October 01, 2016

From the Managing Director

Barry Currier
Managing Director

What if the ABA law school accreditation process were redesigned from scratch?

In the wake of the review of the Council’s application to obtain re-recognition of the ABA law school accreditation process by the United States Department of Education, this is a worthwhile question to ask. Members of NACIQI (the U.S. Department of Education’s advisory group on accreditation determinations) raised questions about why the ABA accreditation standards did not directly address matters such as student debt and the changing job market. The recent comprehensive review of the Standards accomplished important and fundamental improvements. They are, however, modifications to a set of rules and an approach that has served the legal profession and law schools well for many decades. The question is whether they are appropriate and optimal for the current environment.

We know that the ABA Standards, like the standards of many accreditors, historically focused more on institutional/programmatic inputs than outputs. The ABA Standards and process paid much more attention to student credentials and the size and structure of the faculty than they did on how well the program worked (learning accomplished, graduation and bar exam pass rates, and success in the profession).

New standards require schools to develop learning outcomes, implement a process to assess how programs are working, and make improvements on the basis of those program reviews. It will, however, take time for this shift to be fully realized. Cutting against these changes are calls for the process to continue conditioning accreditation on perhaps the primary input measure, entering class credentials. Given the cost of law school, this focus may be appropriate to guard against schools enrolling students who, based upon their credentials, have very little chance of success. But, input measures they are. We are still of two minds on the outputs/inputs question.

Outside of legal education, the role of accreditation is evolving. Accreditation will certainly step up its collection and public reporting of data about schools and programs. Beyond the gathering and reporting of data to facilitate the operation of the higher education market, many want accreditors to play a much more active and stronger role in managing that market, based on the data being collected. This is justified in part on the reality that the federal government is the primary funder of higher education and wants assurance that it is getting its money’s worth.

It seems clear that a 21st century law school accreditation system needs to move with more dispatch and to be more flexible. It needs to find ways to encourage (rather than just making space for) innovation. And it needs to deal with a set of approved programs and institutions that have varied capacities and missions, which send graduates into substantially different parts of the legal services marketplace, one that is going through its own fundamental change.

Should the Standards address more directly the number of law schools (or seats in law schools), the cost of law school (or the allowable debt), and job placement rates? Would Standards on these topics be acceptable under existing law?

If a concern is creating “practice-ready” law school graduates, should a new set of Standards be much more prescriptive on the content of the academic program that schools must offer or require of their students? Currently, the Standards say very little in this regard, although there has been a move to require more skills training, including legal writing, in the last decade or two. On the other hand, many observers note that the Standards should be more, not less, flexible, to allow schools to pursue their different missions and serve their different markets. How should the Standards reconcile or accommodate these two fundamentally different points of view?

If a (or the) fundamental role of accreditation is to establish and enforce minimum standards for the protection of the public, what should be written on the blank sheet of paper for a new built- from-scratch law school accreditation process?  Remembering that the ABA Standards play the role of establishing the education that a graduate from an ABA-approved law school must present to be eligible to sit for the bar examination in every admitting jurisdiction, what would be on your list of essential requirements for J.D. programs?

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