At the mid-year meeting of the American Bar Association held in early February, legal education was in the spotlight or, some might say, the hot seat.
The House of Delegates considered two key proposals from the Council of the ABA Section of Legal Education and Admissions to the Bar that tightened accreditation standards for law schools. The one focused on attrition passed with little trouble while the other, dealing with bar passage rates, stirred controversy.
An interpretation tacked onto the admission standards clarifies what level of attrition is acceptable. Under the standards, law schools already are expected to admit students who are likely to complete the three years of study and pass the bar exam. But the interpretation limits the flunk-out and dropout rate to 20 percent.
According to the interpretation, law schools that have a non-transfer attrition rate above 20 percent for a class will likely not be in compliance with the ABA’s standards. Students who leave to continue their legal studies at another school are not counted as part of the standard.
“I think the change is a good idea,” said Randall Shepard, the retired Indiana chief justice who is a leading voice on legal education.
In particular, he noted the benefit of having a bright-line rule of enforcement. Rather than having to make judgment calls about when to take a closer look at a school’s admission policies, he expects the ABA accreditation committee and its staff will enforce the standard on schools that exceed the 20 percent mark.
The clarification of the standard will likely have little impact on Indiana’s four accredited law schools because they are all below the new trigger point. Since the ABA has been tracking non-transfer attrition, Valparaiso University Law School has turned in the highest of any Indiana law school, at 5.37 percent for 1Ls during the 2013-2014 school year. The following year, the number dropped to 1.75 percent.
Key to the new interpretation is that it combines students who leave for failure to meet academic requirements and those who decide to quit because of some other reason, such as not liking law school of wanting to pursue another career. Both types of attrition raise questions of whether the law school’s admission standards are adequate.
However, Brian Tamanaha, professor at Washington University Law School in St. Louis and author of the book “Failing Law Schools,” sees the interpretation as a reflection of admissions overall. The data show some legal education programs have been dipping into the lower quartiles of LSAT scores and subpar grade point averages just to fill their classrooms.
While in the past, getting into law school was difficult, he said now some institutions are accepting students they would not have even considered a few years ago. Schools that are “subsisting on lower-ranked students” could be forced to reduce spending by cutting faculty or closing altogether if they do not comply.
Antony Page, vice dean at Indiana University Robert H. McKinney School of Law, said the new language clears up some confusion about the standard. Law schools are obligated to admit only students who “appear capable” of completing the program and be admitted to the bar but there was always debate over what “appear capable” actually means.
The 20 percent level gives a clear idea of an acceptable attrition rate. Page said every law school admits students who do not make it to graduation but, he said, that does not indicate the institution failed to meet the admission standards.
Students who enrolled with high grades and LSAT scores and had strong letters or recommendations would seem able to finish, yet some did not because of a personal issue such as a divorce or illness prevented them from further studies. Having students leave the program does not mean the school was wrong to accept them, Page said.
The interpretation seems to be recognizing this by giving schools a chance to present their side of the attrition argument. Still, the burden will be on the institutions to explain why so many students are not completing the program and what corrective steps the schools are taking.
In contrast to the House of Delegates concurring on the admission interpretation, Resolution 110B, which would have tightened bar passage rates, was met with an hour of debate and ultimately a voice vote that rejected it.
The resolution would have required ABA-approved law schools have 75 percent of their graduates who take the bar exam pass it within two years of graduation. Indiana University Maurer School of Law Dean Austen Parrish was the first to speak in opposition to the measure.
He noted if the bar exam standard was an attempt to clamp down on admission policies, then the ABA should be transparent and put forth minimum admission scores. He disputed that lower passage rates indicate either the students or the legal education program is deficient because the rates of passage have been fluctuating dramatically in many states.
As an example, he pointed to New Hampshire, which recorded an 11 percent uptick one year that was followed by a 16 percent drop the next year.
Parrish worries adopting the resolution would cause law schools to overcorrect and look past students who come with lower GPAs or LSAT scores. Echoing other law school deans, he said students, particularly minorities, otherwise capable of receiving a J.D. could be kept from the program and the diversity of the profession could suffer.
“I don’t think providing an opportunity for a student is always bad,” Parrish said.
However, Shepard questioned the common argument that talented students could be prevented from enrolling in law school because of the bar passage standard. He pointed out that students with lower GPAs and LSAT scores are often not given scholarships. This results in these students actually subsidizing the scholarships given to their higher-scoring classmates and sets up the possibility that they will be saddled with more debt and fewer job opportunities.
Shepard believes the passage standard will come back and be approved. He pointed out the ABA has a bar standard in place and this resolution just made that provision easier to understand and apply.
Once a new standard is in place, the state bar examiners could come under pressure to pass more of the people taking the exam, Shepard said. He thinks the Indiana Board of Law Examiners and the Indiana Supreme Court will be most concerned about protecting consumers by ensuring that individuals given a license are competent to practice law.•