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

Op/Ed in the NLJ: ABA should make law schools provide better job statistics now

Originally published in the National Law Journal.

Critics calling for law school reform are rousing an old discussion about problems with legal education. Recently, their focus has been on the provision of misleading job placement statistics. People are tired of law schools’ dishonest tactics, a sentiment that grows as the number of examples of fraud and corruption increases. Furthermore, they are beginning to understand the negative externalities caused by students unwisely choosing to attend law school, both to the legal profession and elsewhere.

The main problem with the employment information stems from the American Bar Association Section of Legal Education and Admissions to the Bar, which includes any job in its basic employment rate. Law schools truthfully advertise rates above 90% because they report employment data according to the section’s standard. Nevertheless, these advertisements mislead prospective law students when coupled with two popular yet distorted consumer beliefs: that lawyering is a lucrative profession and that the rates reflect legal jobs.

Law schools are aware of these distortions, but they have no pecuniary incentive to tear down the information asymmetry that protects the legal employment rate. Ever the optimists, prospective law students do not discover the realities of a school’s job placement until too late. Until recently, structural problems with employment information have been the profession’s dirty little secret.

The number of affected graduates has grown during the past few years, but the problem is not unique to the post-2009 job market. Since the turn of the century, just two-thirds of all ABA-approved law school graduates obtained jobs requiring bar passage within nine months of graduation. Neither the ABA-Law Schools Admissions Council Official Guide to ABA Approved Law Schools nor the vast majority of law school advertising materials inform consumers about this reality. Meanwhile, tuition and graduate debt are on the rise, salaries are deflating and the legal market is increasingly more saturated. Calls for consumer protection, even if logically independent of these additional facts, are common sense for a profession with high ethical standards.

In response to public pressure, the section asserted that it would pass reforms to reduce the provision of misleading employment information. This would have prevented consumers from being led to believe that the basic employment rate was the legal employment rate. Instead, the section is taking steps that ensure that next year’s applicants will actually have even less information. The section reasons that this is a transition year, more information will be available in the future, and that the short-term loss of information quality is worth the section reasserting its accreditation authority. This reasoning is accompanied by a misplaced concern for whether the definitions used to categorize job data are adequately defined. In finalizing these steps, the section is breaching its responsibilities to the profession.

For years, the section has had the ability to share how many graduates were finding full-time legal positions from individual law schools. The section collects these data in its annual questionnaire, which asks schools to report each graduate’s employment status (employed, unemployed, pursuing another degree), employer type (law firm, government etc.), and other job characteristics such as whether a job requires bar passage or is full time.

One might ask why the section has never published job characteristics data in the Official Guide, or why law schools rarely share this information in their own materials. These are important questions. But the more pressing question is why the section is trying so hard to come up with justifications for not publishing the data for next year’s incoming class.

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. These definitions have been developed by the National Association for Law Placement and have been integrated into the questionnaire for many years. While not perfect, the definitions adequately meet consumer needs. Changes will always be necessary to reflect law school practices and market shifts, but feigning lack of consensus over commonly accepted terms should trouble even the most optimistic observer.

It is odd that, under the auspice of improving information, the section is actively reducing the amount of useful information available this year. This move will have ramifications beyond the questionnaire. Among the schools that report these important statistics on their Web sites and to U.S. News & World Report, some will jump at the chance not to share how well (or how poorly) the class of 2010 fared in finding legal jobs. These schools can hold up the section’s misplaced skepticism as their justification. Prospective law students deserve more from the law schools, but they can’t get it just by asking nicely.

If the section is truly interested in fulfilling its obligations to the legal profession and as an accrediting agency, it needs to consider whether a do-nothing policy is the appropriate course of action given the events of the past two years. The stakes are too high for the section to hide behind imagined concerns and continue to let law schools pull the wool over prospective law students’ eyes.

ABA Section of Legal Education to Collect Graduate-level Data

The Council of the Section of Legal Education announced today that it would move forward in collecting graduate-level data from law schools. As we reported yesterday, the Section and NALP will collaborate as to limit the negative effects of this policy on NALP’s annual studies of the entry-level hiring market.

Press Release

TORONTO, Aug. 6, 2011 — The Council of the American Bar Association Section of Legal Education and Admissions to the Bar is announcing that it will move forward in collecting detailed job placement data from law schools, and will hold schools accountable for the completeness and accuracy of that data. The decision comes at the end of the section’s council meeting held at the ABA Annual Meeting in Toronto.

