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January 01, 2016

Immediate Sanctions for Law Schools That Have Lowered Admissions Criteria? Not So Fast.

The Honorable Rebecca White Berch
Justice, Arizona Supreme Court
2015-2016 Council Chair

Driven by the difficult job market for new law school grads in the last several years, the number and quality of applications to law schools have fallen – dramatically, for some schools. The allegation has been made that, to fill classes, a few of these schools have admitted applicants who lack the ability to complete a law school education. As proof, critics point to the decline in applicants’ LSATs and GPAs during this period as well as to the decline in schools’ bar-pass percentages. The call has gone out for “the ABA” to halt this practice and sanction the schools.

This article addresses what is being done about the situation.

But first, an explanation of why the Council, and not the ABA, is the appropriate entity to respond to the criticism. Most law schools in the United States are approved by the ABA; the schools proudly tout this credential by referring to themselves as “ABA approved” or “ABA accredited.” Since 1952, the U.S. Department of Education has recognized the ABA as the accrediting body for the “first professional degree” in law (the LL.B. and J.D.). Because accrediting agencies that operate within a professional association such as the ABA must perform accrediting functions independently of the trade association of which they are a part, the Council of the Section of Legal Education and Admissions to the Bar has performed the accreditation function on behalf of the ABA, “separately and independently” from the ABA, making the Council and its Accreditation Committee (AC) – and not the ABA itself – the accreditor. So it is the Council that must address the questions raised about law school admissions. 

The Council’s response is governed by the Standards and Rules relating to accreditation. Admission to approved law schools is regulated by Standard 501, which requires, among other things, that schools shall not admit those “who do[] not appear capable of satisfactorily completing” law school and who are not likely to be admitted to the bar. [Standard 501(b).] In admitting students, law schools of course look at respected indicators, such as an applicant’s LSAT score and undergraduate grade point average. But schools also rely on other factors that may show leadership, drive, grit, or other factors that provide reason to believe the applicant may perform well in law school. Schools may require a writing sample and proof of accomplishment, such as professional position, or participation in volunteer work or student government, or other factors that demonstrate to the school’s satisfaction that the student has characteristics that indicate a reasonable chance to succeed. In enforcing Standard 501, the AC and Council also consider other school-specific factors, including the school’s academic attrition rate, bar passage rate, and academic support program.  [Interpretation 501-1.]

Citing declining LSAT scores of admittees, some have suggested that the Council should move quickly to sanction or remove the accreditation of law schools that admit students whose LSAT scores are “too low” to indicate a chance of success in law school. But the Council cannot act precipitously, for several reasons.

First, of course, is that an LSAT score does not purport to tell the whole story of a person. (See Barry Currier’s column in this Syllabus.) Many whose LSAT scores were not distinguished later achieved great things, in law school and in the profession. Thus an applicant with a low LSAT score might appear to a school quite “capable of satisfactorily completing its program of legal education and being admitted to the bar” if other indicators are present. It is for that reason, among others, that the Council and its AC look at additional considerations, such as the school’s academic attrition and bar passage rates. Those factors are themselves governed by Standards.

Second, schools are entitled to due process. The accreditation rules – and fairness – provide that they must be given an opportunity to justify the admissions choices they have made before sanctions may be imposed. 

Third, the accreditation process is volunteer-driven. That is, the Council and the AC are made up of volunteers who meet only several times a year. These volunteers generously give thousands of hours of their time each year, and more should not be asked of them – although we can examine our processes to ensure that we make the best use of the time we are given and move the cases along.  Appropriate process takes time.

Nonetheless, readers should not assume that the Council is standing idly by.  Much is happening behind the scenes. Each year, approved law schools must respond to an annual questionnaire (AQ). Council staff and the AC review the responses and require schools whose answers raise questions to elaborate. So, for example, if the entering LSAT scores of a school with an already low bar pass rate should fall precipitously, the school may be asked to explain how it expects admittees with very low scores to succeed in law school and pass the bar, given that entering students with higher scores have not been successful. The school may reveal increased tutoring or academic support, more intensive focus on admissions indicators other than the LSAT, or other reasons to think that the entering students will be successful. (An acceptable answer will not include that the school needs the student’s tuition dollars.) But, according to the rules, the schools must be afforded notice and a chance to defend their choices. It may help readers understand the scope of this review to know that more than half of approved schools are reporting back to the AC and Council as a result of questions raised by responses to AQs.

The review process is rigorous and steps are being taken. Are there questions about law school admissions processes? Of course. But the questions are not best answered by summarily placing on probation or revoking the accreditation of schools whose entering LSAT indices have fallen. Such a response would deny appropriate process, violate the rules under which we operate in accordance with U.S. Department of Education regulations, and deny otherwise qualified candidates the opportunity for a law school education. And it would harm other students at the schools, who rely on the schools’ continued good standing. 

Finally, of course, the Council is working on revising the Standards to make them clearer and more easily enforceable. But that is an article for another day.

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