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The American Bar Association won’t be making its final call on a controversial plan to tighten law school accreditation standards when it meets in San Francisco this week. But the proposal was a hot topic at last week’s Atlanta meeting of the National Bar Association, the nation’s largest minority bar. Spurred by U.S. Department of Education concerns about the ABA’s accreditation procedures, the proposal would establish bright-line rules on bar passage rates schools need to maintain accreditation. Minority bar groups, civil rights lawyers and law school professors and deans have complained that the proposal will stymie law schools’ attempts to increase racial diversity and jeopardize the status of schools with special missions. “We all know that the bar exam is a hazing process,” former NBA president Reginald M. Turner Jr., a member of the Clark Hill firm in Detroit, told convention attendees gathered for a July 31 panel on school diversity. Contending that the proposed rule change would mean a loss of accreditation for some historically black law schools, Turner told the audience the NBA was fighting an “outrageous attack on lawyers of color.” Georgia doesn’t have any historically or primarily black law schools, and the dean of the only law school in the state whose bar passage history skates close to the proposed line — Atlanta’s John Marshall Law School — said his school would be “fine” under the proposed rule. But that doesn’t mean the controversy isn’t an issue for Georgia lawyers. “We know that there is going to be a direct impact on historically black law schools,” said Atlanta lawyer Antavius M. Weems, the president of the Georgia Alliance of African-American Attorneys. “But we also have to look at those law schools that are not traditionally black. They’re going to be impacted as well with respect to diversity.” The Council of the ABA Section of Legal Education and Admissions to the Bar has been looking at the issue since at least last year, when the federal government withheld full renewal of the ABA’s accreditation powers. Instead of the usual five to eight year renewal, advisers to U.S. Secretary of Education Margaret Spellings recommended an 18-month renewal, which Spellings agreed to in June 2007. While a June 2007 letter from Spellings to ABA Consultant Hulett H. Askew — formerly head of Georgia’s Office of Bar Admissions — said her advisers’ concerns extend beyond the ABA’s policy of insisting on efforts to achieve diversity in law school admissions and hiring, she acknowledged the diversity policy was the focus of testimony and third-party filings leading up to the renewal decision. “While it’s not a facial point of this dispute,” Lawyers’ Committee for Civil Rights Chief Counsel John C. Brittain said of the diversity requirement controversy, “most think it’s a factor lurking in the background.” Brittain, who has objected to the current proposal to strengthen bar passage standards in the accreditation process, said the dispute also was rooted in accusations by the U.S. Department of Justice that the ABA had engaged in monopoly practices. In 1995, the Clinton administration’s DOJ filed a suit alleging that the ABA had allowed its accreditation process to be misused for anticompetitive purposes by insisting on fixed faculty salaries and essentially boycotting state-accredited and for-profit law schools. Last June, the ABA acknowledged in a court filing that it had not complied with certain obligations of the consent judgment in the case and agreed to pay the government $185,000 in attorneys fees and costs. Purportedly in response to DOE concerns that the ABA Accreditation Committee’s review of bar passage information needs to be more transparent and consistent, the ABA has batted around several proposals. Schools in states such as California, which has a relatively low statewide passage rate, have objected to a 70 percent nationwide minimum bar pass rate. And according to the ABA, the DOE staff has objected to setting that rate as low as 60 percent or making a low bar pass rate simply a “trigger” that leads to further inquiry by accreditation officials. Under the latest proposal disseminated by the ABA legal education council, distributed June 18, schools can show that they are preparing students for admission to the bar — a key standard in the accreditation process — by one of two ways. First, a school can demonstrate compliance by showing that in at least three of the last five years, its annual first-time bar pass rate in the state in which most of its graduates take the exam is within 10 percentage points of the overall annual first-time bar pass rate for graduates of ABA-approved law schools taking the exam in that jurisdiction. If 20 percent or more of a school’s graduates take the bar outside the school’s primary jurisdiction, the school also must demonstrate that those students have an overall first-time pass rate of 70 percent or higher over the two most recent exams. If a school can’t meet both of those criteria, it still can show compliance another way. Under the alternative, a school must show that its graduates pass a bar exam within a maximum of three test sittings and three years since graduation at a rate of 80 percent or higher. Askew’s office has received a host of comments objecting to the latest proposal, ranging from the legal staff of General Motors Corp. to deans of some of the nation’s most prestigious law schools. In response, ABA legal education