As the federally recognized law school accreditor, the council has the ability to require law schools to meet specific standards for accreditation.

“Our regulatory function puts us in the best position to be able to collect data from law schools and ensure that it is reliable,” said section chair Chief Justice Christine Durham of the Utah Supreme Court. “We will begin requiring that law schools report job placement data directly to us,” she said. Previously, law schools voluntarily provided job placement information to a trade association, the National Association for Law Placement. The section and NALP have agreed to collaborate going forward.

During the past year, the ABA Section of Legal Education’s Questionnaire Committee engaged in an extensive effort to respond to concerns that current data was either inaccurate, insufficient or both. Beginning next month, the annual law school questionnaire will require schools to report more specific information than ever before, including employment status, types and locations. The questionnaire will ask these questions, among others:

  • Is the graduate employed or unemployed?
  • Is the graduate’s employment long-term or short-term?
  • Is the job funded by the law school or university?
  • Does the graduate work for a law firm, a business or in government?

“The section is committed to providing this data so that applicants, students and the public can make informed career decisions,” said Bucky Askew, legal education consultant to the American Bar Association. The section will report the information in the ABA-LSAC Official Guide to ABA Approved Law Schools.

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.

NALP and the ABA Must Compromise

On July 27th, after over a year of assessing different methods of improving transparency, the ABA Section of Legal Education announced important changes to its plan for collecting employment data. In a memorandum sent to all law school deans and career services officers, Bucky Askew (Consultant on Legal Education) and Dean Art Gaudio (Chair of the Questionnaire Committee) revealed that the Section would begin collecting graduate-level employment data from the law schools, as opposed to merely collecting data in the aggregate (such as the percent of a class employed in a job or the percent who passed the bar). The memorandum is attached to this post below. Once finalized, the Section of Legal Education would become responsible for collecting hundreds of thousands of data points each year, a task which has historically been undertaken by NALP.

Currently, the Section of Legal Education does not collect granular employment data from law schools. Instead, schools must only report very basic information about the entire graduating class on the annual questionnaire (read more here), a practice which has permitted widespread misunderstandings about the nature of the entry-level hiring market. NALP, on the other hand, annually administers its own detailed survey to gather data about individual graduates.

Despite the voluntary nature of reporting these data to NALP, an overwhelming percentage of ABA-approved law schools (192 out of 199) take the time to do so. From this sizable dataset, NALP cleanses the data for discrepancies, generates private reports for each school to assess its own performance, and creates general reports about the state of entry-level legal hiring. Schools then have the option of using the private NALP-generated reports to respond to the U.S. News survey and ABA Annual Questionnaire. Schools can (but don’t) choose to release these reports to members of the public, specifically to prospective law students. NALP does not release any school-specific information due to agreements it has with its member schools.

As we reported in June, the Section of Legal Education has already made important strides, in its adoption of a new policy that will increase the amount of information available about each school’s entire graduating class. We said:

[T]his solution will provide prospectives a more thorough and accurate window into the placement opportunities at various law schools. However, we do not think this solution goes far enough with consideration to our goal of helping prospective law students find the schools that best meet their individual career objectives. The adopted solution does not provide enough graduate-level detail for those seeking to make a meaningful connection between the post-graduate outcomes for a given school’s graduates and the job characteristics, including salary, required credentials, and location. It is still too difficult to connect these dots.

While the Section of Legal Education has not decided to share the graduate-level data with consumers, a finalized policy would indicate that the Section understands the importance of the underlying data, not only for understanding the aggregate information schools report, but for enabling auditing and safeguarding against fraud.

Section officials are aware that LST supports the Section in its decision to collect graduate-level data from the law schools. The Section has failed to adequately regulate law schools on certain issues for too long, and this will contribute to the Section fulfilling its regulatory function. Accreditation is at its core a matter of consumer protection and the rules governing accreditation accordingly need to be sufficiently robust to protect consumers. The Section owes this duty to the profession and to those who wish to enter it. It is not in the profession’s or prospective students’ interest to have anybody misled or ripped off.

NALP’s Concerns

In a letter to Mr. Askew and Dean Gaudio, NALP’s executive director, Jim Leipold, expressed in no uncertain terms his anger over the Section of Legal Education decision to begin collecting graduate-level employment data in this manner.

