The ABA and the Law School Accreditation Process: When the Defenders Become the Offenders of Justice

Lack of diversity in the legal profession is a sad but long-standing norm.  Exclusion on the basis of group status prior to the Civil War was achieved by the formalities of slavery in the South and prohibitive laws in the North.  Opportunities for African-Americans were seriously constrained through the middle part of the 20th Century due to official segregation and intimidation.  Affirmative action programs in the late 20th Century aimed to open doors for more minorities but encountered legal headwinds.  Today, the legal profession remains the nation’s least diverse profession.  African-Americans and Hispanics respectively constitute 13.4% and 18.7% of the nation’s population but only 4.6% and 3.8% of the legal profession.

Responsibility for this condition rests in large part with legal education.  Pronouncements of the value of diversity and criticism of society’s management of racial realities are widespread in the field.  The American Bar Association (ABA) itself states that one of its four goals is “to eliminate bias and enhance diversity.”  Legal education’s and the accreditation process’ priorities and actions, however, speak louder than words and actually impair diversity.

From 2011 through 2014, African-American law school enrollments dropped slightly from 10,352 to 10,245.  What is especially notable about these numbers is that they registered at a time when matriculates overall were declining and law schools, to maintain their enrollments, admitted more persons with lower incoming quality indicators.  Persons in this subgroup come disproportionately from historically disadvantaged groups (i.e., African-Americans and Hispanics).  It thus is not that these individuals are unqualified.  In normal times, they are excluded because policy-making tends to be the function of persons whose experience is more likely to reflect elitist orientations and experiences than immersion in environments of disadvantage.

Much of legal education is organized and driven by a set of priorities inimical to diversity.  First and foremost is a focus upon rankings that, for many institutions, have become an obsession.  Law schools that prioritize rankings invariably trade off diversity.  Although these same institutions would be swift to deny this reality, the truth is they have made a choice that directly implicates them in the profession’s homogeneity.  Because persons of color (with the exception of Asian Americans) perform more poorly on the Law School Admission Test, and rankings in significant part are based upon a student body’s LSAT profile, the fixation has profound exclusionary consequences.

The accrediting agency for American law schools is the ABA.  Notwithstanding its accreditation standards that exhort law schools to provide opportunity for members of historically disadvantaged groups, the handful of law schools prioritizing diversity over rankings increasingly have been targeted by the ABA for sanctions up to and including revocation of accreditation.

The experience of Arizona Summit Law School (Summit) is a case in point.  In 2016, Summit was placed on probation in large part because the ABA contended its admission standards and academic attrition were too low.  The school’s bar passage rates also had dropped, although it remained in compliance with the relevant accreditation standard requiring a minimum passage rate of 75%.  Despite a history of excellence in bar passage and aggressive response to ABA concerns, Summit was placed on probation and disaccredited after two years.  This decision overlooked the fact that, because of the matriculation period for a legal education, it would take three years for change to be reflected upon outcomes.

Notably, schools with lesser admission requirements and weaker outcomes (sometimes over a longer period of time) were lightly sanctioned or not sanctioned.  The animus directed toward Summit is difficult to understand as anything other than the function of a bias against for-profit law schools, probably driven in part by some media reports that were grounded in data which was easily debunked.  Missing in the narrative is that Summit and its companion schools were founded and developed by persons who left traditional legal education frustrated by its contentment with rhetoric rather than achievement with respect to diversifying the legal profession.  Countering sentiments that for profit status means an inferior value proposition are the facts that it has a strong ultimate bar pass rate and the best student loan default rate (1.5%) in the state.  Assumptions grounded in stereotypes that for profit means predatory are rebutted by the reality that $26 million dollars were invested in Summit, yet the investors have realized no return on their investment.  Incidentally, it is doubtful that the nation’s few for-profit law schools would exist if legal education’s rhetoric was matched by its priorities and actions.

(A primary example of the ABA’s prioritization of elitism over diversity the ABA’s emphasis upon first-time bar passage rates., which reflects its blindness to disadvantage and what it takes (e.g., more time to pass the bar examination) for persons in catch up mode.   Accreditors are smart persons, so it is unlikely they are oblivious to the impact of their choice.  Persons from disadvantaged backgrounds are less likely to pass the bar examination the first time, but the vast majority eventually will be successful.  Proof lies in Summit’s compliance with bar pass standards.  Perhaps more impressive are outcomes at privately owned Florida Coastal School of Law (Coastal) which, with a 62% first time bar pass rate this year and a median LSAT score of 144 approached the University of Florida’s bar passage rate of 67.9% with a median LSAT score of 157.  The wages of Coastal’s success in enabling students, especially minorities, to outperform their incoming indicators has been probation).

The ABA’s actions are a classic case of regulatory abuse, which now is being challenged in the federal court system and likely has the unspoken support of other law schools.  Litigation outcomes can be difficult to predict.  The ABA probably hopes to have the cases dismissed on grounds that courts should defer to its accreditation expertise.  Failing that, it could face two significant challenges.  First, as membership in the organization has plunged, its funding has declined to the point that it could be difficult to finance costly litigation or bear a heavy damages award.   Second, discovery could uncover multiple abuses and due process violations that might undermine its credibility and viability as an accrediting agency.

If this result ensued, the undoing of schools like Summit would be a Pyrrhic victory. Putting the ABA out of the accreditation business, or at least reforming it, not only would do a big favor for legal education.  It also would remove this century’s primary obstacle to diversifying the legal profession.

About the Author

Donald Lively is a Co-founder of Florida Coastal School of Law, the creation of which reflected his interest in helping to diversify the nation’s least diverse profession and making legal education more relevant to contemporary law practice. Previously he was a tenured law professor at University of Toledo.  He has authored numerous books and articles and established legal services programs to serve underserved communities.

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