Friday, May 3, 2019

Why I Support The ABA's Standard 316 Proposal

At its meeting on May  16-18,  the ABA’s Council of the Section on Legal Education and Admission to the Bar will vote whether to revise Standard 316.  I support that proposal.

Here is the current standard:

Standard 316. BAR PASSAGE (a) A law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:(1) That for students who graduated from the law school within the five most recently completed calendar years:(i) 75 percent or more of these graduates who sat for the bar passed a bar examination;or(ii) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.In demonstrating compliance under sections (1)(i) and (ii), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. (2) That in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average first-time bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdiction.

Here is the proposal:

At least 75 percent of a law school’s graduates who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.

As you can see, the proposal simplifies the current standard, but it also raises the requirement to satisfy the standard.  Bill Patton writes: "the proposed 75% in 2-year standard, Law School Transparency,  has submitted an analysis to the Council that supports my prediction that at least 9 CA ABA schools will fail that standard for 2018 graduates."  (here)

Several legal education organizations, including SALT, CLEA, and LWI, have opposed the proposal and the ABA House of Delegates has voted down the proposal twice.  However, the Council has the power to enact the revised standard despite the House of Delegates disapproval.

Judith Wegner, one the legal educators I respect the most, has posted a long summary of the objections to the proposal on the Best Practices for Legal Education Blog, along with the Patton letter.  (here)

  1. The ABA Council is proposing an action that will have significant disparate impact on minority candidates seeking admission to the bar, but has not undertaken meaningful research on this topic.
  2. If the theoretical basis of the ABA action is tied to a requirement that law school graduates demonstrate a basic level of competence, it cannot reasonably claim that state passing percentages are tied to such a determination given their widely disparate passing rates. . .
  3. Significant questions should be raised regarding the authority of the ABA Council in effect to prohibit the continuation of law schools in jurisdictions such as North and South Dakota or institutions serving minority populations in jurisdictions where state legislatures have failed to provide adequate funding for public K-12 education in areas with substantial minority populations. . .
  4. Recent developments in federal antitrust law should also be reckoned with. The United States Supreme Court’s decision in North Carolina Dental Board v. FTC, 574 U.S. ___ (2015), provided an important gloss on the “state action” exemption. . .
  5. The ABA Council’s proposal assumes that existing bar examinations can actually be assumed to document basic competence for lawyers. . .

She concludes, " Doing nothing allows the ABA Council to undercut the diversity of the legal profession without engaging with core principles. Is that an acceptable practice in your view? The ABA now charges law schools more than $20,000 per year to fund its activities, while acting on simplistic bureaucratic principles. Is that an acceptable use of limited law school funds in your view."

Here is why I support the proposal:

The concerns that have been raised concerning the proposal's effect on minorities are legitimate. The question, however, is why many law schools did nothing to improve legal education to help minority students when bar exam scores started to decline several years ago. In 2007, Best Practices and The Carnegie Report demonstrated in great detail that law schools were not providing a quality education to their students. Since then many scholars have reiterated these concerns. For example, I wrote an article showing how law schools could help minorities do better in law school. How to Help Students from Disadvantaged Groups Succeed in Law School, 1 Texas A & M Law Review 83 (2013), and I have recently published a book on law teaching and learning, How To Grow A Lawyer: A Guide for Law Schools, Law Professors, and Law Students (2018). Professor Louis Schulze put similar ideas into practice at FIU, and his school has scored highest on the Florida bar exam again, again, and again. (here)  There are many, many other books on legal education reform, and several organizations hold conferences on teaching and learning every year.

All law schools must do their part to increase opportunities for everyone. However, they should not be able to do this by admitting unprepared students, then doing nothing to help them become effective attorneys  or pass the bar. It does nothing for minorities if law schools graduate them without the tools to be competent attorneys. It does nothing to help disadvantaged communities for law schools to graduate students who will hurt those communities more than help them. The present situation is turning out attorneys who can not earn enough money to pay off their crushing law school debt.

Some law school critics have gone as far as to label some law schools as unethical in their admissions practices.  For example, an article in The Chronicle of Higher Education declared, "But the trends, while encouraging, create a heightened imperative for law schools to be ethical in their admissions practices and equitable in allotting financial aid. As admission rates and diversity have increased, the LSAT scores of those admitted have decreased, significantly in some cases. The declines have raised suspicions that, purely to generate revenue, some schools are enrolling students who have no chance of becoming lawyers. An LSAT score is not destiny, so those trends do not much concern me; I am much more troubled by emerging student-debt trends."

"Data from the student-engagement survey suggest that the students least able to afford law school are the ones stuck with the highest costs. As legal education has become more expensive over the past decade, racial and ethnic disparities in expected student debt have emerged."

"It is through the lens of student debt that the exploitation-as-survival theory really takes hold. Too many law schools are inducing students to take on debt that under no reasonable set of circumstances will they be able to repay. In the meantime, they are heaping scholarships of increasing amounts on the relatively few high-LSAT scorers still applying to law schools. Those beneficiaries are less likely to be black, Latino, or from low socioeconomic backgrounds. In the end, disadvantaged students end up subsidizing the attendance of their more privileged peers — a reverse ­Robin Hood scheme that is as regressive as it is indefensible."

I urge the Council to enact the proposal. As I noted, many law schools have ignored the call for legal education reform for over ten years. We can’t wait any longer. Do your part, or lose your accreditation.

(Scott Fruehwald)

P.S. Here are some comments from David Frakt concerning bar passage rates:"When one considers the combined effect of academic attrition and bar pass failure, it becomes even clearer how catastrophically bad the performance of these very high risk classes really are. Whittier's 2o15 entering class had 42.5% 1L attrition and still achieved less than a 22% first time bar pass rate. Golden Gate had a 39.3% attrition rate and a 35.90% bar pass rate."

"It is still appalling that there are law schools accredited by the ABA where fewer than a third of students complete law school and pass the bar on their first attempt. Of course, some students who failed the first time will eventually pass, but the sad truth is that well over half of the students that started law school at many of the bottom-feeder schools will either never earn a JD or, if they do, will never pass the bar. That is shameful. The ABA should establish a presumption that an LSAT median at or below 146 is not in compliance with Standard 501."

Me: How can anybody justify these outcomes?  These schools are hurting minorities, not helping them!

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