We object to this action on several grounds, including the fact it will actually lead to LESS transparency and information about the entry-level legal employment market and not more, and the fact that it is an action that is contrary to all of the public conversations about this issue that have taken place among the ABA, NALP, the law schools, and the public over the last year and a half.

. . .

One of the chief harms caused by this action is that it will require a dual reporting burden by the law schools, who now will be asked to report individual student record level employment data to both the ABA and NALP.

. . .

Worst, we fear, is that if schools are required to separately report employment outcomes to the ABA, there is a great risk that many of them will no longer report their data to NALP. This will inevitably lead to the reduction in the amount of information we have about the entry-level legal employment process, and will have the long-term effect of producing less transparency about the legal job market and not more.

These are important concerns. NALP has provided useful information about the entry-level legal market for 37 years, and there is certainly risk that some schools will stop reporting to NALP due to the dual burden. Such big-picture analyses of the health of the legal industry are useful for schools and employers trying to gauge larger trends in hiring shifts, but they cannot be expected to replace the work of an accrediting agency. If the Section of Legal Education is finally deciding to fulfill its accreditation responsibilities fully, this decision should be given a certain level of deference. In other words, if only one group receives the underlying data, it should be the accrediting body and not the third-party relying on voluntary reporting (which itself is enhanced by privacy agreements that make the data inaccessible to those who need it).

However, this is a false dichotomy. There is no need for the ABA Section of Legal Education and NALP to clash; the two can co-exist seamlessly. NALP collects an enormous number of data each year and not only is the process well thought out, but the definitions are useful, coherent, and authoritative. NALP also already collects almost all of the data the Section can reasonably desire to collect itself. In the interim minor differences will exist, such as conflicting definitions of what jobs qualify as short-term employment, but there is little reason to believe that NALP would not be willing to negotiate the terms if the two groups reached a mutually beneficial understanding. However, this requires reopening the discussion and mending the relationship with NALP quickly so that the annual questionnaire may go out at the end of this month.

LST’s Suggestion

Recognizing the important and historically complimentary roles of both the Section of Legal Education and NALP, we believe that a compromise in the collection of employment data is both achievable and desirable. Our suggestions for reaching such a compromise utilize the following premises:
– That the Section of Legal Education actually does wish to collect employment data at graduate-level detail.
– That it is important for the Section of Legal Education to fulfill its accreditation obligations, which encompass the collection of employment data at graduate-level detail, so as to limit fraud and enable auditing where such auditing is shown to be necessary.
– That NALP already collects these data and more.
– That at least some law schools will not participate in NALP’s survey under the Section’s proposed changes, because they believe doing so would be too costly.
– That if fewer law schools participate in NALP’s voluntary survey, it will damage NALP’s ability to provide systemic employment information to schools, the legal profession, and prospective law students.
– That, if in the end only one of the Section of Legal Education and NALP can collect employment data, it should be the Section of Legal Education.
– That both the Section of Legal Education and the ABA should respect and value NALP’s longstanding service to the profession and engage in dialogue with NALP’s leadership.
– That, if possible, NALP’s function should be preserved.
– That the Section of Legal Education can fulfill its accreditation responsibilities by using the questions and definitions NALP has fashioned over the years, and does not need to reinvent the wheel.

It’s important to remember what the real fight has been about when discussing law school transparency: the optimal level of information. Schools already collect enough data to more than adequately inform prospective law students. Yet, these data remain private and inaccessible to those who genuinely need quality information. As such, the success of any reforms hinges on the quality of information that follows after schools report data. But this is not the controversy before us today. This is a clash over who can collect and access the underlying data.

As we said above, this clash is unnecessary. The Section of Legal Education and NALP need to work together, not deride each other in the press and behind closed doors. NALP should communicate a willingness to cede the final say on post-graduation outcome surveys, and in exchange continue to gain access to the data.

The simplest (and also cheapest) way to achieve this is for NALP and Section of Legal Education to use the same survey. Under this model, NALP would use the Section of Legal Education’s survey that happens to be based on NALP’s survey. Each year, NALP and the Section can discuss changes, but the Section would have the final say. This does not constitute outsourcing a regulatory function to NALP, something the Council of the Section of Legal Education legitimately fears doing, but it does recognize and utilize NALP’s great work over the past 37 years. NALP’s role would diminish only as far as the Section does not defer to its institutional expertise in making changes to the survey.

