From the Chair: Reviewing the Standards: A Call for Comment

Diane F. Bosse
Special Counsel
Hurwitz & Fine, P.C.
2019-2020 Council Chair

In 2018, all accreditation-related functions of the Section of Legal Education and Admissions to the Bar were merged into the Council of the Section.  Among the activities assumed by the Council was the work that had previously been performed by the Standards Review Committee.  I write this column to describe the process now undertaken in proposing new and amending existing Standards and Rules of Procedure for the Approval of Law Schools (collectively the Standards) and to encourage participation in that process, as the Council considers important changes. 

The Standards Review Committee was charged, as might be expected, with proposing to the Council the adoption and amendment of the Standards.  Although the Standards Review Committee no longer exists, the Council has appointed a Standards Review Subcommittee, (SRS) ably chaired by Council member Pam Lysaght (who previously chaired the Standards Review Committee) and staffed by our talented Accreditation Counsel Stephanie Giggetts.

Internal Operating Procedure (IOP) 9 requires the Council to engage in ongoing review of the Standards.  Each spring or summer, the SRS issues a notice pursuant to IOP 9, inviting suggestions for possible changes to the Standards.  The SRS considers these suggestions, along with issues the Council has requested the SRS to consider and items that have carried over from the prior year, and creates a proposed agenda for the upcoming academic year.  The SRS presents the agenda to the Council for approval at the Council’s first meeting of the year, now held in August.

Upon approval of the proposed agenda, the SRS commences its work.  The members of the SRS meet to discuss proposed revisions to the Standards, ultimately preparing recommendations to the Council.   The SRS memos explaining proposed changes are posted to the Section website in the Open Session materials for the next Council meeting, found here.

At that meeting, if the Council approves a proposed change, with or without revisions, it will send the matter out for notice and comment.  If not, the matter may be returned to the SRS for further review and consideration, or it may be set aside.

Along with gathering written notice and comment, the Council will conduct a public hearing on the proposed change. The SRS then will prepare a memo summarizing the proposed change and the comments received in writing at the hearing, and will submit a final recommendation for consideration by the Council.  Again, the memo will be posted to the Open Session materials for the Council meeting.  All comments received and the transcript of the public hearing will be posted to the Notice and Comment page of the Section website.

The Council will then consider the proposal.  If the Council approves a change in a Standard, the matter will then be presented to the ABA House of Delegates for concurrence.  If the House of Delegates concurs in the change, it becomes effective immediately.  If not, the Council will reconsider the proposed change in light of the House’s discussion and the concerns expressed and, if the Council affirms its prior vote adopting the change, send it back to the House.  If the House does not concur on its second opportunity, the proposed change goes back again to the Council to either reconsider or approve the proposed change.  Appropriately, as the entity recognized by the Department of Education as the accrediting authority for the first degree in law, the word of the Council is final. 

This year, in addition to those processes, the Council is planning to hold roundtable discussions regarding various topics, including certain Standards that are on the SRS agenda for this year.  We hope to engage in dialogue on issues related to the Standards and the work of the Council and harvest the collective wisdom of stakeholders and other interested groups.  More to come as planning continues. 

The SRS has commenced work on this year’s agenda.  The Department of Education has made or is considering a number of changes to the Department’s regulations on the Recognition of Accrediting Agencies (34 CFR Part 602) which impact the Standards.  The SRS will be analyzing what changes are required to the Standards by reason of the proposed changes in the regulations and what changes, although not required, may be desirable.  Among the items that will be addressed are Standards touching on transparency, teach-out plans, the time to come into compliance with a Standard, variances, the appeal process, and substantive changes.  The input of those who may be impacted by possible changes or who may be otherwise interested will aid the SRS and the Council as we address these matters.

At the suggestion of a number of people who responded to our IOP 9 notice this past summer, the SRS and ultimately the Council will also be considering whether to adopt Standards related to issues of substance abuse, stress, well-being, and counseling.  The SRS will be examining whether these significant and troubling issues should be addressed in the Standards and, if so, should this be a matter of Curriculum (Standard 303), Learning Outcomes (Standard 302), and/or Student Services (Standard 508).  The Council needs to be educated on these matters in order to make informed and appropriate decisions. 

Another matter on which input is critical is the question of our Diversity Standard (Standard 206), particularly in light of the recent revision to Standard 316, regarding bar passage.  The Council will be monitoring the continuing compliance of our law schools with their obligation to demonstrate by concrete action a commitment to diversity and inclusion.  The Bar Passage Questionnaire will now collect bar passage data by gender, race, and ethnicity.  Those data will be used in evaluating the impact of the revision to Standard 316, and the SRS and ultimately the Council will be considering whether additional guidance regarding the diversity requirement is appropriate in light of that revision.  The SRS will particularly be looking at Interpretation 206-3 which, in referencing the diversity obligations imposed by the Standard, states: “The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved.”  How to apply that measure of compliance while balancing issues of admissions, attrition, and bar passage is on the SRS agenda, and the input and guidance of the legal education, bar admissions, and other interested communities will be critical. 

Our calls for Notice and Comment will be posted to the Notice and Comment page of the Section website, at the web address listed above.  Please watch that page and provide your comments.

My colleagues on the Council are thoughtful, smart, experienced, and dedicated.  But when adopting or amending the Standards that govern our law schools, the input of our constituents and other interested parties is highly welcomed and much valued.