Provisional Accreditation Denial by the ABA: A speculative back-story for Duncan Law School's Lawsuit

On Dec. 22, 2011, Duncan School of Law filed a complaint in the U.S. District Court of the Eastern District of Tennessee against the ABA alleging antitrust and due process violations after failing to receive ABA provisional accreditation. [Text of complaint; Links to recent local press coverage] In a recent article by the NYT's reporter blogging law profs love to complain about because of his ongoing criticism of the legal academy from a soapbox much larger than their own, David Segal interviewed New York University law prof Stephen Gillers for his prediction about the lawsuit.

What are the odds of Duncan prevailing with this lawsuit? Worse than dim, predicted Professor Gillers.

“The lawsuit is doomed,” he said. “The antitrust argument seems to be that the A.B.A. is limiting the number of law schools. But there are 200 A.B.A.-approved law schools, so if the council’s secret agenda is to limit competition, it’s doing a lousy job.”

Remember, Segal featured Duncan Law in his Dec. 17, 2011 article, For Law Schools, a Price to Play the A.B.A.’s Way. The article spilled a fair amount of ink on the high cost of complying with ABA Accreditation Standards. In the context of Duncan Law and its institutional mission to supply the labor market with lawyers for the common man (and woman) Segal reviews the on-going legal education debate:

The debate about legal education has focused on tuition costs in the stratospheric layers of the law-school world. But what of the ground floor? Duncan hopes to draw students from economically distressed parts of the country, including the Appalachian Mountains of Tennessee, and sincere efforts have been made to keep overhead to a minimum.

Later in the article Segal reports Emory law prof George B. Shepherd opinion:

What the A.B.A. can be blamed for, says George B. Shepherd, a professor at the Emory University School of Law, are exorbitant prices even at those schools that aspire to affordability. That, he maintains, is all about accreditation.

Consider business schools, Mr. Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

Professor Shepherd says aspiring lawyers should have the same choices as aspiring executives and managers. Others say the case against the A.B.A.’s standards is that they are one-size-fits-all and overly rigid, which drives up the cost of both a diploma and of legal services.

I'm not sure the B-School analogy really works for me. Bad business advice isn't the same as bad legal advice for criminal matters. But civil law matters are an entirely a different matter.

Ensuring wannabe attorneys are qualified to practice law. The ABA's mantra in response to media attention has now boiled down to its accreditation role as serving society by making damn sure that would-be attorneys are qualified to practice law by the professional education they receive from ABA-accredited law schools. manymay believe that is a load of crap; hell, it wouldn't take much effort to find some scholarly-inclined members of the legal academy who stated "that's not our job, dude."

State bar exams decide this issue. Pass, you are nominally "qualified." Don't pass, take the bar exam again. If the ABA is just concerned with producing qualified lawyers, all it has to do is get in the bar exam prep business. Just ask many debt-laden law school grads. Bar prep compresses the old tradition of "reading the law" into a intensive cramming session that does not require attending law school. Like OMG, just about anyone with a BA or BS who knows how to play logic games, can memorize black letter law and has acquired the ability to construct a few paragraphs in a semi-coherent fashion can pass state bar exams after taking a bar prep course to be licensed to practice law without three years of law school.

Quoting again from Segal's For Law Schools, a Price to Play the A.B.A.’s Way article:

This has been a difficult year for the A.B.A. It has been peppered with insistent letters by members of Congress — most notably Senators Barbara Boxer, Democrat of California, and Charles E. Grassley, Republican of Iowa — over a number of accusations of failings. Among the contentions is that the organization has not done enough to prevent law schools from overstating the current job prospects of graduates.

The A.B.A. has lobbed back lengthy and detailed letters to Capitol Hill, which appear to have done little to lower the temperature. Threats of Congressional hearings have surfaced in the news media.

In this volley of correspondence, the A.B.A. has noted that it would be an antitrust violation to cap or limit the number of law schools. That is true, but it suggests that the debate about legal education is focused in the wrong place. What ails the law school market isn’t a lack of regulation, says Clifford Winston, a senior fellow at the Brookings Institution and co-author of a book, “First Thing We Do, Let’s Deregulate All the Lawyers.” He says it’s the near-total absence of competition.

“The A.B.A. is a powerful group that has a strong status-quo bias,” he says. “Getting them to turn things around is obviously quite difficult because they’re looking out for their own interests.”

(First Thing We Do, Let’s Deregulate All the Lawyers, by the way is an interesting if difficult read. I've been slowly trying to read (and understand it) because it is full of economic analysis that is a bit much for my small brain. I've yet to read a damning critique of the work in the law prof blogosphere. Perhaps law prof bloggers have been too busy, first with criticizing the "law scam" law prof blogger and now Segal. But I digress... .)