The Section has the power to put NALP out of the employment statistics business, and it should not wield this power irresponsibly. But it should also not forget that it has a responsibility to the profession and to those who wish to enter into it, and that some of this responsibility can be shouldered by NALP without outsourcing its regulatory function. Adopting NALP’s survey and inviting NALP to help change it in the future is the right thing to do given the obvious pressure to better regulate law schools. There would still be details to work out. For instance, the Section would need to invest significant resources into technology (especially to ensure that NALP and the Section do not end up with different data) and staff. Similarly, NALP would need to share its wisdom and processes for cleansing the employment data.

This is an important problem that needs to be solved immediately. NALP contributes a great deal to the legal profession, and the Section wants to enhance its own contribution. Through this particular compromise, the two groups can maximize contribution and continue a long-standing relationship.

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 Reforms Employment Outcome Disclosure

The ABA Council on Legal Education and Admissions to the Bar completed an enormous step this morning towards helping prospective law students make informed decisions. The Council, which is the sole accrediting body for U.S. law schools, unanimously approved the Questionnaire Committee’s recommended procedures for the improved collection and sharing of employment data. The recommendation is based on last December’s Questionnaire Committee hearing, at which interested parties, including LST’s executive director, presented on the issue of consumer information transparency.

You can review the now-approved recommendation here (pages 22–28), although the vote added two caveats to the recommendation. Under the new policy, for at least one year, the ABA will work with NALP to leverage NALP’s present collection, cleansing, and distribution practices, subject to the ABA and NALP reaching a contractual agreement concerning confidentiality. Working with NALP this year will allow the ABA to avoid unnecessary costs, divergent information, and confusion.

Several Council members were concerned, however, about using a third party—NALP—as part of the Council’s regulatory oversight, thus desire to reach an appropriate contractual arrangement with NALP. Bryan O’Keefe, the Law Student Divison’s student representative to the Council, clarified that these logistical concerns will not hold up publishing the improved data in the upcoming year.

The Council agreed that these issues will not prevent improving data disclosure in the next questionnaire. In the long-term, the Council wishes to exert direct control over the process, either through hiring its own staff or selecting a third-party vendor through a RFP (request for proposal).

The New Disclosure Policy

Caveat One: The Council’s Executive Committee will work with the Questionnaire Committee to reach an appropriate contractual agreement with NALP.
Caveat Two: The Council will begin work as soon as possible to directly collect the relevant data, either through increased staff or an outside vendor.

Job Data

Schools are required to report:

Employment Status (100% of the class will be accounted for with these categories)
Job Credentials: employed in a job requiring bar passage, in a job for which a JD is preferred, in another professional job, in a non-professional job, or in a job of unknown type.
Non-Employed Status: pursuing a graduate degree; unemployed – not seeking or unemployed – seeking; and status unknown.

Employer Type (100% of the class will be accounted for with these categories)
Law Firms: various sizes based on total attorneys at the firm globally (8 total + an unknown category).
Other Employers: business and industry; government; public interest; judicial clerkships; academia; and employer type unknown.

Employment location:
United States: the three states where the most graduates are employed and number employed in each.
International: the number of graduates employed internationally.

Schools will also report data, where applicable, about whether the jobs are full-time/part-time and long-term/short-term, as well as indicate the number of jobs that are funded by the law school or university.

Salary Data

In addition to the placement data, the ABA/LSAC Official Guide will publish state-specific salary information based on graduates reporting from all law schools. According to Questionnaire Committee, only providing school-specific salary data provides “limited and perhaps confusing information” to applicants.

As the Committee also correctly points out, school-specific data is less representative than the state-specific datasets. Moreover, when only ~50% of graduates report a salary, granular categories like “Employed in a Law Firm of 2-10 Attorneys” are unlikely to have sufficient school-specific data to warrant sharing. (This is a flaw we identified with the 509 Subcommittee’s proposal.)

According to Mr. O’Keefe:

By using aggregate data, students will be able to have a more accurate picture of possible salaries.

When you combine the job data and the salary data, applicants will be able to discern the exact job prospects of an individual school, and using the aggregate salary data, develop a solid idea of what that job prospect makes in any given state. The employment location variable will allow students to assess where those graduates end up working— in essence, you will be able to tell where you are most likely geographically to end up getting that job and making that salary.

