The ABA's Latest Response To Senator Grassley

The American Bar Association, or more specifically, the Section of Legal Education and Admission to the Bar, responded to Senator Charles Grassley’s letter of August 9th, which was a response to the Section’s July 21st response to the Senator’s original letter to the ABA from July 11th.  Confused?  For the whole history and correspondence, see my LLB posts Senator Asks ABA Questions About Scholarships and Debt, ABA Responds To Senator Grassley, and Grassley to ABA: I'm Not Going Away That Easily, and A Bit More on Senator Grassley And The ABA.  I make the distinction about who is responding to Senator Grassley as the Section points out in its current response:

As stated in our memorandum of July 20, 2011, the Section is separate and independent of the American Bar Association, as required by the Department of Education’s regulations governing accrediting agencies.

A minor distinction I’m sure, as the cover letter comes from current ABA president William T. (Bill) Robinson III, and the section letterhead strikingly uses the ABA logo as such.  What was that I learned way back in the day when I attended my agency class, something about the appearance of apparent authority?

Senator Grassley’s second letter took the form of 10 questions with multiple sub-questions, not unlike an interrogatory to the opposing side.    The ABA’s, excuse me, the Section’s response comes in a mere four pages, in contrast to the 67 page response to the first inquiry.  The answers are grouped according to the theme of the topic.  A copy is here.

The Section notes that law student default rates on student loans are lower than those of undergraduates and acknowledges that unemployed law graduates face challenges in repaying those loans.  The answer to this is action by lenders to give more information the prospective students and train law school financial aid administrators.  The accreditation Standards and interpretations now require law schools to provide debt counseling at the beginning and end of the educational program.  The Section doesn’t have an established a benchmark for what is an unacceptable default rate because it is low, but will consider revising the Standards and report to the Department of Education on that effort before the summer of 2012.  In any event, the Section says, states do not admit defaulted students to the bar.  

I suppose that doesn’t account for those who default after passing the bar.  In any event, the Section seems to be saying that while it expresses concern, the default rate is low enough that it’s not a real problem.  If this were a courtroom we would call this a question of fact.  Neither side has established the details of that fact. 

Senator Grassley questioned the background and composition of the Section members and specifically that of the committees and inspection teams.  He implied, I believe, that academics were overly represented in the organization.  Not so much is the response.  The Section complies with the Department of Education governance requirements.  Hey, we have judges, lawyers, and bar examiners of various genders, racial, ethnic, and geographic categories.   We’re diverse.  Diverse is good.  Eleven of the twenty-one members of the Section’s Council are not employed by a law school or involved in the governance of a law school.  I believe that qualifies as more than half.  Moreover, there are ethical and conflict of interest rules by which all members must abide.  

The next part of the response focused on how law schools managed scholarships.  There has been criticism that law schools give money to students in the first year and then use a grading curve to pull money from those who don’t make the cut for a continued grant in successive years.  The Section “is moving” to require law schools to provide more information about this via the annual questionnaire which will be published by the ABA.  The Section “is considering a proposal” to amend the Standards to require schools to publish scholarship data on their websites.  

The last part of the response covers the legal employment market.  The Section says it doesn’t regulate that and as such, it does not conduct economic research.  Antitrust law, it believes, prevents it from placing a cap on the number of law, though setting more rigorous standards would not.  The law school accreditation standards, however, are already rigorous, and they require law schools to provide career services.  The Section “is currently working” on a revision to the Standards requiring law schools to “affirmatively demonstrate that they are devoting satisfactory ongoing efforts to assist students in finding jobs to promote student loan repayments when a school’s placement rate falls below a specified level.”

A lot of the language in the response indicates concern and action but is exceptionally vague as to what form that action would take.  I get the distinct impression that the Section wanted to say as little of substance as possible in this public response to Senator Grassley.  Rather than leave it at that the Section expressed a desire to take this matter out of the public record.  Here is the memorandum conclusion:

In closing, thank you for your continuing interest in law school accreditation Standards.  We renew our request for a meeting with you and Section leadership to address any remaining issues you may have.  Please feel free to contact us again if we can be of any further assistance.

My impression is that the ABA and the Section will make law schools sweat the little things, such as an academic law library director’s status as a faculty member, while looking the other way and whistling when it comes to consumer and economic issues.  One is easy and one is hard.  Can you guess which one is which?  I have the further impression that law students and graduates are not the focus of the accreditation process.  As long as the factory is ok we don't have to look too closely (bar passage and employment rates aside) to the product it produces.  

I actually have a little sympathy for the Section as it is probably not used to being challenged in this way.  At the same time I like the idea of holding accreditors of law schools to justifying their standards and actions by someone with enough gravitas to pull it off.  Perhaps that conversation the Section is seeking with Senator Grassley might take the form of a Senate Judiciary Committee hearing at some point.  That would be a hoot.  [MG]