May 2013 | by Dan Harayda
Page printed from: http://www.nlj.com
ABA and Legal Education: Change Won’t Come from Within
Michael L. Coyne
The National Law Journal
With calls from The New York Times among others for drastic changes in legal education; near-universal agreement that the American Bar Association’s system of legal education is broken; and with hope in the air that this time meaningful reform will come to legal education, it’s time to review the recent history of attempts to reform ABA legal education.
Time and again, the ABA’s Section on Legal Education has stood steadfast against efforts to reform its law school accreditation activities. Since legal education provides access to justice, power and social mobility, urgent reform is needed now. The Department of Education should terminate recognition of the ABA as a federally approved accreditor of law schools, and state supreme courts or state legislatures must amend their rules or statutes to allow the graduates of any law school accredited by any federally approved accrediting agency who are of sufficient character and fitness to take that state’s bar examination.
In the 1990s, the Massachusetts School of Law challenged the ABA’s law school accreditation activities before both the Department of Education and the Department of Justice. The ABA’s opposition to the law school’s innovative, cost-effective approach to legal education—and its concerns that the school’s long-term success could affect its control over legal education—led to the school’s opposing the ABA’s continued recognition by the Department of Education. The Massachusetts School of Law, working with the Department of Justice’s Antitrust Division, filed an antitrust action against the ABA. The DOJ antitrust action showed that many of the ABA law school accreditation standards violated the antitrust laws and that the ABA’s law school accreditation process had been captured by full-time academics at ABA law schools who then used that process for their own economic benefit at the expense of students and the public.
DOJ ultimately allowed the ABA to settle that antitrust action by entering into a 10-year consent decree with the ABA. The ABA agreed to eliminate some of its needless—and illegal—cost-increasing standards and to allow DOJ to monitor its control over legal education in the United States. It was the third time DOJ had to institute legal proceedings to curb the ABA’s violations of U.S. law. While DOJ’s consent decree was akin to putting a Band-Aid on a bullet wound, the ABA nonetheless disdainfully violated the limited restrictions imposed on it on multiple occasions. For its multiple violations of that consent decree, the ABA, a billion-dollar enterprise, paid a modest fine roughly equivalent to the starting salary of a first-year associate at a big law firm. It was a return to business as usual.
Today, completely free of the DOJ consent decree, the ABA continues its monopolistic control over access to legal education and the legal profession. Tuitions at ABA law schools now exceed $50,000, and facing new challenges from new fronts, the ABA has reverted to its oft-successful formula of creating a blue ribbon task force to “address” self-created problems in legal education, with a panel strongly influenced by the ABA insiders who created the problem, along with a sprinkling of outsiders. All acknowledge the crisis in ABA legal education while expressing a seriousness of purpose and good intentions.
Being people of good will, we all want to believe others are so inclined, and this time the ABA will undertake serious reform. However, history shows the ABA uses the cloak of the task force and the goodwill of others to continue its reign, promising anything while doing nothing.
Indeed, so common is the imperious sounding “ABA task force” that when one Googles the term “ABA task force,” the search returns 313,000 references. To put that into perspective, the term “ABA ethics” returns fewer than 30,000 references. In just the short time in which the Massachusetts School of Law has challenged the ABA’s Section of Legal Education’s accreditation activities, the ABA has created six task forces to examine its oversight of legal education:
• 1992 MacCrate Commission Task Force on Legal Education and Professional Development
• 1995 Wahl Commission Task Force to Review the Substance & Process of the ABA’s Accreditation of American Law Schools
• 2002 ABA Task Force on the ABA’s Accreditation Processes
• 2003 ABA Task Force on the ABA’s Regulation of Foreign Programs
• 2007 ABA Accreditation Policy Task Force
• 2012 ABA Task Force on the Future of Legal Education
The 2007 ABA Accreditation Policy Task Force was fueled by concerns that ABA legal education was yet again at the crossroads as a result of the release of two highly critical reports on ABA legal education. The Carnegie Foundation Report, Educating Lawyers, and the Clinical Legal Education Association’s Report, Best Practices in Legal Education, criticized the way law schools prepare students for the profession of law by not teaching students the professional skills needed to practice law. These skills should include those needed to present a client’s case in the trial court, to counsel clients and draft opinion letters, and to prepare legal documents and trial court memoranda. The two reports, developed in collaboration and published concurrently, laid out a blueprint for improvements to ABA legal education.
Immediately following the issuance of the two reports, researchers at Carnegie and the Clinical Legal Education Association convened a series of annual conferences on “Legal Education at the Crossroads.” Other than those conferences, nothing has been done in the past six years to act on those suggestions or implement the recommendations contained in those reports.
Recycling ABA insiders as task force members is such a common practice that some members of the present task force have frequently served on past task forces.
The ABA Section of Legal Education has been equally adept at opposing Department of Education reform efforts despite violating numerous federal laws and never fully complying with agency regulations and policies during the last 20 years. Although many accrediting agencies received Department of Education recognition for the full five-year recognition period, the ABA Section of Legal Education came before the department’s National Advisory Committee every year or so, limping along with a one- or two-year recognition of its accrediting authority. With promises to reform its accreditation standards to ensure that graduates are professionally competent—and its stated goal of complying with federal statutes, agency rules and modern accreditation practices—the ABA was able to keep its Department of Education recognition despite harsh criticism from National Advisory Committee members. That the ABA insists on full, rigid compliance by law schools with its rules but for decades refused to comply with agency rules is a matter of no little irony. During that period, committee members recognized what remains true today: The ABA engages in “much delay and dragging of feet” and was “limping along with a year extension, a six-month extension.” Transcript of Department of Education hearings.
