“Changes Required”: ABA’s Crackdown On Lenient Law School Admission Policies
Bethany
Pandher
An application for law school admission has long been
recognized as incomplete without the traditional indicators of an applicant’s
Law School Admission Test (LSAT) score, and Undergraduate grade point average
(GPA).[i] Concerning law school
admission decisions, the Law School Admissions Council (LSAC) has asserted that
“[t]he LSAT is designed to be one of many factors that law school admission
committees consider in selecting an entering class.”[ii] Statistical analysis of the combination of
LSAT and GPA scores of an applicant consistently correlate with performance
during the first year of law school.[iii] Therefore, the presumption that underlies the
traditional method of using these objective means as admission criteria, is
that the higher the LSAT score, the greater probability of student success.
However, as the legal profession has progressively
changed, so has the profile of the nation’s typical incoming class. Fluctuating
in suspect concurrence with the country’s economic position, interest in legal
education has endured phases of both boom and bust. During the most recent
downturn in student applications, the decision of some institutions of legal
education, to admit applicants who stray from the typical law student profile,
has become a popular topic of both discussion and criticism.
Additional factors receiving increasing attention, are
the rising cost of legal education, and the rise of massive student debt.[iv] Paired with historically low bar passage
rates, which continue to fall annually, the indication is that the situation
may be worsening, rather than improving. Along with the current job market for
law graduates, which has garnered a gloomy reputation over the past decade, the
legal profession has come to a crossroads, with members of the community
calling for change.
The American Bar Association (ABA), specifically the
Council of the ABA Legal Education and Admissions to the Bar, has been the
subject of criticism, as an increasing number of schools have consistently
admitted greater numbers of risky
students.[v] Recognizing that the problems faced by the
legal field today require careful consideration and planning, the ABA has
chosen to facilitate discussion on the issues, and move forward cautiously.
Responding to the call of the ABA for members of the
legal community to provide feedback and suggestion on proposed revisions,
various legal scholars, deans, and law school faculty have drafted solutions to
problems specifically identified within the ABA Standard and Rules of Procedure
for Approval of Law Schools. Along with the proposals drafted by the Council, a
series of options are now complied to remedy the current state of legal
education, which is ripe for improvement.
Recent
Changes
This past February, the American Bar
Association approved and published a modified version of Standard 501, which
deals with Admissions.[vi] The primary change to the previous language
is manifested in a new clause added to Interpretation 501-1, which has added
that “[c]ompliance
with Standard 316 is not alone sufficient to comply with the Standard.”[vii]
This language provides a tool for that ABA to now crack down on schools that
previously accessed an unintended loophole
in Standard 316 to argue their admission policies as compliant.
Previously, the ABA, in it’s
application of Standard 501(b), interpreted Standard 501’s language of the appearance of capability to pass the
bar, to be automatically met provided that a school met the bar passage rates
outlined in Standard 316[viii]. This interpretation was flawed, as the
standards described in Standard 316 created an unintended loophole, virtually
impossible to fail.[ix] Yet to be changed, a school’s bar passage
rate satisfies Standard 316 provided that it does not fall more than fifteen
percentage points below the jurisdictional average. However, this metric is
problematic as each school’s performance is factored into the computation of
that average, thereby skewing it downward if one school poorly performs.
While
changes are apparently on the way, no action has yet been finalized. Critics of
the ABA’s existing Standards have celebrated the proposed changes to Standard
316, currently published for Notice and Comment on the ABA's website. However, the proposed standard has been
criticized as a “one size fits all
solution, requir[ing] that 75% of a law school’s bar examinees pass [a bar
exam] within two years” of graduation.[x] Minority colleges, including the Historically
Black College and University (HBCU) law school deans have expressed major
concerns regarding how the proposed standard may “undermine current efforts to
increase diversity within the legal profession.”[xi] The concern arises, as under this new
standard “a significant number of law schools accredited for decades by the ABA
could be compelled to continuously provide justification for their
accreditation.”[xii] As the ABA weighs the competing policy
interests of the impacted institutions, the decision has yet to be finalized
regarding the changes that will be made to the new standard.
Stay Tuned: Warnings
Issued
In the meantime, the ABA has been
busy visiting schools and issuing warnings.
While only one school, Charlotte School of Law (North Carolina), has
been formally placed on probation, both Valparaiso University School of Law
(Indiana), and Ave Maria School of Law (Florida) have been issued formal Notices
of Specific Remedial Action.[xiii] Should the changes proposed to Standard 316
come to fruition, a quick look at the less-than 75% bar passage rates seemingly
standard from state-to-state, indicates that more warnings will certainly be on the way. As we look to the future, unanswered
questions remain. First, what will actually happen to these
schools after warnings are issued? And
perhaps most importantly, what is the ABA’s plan to support the students
enrolled at these institutions? As a
fellow consumer of legal education, my sincere hope is that the response is
something more substantive than an apology.
[i] Edward
G. Haggerty, LSAT: Uses and Misuses, 70 N.Y. St. B.J., May–June 1998, at 45, 45.
[ii] Id.
[iii] Id.
[iv] Paul
Horwitz, What Ails the Law Schools?,
111 Mich. L. Rev. 955, 956 (2013).
[v] Barry
Currier, It’s (Appropriately)
Complicated: Be Cautious in Using LSAT
Scores to Evaluate Law Schools, Syllabus,
Winter 2015, at v.
[vi] A.B.A., Revised
Standard 501 1 (2017),
http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2017_standard_501.authcheckdam.pdf
[vii] Id.
[viii] Kyle
McEntee, Memorandum: Interpreting and
Enforcing ABA Standard 501(b), Law
Sch. Transparency (Oct. 23, 2015),
http://lawschooltransparency.com/reform/projects/investigations/2015/documents/Memo_on_Standard_501.pdf
discussing A.B.A., ABA Standards
and Rules of Procedure for Approval of Law Schools 2016–2017 34 (2017), http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/Standards/2016_2017_aba_standards_and_rules_of_procedure.authcheckdam.pdf:
(a) A law school’s bar passage rate shall be sufficient, for purposes
of Standard 301(a), if the school demonstrates that it meets any one of the
following tests:
(1) That for students who graduated from the law school within the five
most recently completed calendar years:
(i) 75 percent or more of these graduates who sat for the bar passed a
bar examination; or
(ii) in at least three of these calendar years, 75 percent of the
students graduating in those years and sitting for the bar have passed a bar
examination….
(2) That in three or more of the five most recently completed calendar
years, the school’s annual first-time bar passage rate in the jurisdictions
reported by the school is no more than 15 points below the average first-time
bar passage rates for graduates of ABA-approved law schools taking the bar
examination in these same jurisdictions….
A.B.A. supra n.viii.
[ix] McEntee,
supra n.viii.
[x] Congressional
Black Caucus, Comment Letter on Proposed Standard 316 (Oct. 18, 2016), http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/comments/20161018_comment_s316_congressional_black_caucus.authcheckdam.pdf
[xi] Id.
[xiii] Accreditation Archives, A.B.A. http://www.americanbar.org/groups/legal_education/accreditation/accreditation_archives.html
(last visited Mar. 23, 2017).