We agree that this solution will provide prospectives a more thorough and accurate window into the placement opportunities at various law schools. However, we do not think this solution goes far enough with consideration to our goal of helping prospective law students find the schools that best meet their individual career objectives. The adopted solution does not provide enough graduate-level detail for those seeking to make a meaningful connection between the post-graduate outcomes for a given school’s graduates and the job characteristics, including salary, required credentials, and location. It is still too difficult to connect these dots. Nevertheless, it is a monumental improvement that should be celebrated.

Auditing

The Questionnaire Committee also indicates that it will develop ideas for how to improve the accuracy of the data entered by law school graduates and staff.

[A]s an example of a possible response, the ABA might require that annually or at the time of the sabbatical site visit there be random audits of placement data submitted in the annual surveys. If performed at the time of the site visit, these audits might be “informal” and performed by a member of the site team. We have serious concerns, however, with the ability of a site team member to perform this function in the context of a site visit.

We share these concerns. Site team members do not typically have auditing expertise and usually only collect facts from and about the law school. Mechanically, the site team likely would only examine the data collected by the law school to compare to what the school has reported. This creates an echo chamber, duplicates NALP’s data cleansing (which aims to catch mistakes), and would therefore provide only a marginal return on investment. Villanova-style lying would still be too easy to achieve, although even a single set of third-party eyes might deter schools.

An alternative might be to require schools, on a random basis, to provide a more “formal” audit performed by a CPA firm of their placement survey responses. These random audits could be performed annually or at the time of the site visit. Obviously, this would involve greater expense and we would have to look at ways that the expense could be minimized and distributed among law schools, whether they are audited or not. Finally, there may be other methods of performing such an audit, or an alternative to it; we will consider them also.

As is clear from these suggestions, the idea that all law schools should be subject to yearly auditing is not on the table. It seems unnecessary to us because we do not believe the problem lies with falsified data, but misleading information. An effective alternative, which we’ve already shared with the ABA committees, would be to use the LST Proposal. Through sufficient disaggregation, individual graduates could verify how the school reported their outcomes from behind a veil of anonymity provided by the proposal’s structure. This provides a nearly zero-cost alternative that would deter law schools from fabricating outcomes. Upon an accusation of foul play, the school would tender its source (the survey) and the graduate its evidence of misrepresentation.

Going Forward

The Questionnaire Committee operated with a clear mission:

Our objective in selecting, obtaining, and providing [employment] data are several-fold: (1) to provide correct and complete data (a) to law school applicants to assist them in making decisions on whether to go to law school and, if so, which law school to attend, and (b) to current law students and recent graduates to assist them in making job decisions; and (2) to obtain and provide this information in a way that will require the least amount of additional, unnecessary effort by law schools, particularly in their career services offices.

This echoes LST’s mission and objectives. It’s important that the ABA continues to prioritize law school transparency as legal education continues to change over the next decade.

We look forward to the Questionnaire Committee and Council optimizing the annual questionnaire over the next few years with these objectives in mind because there is still a need for more improvement. Elsewhere within the Section of Legal Education, the Standards Review Committee, operating with similar objectives, continues its work on Standard 509. Together, these approved and prospective changes are a great start.

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]

LST’s Proposal: The Job Outcome List and a National Salary Database

The 509 Subcommittee’s first draft proposal for a revised Standard 509 is a good start. But as we described in our analysis, the proposed revisions are only the first step towards greater transparency. The proposal does not go far enough to disaggregate the current employment information, resulting in a reporting standard that will still struggle to help match prospectives to the law schools that best meet their career objectives.

We have been working on our own proposal, separate from the LST Standard, for a few months now. We have discussed it with key people in the Section of Legal Education, law school administrators, and briefly with NALP’s Executive Director, Jim Leipold. It was born out of discussion at December’s Questionnaire Committee hearing. These conversations have helped shape The LST Proposal into a solution that meets the needs of all interested parties.

The LST Proposal

Our proposal can and should co-exist with the chart proposed by the 509 Subcommittee. Together, the proposals provide prospective students a quick overview of the employment opportunities at various schools while also allowing a more detailed, holistic view for those students who wish to delve deeper. We are hopeful that implementing the two proposals would result in more informed decisions and a more efficient allocation of students to the schools that best meet their career and educational objectives.

