For Law Schools, a Price to Play the ABA’s Way

The latest piece in David Segal’s series on U.S. law school problems identifies the enormous effect that some of the ABA Standards, especially those that affect faculty composition, have on the cost of providing legal education. The dean of the new Duncan School of Law claims that he could charge substantially less (by half or two-thirds) if it were not for the standards. This is not the first time we’ve heard a dean clamor about how expensive the accreditation standards are; in fact, the dean of another new Tennessee law school, Belmont University College of Law, made a similar claim back in the summer of 2010.

Knowing this, we recently advised the ABA Section of Legal Education’s standards review committee to “create a subcommittee to review regulatory barriers preventing law schools from adapting low-cost models.” To date, neither the committee nor the section have not done so.

The profession needs radical change to the law school cost structure. If the answers do not come quickly from legal educators, such as those involved in the Section of Legal Education, the result will be that educators end up forfeiting their right to control the changes. And if the answers have to come from elsewhere, unbreaking the broken law school model will be as painful as it is necessary.

Case Update: Amended Alaburda Complaint Includes New Allegation

With the recent joint announcement by Law Offices of Dave Anziska and Strauss Law PLLC that the firms have drafted complaints against 15 ABA-approved law schools and intend to file them as class actions, we thought it would be a good idea to revisit the first class action against a law school for misleading employment information. We reached out to the lead attorney handling Alaburda v. TJSL, Brian Procel of Miller Barondess, LLP, for an update on where things stand.

The most recent Amended Complaint (available below), filed September 15th, 2011, contains a new allegation (our emphasis):

5. Furthermore, TJSL also misleads students by concealing the fact that these post-graduate employment figures are based on a small sample of graduating students rather than the entire class of graduates. Specifically, TJSL conceals the fact that its statistics are based on surveys and questionnaires that are sent to only a fraction of its graduates. Not all graduates receive surveys or questionnaires.

If discovery reveals the bolded to be true, the school may have more to worry about than the Alaburda complaint.

Risk of ABA Sanctions?

Many schools have defended the gaps in their employment information by stating that graduates simply don’t respond to their requests, and that nothing the school does can get graduates to voluntarily report more and better data. This conclusion is suspect, given that graduates are less likely to report when they feel let down by the school. A high non-response rate should raise eyebrows about the quality of a school’s services. But purposely not contacting certain graduates, if substantiated, may constitute a violation of the ABA’s Accreditation Standards. This would make TJSL subject to probation or even a loss of accreditation.

Such sanctioning could happen irrespective of whether Alaburda’s attorneys are successful in recovering under one or more claims. As weak as the ABA’s current accreditation standards are, law schools must publish “basic consumer information . . . in a fair and accurate manner reflective of actual practice.” What constitutes “basic consumer information” has in the past been restricted only, in practice, to the overall employment rate and bar passage data. (This means that schools could technically present any other employment information, e.g. salary statistics, in an inaccurate manner without risking its accreditation.)

But a pattern of failing to survey some graduates looks like it would constitute a violation of the standards, particularly if the behavior was motivated by a belief that the unsurveyed graduates are likely to report undesirable outcomes. Schools are all over the ethical map in terms of how to creatively count or massage the data graduates report to them, but an outright failure to even contact some graduates should not be ignored by the ABA.

Current Students Suing?

Otherwise, Alaburda’s lead attorney is “optimistic the class will be certified” given that “the alleged misrepresentations are uniform.” Keep in mind, the class includes not only recent graduates but also current law students. Much of the attention in the media has focused on how graduates are bringing claims against their alma maters, but both the TJSL complaint and the complaints against Cooley and New York Law School contemplate including current students. At least one of the draft complaints to be filed against the 15 additional law schools also lists current law students as eventual members of the class. This could make for an interesting development if any of the classes are certified. Current students would continue to pay tuition while simultaneously waiting to see if they can recover for the initial fraudulent acts that got them into the school.

Note: as with the two other firms handling claims against law schools, Mr. Procel reports that they “have received dozens of inquiries from graduates of other law schools who are interested in filing suit.”

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.

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

Have a Complaint about Your School? How to File with the ABA

We have heard from many law school alumni and current students about problems they encountered regarding how their school reports post-graduation outcomes. Many have alleged intentional acts of deception on the part of their law schools, whether it’s regarding the reporting of their own employment information or the employment of their friends. At the same time, some commentators have accused the ABA Section of Legal Education of lax enforcement concerning violations of the accreditation standards. One way to encourage better enforcement (and better compliance) is to file an official complaint with the Section of Legal Education.

NOTE: We have requested more information from the Consultant on Legal Education, the Accreditation Committee Chair, and representatives of the Section of Legal Ed in Chicago. This post will be updated when we receive a response.

How to file a complaint

For starters, complaints are governed by Rules of Procedure. The complaint form (.doc) is available on this page, which also explains the complaint requirements and process.

A complaint should include a clear and concise description of the allegation and any evidence upon which the allegation is based (with any relevant supporting documentation). [Rule 24(d)3(i).] You must allege a violation of one or more of the accreditation standards, which you can read through here. The complaint must state the timeframe of the alleged lack of compliance (limited to one year from filing), a description of any steps taken to exhaust the law school’s grievance process, and any actions taken by the law school in response to the complaint. [Rule 24(d)3(ii) and (iii).] Any other channels being pursued by the complainant should be disclosed, including legal action. The complainant must also provide a release authorizing the Consultant’s Office to send a copy of the complaint to the dean of the law school.

