Olson: Drastic Change Would be Good for Legal Education

OlsonNovember, 2013
by Kurt Olson
The National Jurist
Guest Commentary

The ABA’s Section of Legal Education may soon face a stark choice. Based on the recent ABA Task Force Draft Report on the Future of Legal Education, one could conclude that the Section can either eliminate or substantially liberalize most of its core standards for the accreditation of law schools, or it could get the pink slip and be stripped of its monopoly power over the accreditation function. The Massachusetts School of Law, which prompted the Antitrust Division’s investigation of the ABA’s Section in the early ‘90’s and voiced insistent criticisms about the ABA’s process, is understandably cynical when it reads the draft Task Force recommendations. While the “Draft” Report issues sweeping and drastic recommendations about how to change the ABA’s Accreditation Standards, it is only a draft, and significant hurdles in the form of the professor lobby must be cleared before real change is forthcoming.

Reeling from a chorus of students’ and recent graduates’ complaints about skyrocketing tuitions and spiraling debt, consecutive years of sharply falling applications, and nearly unanimous calls for change, the ABA established the Task Force to “examine current problems and conditions in American legal education and present recommendations . . .” The Section seemingly faced a similar choice almost twenty years ago when the Antitrust Division of the U.S. Justice Department settled a lawsuit alleging the ABA had engaged in multiple antitrust violations. However, what the Division’s lawsuit could not accomplish may wind up being forced on the Section. The ABA resisted change imposed by the government in the 1995 consent decree; however, economic necessity and multiple years of declining admissions have led to suggestions of drastic changes in the way the Section of Legal Education does business.

Many of the Task Force’s initial conclusions contain scathing criticisms of policies followed by either the ABA or individual schools; these criticisms echo those made by MSL for the last twenty-odd years. First, schools, driven by their desire to increase their ranking in U.S. News and World Report set forth their tuition rates and then actively recruit students with the highest GPAs and LSAT scores. They then award discounts (“scholarships”) to these students while students who do less well on the standard measures receive no such discounts. Instead, the students take out federally guaranteed loans and incur substantial debts which subsidize the attendance of the high-performing students. The Task Force recommends that this system should be overhauled.

The economic consequences which ensue for the students with lower test scores and GPAs are often catastrophic; they are twice thumped by a double whammy. They must both offset the shortfall caused by schools awarding discounts to the handpicked students by taking out huge loans, and they must engage in job searches lacking the practical skills recruiters and hiring partners increasingly seek. Thus, they graduate with immense debt, and the jobs they only infrequently obtain compensate them at rates far below what they need to service this debt. Additionally, the schools’ strategy has another unintended corollary consequence: Law schools these days should teach the value of collaboration among students because they will often work in teams or rely on other lawyers once they begin practice. It seems that the inequitable financing system would often make it difficult for law students to work on projects cooperatively.

Second, as the Draft Report says and MSL has said since the early ‘90’s, the ABA’s accreditation system both fosters a one-size-fits-all form of legal education and imposes requirements that increase costs without increasing the quality of the educational experience. The Task Force states that rewritten standards would encourage more diversity in law schools and would “better serve the public interest” by focusing on services, value, and outcomes to law students. Page two of the Task Force’s draft report contains the first real zinger: “The Task Force thus recommends that a number of the Standards be repealed or dramatically liberalized.” Language this strong has never been used by other bodies formed to evaluate the ABA’s accreditation system, and the ABA itself created this Task Force to consider and make recommendations on the future of legal education.

Third, the Task Force confronts the ABA’s variance provision which MSL has always portrayed as moribund – the variance provision always existed in name only for publicity purposes, and the process of granting variances – – or not granting them – – was hidden from public view. The Task Force recognizes that variances must become a vital force for schools seeking to innovate in the delivery of legal education, and it recommends that the ABA make the granting of variances public. Adopting the Task Force’s recommendation regarding variances would help ameliorate the problems created by all the ABA standards, policies, and procedures which the Task Force criticizes in its report. Granting variances to schools, like MSL, that dare to be different would encourage innovation, it would allow experimentation with different types of clinical offerings, and it would deter the ABA from imposing standards that have nothing to do with promoting quality but only increase costs.

Finally, the Task Force recognizes that law schools exist to prepare students to provide law-related services – what a shocker! The Task Force acknowledges for the first time that “[t]his elementary fact is often minimized,” though MSL has criticized the ABA’s enforced minimization ever since the school’s founding. Additionally, the School has always sought to fill the void left by ABA schools that couldn’t or wouldn’t provide skills-training opportunities for all their students. The Task Force concedes that some schools have begun to offer more such opportunities, but it recognizes that more schools need to do more to shift from “doctrinal instruction” to delivering the practical-skills-oriented competencies needed by students who will “deliver services to clients.”

The Task Force recommended either the outright elimination or substantial liberalization of many of the standards and interpretations used to deny MSL accreditation, including those relating to student-faculty ratios, those relating to proportion of courses taught by full-time faculty, those relating to tenure and security of position, those prohibiting credit for field placements in which the student receives compensation, and those relating to physical facilities. Elimination of these standards would be a great first step; however, adopting the Task Force’s recommendation regarding variances would help ameliorate the problems created by other ABA standards, policies, and procedures which have also been the subject of widespread criticism. Granting variances to schools that dare to be different, such as MSL (which keeps costs and tuitions low, offers extensive practical skills courses, and experiments with novel teaching methods), would encourage innovation, it would allow experimentation with different types of clinical offerings, and it would deter the ABA accreditors from imposing standards, for their own benefit, that have nothing to do with promoting quality but only increase costs. Taken in combination, these changes would go far towards creating a legal educational accreditation system which serves the public, law students, and the legal profession while curbing runaway costs and reining in out-of-control tuition increases.

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