February 13, 2017

Bar passage proposal fails, immigration resolutions approved after spirited ABA House debate

The American Bar Association House of Delegates rejected Monday a major change in the bar passage standard for ABA-accredited law schools, and approved a resolution that asks President Donald Trump to withdraw his Jan. 27 executive order that effectively halted the issuance of visas from seven predominately Muslim countries.

In other action, the House adopted new model rules for continuing legal education, which includes requiring credits for ethics, diversity and inclusion and mental health issues, as well as recommendations to improve the civil justice system. The 589-member House, which met on the final day of the ABA Midyear Meeting in Miami that began Feb. 1, sets policy for the association.

Watch video of the House debate on certain resolutions:

 ABA urges legal protection and funding for refugees

10C:  ABA urges President Trump to withdraw Executive Order 13769

100:  ABA urges Congress to repeal restrictions on federal student aid for certain drug convictions

105:  ABA urges tracking of sexual and gender-based violence

110B:  ABA rejects legal education proposal

112C:  ABA urges development of various translations of Miranda warning

112D:  ABA urges FDA to update blood donation policy

114: ABA urges legislation to assist parents with disabilities

115: ABA advocates efforts that prevent mass killings and other atrocities

118:  ABA urges elimination of legal barriers to veterans’ access to benefits, services

300: ABA urges protection of children online

301:  ABA to provide safeguards for immigrant and asylum-seeking children

The proposal from the Council of the ABA Section of Legal Education and Admissions to the Bar drew the most attention, and failed on a divided voice vote that was overwhelmingly opposed. The change would have simplified and strengthened the bar passage rate – considered a measure of the quality of a law school education – by requiring that ABA-approved law schools have 75 percent of its graduates who take the bar exam pass it within two years of graduation. The exam is given twice a year.

The House action on Resolution 110B followed more than an hour of debate, and reflected the national debate in legal education for striking the best balance between goals of diversity in the profession and consumer protection of students. The ABA sets standards and accredits more than 200 law schools. Both the schools and ABA, because of its singular national accreditation role, are being criticized for enrolling and graduating too many law students who cannot pass the bar exam, and who leave law school with significant debt.

As a reflection of the difference in opinion on changing the standard, the current dean of historically black North Carolina Central University School of Law in Durham spoke against the proposal while her predecessor, a member of the legal education council, favored it.

Phyliss Craig-Taylor, NCCU dean, said that the proposed standard had not been adequately reviewed by the council. She said she and nearly 100 other law school deans are “saying no, not now.”

But Raymond Pierce, the school’s former dean, recalled his days as a civil rights lawyer in Little Rock, Ark., argued that minorities should “never run away from standards.” He was active in Little Rock’s desegregation fights.

“I just don’t see (running from standards) as the substance that the civil rights movement has been about,” he said.

Two other themes emerged in the debate that focused on both consumer protection and the timing of the change.

Claire P. Gutekunst, president of the 74,000-member New York State Bar Association, said while her bar “shared the laudable goal” of the council, there were other changes in legal education, including the growth in use of the Uniform Bar Exam. New York introduced the UBE in July 2016. She said the council needs more information on the impact of the proposed change and the House should “not rush to change the standards before we have the facts on this important issue.”

Tracy Giles, a delegate of the Virginia State Bar and a bankruptcy lawyer in Roanoke, said he typically can help individuals who fall financially behind because of medical, consumer and other bills. But, he lamented, “I can’t do anything about student loans.”

“I am seeing more and more people sitting across from me” with debt in six figures, Giles said. He added these individuals can’t deal with bankruptcy as an option because a student loan “follows them the rest of their lives.”

The council is authorized by the U.S. Department of Education to accredit the nation’s law schools. Under ABA rules, the proposed change goes back to the council for consideration and can be brought up one more time to the House. Regardless of the outcome of that potential action, the council has the final decision on how to proceed.

In a second legal education proposal, the House concurred to simplify several provisions to the council’s accreditation standards, with the most significant regarding written admission policies and qualifications of admitted students. The change also clarifies the interpretation of the standard related to a school’s non-transfer attrition or drop rate.

Three immigration resolutions, filed during the past few days in response to national developments, were directed at both the executive branch of government and Congress. The executive branch resolution asked the president to withdraw the executive order that he signed as a national security measure on Jan. 27.

In the second resolution, the House reaffirmed current ABA policy by urging Congress to adopt legislation that ensured that refugees be assessed on an “individualized” basis and that “neither national origin nor religion be the basis for barring an otherwise eligible individual in making” decisions on their cases.

The third resolution called for the passage of laws to provide safeguards for immigrant, asylum-seeking children who enter the United States without parents.

Separately, ABA President Linda A. Klein told the House Monday that the ABA was working with other groups to uphold the “rule of law” and announced a web initiative to provide comprehensive information on immigration issues.

In other actions, the House adopted:

  • A new Model Rule for Minimum Continuing Legal Education (MCLE) that replaces a model rule approved in 1988. The new rules include three specialty credits that state licensing agencies are urged to require. They would cover ethics, diversity and inclusion and mental health and substance abuse (106).

  • Several resolutions related to criminal justice, including repeal and/or modification of the discriminatory prohibitions on blood donations by gay men. This provision also asks the federal Food and Drug Administration to develop tools for assessing individual risk to ensure the safety of the blood supply to reliably indicate, in a timely way, the presence of HIV and other blood-borne pathogens (112D). Other resolutions would strengthen efforts for accuracy in microscopic hair analysis (112A), and encourage law enforcement authorities to develop and use translations of Miranda warnings in as many languages as necessary to fully inform individuals of their rights (112C).

  • A proposal that state courts develop and implement a civil justice improvement plan to improve the delivery of civil justice guided by the recommendations in the “Call to Action: Achieving Civil Justice for All.” The resolution, proposed by a committee of the Conference of Chief Justices and endorsed by the CCJ, urged bar associations to promote those recommendations (102).

  • A policy that urges the United Nations, the United States and other governments and relevant international entities to develop and implement methodologies to measure and track the prevalence of sexual and gender-based violence. Supporters said while it principally was prompted by incidents in the Democratic Republic of the Congo, the problem is prevalent worldwide (105).

  • A resolution asking governments to enact legislation and implement public policy that provides that custody, visitation and access not be denied or restricted in any way based on a parent’s disability, absent a showing that the disability is causally related to a harm or an imminent risk of harm to the child (114).

  • A request to lawmakers at all levels to work with the legal profession to collaborate in the identification and removal of legal barriers to veterans’ access to a host of services, such as in housing, education, employment, treatment and benefits (118).

Final action on all the resolutions can be found here.