Any person may bring a complaint alleging noncompliance with the standards; no other harm or damages need to be alleged. The filing of a complaint can lead to an investigation by the Consultant on Legal Education and sanctions by the Accreditation Committee or Council of Legal Education. Per Rule 16 of the Rules of Procedure, sanctions can include monetary penalties, refunds for part or all of the tuition and/or fees paid by students, censure (both private and public), publication of a corrective statement, remedial action, and probation. A school on probation is at risk of being removed from the list of approved law schools.

Allegations that a school has violated or is currently violating one or more standards are serious. Separate from official sanctions of the law school, culpable individuals may be asked to resign or terminated for cause by their school. A school’s reputation may be damaged even if sanctions don’t ultimately rise to the most serious levels. For these reasons we ask that you consider whether the evidence you have is strong enough to warrant an investigation by the ABA. A suspicion that your employment status was misreported, for example, may not be enough without supporting documentation.

You should first contact the school to request that they cease violating the standard prior to filing a complaint with the ABA. An exception to pursuing this route is if you wish to file anonymously, in which case see the discussion below about site evaluation comments.

What actions might qualify as non-compliance?

Of the 52 accreditation standards that currently regulate law school behavior, only one (Standard 509, found in Chapter 5) deals with employment reporting. The seven interpretations of Standard 509, as with all interpretations, carry the same force as the standard itself. This consumer protection standard requires schools to publish certain “basic consumer information” in a “fair and accurate manner reflective of actual practice.” While the accompanying Interpretations only list “employment rates and bar placement statistics” as basic, this list is not exhaustive. You can read more on the current employment reporting requirements here.

Complaints grouped under this standard might fall into two camps. The first are allegations that the school misreported the employment rates or bar placement statistics, focusing on the text of the Interpretation 509-1. Schools are required to report the employment status of each graduate as of February 15th for the second-most recent graduating class on the annual questionnaire.

If you have reason to believe that you or members of your class were miscounted as of that date, despite having reported accurate employment data, and if you can support that belief with documentation such as emails or surveys, then you should consider notifying the school and filing a complaint. Depending on the allegation, this could take sophisticated coordination. You likely need to document a sizable percentage of your classmates’ post-graduation outcomes to show that the reported percentages must have been wrong. For example, a sworn statement from 10% of your class stating they were unemployed as of February 15th would be good evidence that your school’s reported 95% employment is incorrect.

Many recent graduates have contacted us claiming that there was no way the school reported the results of their class accurately. However, it is important to first understand the reporting requirements to see whether the school was just following protocol, as the standards themselves make it very easy to legitimately hide individual outcomes. You may not think that a part-time job waiting tables should qualify you as employed, but it is appropriate under current reporting standards. A violation under Standard 509 would be if the school counted you as employed full-time, or in a JD-preferred or bar admission-required job to U.S. News.

The second camp of violations would be allegations that the basic consumer information provided on a law school’s website or in promotional brochures to law school applicants is misleading and therefore not presented in a “fair or accurate manner reflective of actual practice.” Supporting documentation would necessarily include the publications, and you should describe why they are not reflective of actual practice.

Not willing to file yourself?

One of the Section of Legal Education’s requirements is that complaints will be closed if they are made anonymously, unless the Consultant determines that there are extraordinary circumstances for keeping someone’s identity secret from the school. We understand that graduates may be reluctant to allege noncompliance on behalf of their schools, and that there may be other situations (for example, employees of the school) where someone might be discouraged from whistleblowing if their name will be dragged through the process.

[We have contacted the Consultant for more information on what has counted in the past as extraordinary circumstances, and will update this post when we hear back.]

Some of the complaint procedures may discourage you from filing. For one thing, a complainant has no right within the rules to appeal a decision to close the complaint by the Consultant’s office. A complainant also will not be informed about the proceedings or given access to view the school’s response if one is requested by the Consultant. If the complaint is eventually presented to the Accreditation Committee, there is no appeal process if the Committee sides with the school. And regardless of the outcome, a complainant will only be notified about the stage at which the matter was resolved. From what we can tell all proceedings are closed to the public.

If you have evidence that a school has been in noncompliance and you believe your situation is an extraordinary circumstance, you can contact LST. We will work with you to determine whether the complaint is actionable, and, if appropriate, file the complaint ourselves. NOTE: This does not guarantee that we will file a complaint; it only means that we will review the information to decide if we want to file the complaint on your behalf.

Complaint alternatives

As an alternative to filing a complaint, you can also file a comment as part of the accreditation process. Each ABA-approved law school is recertified once every five years through a process that is taken very seriously by the administration. To conduct the accreditation, the Section of Legal Education sends a delegation of volunteers, often professors, administrators, and judges, to the school as a member of a site evaluation team. The team visits the school to collect facts and gather opinions, including thoughts of employees and students, so that the Accreditation Committee and Council of the Section of Legal Education can evaluate whether the school is in compliance with accreditation standards.

Comments must be submitted at least eight weeks prior to the next site visit, which are conducted during the school year. You can find a draft schedule for all visits up through 2014 on the ABA Section of Legal Education’s website.

Written comments related to current compliance with the Standards for the Approval of Law Schools may be submitted to the Consultant’s Office. The comments should be sent no later than eight weeks prior to the site visit’s beginning date. Comments should be sent to the Deputy Consultant on Legal Education to the American Bar Association, 321 N. Clark Street, Chicago, Illinois, 60654.

Seven law schools will be audited next fall: Arizona, Baylor, Chicago-Kent, Idaho, Missouri-Columbia, Ohio, and Temple. Another twenty are scheduled for next spring. These visits are an excellent time to ask the site evaluation teams to fulfill their responsibilities by taking a hard look at how a particular law school is educating and potentially misleading applicants.

If you have any questions or comments, please feel free to contact us. We plan to begin filing complaints soon.