Quick Link—ABA Death Spiral?

From TaxProf Blog, “ABA to Continue as Law School Accrediter, Despite Noncompliance With 17 Regs,” via The PresTTTigious Legal “Profession”.

[S]everal members of the [National Advisory Committee on Institutional Quality and Integrity, Dept. of ED] expressed reservations about approving that status for the ABA, which was found to be out of compliance with 17 regulations, including the need to consider student-loan default rates in assessing programs; to solicit and consider public comments; and to set a standard for job placement by its member institutions.

Arthur E. Keiser, chancellor of the Keiser Collegiate System, said that an accrediting agency would not accredit an institution with 17 outstanding issues. “There is a real concern that this agency doesn’t get it,” he said. Anne D. Neal, president of the American Council of Trustees and Alumni, was one of three committee members who opposed the motion to continue the bar association’s recognition, saying that she had no confidence it would be in compliance within a year.

I have no idea whether 17 noncompliances is a large number in the world of accreditation, but what disturbs me is that we have no idea how long the ABA has been out of compliance. How old are these particular regs? It doesn’t consider student loan default rates when accrediting? Then again, that probably won’t matter so much in the era of IBR.

The last point, setting a job standard, is an interesting one. I thought it was optional and not required. Optional because it says so in 34 CFR 602.16(a)(1)(i):

§ 602.16   Accreditation and preaccreditation standards.

(a) The agency must demonstrate that it has standards for accreditation, and preaccreditation, if offered, that are sufficiently rigorous to ensure that the agency is a reliable authority regarding the quality of the education or training provided by the institutions or programs it accredits. The agency meets this requirement if—

(1) The agency’s accreditation standards effectively address the quality of the institution or program in the following areas:

(i) Success with respect to student achievement in relation to the institution’s mission, which may include different standards for different institutions or programs, as established by the institution, including, as appropriate, consideration of State licensing examinations, course completion, and job placement rates. [Emphasis LSTB]

This is some of the most gummed up text I’ve read in my life. I think it means that the ABA can regulate law schools (“as appropriate”) by their job placement rates the same way it can by bar passage rates. The latter reason being why it may rescind the University of La Verne’s provisional accreditation in the next few weeks.

However, the ABA doesn’t care about job placement rates, and if I were to hazard a guess it’d be because so many graduates can’t get jobs until after they pass a bar exam, which is the origin of the arbitrary “Employment at Graduation + 9 Months” metric that transparency advocates tell us is sufficient to inform prospective law students of their potential decades-long career earnings as attorneys. If the ABA has a year to develop guidelines for establishing a job placement standard, it’s probably screwed, or at least it deserves to be screwed. Even if we were to magically start creating two million jobs a month, there would still be more law graduates than necessary for the U.S. economy. Law school overcapacity leaves the ABA with the task of determining exactly how many unemployed graduates law schools should be allowed to produce before losing accreditation.

Which is absurd. One would think that given the subsidies law schools receive (national accreditation, nonprofit tax status, direct government subsidies/grants, and access to student debt) that number would be zero. However, given what we know about attorney overproduction in the United States, that would involve demanding the law schools slash their enrollments in half (or more to compensate for the Third Depression) lest they lose their accreditation.

Instead of commenting on this, the law professors involved spent their time criticizing the specter of tenure lost.

The bar association also got a negative review from a group of legal faculty members, the Clinical Legal Education Association, which accused the ABA of considering changes in its standards that would “strip important protections of academic freedom and faculty-governance rights … by eliminating tenure and security of position for deans and faculty members,” according to written comments submitted by the faculty group.

Readers may recall last March when the President of the Association of American Law Schools, the University of Houston’s Michael A. Olivas, wrote the ABA’s Hullett “Bucky” Askew to criticize these changes to the accreditation rules. It’s the biggest argument from incredulity I’ve seen since “Intelligent Design” creationism (“We can’t believe there can be legal education without tenured faculty producing law review articles at $100,000 a pop!” ), and, obviously, it’s funnier too:

One way to think about the overall body and effect of the proposed standards is to step back and ask whether, under the proposed standards, an open-access bar review course could be accredited as a law school if it also offered lectures about on-line research and traditional lawyer values, had student papers graded by people who had never met the students, and assigned each student to one field placement based “course,” taught and supervised by an adjunct. If not, what provisions of the proposed standards would preclude such a diminished educational opportunity? (3)

Professor, allow me to play gunner and answer your question:

The onus is solely on the law schools to demonstrate that they add value between college and the bar exam (where applicable). If they do not do this, then we should strip them of their privileges and subsidies.

We can quibble about the efficacy of bar exams at weeding out the incompetent (say, vs. diploma privilege), or the necessity of college education, but the fact that the faculty are more concerned with their tenure than job placement rates suggests that they’re indifferent to being held accountable for over-enrolling law students. If they’re cognizant of the problem at all perhaps they believe that if there is an enrollment reduction, the non-tenured faculty will be excused, not them. We’ll have to pay attention to the job placement standards the ABA creates and what the law schools think about them.

I doubt the ABA will be quietly defrocked by an ED committee for noncompliance next year, though it would be a sudden, amusing anticlimax to the ABA’s sclerotic accreditation program.