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’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.