Gaming the Law School Accreditation Process

For the past decade, the accrediting arm of the American Bar Association (ABA) has withstood criticism that its standards are poorly monitored and unrelated to law school quality. But the ABAs endurance as the sole Education Department-approved law school accreditor, despite refusal to reform, could soon be in jeopardy. And its up to Education Secretary Margaret Spellings to look at the facts and make an even-handed decisionwithout being swayed by an extraneous controversy on law school diversity standards.

The Department of Education is in charge of recognizing accreditation agencies, a process which it professes “ensure[s] that education provided by institutions of higher education meets acceptable levels of quality.” And accreditation agencies are then responsible for blessing individual institutionsa decision that has particularly high stakes for law schools. In many states, students who graduate from unaccredited law schools cannot take the states bar exam and practice law. This gives the ABA a monopoly-like power to restrict entry into the profession (and keep compensation high). Further, students from unaccredited schools are not eligible for federal student loans, further increasing the accreditation stakes.

The Department appoints an advisory panel, the National Advisory Committee on Institutional Quality and Integrity (NACIQI), to review Department staff evaluations of accreditors and recommend that the Secretary either approve or deny recognition, and under what terms. Last December, with ABAs continued recognition as an accreditor up for review, NACIQI held a contentious hearing during which its members sharply criticized the ABA for dragging its feet on necessary accreditation reforms. The committee advised Spellings to extend recognition of the ABA for only 18 months, instead of the usual 5 years.

Whats Wrong with ABA Accreditation

Critics contend that ABAs accreditation standards are not correlated with institutional quality and professional competence. According to numerous unfavorable evaluations, the process emphasizes high-cost inputssuch as requirements for the number of full-time professors, library collections, and physical facilitiesover educational outcomes. The ABA also takes into account Law School Admissions Test scores (oft criticized for not being linked to academic achievement and professional skills), although the ABA denies requiring a minimum score. Critics claim the ABA effectively restricts access to law school for minorities and low-income students by upping tuition costs and over-emphasizing standardized tests.

In addition, the ABA has been accused of inconsistently employing secret rules in its accreditation decisions that arent disclosed to schools or the public (a secret policy involving bar passage rates was recently revealed). And the Department of Education has a long list of complaints about the ABAs failure to abide by specific Departmental requirements.

History of ABA Criticism

Since the early 1990s, disapproval of the ABA accreditation process has been growing among both law school and federal officials. In 1993, the Massachusetts School of Lawan unaccredited school that continues to be a strong critic of the ABAsued the association, claiming that it violated antitrust law by functioning as a “cartel” and setting unfair standards that raised costs and were unconnected to school quality. The Department of Justice filed a similar antitrust complaint in 1994, which was settled with a ten-year, now defunct, consent decree.

The Department of Education has also been butting heads with the ABA since the mid-1990s over its non-compliance with Department criteria for recognition. In 1997, it limited ABA recognition to only three years given “the magnitude of deficiencies,” and at one point in 1998 Department staff recommended that NACIQI “proceed withadministrative action to limit, suspend, or terminate the Councils recognition by the Secretary as a nationally recognized accrediting agency.”

Increased Scrutiny

Yet somehow, the ABA continued to survive these attacks by agreeing to submit interim reports and promising changes and more transparency. But it may not be able to delay reform for much longer. Members of Congress (heres a sample: Reps. Buck McKeon (R-CA), George Miller (D-CA), and Linda Sanchez (D-CA), Senators Michael Enzi (R-WY), Edward Kennedy (D-MA), and Orrin Hatch (R-UT)) have been raising concerns about ABA accreditation with letters to the Department, the Government Accountability Office, and the ABA itself.

And at its December hearing, NACIQIs members blasted the ABAs continued non-compliance with the Departments criteria for recognition. Members were “frustrated” with the ABA being “extraordinarily casual and dismissiveand unresponsive” and “appalled” that the association “[had not taken] responsibility for the issues that they were facing.”

Watch Out for the ABAs Spin

Its unlikely that the ABA will simply absorb the mounting criticism. It may look for a way to deflect disapproval of its accreditation standards. And there are signals that the object used for this deflection tactic may be the ABAs new “diversity standard.”

Last August, the association approved an updated “Equal Opportunity and Diversity” standard which requires accredited schools to “demonstrate by concrete action” a commitment to “a student body that is diverse with respect to gender, race, and ethnicity.” This obviously has incited a negative reaction from conservative groups, who contend that the ABA is requiring law schools to employ racial preferences that are unlawful in some states. The ABA was a strong supporter of the University of Michigan in the famous Grutter v. Bollinger Supreme Court case that gave the green light to affirmative action in admissions.

The diversity standard issue, however, is not related to the ABAs numerous other accreditation problems. But the ABA may try to link the two. If the association can spin the Departments disapproval of its accreditation process as a right-wing, conservative reaction to the diversity standard and its past pro-affirmative action stances, it might be able to head off the reform that its accreditation process actually needs.

When NACIQI issued its final assessment to the Secretary last December, it actually decided to overrule the Department staff report and strike any reference to the diversity standard. The committee then proceeded to endorse most of the 16 issues or problems unrelated to the diversity standard that Department staff had identified. As George A. Pruitt, president of Thomas Edison State College and leading member of NACIQI, told Inside Higher Ed, “I am very concerned that were taking an agency that has a lot of problemsand the one area that weve chosen to hang our hat on and beat them up on [the diversity standard] is the one area where I think theyre okay.”

The Department of Education’s General Counsel has decided to pursue the diversity issuekeeping it on the front burner and unfortunately distracting attention from ABAs serious problems. And the Chairman of the ABA is already hinting that the association may accuse the Department of unfairly punishing it for its opposition to Bush Administration ideology. William R. Rakes told NACIQI: “I am aware there have been disagreements with the administration over judicial appointments and certain administrative policies.”

But dont get caught up in any ideological spin. The Secretary can rightly spur the association to action by shortening or deferring (or even denying) recognition of it as an accrediting body and requiring more transparency. Revision of ABAs accreditation process is long, long overdue.

You’d think an association of lawyers would abide by rules of fairness and transparency, wouldn’t you?