“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.
[xii]            Id.
[xiii]           Accreditation Archives, A.B.A. http://www.americanbar.org/groups/legal_education/accreditation/accreditation_archives.html (last visited Mar. 23, 2017).

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