Committee members warned the ABA’s Council for the Section on Legal Education of “potentially very serious issues” raised by the Massachusetts School of Law and other third parties. During the course of those years, National Advisory Committee members repeatedly chastised the ABA on its shortcomings in its accreditation activities. They warned that it had become the “gatekeeper of the guild” and was “probably the extreme example of that.” As George Pruitt, committee member and the president of Thomas Edison State College said, “I can’t think of any other group that comes before this body where the interrelationship between the educational structure and the ability to practice in the field is so closely aligned.”
Committee members warned that the ABA Section of Legal Education was a “self-serving cartel” and that there is not “another discipline, profession in the country that is so tightly controlled by the profession.” They recognized that “there is certainly the potential for some very self-serving aspects that go far beyond any other field” and intrusiveness that creates “a direct financial benefit to the practitioners.” They said that they saw no other accrediting entity “where there is such a lack of public accountability.”
Nevertheless, commissions come and go, and as institutional memory fades, the sins of the past are ignored or relegated to history. But long before the Department of Education chose to recognize the ABA as a nationally recognized accreditor of law schools, law schools produced many fine attorneys and leaders. Abraham Lincoln, Franklin Delano Roosevelt and many Supreme Court justices became members of the legal profession well before the advent of today’s monopolistic accreditation policies that the ABA imposes on all law schools to obtain its imprimatur. Lawyers possess a disproportionate amount of power in our society and often return to serve their communities. It is crucial to ensure that these schools are accessible, affordable gateways for all segments of society.
Law school tuition has risen at double the rate of skyrocketing college tuitions, and there is no end in sight to the student loan crisis. ABA law school accreditation policies begun in the 1970s caused law school tuitions to increase at rates grossly in excess of inflation. ABA law school graduates leave law school with an average debt for law school alone exceeding $100,000. Amortized over 10 years at today’s interest rates, that amounts to 10 years of payments of $1,151 each month. Contrary to popular belief (fueled by reports of starting salaries at the nation’s top law firms for jobs that go to the top graduates of the 20 law schools who claim to be in the top 10 in this country), the average starting salary for those law school graduates lucky enough to obtain employment is $60,000 annually?lower for those who go into the public service positions we encourage. That yields the graduate $5,000 per month with a likely after-tax income of around $3,500 per month, leaving the princely sum of $2,349 per month for all other expenses including undergraduate debt, housing, transportation, food and other essentials. It is no wonder the ABA system of legal education is in crisis.
Because of disruptive innovation in the legal profession, the number of available jobs for lawyers is declining. Outsourced jobs to India, legal software and free Internet legal resources are our new competitors. Software is available to evaluate a party’s likely success through litigation and its attendant costs. Our businesses partners are asking us to think differently, to think cost-effectively and, as always, to help resolve their problems quickly. There must finally be recognition that the ABA model of legal education is irreversibly broken, and state supreme courts and state legislatures must allow new models to advance. Like any dying industry mortally wounded by changing technologies and economics beyond its control, the ABA will not voluntarily relinquish its century-old death grip on law school accreditation. No one should expect the monopolist to fix itself.
Change must come, but as with Ma Bell, it won’t come from within. We can now FaceTime from the smartphone in our pocket that itself is capable of satisfying the legal research needs of any law student or lawyer?while legal education remains undisturbed since the time of Christopher Columbus Langdell’s invention of the case method. Indeed, if Langdell did return, more than 100 years after his death, to view legal education at nearly all ABA law schools he likely would remark, “Ah, legal education, just as I left it.” Without external force, legal education will never see the type of rapid improvements the communications industry has seen since the forced breakup of AT&T in 1984.
The ever-escalating cost of attending law school disproportionately affects people of color and those from the less affluent segments of society. A law degree must be affordable in order to offer these students the social and economic advancement that a law degree has historically provided. More than 10 years ago, ABA President William Paul decried the alarming lack of “minority representation in the legal profession.” Since that time, the legal profession has only gotten whiter and more exclusive. The reasons are clear: the ABA’s mandated use of the Law School Admission Test and the forever-increasing cost of law school. The ABA uniformly denies accreditation to law schools with average LSAT scores below 143, yet the average LSAT score for African-Americans is 142. Since many ABA law schools employ inflexible LSAT “cut-off” scores, individuals with superior grades are rejected out of hand. Despite this, the ABA has never accredited a law school that uses an alternative test.
The ABA’s disdain for teaching the professional skills and professionalism new lawyers need and its high-cost accreditation demands that do little to teach those skills?while impeding minority, immigrant and working-class enrollment?demonstrates the societal need to end the ABA’s monopoly of legal education and terminate its reign as the gatekeeper for the legal profession. The ABA has misused the absolute power granted it by our government and has beguiled state supreme courts to accept its dictates in determining who can sit for the bar examination. Its abusive and destructive practices have blockaded both minorities and the affordable law schools that serve them. By design or indifference, the ABA’s policies regarding law school accreditation disproportionately affect people of color and the less affluent.
The Department of Education should terminate recognition of the ABA as a federally approved accreditor of law schools, and state supreme courts or state legislatures must amend their rules or statutes to allow the graduates of any law school accredited by any nationally approved accrediting agency who are of sufficient character and fitness to take that state’s bar examination. When successful, those graduates can then be admitted to practice law and serve the underrepresented populations in those jurisdictions. In this way, we will provide affordable pathways for developing intelligent, empathetic and professionally skilled members of a more diverse legal profession. We will develop a legal profession more representative of the population it serves and more able to serve the needs of those communities.
If the words “justice for all” are going to be more than mollifying words on a building, then ABA legal education reform must begin now, and there must be affordable accessible pathways for all to enter the legal profession and serve others.