Fact-checking the Duncan Law School Story

In an earlier post, I speculated that it was probably not a coincidance that Duncan Law was featured in a New York Times article by David Segal just before the law school received official notice that the ABA denied its request for provisional accreditation in view of the lawsuit Duncan Law filed almost immediately after receiving official notice. The New York Times article, published on Dec. 17th, failed to mention that Duncan Law had received negitive warnings prior to the accreditation meeting conducted on Dec. 2. In fact, the article failed to take "journalist notice" of a long-running series of exchanges between Duncan Law and the ABA. They include:

1. In March 2011 a site team visited Duncan Law and produced a report that was critical of the law school's operations in several respects.
2. Invited to respond to the site inspection report, Duncan Law's Aug. 6, 2011 report provided "voluminous information and provided line-by-line responses and clarifications to various points in the site report."
3. On September 29, 2011, the Accreditation Committee conducted a brief hearing on Duncan’s application for provisional approval with Duncan officials.
4. On October 12, 2011, the ABA sent Duncan Law the 23-page Recommendation of the Accreditation Committee. Quoting from the Declaration by the ABA Consultant on Legal Education, Hulett H. (Bucky) Askew, filed with the ABA's pleadings in the on-going litigation (which is also the source of the above chronology):

Based on these Findings of Fact, the Committee concluded that Duncan was not in substantial compliance with each of the Standards and had not presented a reliable plan for bringing itself into full compliance within three years. (Citation omitted.) Specifically, the Committee concluded that Duncan had not established substantial compliance with four separate Standards and, in some cases, accompanying Interpretations.

Based on the above sworn testimony, it should come as no surprise that Duncan Law was denied provisional accreditation by the ABA. While Duncan Law's litigation strategy includes claiming it is in compliance with ABA standards, Duncan Law officials would have had to be in a state of collective delusion based on the above chronology to believe it had even a snow ball's chance in hell of being granted provisional accreditation after its Dec. 2 meeting.

That does not mean Duncan Law cannot make a case for being in ABA compliance in a court of law, as unlikely as that seems. It does however bring up some important issues in telling the "Duncan Law Story" in the court of public opinion by way of Segal's Dec. 17th New York Times article.

One has to ask, did Duncan Law or the New York Times omit essential facts? In Was the New York Times Used by Duncan Law School (or were readers duped by the Times)?, law prof Brian Tamanaha, a well-known but even-handed critic of the legal academy status quo, wrote:

[O]ne must wonder why this crucial information was omitted from the story. One possibility is that Duncan administrators did not tell the reporter, David Segal, about the Committee's negative finding. That would be shocking if true. It would suggest that Duncan law school used the Times to help it mount a preemptive public campaign against the ABA before the negative finding came to light. Another possibility is also shocking: that Segal knew about the negative conclusions but deliberately failed to mention them because to do so would disrupt his story line.

Having spent some time working in the newspaper industry for the Chicago Tribune, one possible explaination for the New York Time's article omitting the fact that Duncan Law did not receive numerous advance indications that it was in trouble with the ABA is if Segal conducted the inteview with Duncan Law officials before Oct. 12th report. If that was the case, it is a highly unusual scenerio. Newspaper reporters tend not to write articles two months in advance of publication but even if that was the case, journalism ethics would call for fact-checking data that was two months old, particular data this important to the story line.

There is another possible scenario. Editors of a reporter's story have the final word on what gets published. Oftentimes, draft stories are sized down to fit space allottments. A good clue that a story has been edited down to fit the print edition's "news hole" is when one sees a series of trailing one sentence paragraphs near the end of the text; the rest of those paragraphs were likely eliminated by an editor. Having had a fair amount of experience in seeing this happen, there is nothing Segal's story that shows the hand of an editor chopping out essential elements of Segal's narrative.

A third scenerio is that Segal intentionally withheld the information. I find this unlikely because the entire chronology of events, if Segal knew about them, could have dovetailed into the story line of his article. Here I disagree with Brian Tamanaha. However, readers of the New York Times are likely to never know what happened that resulted in the New York Times story as published unless Segal writes a follow-up article, which to date he has not.

Tamanaha's post is highly recommended for other reasons. Tamanaha's media-related questions are just a lead-in to his "limited defense of the [ABA's denial of provisional accreditation for Duncan Law]" and his critique of "why the ABA still is more a part of the problem than a part of the solution." For those reasons, his post is highly recommended.

Also keep an eye out for Tamanaha's forthcoming "Failing Law Schools" (Chicago 2012). Along with the likes of law prof Bill Henderson, Brian Tamanaha has a track record of taking a balanced approach to transforming the legal academy. It the issue of the ABA-Legal Academy cartel reaches the level of congressional hearings, finger-pointing can be resolved by Henderson and Tamanaha testimony, assuming they are invited to give testimony.

End note on the Duncan Law Library. In the ABA's brief in opposition to Duncan Law School's motion for a temporary restraining order and the ABA's press release, standards with which the Duncan Law was not compliant are (or "include" according to the press release):

Standards 303(a) and (c) and Interpretation 303-3: Academic Standards and Achievements

Standard 303(a): “A law school shall have and adhere to sound academic standards, including clearly defined standards for good standing and graduation.”

Standard 303(c): “A law school shall not continue the enrollment of a student whose inability to do satisfactory work is sufficiently manifest so that the student’s continuation in school would inculcate false hopes, constitute economic exploitation, or detrimentally affect the education of other students.”

Interpretation 303-3:  “A law school shall provide the academic support necessary to assure each student a satisfactory opportunity to complete the program, graduate, and become a member of the legal profession…”

Standard 501(b) and Interpretation 501-3: Admissions and Student Services

Standard 501(b): “A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar.”

Interpretation 501-3: “Among the factors to consider in assessing compliance with Standard 501(b) are the academic and admission test credentials of the law school’s entering students, the academic attrition rate of the law school’s students, the bar passage rate of its graduates, and the effectiveness of the law school’s academic support program.”

At least the law library was not implicated. Segal's article starts off with the following opening paragraphs:

The library at the Duncan School of Law may look like nothing more than 4,000 hardbacks in a medium-size room, but it is actually a high-tech experiment in cost containment. Most of its resources are online, and staples like Wright & Miller’s Federal Practice and Procedure — $3,596 for the multivolume set — are not here.

“We have a core collection,” says Sydney Beckman, the school’s dean, “and if someone needs something else, we provide it.”

I bring this up because one of the true innovators in academic law library collection development, one who has succesfully implemented what had been a nominal "format neutral" ABA standard, is Gordon Russell, Duncan Law's Associate Dean, Professor of Law and Director of the Law Library. During this turmoil between the law school and the ABA, there is no doubt in my mind that the law library staff will continue providing Duncan Law students with the resources and services they need. [JH]