Wednesday, October 19, 2016
[by Rick Bales]
Current ABA accreditation standards have attracted widespread public criticism for being toothless in the face of predatory law schools granting admission (and charging hefty tuition) to students with little or no chance of passing a bar exam. In response, proposed ABA standards would create a new 75% rule. As Daniel Rodriguez (Northwestern) and Craig Boise (Syracuse) explain in the National Law Journal (cross-posted without subscription requirement at TaxProf Blog):
The American Bar Association's Section of Legal Education and Admissions to the Bar has proposed tightening up its regulation of those law schools with a significant percentage of graduates who have failed their state's bar exam. Under the proposed new accreditation standard, law schools must ensure that at least three-quarters of their graduates pass the bar after two attempts, rather than five, as is the case under the current standards. As with any numerical benchmark, the measure is imperfect, yet its purpose is a sound one.
Yet before the ink is even dry on the proposed rule, at least one school has found a way to circumvent it. Arizona Summit (formerly Phoenix Law School), the same school that paid its low-GPA graduates not to take the bar exam yet still had an overall July 2016 pass rate of 19.7%, has created a new requirement that each student with a GPA below 3.33 must pass the school’s mock bar exam as a prerequisite to graduating. Theoretically, Arizona Summit could set the mock-bar pass rate at 10%, meaning that only the top-10% would qualify to sit for a bar exam. That would virtually guarantee technical compliance with the ABA’s 75% rule. Meanwhile, 90% of the school’s students would have paid $136,062 in tuition (plus expenses, lost opportunity costs, etc.) for a degree that does not qualify them to sit for any bar.
Note that Arizona Summit’s mock bar is not analogous to the “baby bar” required at unaccredited California law schools. The baby bar is given after the first year, so students with no realistic chance of passing the California bar exit early. Arizona Summit’s mock bar is a graduation requirement, so the school will get three full years of tuition before students are required to exit. Moreover, tuition at most unaccredited California law schools is relatively low. Arizona Summit’s is $45,354 per year.
One possible response might be for the ABA to go back to the drawing board and create a bar-pass threshold requirement for matriculants, not just graduates. But that would exacerbate a problem that HBCUs and others already have identified with the 75% rule – it may have a disproportionate effect on minorities, and it penalizes legitimate opportunity-based law schools that admit at-risk (but potentially successful) students, give them an opportunity to prove themselves, then then have an early-exit mechanism for students who don’t. Moreover, if the ABA plugs this hole in the dike, predatory schools like Arizona Summit will just find another weakness to exploit.
Better, I think, to draft a standard that looks at admissions, academic support, early v. late attrition, and bar pass, and gives the ABA considerable discretion within that framework to deny or withdraw accreditation. Simultaneously, we would need to ensure that the folks doing the (un)accrediting have both the backbone, and support from above and below, to make difficult decisions which may well result in litigation.
Rigid rules are easy to circumvent. But it’s not rocket science to spot a predator.