The queue of plaintiffs suing the American Bar Association’s legal education arm is snaking out the courthouse door.
The ABA’s Section of Legal Education and Admissions to the Bar has been named as a defendant in three different lawsuits in the past week and a half, each centered on its law school accreditation activities. A fourth accreditation suit brought by Western Michigan University Thomas Cooley Law School in November is pending.
The flurry of litigation is unprecedented for the ABA’s legal education section and appears to be a byproduct of its two-year-old effort to step up enforcement of its accreditation standards. The section has warned at least 10 law schools of accreditation shortcomings in the past two years, including the three schools that have sued. Previously, such warnings and sanctions were rare.
Separate suits recently brought by Cooley, Florida Coastal School of Law and the defunct Charlotte School of Law accuse the ABA of unfairly finding those campuses out of compliance with its accreditation rules. Ironically, the fourth pending suit—a whistleblower claim brought by a former Charlotte law professor—argues the opposite: that the ABA wrongfully extended accreditation to the North Carolina school when it was admitting weak students.
Barry Currier, the ABA’s managing director of accreditation and legal education, did not respond to a request for comment Wednesday on the pileup of lawsuits targeting the legal education section. The ABA has previously declined to comment on the pending litigation. However, Currier posted a general statement to the section’s website Wednesday that said the ABA’s accreditation process “provides meaningful opportunities” for schools to establish that they are complying with the accreditation rules.
“Courts have regularly upheld the ABA’s law school accreditation process,” Currier wrote. “We will continue to follow our established procedures and expect to be successful in any future litigation challenging the actions of the [Council of the Section of Legal Education and Admissions to the Bar].”
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The suits are generating plenty of work for the ABA’s outside counsel at Sidley Austin.
They’ll be facing off with a formidable team of attorneys from Kirkland & Ellis who are representing Florida Coastal and Charlotte, both part of InfiLaw Corp., a consortium of for-profit law schools owned by private equity firm Sterling Partners. Among the Kirkland partners representing the InfiLaw schools are Paul Clement, Viet Dinh and H. Christopher Bartolomucci.
Each of the plaintiff schools has struggled with low bar pass rates. Just 41 percent of Cooley graduates passed the July 2017 bar exam in Michigan. A mere 34 percent of Charlotte takers passed in July, while Florida Coastal had a better result at nearly 48 percent.
David Frakt, a lawyer who has been writing about the accreditation suits on the Faculty Lounge blog, said the ABA’s finding last month that Cooley is back in compliance with its rules—five months after the Michigan school sued—may well have opened the floodgates for similar litigation.
“The Cooley suit proved that litigation is worth the money—that there are potentially good outcomes even for what seemed like a completely laughable lawsuit,” said Frakt, who has become a frequent critic of for-profit and low-performing law schools since his unsuccessful bid to become dean of Florida Coastal in 2014. “Thomas Cooley came out of it smelling like a rose, and that certainly encouraged others.”
Frakt said he suspects the suits brought this month by Florida Coastal and Charlotte are intended to prompt the ABA to back off Florida Coastal and the InfiLaw-owned Arizona Summit Law School. The ABA has found both schools out of compliance with its admissions rules in the past year, but each remains accredited. The Florida Coastal and Charlotte suits allege that the ABA’s standards are too vague and that it has applied those standards inconsistently between schools.
Cooley law school made a similar argument when it sued in November, asking a federal judge to block the ABA from posting a letter to its website disclosing that the school had been found out of compliance with an admission rule prohibiting law schools from admitting students who do not appear capable of graduating and passing the bar exam. Cooley argued that the ABA should not have posted the letter because it was not based on a final decision. A judge declined to restrain the ABA from posting the letter and the case remains pending.
However, the ABA’s Accreditation Committee in March determined that Cooley had taken “concrete steps” to come back into compliance with the rule and canceled a hearing on the matter slated for June. The ABA disclosed that decision in late April.
Frakt said he believes that reversal is likely the result of a settlement agreement between the ABA and Cooley, although neither side has confirmed any settlement and the lawsuit has not been dismissed. Only settlement could explain the ABA’s reprieve for the country’s least selective law school, Frakt said.
The ABA’s Accreditation Committee also discussed Florida Coastal’s situation at its March meeting but did not let it off the hook as it did Cooley. The committee concluded that the school remains out of compliance with several standards pertaining to academic support and the rigor of its education program—a determination it first made in October.
Weeks later, on May 10, Florida Coastal sued, claiming the ABA violated its due process when it found the school out of compliance. Officials with Florida Coastal claim the ABA is punishing the school despite the fact that its bar pass rates exceed those at many others schools that have not been targeted by the ABA. Moreover, the suit alleges that the ABA was acting under pressure from officials within the U.S. Department of Education to focus enforcement efforts on for-profit schools.
The Kirkland lawyers filed suit on behalf of Charlotte just five days later with similar claims, as well as allegations that the ABA’s uneven enforcement of its accreditation standards led the Education Department to cut the school off from the federal loan program in late 2016. The school never recovered from that financial punch, and closed in August.
An InfiLaw spokesman did not respond to requests for comment Wednesday on whether the company plans to bring a suit on behalf of Arizona Summit, whose accreditation remains tenuous. The ABA put the school on probation in March 2017 for low bar pass rates, its admissions practices, and its academic support. Earlier this year, the ABA also found the school out of compliance with its financial standards.
On the opposite end of the spectrum, the ABA on May 8 was added as a defendant in a two-year-old qui tam suit brought by former Charlotte law professor Barbara Bernier against the school and InfiLaw. Bernier claims that the school and its corporate owners defrauded the federal government of more than $285 million by admitting unqualified students in order to pocket their government-issued loans.
The amended complaint claims that the ABA was negligent in giving Charlotte full accreditation in 2011, when it should have determined that the school’s admissions standards were too lax.
“The ABA was asleep at the wheel, both on the front end of the accreditation process when the school obtained full accreditation and thereafter, when the ABA came back three years later to a make a full site visit in 2014,” said attorney Coleman Watson, who is representing Bernier. “Even after that, there were clear red flags, and the ABA continued to give the school a slap on the wrist.”
Watson said he doesn’t believe Charlotte’s suit against the ABA has merit.
While it’s unusual for the ABA’s legal education section to face so many lawsuits at once, the accreditor is no stranger to litigation from schools unhappy with its decisions.
Cooley previously sued the ABA in 2004 after it sanctioned the school for opening two satellite campuses without its permission. Both a district court and the U.S. Court of Appeals for the Sixth Circuit ruled in favor of the ABA.
Lincoln Memorial University Duncan School of Law sued in 2011 after the ABA rejected the school’s initial accreditation application. It dismissed the suit nearly a year later when it reapplied, and was granted provisional accreditation in 2014.
The ABA also came under a 10-year consent decree in 1996 after the U.S. Department of Justice filed an antitrust lawsuit against it. That suit alleged that law school personnel with financial stakes in accreditation decisions had misused the ABA’s review process. That consent decree imposed a number of changes, including that the ABA could not boycott for-profit law schools or restrict students at state-accredited law schools from transferring to ABA-accredited schools.