession needs those representing consumer interests to advocate as well.

ABA Young Lawyers Division Press Release

Source: ABA Now.

ATLANTA, Feb. 12, 2011 – The American Bar Association Young Lawyers Division is leading a campaign to ensure aspiring lawyers can better determine what their legal education will cost them and their prospects for employment as a lawyer. Today the division’s Assembly voted overwhelmingly to adopt a multi-point policy resolution that presses law schools to improve the information they provide prospective students, and ensure it is prominently featured in their communications.

“The Young Lawyers Division of the American Bar Association is proud to be at the forefront of the law school transparency movement,” said division chair David Wolfe. “It is essential that all prospective law school students have access to accurate and straightforward information regarding the real earning potential and cost of every law school.”

“There will always be a need for good lawyers,” said ABA President Stephen Zack, who had worked closely with the division to encourage development of the new policy. “But—although you wouldn’t know it from watching flashy TV shows about the law—most lawyers are Main Street lawyers, not Wall Street lawyers. It’s important young people planning a legal career consider how much debt they should take on, based on what they are likely to make.”

The proposal cannot mandate change but is expected to be influential. It is expected that the division will bring the resolution to the ABA House of Delegates for a vote in August, making it the official policy of the entire association.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.