The ABA must not stand by watching. The choices many law schools have made in the face of financial pressure is likely to erode the public's trust in the legal profession. The ABA is uniquely situated to protect the profession and public by holding law schools accountable.
Standard 501: The "do not exploit" standard. A school shall not enroll a student who does not appear capable of satisfactorily completing school and passing the bar.
Interpretation 501-1: A "factor test" for evaluating whether a school exploits students. Factors may include LSAT scores and undergraduate GPA's of entering students, the academic attrition rate, the bar passage rate of its graduates, and the effectiveness of the law school's academic support program.
Standard 316: The "bar passage" standard. A school must pass one of two tests. [Test #1] Within 5 years, 75% ultimate bar passage rate or 3/5 years at 75% or more. [Test #2] First-time bar passage rate no more than 15% lower than pass rate of all ABA-approved graduates in same jurisdiction for 3/5 years. Subsection (c) provides that if a school does not come into compliance within 2 years, it may show good cause for an exemption.
Rule 6: Provides the accreditation committee authority for interim monitoring of enrollment, credentials, attrition, and bar passage as it relates to accreditation status.
Rule 7: Provides the Section of Legal Education's managing director the authority to demand information at any time from any law school.
A. Require schools to provide information/respond to inquiry under Rule 7: This report shows that 74 law schools filled at least 25% of their 2014 1L class with students who face high risk or worse of failing the bar exam. To show compliance with Standard 501, the Section of Legal Education's managing director should direct these 74 law schools to provide student-level LSAT and GPA numbers for all entering students in 2012, 2013, 2014, and 2015 on a uniform spreadsheet designed to facilitate the section's analysis. The managing director should also direct schools to provide empirical support suggesting that at-risk students are likely to complete school and pass the bar in accordance with Standard 501
B. Open investigations under Rule 6: The accreditation committee should open an investigation into the schools the managing director identifies as probably non-compliant with Standard 501. We expect that this will include all very high and extreme risk schools, as well many high risk schools. The ABA should publish a public memorandum announcing the number of schools for which it has opened an investigation under Rule 6.
C. Vigorously enforce Standard 501: The ABA fears it is speculative to only look at inputs, such as the LSAT, despite the LSAT being the best pre-law school predictor of bar outcomes. But with pass rates already declining, action on quality predictors is not speculative but necessary to protect students and the public. Loss of accreditation is not necessary for a Standard 501 violation, however, but the sanctions must be public. Possible sanctions include public censure and probation.
D. Vigorously enforce Standard 316: The ABA must waste no time withdrawing accreditation when a school violates Standard 316.
E. Raise the standards on Standard 316: The current ABA standard allows very low performing law schools to remain in compliance, potentially allowing law schools to engage in exploitative admission and retention practices. Accredited schools should, within two years of graduation, be able to produce 85% bar passage among graduates who take the bar exam. Enhancing the standard in this way allows a graduate to take the bar four times—ample time to obtain near statistical certainty that the graduate will never pass the bar and assess if the school adequately educates its students. According to the LSAC National Longitudinal Bar Passage Study, 99.9% of people who pass the bar exam have done so by the fourth attempt. After three attempts, the figure is 99.3%.
F. Close the Standard 316 loophole: Standard 316 allows schools to cherry pick the bar passage rate data reported for accreditation purposes. Currently, a school must only report bar passage results for at least 70% of its graduates under Test #2. To achieve 70%, the school must report bar passage results from as many jurisdictions as necessary to account for at least 70% of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. However, once 70% is achieved, a school may choose to report any state-by-state outcomes it wants. A school can use this loophole to report a higher composite bar passage rate than it knows its graduates achieved.
G. Close the second Standard 316 loophole: Staying within 15% of the statewide average in three out of five years (Test #2) is not a meaningful signal of success when the state average drops due to lower admission standards across the board. Consider the example of Southern University Law Center. For 2013, the school's first-time pass rate in Louisiana was 46.6%, 12.1% less than the state's first-time pass rate of 58.7%. Under the ABA Standards, SULC exceeds the minimum standard even though less than half of its graduates passed the bar. Test #2 allows low performing schools to perform poorly because its peers do. Test #2 should be eliminated.
H. Close the third Standard 316 loophole: A low-performing school can skew the state-wide average such that the school ends up within 15% of the state average. If the ABA declines to eliminate Test #2, it must calculate how a school's bar pass rate compares to the state bar pass rate by excluding that school's test-takers from the state average. Schools will still benefit from an overall weaker cohort, but at least they will not benefit from their own bar failures.
I. Coordinate with the NCBE and law schools to create an examination at the end of the first year of law school: People deserve the opportunity to pursue their goal becoming a lawyer, but we must balance this against the danger of law schools exploiting students who have unrealistic views of their own prospects of achieving their goal. The ABA should coordinate with the National Conference of Bar Examiners and law schools to administer an exam that provides a national measure of a student's ability to succeed in law school and on the bar. The test would preserve access for some students with non-traditional predictors of success, while identifying students who are highly unlikely to succeed are identified early. Notably, the legal profession would not be the first profession to require multiple layers of examination over a long period of time.
J. Require schools to publish more nuanced admissions data: Require law schools to provide a grid of LSAT/GPA as part of mandatory disclosures under Standard 509. This grid will show how law schools fill their entering classes. The ABA, under Rule 7, can and should request this information now, though they are not permitted to make the grids public without rule changes.
K. Require schools to publish disaggregated success rates: Require that law schools provide success rates for program completion and bar passage (separately) by LSAT/GPA grid, so that the performance of students with similar academic credentials can be compared across all law schools. For a detailed proposal along these lines, see David Frakt's post on The Faculty Lounge, What Would Really Useful Law School Consumer Data Look Like? While students may not make great use of the information, schools can still be held accountable by legal authorities and journalists.
L. Change the reporting deadline for bar exam outcomes: Move the reporting deadline for bar exam outcomes back from October 15 to February 15 of the same year (8 months earlier). Currently, there is a major delay between when graduates receive their bar results and when law schools must account for them on their required disclosures and for accreditation purposes. There is absolutely no reason that law schools should be given until December (when schools must post their ABA 509 reports) to post bar passage date for the previous year. Schools should be required to post bar passage data for a calendar year not later than February 15 of the following year. This would enable prospective law students to have the most current data available as they evaluate their law school choices. It would also allow the ABA to take action before the start of the new school year.
M. Require schools to publish eventual bar passage rates: Require eventual bar passage rates by graduating class two years (four exam administrations) after graduation.
N. Add a Gainful Employment standard to the ABA Standards: Among our recommendations for the federal government, we suggest that Congress should amend the Higher Education Act of 1965 to provide the Department of Education authority to promulgate gainful employment regulations for professional programs. The ABA does not need to wait for Congress to act. The ABA has the authority to create its own gainful employment regulations, and it should do so. There are data available and should be ways to do this.