council chair William R. Rakes, a business litigator in Virginia, announced on the eve of this week’s ABA annual meeting that his committee was recommending that the ABA’s House of Delegates not consider the proposal August 13, as planned. Brittain said that pleased his group, which wanted further study on the matter. Himself a graduate of one historically black law school and a former dean of another, Brittain said that among the nation’s six historically black law schools — Florida A&M University, Texas Southern University, University of the District of Columbia, North Carolina Central University, Howard University (D.C.) and Southern University (La.) — only North Carolina Central would be able to consistently meet the 70 percent and 10 point criteria, although the other schools might be able to meet the 80 percent third-try passage rule. About 22 other schools couldn’t meet the proposed standards, he said. The result of the proposal would be fewer minorities in law school, he said. “Most think that the higher the first-time bar pass rate or the stricter the rule, the consequences are law schools will not admit students who aren’t guaranteed to pass at that level due to their LSAT and GPA,” he said. A 1998 Law School Admission Council study that looked at 23,086 students who entered law school in 1991 showed that while 94.8 percent of the students eventually passed the bar, only 77.6 percent of the African-American students in the study ultimately passed. The study also showed that LSAT scores and law school grade point averages were the strongest predictors of passage rates among all groups studied and that students of color entered law school with LSAT scores and undergraduate GPAs lower than those of their peers. Weems said that the proposed rule would stymie efforts to make schools more diverse. “What is this new rule going to do? It is going to totally decimate the law schools that have afforded an opportunity to those students who are not necessarily the best test takers,” he said. U.S. News & World Report ranked law schools on diversity for 2007, and it shows that with the exception of Emory University, African-Americans are the largest minority group at each of Georgia’s five law schools (Asian-American students are the largest minority group at Emory law at 11 percent). African-American students make up 11 percent of the student body at the law schools at Georgia State University and Mercer University, 14 percent of law students at the University of Georgia, and 15 percent of students at John Marshall. Most of those schools would seem to have no problem under the proposed rule, with Georgia State, Mercer, Emory and UGA routinely posting annual first-time passage rates around 90 percent or higher. In 2006, about 86 percent of first-time takers from ABA-approved schools passed the Georgia bar. The fifth Georgia school, John Marshall, was provisionally accredited by the ABA in 2005 and has until 2010 to secure full accreditation. The ABA proposal released June 18 says that provisionally accredited schools seeking full approval will be evaluated somewhat differently given they may have a shorter time for review. For example, to satisfy the 10 percentage point rule a provisionally accredited school must show compliance for two of the three most recent exams. John Marshall had a first-time pass rate of 40 percent for February 2007, 70 percent for July 2006 and 60 percent for February 2006, not including a handful of students who graduated before the school received provisional accreditation. The dean of that school, Richardson R. Lynn, nonetheless sounds hopeful that his school would do alright under the proposed standards. Applications to the school have skyrocketed since the school won provisional ABA approval, meaning the school is able to be more selective. “The version I saw last time, I think we’ll be fine,” he said. “Until last year, we wouldn’t have regularly hit the 70 percent for first time takers, but we did last year, and I’m sure we would in the future.” Lynn said the school hasn’t been tracking graduates against the 80 percent third-try passage standard closely but “everyone’s pretty confident that we’ll be able to satisfy that.” He said the school requires students to take four writing courses, the sort of things that tend to improve bar exam performance, and he hopes other schools would invest in academic support rather than admit fewer minority students. Founded in 1933, John Marshall has historically been “an opportunity law school,” according to Lynn. “That will continue to be an important part of our mission — to turn out lawyers for underserved communities,” said Lynn. Lynn said he would prefer the ABA keep its current system, but he said in most cases the proposed system would produce similar results. And, he said, a decision by the DOE to strip the ABA of his accreditation powers could lead to a “much worse” alternative — accreditation by the regional accrediting agencies that currently look at colleges and universities. “So, if there’s something the ABA can do to satisfy the Department of Education,” said Lynn, “then we probably should do it even though there are some risks to it.” Meanwhile, the clock is ticking. Spellings told the ABA that its petition for renewal of its accreditation powers is due in December. The plan now is for the issue of the bar passage standard to be before the ABA House of Delegates in February, according to an announcement by Rakes.

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