April 01, 2016

Risk and the ABA Standards

Barry Currier
Managing Director

The Council and the Standards Review Committee are engaged in an important discussion about the level of risk that the ABA Standards for Approval of Law Schools should permit schools to take in their admissions processes. Risk is an unavoidable consequence of providing access and opportunity for law study. But the more risk taken, the greater the likelihood that schools will admit a student or too many students who are not likely to graduate and pass a bar examination, whether out of a commitment to an access mission or to increase revenues. It is safe to say that everyone supports access and opportunity and opposes exploitation. How to find the delicate balance in these matters in the Standards is the question.

A careful review and discussion of the Standards in the area of law school admissions is appropriate as the environment in which legal education operates is changing. In the much more robust pre-recession admissions/jobs environment, there was little talk about exploitation of students. The applicant pool was sufficient to give schools lots of choices. Not surprisingly, all schools, including those with access and opportunity missions, tended to prefer students with higher predictors of success (LSAT, UGPA), who were considered less risky by traditional standards. Academic attrition was low; graduation and bar pass rates were high. The double-humped salary curve was with us even then. But there were jobs, and the absorption of graduates into the profession happened relatively quickly. No doubt many applicants who were looking for an opportunity and who would have been great lawyers did not get a chance to prove themselves. There may have been little exploitation, but there was also less “opportunity,” at least as that concept is often used today to describe students with more modest predictors of success.

In an even earlier period, let’s call it the “look to your left, look to your right” era, the emphasis for a number of schools was access; students who were given an opportunity were grateful, and few expressed concern about exploitation. If law school was not a particular student’s cup of tea, he (usually it was “he” then) would leave at the end of one year without educational debt and having learned something that would be useful in future endeavors. Attrition was high, but that access and opportunity provided a pathway to a professional career for many to whom it was otherwise foreclosed. The profession was diversified and democratized in important ways. Legal education was more affordable; there were many evening/part-time programs that enabled those who could not afford to study full-time to have a job and still get a good legal education.

Today, the need for diversity in our law schools and the profession continues. Few would disagree that the rule of law and the health of our society depend on having a legal profession that reflects who we are as a nation. But a workable business model for a law school that is characterized by more risk in admissions, modest cost, and high attrition is in our rearview mirror. Law school simply costs too much for us to be comfortable with a “look left and look right” approach.

Substantial disclosure mitigates our discomfort, but does not completely alleviate it. Now, many assert, students cannot be counted on to study the risks, make informed decisions, and act accordingly. Perhaps the easy availability of student loans in our credit-card society is partially to blame. Perhaps, too, the “everyone gets a trophy” generation of students means that every applicant sees himself or herself as the exception to the rule, the person who will defy the odds. Added to the calculus is that most schools are challenged to bring in enough revenue to meet their expenses.

Taking into account the need for access and opportunity, the cost of law school, the ease of borrowing money for law school, a difficult job market, the fact that students may not be educated and careful consumers, tuition discounting practices, the influence of law school rankings, and the financial challenges for schools that can be addressed in part by taking (more) students with lower-than-ever predictors, how should the balance between access (and the benefits it offers to schools, the profession, and society) and the inculcation of false hopes (and the costs imposed on the individuals who try, but fail) be struck?

At its recent meeting in March, the Council agreed to put out for comment two proposals that begin to address this issue: a proposal to amend Standard 316, concerning bar passage outcomes, and a proposal to amend Standard 501 that includes a provision using first-year attrition. You can read the particulars elsewhere in this issue of Syllabus. The theory of these proposals, as I view them, is to make clear that a law school will not be in compliance with the Standards relating to admission if it has academic attrition that it too high, bar pass outcomes that are too low, or (certainly) both.

The Council and the staff in the Managing Director’s Office hope that these proposals will generate good discussion and comment about how the Standards should walk the tightrope balance between allowing access and opportunity and the potential for inculcating false hopes in students who, at the end of the day, are not good candidates for law study. I am grateful for the hard work of both the Council and the Standards Review Committee on these fundamental issues.