The LST Proposal has two core elements. First, each school would report graduate-level data about post-graduation employment outcomes on a “Job Outcome List.” For each graduate, schools would report, as applicable:

  • Employment status
  • Employer type
  • Full-time or part-time
  • Required credentials
  • Location
  • Whether the graduate received special funding
  • Job Source

[View the detailed categories on this chart]

These data are already reported to NALP by all but six ABA-approved law schools (St. Louis University, University of Kentucky, Columbia University, and the three law schools in Puerto Rico). The Job Outcome List would be publicly available.

Second, schools would report known salary data for each graduate. Schools also already report these data to NALP. However, unlike the data on the Job Outcome List, the salary data would not be publicly available. Instead, the Section of Legal Education would create a national database of salary data just like the database NALP already has and reports about in Jobs & J.D.s. The database would include all employment data contributed by law schools each year.

The result would be a public, national database of job outcomes and salaries that respects individual and employer privacy desires. Prospective students would use this database for a general idea of lawyer pay in certain locations for certain jobs, as well as an indicator of the short-term economic value recent graduates are attaining with each school’s J.D.

Mechanics of the National Database

Pairing a national salary database with school-by-school, disaggregated employment information would allow prospectives to understand entry-level salaries without identifying the compensation of any individual graduate. To do this, the database would provide salaries for small, though statistically significant, cross-sections of law school graduates. The cross-sections would be created by using the factors that many prospectives consider to be part of their career objectives: employer type, location, and key job characteristics.

For example, for the Class of 2009 graduates, the average starting salary of full-time bar-required jobs in Los Angeles at law firms with 51-100 attorneys was $97,287. The 10th, 25th, 50th, 75th, 90th salary percentiles are, respectively, $75,000, $80,000, $90,000, $95,000, and $145,000. In Atlanta, the average starting salary for the same category is $107,619, and the salaries percentiles are, respectively, $80,000, $90,000, $90,000, $130,000, and $145,000.

Under The LST Proposal, prospectives would be able to match these salaries to a school’s actual placement track record in different places in different jobs. Under the 509 Subcommittee’s current draft, if a school collects fewer than five salary data points for a particular category, schools report no salary information at all. Prospectives remain unaware of how graduates fared because the only information available is that Y graduates obtained jobs with 51-100 attorney law firms, with no indication of location or required job credentials.

In order to understand what these salary percentiles mean to a prospective student considering X school, each school must provide enough disaggregated information to allow prospectives to match outcomes to the national salary database. This connectivity is crucial to an operational national salary database. This is one function that the Job Outcome List would serve.

There are a few ways to design the database, and we are hopeful that the ABA, NALP, LST, and other interested parties can have open discussions about how to best execute this vision. Initially, it is our view that between one and five years of salary data, back-provided by NALP, can be aggregated to create a richer salary dataset. The number of years used would depend on the type of job and location, as salaries have shifted more or less for different cross-categories of employment outcomes. (E.g. New York City 501+ attorney firm salaries have remained relatively stable within at least the last three years.)

Additionally, it is our view that the narrowest salary picture should be provided whenever possible. If enough data exist for 51-100 attorney law firms in Atlanta, city-level figures should be available. If not, the database would provide the next narrowest regional dataset. These higher-level datasets might be Fulton County, Metro Atlanta, Georgia, the South Atlantic (DE, DC, FL, GA, MD, NC, SC, VA, WV), and the United States. The categories could also carve certain locations out of a larger geographical area. For example, one category might be 2-10 attorney law firms in Georgia minus Metro Atlanta. The possibilities hinge only on having large enough datasets. Regardless of whether the narrowest set is available, each higher-level dataset should be associable with each listed job outcome.

Other Advantages of the Employment Lists

The benefits of this proposal do not end with the addition of elaborate, privacy-respecting salary information to the marketplace. After all, the jobs graduates take are often based on more than salaries, so a proposal that aims to help match prospectives to their best fit cannot end with only salary information. To this end, the Job Outcome List will help prospectives understand the various kinds of jobs graduates take at particular law schools. Its components offer various insights into the entry-level market and how each school fits into that market.

Long-term Help

Focusing on a single year of data is dangerous, but an improved standard must start somewhere. The concern is certain to be more pronounced when there is more disaggregated information available for public consumption. The fear that prospectives will pay too much attention to the first year of new data, while grounded in reality, is but a consequence of improved transparency at law schools. The LST Proposal will be best after three or five years. At that point, prospectives would be more able to discern which schools can best meet their individual objectives. And that should be everybody’s goal.

