April 01, 2018 From the Managing Director

Moving Legal Education Regulation Forward in an I/O and Segmented Environment

In the accreditation world, including the ABA law school approval accreditation process, we are transitioning from reliance on input measures, mostly, to reliance on outcome measures, more so. There have been, and will continue to be, inputs and outputs, but the balance is shifting.

Another shift in the air, even if we do not often talk about it openly and frankly, is acknowledging that law schools operate in distinct markets, although they have many things in common. The commonalities will continue, but the differences are becoming more pronounced.

Some resist the shift to outcome measures. Some resist changes that would formalize any differences due to segmentation in the legal education marketplace. Both are realities, however, and we will adjust to them. Can we take advantage of these shifts to modernize and improve the operation of the accreditation process?

What if, for example, the accreditation process looked at three or four core outcomes (non-transfer attrition, graduation rates, bar pass rates, and (maybe) job outcomes), together with one, fundamental input measure – finances, and re-designed our system beginning there? Schools might be classified into three groups: [1] schools with low non-transfer attrition, high bar pass rates, high employment rates (maybe high JD-required employment rates); [2] schools with high non-transfer attrition, low bar-pass rates, low employment outcomes; and [3] schools that do not fall into either group.

Schools with outcomes that far exceed minimum standards might simply have to demonstrate those outcomes, provide some additional information (or links to where the information can be found) and have their accreditation continued based on a paper record. Schools in the second group would be subject to more detailed annual reporting and oversight, including site visits or fact-finding visits, as needed. All other schools would be subject to a regular, periodic review, including a site visit, every N (somewhere between 7 and 10) years. Might an approach along these lines make sense for the profession, legal education, and for the process itself?

Inevitably, there would have to be more (we are creatures of a regulatory environment). Some inputs - policies and requirements - are required by the Department of Education’s criteria (Standards) for accrediting agencies. Examples are policies on student complaints, and requirements for loan counseling. The Council would maintain some others that are important. For example, disclosures about bar admissions processes and disclosure of consumer information. All schools would have to verify that they meet those requirements. But a much simpler reporting and verification process for them is certainly possible, and a site visit would usually not be needed just for them.

This takes us to the heart of the “inputs” matter: how many credits for the J.D. degree, what does the program require to be completed or mastered, admissions requirements (accredited undergraduate degree, admissions tests), attendance policies, limitations on delivery of education (in F2F classes, distance learning, practice settings), time to degree, restrictions on the granting of credit for coursework done before a student becomes a law student, employment status of the faculty who teach the curriculum (or the dean or the librarian) to schools to address, and the like.

Some of these are needed to preserve the notion of the degree – what makes it an academic and professional qualification. Those inputs, for me, are found, mostly, in the program of legal education – the learning outcomes that must be achieved – for the school to be accredited and the assessment of whether a school is achieving them. Learning outcomes and the assessment that goes with them are both inputs (what they are) and outcomes (demonstrating student achievement or mastery). They differ from other inputs (e.g., time to degree, the pedagogy used, or the employment status of the teacher) in this basic way. I do realize that many people conflate what a graduate is required to master and who helps them master it or how long it must take to master it. But a revised approach might eliminate most of those inputs and give the schools, particularly those who can demonstrate that certain fundamental outcomes have not only been achieved, but are regularly exceeded by a significant measure, more flexibility to work toward their missions and goals with less intrusion from the accreditation process.

Our standards focus way less on learning outcomes and assessment schemes than they do on some of the other input measures, where our time and emotional energy are often spent. Maybe that’s because, as legal educators and as a Council, there is so little agreement on what these learning outcomes should be. However, developing a system that allows our process to accommodate the reality of segmentation of the legal education marketplace may provide a pathway forward where all law schools can continue to exist within one regulatory regime.