October 01, 2017

The Council Plans its Work for the Year

Maureen A. O’Rourke
Dean and Professor, Boston University School of Law
2017-2018 Council Chair

As law schools around the country begin another academic year, it seems an appropriate time to review the Council of the Section of Legal Education and Admissions to the Bar’s (Council) plans for the year, particularly with respect to accreditation Standards. Additionally, besides working on the Standards, the Council is launching an ambitious restructuring project with the goal of speeding up the process of addressing accreditation issues. As always, your input on the Council’s work is invaluable, and I hope that you will participate in commenting on proposed Standards as well as the restructuring.

The Council has asked the Standards Review Committee (SRC) to review particularly the following items (For a comprehensive record of SRC’s work, see the Committee’s page on the Section’s website.):

  • Standards 205-06 – Should “gender identity” be added to the list of characteristics on which a school both must not discriminate and take “concrete action” to include in its student body, faculty, and staff?
  • Standard 306 – Is the current Standard permitting distance education after the first one-third of instruction and for up to 15 credits towards the degree appropriate?
  • Standard 403 – The Committee will review the comments it received on a proposal to revise Standard 403 to remove the requirement that full-time faculty teach more than one-half of all credit hours or two-thirds of student contact hours.
  • Standard 503 – Standard 503 requires that applicants “take a valid and reliable admission test” without specifying what that test is. For many years, schools have required the LSAT. For a variety of reasons, some schools are now permitting applicants to submit GRE scores instead. A proposed new Standard would require that the provider of any test other than the LSAT prove its national validity and reliability before a school may accept it for use in its admissions decisions.

Additionally, the Council has asked the SRC to consider whether there are ways it might enhance transparency. In particular, the Council is concerned that because enforcement actions take some time to conclude and currently remain entirely confidential, prospective students may lack relevant information that would influence their decisions on whether and where to attend law school.

Another area the Council has asked the SRC to review is the collection and reporting of employment outcomes. Currently, the Council collects quite detailed data, and collates and presents it in a comprehensive form. The Council is concerned that the sheer volume of data collected and the manner in which the standard form presents it may be confusing. In short, providing large amounts of data across many categories may make it more difficult for the relevant audience – prospective law students – to find and assess the information most relevant to it. The Council has asked SRC to explore whether transparency with respect to employment outcomes could actually be better achieved with less fine-grained data and a simpler form.

The Council will be reconsidering Standard 316 on bar passage. The ABA’s House of Delegates voted at its February 2016 meeting against concurring in a change to the Standard that would have required an ultimate bar pass rate of 75% for each graduating class by two years following graduation. The Council will be considering additional bar pass information obtained from schools since the Mid-Year Meeting and its implications for a revised Standard 316.

A subcommittee of the Council is considering whether the accreditation process would be more effective and efficient if the SRC and Accreditation Committee were merged into the Council itself. The goals of such a restructuring include: (i) more timely administration of the system; (ii) deeper engagement of the Council in accreditation and overall policy; (iii) freeing up the Managing Director and his staff to take on additional work by eliminating the need to plan and staff multiple meetings; and (iv) saving money. In the meantime, the SRC continues to work with the Managing Director’s Office and the Accreditation Committee to streamline particularly the law school.

While the preceding is a robust and active agenda, it is likely equally, if not more interesting, to discuss some issues that, while they receive much press coverage, are not among those the Council will be addressing:  (i) two year law schools; and (ii) student debt.

Standard 311 requires successful completion of at least 83 credit hours as a condition of awarding the JD degree. It also provides that the “course of study . . . be completed no earlier than 24 months . . .” Law schools, then, are currently able to offer a two-year JD. Indeed, some do. That the majority do not is likely a function of lack of substantial demand and an economic model built around three years of tuition. In any event, contrary to popular belief, the Council’s Standards do not prohibit a law school from offering a JD program that students can complete in less than three years.

Finally, commentators have rightly raised concerns about students who graduate from law school with debt equivalent to a mortgage and a quite limited ability to repay it. Because of the antitrust laws, the Council will not take up the issue of what law schools – i.e., horizontal competitors – charge in tuition.

The Council is, however, quite concerned about student debt. Currently, Standard 507 requires schools to take steps to minimize student loan defaults and to provide debt counseling at the beginning and end of the student’s law school education. In the future, the Council might consider requiring significantly more counseling. A number of sophisticated financial tools now exist that would allow a prospective student to calculate the cost of attendance, the monthly payments the student would owe, and the probability of the student’s being able to make those payments in light of the income level associated with the employment the student hopes to obtain.

There are significant issues associated with any Standard that takes essentially a “disclosure approach” – whether to LSAT, GPA, bar pass rate, employment outcomes, or (hypothetically) financial situation. Students (like everyone else) have cognitive biases that lead them to believe that despite all evidence to the contrary, they will outperform what the objective numbers would suggest. This is not without reason – some will. But not all, or perhaps even most. It would be better for many students facing the prospect of large amounts of debt without a realistic possibility of repaying it to re-think seeking a JD either prior to enrolling or after completion of the first year if it does not go well.

I hope I have given you a flavor of the many issues with which the Council wrestles even though I have simplified them dramatically! It will be a busy year and I look forward to hearing from many of our Section members as we tackle some difficult issues.