The Current Employment Information Reported to the ABA

This is the first of a series of posts where we contemplate the 509 Subcommittee’s proposal and the facts needed to understand how it would advance transparency at ABA-approved law schools. This post begins this process by describing the current employment information that schools report to the ABA according to Standard 509 and the annual questionnaire. Later we provide three criteria to judge the ABA’s actions and then will evaluate the new proposal with those criteria in mind.
  
Law schools must report “basic consumer information” about their programs to the ABA, including information about the employment outcomes of their graduates. Currently, the ABA requires that schools report employment rates nine months after graduation, as well as basic bar passage statistics. The annual questionnaire requires that schools report these placement rates for the second-most-recent class, roughly 16 months after most of the graduates earned their degree. It takes about 2 years from graduation for the ABA to publish the information for public consumption.
 
These employment rates include the employment status of all graduates, as well as the type of employer, type of job, and geographic location of all employed graduates. For all of these categories, “a job is a job.”

The employment status includes five exhaustive categories: employed, unemployed—seeking, unemployed—not seeking, pursuing an advanced degree, and unknown. Although exhaustive, the total number of graduates in each category inexplicably does not always add up to the total number of graduates. As one of many examples in the most recent Official Guide, New York Law School does not account for eight graduates while reporting according to these exhaustive categories. The ABA disclaims any warranty as to the accuracy of the information submitted by law schools, so it is unlikely that anybody will correct even basic errors.
 
The employer type rate only considers what business the employer engages in, rather than the type of job the graduate works for that employer. Accordingly, the percentage of graduates “employed in law firms” includes lawyers, paralegals, and administrative assistants. Likewise, “employed in business and industry” includes everyone from an in-house lawyer to a short-order cook. The job-type rate aims to shed some light on these logical disconnects.

NALP’s annual reports on the entry-level hiring market indicate that the disconnect is not merely theoretical, as a sizeable percentage of graduates take these non-law jobs at law firms and in business each year. That graduates take these jobs is not necessarily a problem. The problems are that it is unclear to readers that there exists a disconnect and that, once realized, readers cannot determine what types of non-law jobs these graduates take. Perhaps, originally, all that mattered was the bar-passage-required rate versus the not-required rate. But when a school advertises the versatility of a J.D., unassuming consumers are likely to think many of these graduates are doing something with their degree other than becoming a paralegal or short-order cook. The reality is that just about every graduate needs to find some way to earn money because most of them used student loans to pay for their education.

The current ABA employment reporting standard is seriously limited by its form and substance. This standard aggregates employment outcomes and makes it difficult for prospectives to understand the various employment opportunities for new J.D.’s. Quite differently from problems with the standards, schools’ individualized reporting policies often package information in ways that are not only difficult to compare, but oftentimes misleading. While arguably violative of Standard 509, the “fair and accurate manner reflective of actual practice” portion of the standard has yet to be enforced.
 
What follows is that prospective law students rarely make informed decisions about whether, and where, to attend law school. The ability to make an informed decision directly relates to prospective law students’ ability to access quality information, and the available resources are inadequate for prospectives who strive to take a detailed, holistic look at the diverse employment opportunities at different law schools.

Because prospectives usually do not have enough information about employment outcomes to make an informed decision, they often look to other resources to facilitate comparisons among schools. Most famously, U.S. News provides a yearly law school ranking that prospectives often use as a proxy for schools’ job placement opportunities. While the U.S. News ranking drives down transaction costs for prospectives seeking to acquire and explain information, it also causes prospectives to make decisions based on minute, arguably arbitrary rankings disparities. U.S. News’s decision to rank the former-third tier will only exacerbate this problem.
 
These problems have existed for quite some time, and are divorced from schools’ current struggle to help their graduates find gainful employment. That said, the economic climate is creating ever-larger implications for the legal profession. Law school in the U.S. is now an extremely costly proposition in terms of both positive attendance costs and opportunity costs. Tuition continues to rise, debt is not dischargeable in bankruptcy, and the expected value of all outcomes is less than it was just a few years ago. The result is more graduates for whom uninformed decisions will adversely affect their well-being. Caveat emptor may be an attractive quip when consumers choose to buy inherently dangerous goods, but it is not applicable when even the most informed prospectives really have no idea what kind of return follows from investing in a particular J.D.

This post is derived from our white paper. Many of these comments were also presented by LST’s Executive Director at the ABA Questionnaire Committee hearing in December, 2010.

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.