Segal's Dec. 17, 2011 article closes with Duncan Law waiting to hear the outcome of the law school's Dec. 2 meeting with ABA regarding its request for provisional accreditation. Yes, it is a bit dramatic.The ABA's official response came shortly after the article's publication. See Controversy Over the ABA Denying Provisional Accreditation to Duncan Law School which quotes the ABA's official notice, dated Dec. 20, 2011, as stating that "At its December 2-3, 2011 meeting, the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association denied the application for provisional ABA approval [by Duncan Law]."

A speculative back-story. Much has been made about the timing of the ABA's official notice to Duncan Law and Segal's Dec. 17, 2011 NYT article. However, WSJ Law Blog's Joe Palazzolo reports in Duncan Rejected by the ABA, Sues for Accreditation (Dec. 22, 2011) the following:

An ABA spokeswoman had no immediate comment on the lawsuit but pointed out that the association’s accreditation committee notified Duncan in October that it intended to recommend that the school be denied provisional accreditation.

(Emphasis added.)

Making 2012 an even more difficult year for the ABA. Being cynically (or pragmatically) inclined, Duncan Law probably had a damn realistic expectation that the ABA was going to deny provisional accreditation even if the ABA's gatekeepers did not clue in the law school back in October by what would have been an unofficial notification as suggested in Palazzolo's article. Given that distinct possibility the "selection" of Duncan Law in the context of the tenor of Segal's Dec. 18, 2011 article should be noted.

Instead of appealing the ABA's denial or reapplying after 10 months, both available under ABA rules, Duncan Law decided to sue the ABA because the school maintains it already is in compliance See the Knoxville News story (quoting from an email by Duncan's Law School dean). The Courthouse News Service's Dan McCue recaps some essential elements of Duncan Law's claim:

[Duncan Law] claims that the ABA's decision was "also contradicted by the findings and decisions of two other accrediting agencies - SACS-COC [the Southern Association of Colleges and Schools - Commission on Colleges] and the Tennessee Board of Law Examiners ('TBLE') - one recognized by the United States Secretary of Education and the other an arm of the Tennessee Supreme Court." ... The school claims, "these accrediting authorities applied substantially similar standards as did the ABA's council to the same facts."

See also Karen Sloan's NLJ article Duncan School of Law denied accreditation.

Following this line of pure speculation, Duncan Law can be viewed as taking the entire controversy of the ABA as a federally sanctioned accreditation body to the court of public opinion by way of major media coverage and now by way of filing this lawsuit. Even if Duncan Law loses in court, the publicity just may ratchet up congressional interest beyond the minutiae of gamed law school information that met ABA reporting requirements to examine the entire cartel structure. See, e.g., U.S. Rep. John J. Duncan Jr., R-Knoxville reaction in the local press, Congressman Duncan: ABA decision on LMU law school arbitrary (Knoxville News).

Issues that if addressed by Congress could produce a bipartisan agreement. Here's the big three:

1. Providing affordable civil legal services to voters because the World Justice Project's 2011 Rule of Law Index [US County Profile here] ranks the US last among 11 high-income countries in providing access to civil justice. Do note that the study was co-sponsored by several ABA Sections.

2. Allowing states and only states to accredit law schools as a "states rights" issue since the license to practice law is based on passing a state bar exam and allowing states to work out reciprocity. The ABA could offer model standards each state could ignore or modify as they individually see fit to do. This just might lead to state enacted statutes and regulations along the lines of the ground-breaking UK's Legal Services Act.

3. And, perhaps most importantly, smashing the ABA-legal academy cartel's guaranteed revenue structure by holding law schools accountable for the "lifeblood" of law school financing, federal loan programs that currently place all the risk of loan repayment on law students who may not find employment requiring a JD after law school. As William D. Henderson and Rachel M. Zahorsky recently wrote in The Law School Bubble: How Long Will It Last if Law Grads Can’t Pay Bills?

Very few critics, however, have examined the part played by the federal government through its student loan policies in creating a law school bubble that may be on the verge of bursting—one strikingly similar to the mortgage crisis that cratered the economy in 2008.

Direct federal loans have become the lifeblood of graduate education, and they shelter law schools financially from the structural changes affecting the profession. The bills are now coming due for many young lawyers, and their inability to pay will likely bring the scrutiny of lawmakers already moaning about government spending.

For more about this, see What Factors in 2012 Will Be Examined That Can be Viewed as a Federal Public Policy Failure to Provide Affordable Civil Legal Services to the Electorate?

The ABA better come up with more convincing rhetoric than "wanting to protect the public and make certain that graduates who offer themselves as qualified lawyers know what they’re doing." While the Duncan Law School lawsuit may fail, the School's recent series of actions can be viewed as taking the public campaign against the status quo to the next level. No doubt the ABA will mount a vigorous defense in court for a while at least. If the ABA is smart, it will make the lawsuit disappear by granting provisional accreditation to Duncan Law. Wait 'n see.

Of course, this possible back-story is pure speculation on my part. [JH]