Our Section members know that the Council and the Section’s Accreditation Committee are recognized by the U.S. Department of Education (DOE) as the national accrediting agencies for American law schools and programs offering the first degree in law, the J.D. They also generally understand that when the Council and the Accreditation Committee act as accreditors they are “separate and independent” of the American Bar Association. Less generally well known is what “separate and independent” means under the DOE’s regulations and the impact the separate and independent requirement has on the operations of the Section and its budget.
As those who have found themselves practicing law affected by federal regulations know, the drafters of those regulations strive to state the law precisely. Therefore, it can be hazardous to summarize regulations because one might omit an important element or add a gloss not intended. (For those particularly interested you may find the definition of “separate and independent” at 34 C.F.R. 602.14(b).) Nevertheless, here is a succinct summary of the “separate and independent” requirement as it relates to our Section and the larger ABA:
1. The Council and the Accreditation Committee may not be elected or selected by the ABA President, Board of Governors, or House of Delegates;
2. One-seventh of the Council and of the Accreditation Committee must be representatives of the public; (This has been interpreted to mean non-lawyers.)
3. The Council must establish and implement guidelines for the members of the Council and Accreditation Committee to avoid conflicts-of-interest in making accreditation decisions (e.g., Council and Accreditation members do not participate in deliberations relating to individual schools with which they may be affiliated);
4. The fees or dues for accreditation paid by law schools must be paid separately from any dues paid to the ABA; and,
5. The Accreditation Project’s budget must be developed and determined by the Council without “review by or consultation with” the ABA.
While the DOE “recognizes” the Council and the Accreditation Committee, they do not enjoy a charter from the DOE. The Council and the Accreditation Committee are bodies under the bylaws of our Section. The Section was created by the ABA under the provisions of the ABA bylaws. The ABA’s House of Delegates has the authority to create, modify, and abolish sections.
Before addressing what this means for the operations and budgets of the Section, let me describe generally the current make-up of our membership. As of this writing, the Section has 13,684 members. 3,136 of these are law students who do not pay Section dues; 115 are associate members of the Section; 514 members are individual lawyers like me. The largest category of members of the Section are the 9,919 members who belong by virtue of their law schools’ participation in the faculty group membership program, which grants ABA membership to faculty and professional staff at ABA-approved law schools at a reduced group rate. This group membership program includes membership in our Section for the individuals at each member school. Participation in the faculty group membership is not connected to the accreditation process and is a matter of discretion on the part of law deans and their faculty.
The stated dues for membership in the Section are $50. Of that, $35 actually comes to the Section. The other $15 is taken by the ABA for its general fund and operations along with whatever ABA membership fee is paid.
No matter what the category of membership, membership in the Section and membership in the ABA are completely voluntary, except that under our Section Bylaws members of the Council, excluding public members, must be members in good standing of the ABA and of the Section. A law school is not required to participate in the group faculty membership program in order to obtain or maintain accreditation approval.
The Section membership dues allocated to the Section have historically gone to fund Section activities such as publications, workshops, and the like. These are things one ordinarily expects from a membership in an ABA section. A portion of the funds is allocated to a reasonable share of the Council’s work not directly relating to accreditation.
As a general proposition, the Council has striven to operate the activities of the Section not directly relating to accreditation on a break-even basis. Over the years, and thanks to prudent management, a reserve has accumulated though the amount in the reserve fluctuates during the year as money flows in and out. The reserve has been accumulated for the purposes for which reserve funds are usually accumulated—-protection against a rainy day, capital for equipment and other purchases, etc. Note that I refer to activities “not directly relating to accreditation.” The Section reserve is a book keeping entry in the financial records of the ABA. Budgeting and spending of Section monies not directly relating to accrediting are subject to ABA budgeting policies and procedures as are the reserves of all the other sections of the association.
At least some of what we colloquially call the “Section-side” activities help inform the accreditation process. For example, a few years ago the Section conducted and published a study of curricula in law schools. Among other things, it demonstrated how law schools have been and are adapting to changing demands, which in turn provided context for the Standards Review Committee and the Council in reviewing the Standards.
In contrast to Section dues, the accreditation fees paid by law schools to obtain the approval of the Council and to remain on the list of approved schools are paid, as the DOE requires, separate from Section membership dues. These fees are held by the ABA on behalf of the Council and the Accreditation Committee. They directly fund the Accreditation Project’s activities. The ABA plays no role in creating the budget for these activities or in setting the fees. Every year, the Council requests a contribution from the ABA for the accreditation project as part of the ABA’s commitment to legal education. How much the ABA donates varies and depends on a number of factors, not the least of which is the general condition of the ABA budget. Since 1996, the amount donated has varied from a high of $1,320,893 in 2009 to a low of $156,079 in 2014. In fiscal year 2017, the amount was $375,000.
Reasonable allocations are made between the “Section-side” of the budget and the Accreditation Project for staff salaries and benefits, the costs of office space, and the like.
Obviously, I have not included all the details involved in this process. My purpose is to advise the members of the Section in a general way of how the Section and the accreditation project are funded and operated.