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Amid pressure from the U.S. Department of Education, the American Bar Association is poised to tighten a rule that requires law schools to show that they are graduating students who can pass the bar exam. The ABA is expected to approve the controversial measure at its meeting in Los Angeles from Feb. 6 through Feb. 12, when its House of Delegates will consider a recommendation from the ABA’s legal education section. The proposed change has drawn sharp criticism, especially from those representing minority law students’ interests. But it is one that the ABA hopes will appease the Education Department, which grants the ABA authority to accredit law schools. “Under the circumstances, we think it’s fair and appropriate and as good a rule as we could come up with,” said Hulett Askew, consultant on legal education to the ABA Section of Legal Education and Admissions to the Bar. In general, the change would create a quantitative rule requiring law schools to demonstrate that 75% of their graduates passed the bar exam or to show that their pass rates were within a certain range compared with other law schools in the same jurisdiction. The change is technically a new interpretation of an existing accreditation standard. Almost all states require law students to graduate from an ABA-accredited law school in order to obtain a license to practice. Under the current rule, the ABA does not require law schools to demonstrate a specific pass rate, but instead to show in general that they are preparing students for admission to the bar and maintaining a rigorous academic program. Approving the change at this month’s meeting is particularly important because the ABA in June will go before the Department of Education, which will consider whether to renew its accrediting authority. The ABA House of Delegates will not meet again until August at its annual meeting. The Department of Education declined to answer questions for this story. The ABA and the Department of Education have butted heads in recent years. The department last year did not extend the ABA’s accrediting authority beyond June 2008, partly because of its concern about the ABA’s implementation of a stricter diversity-enrollment standard. Also last year, the department obtained a court order against the ABA after alleging that it was not complying with a consent decree that the two parties reached in 1995 involving antitrust violations. Should the ABA fail to make the change at the upcoming meeting, it “would be a problem,” Askew said. The measure would go back to the legal education section for review. The ABA had scheduled a vote at its annual meeting last summer on the measure, but it was tabled after much dissension concerning a previous version of the proposal. At a hearing last month before the Accreditation Standards Review Committee about the change, several prominent lawyers and scholars expressed their disapproval. Among them was General Motors North America Vice President and General Counsel E. Christopher Johnson, who argued that a bright-line rule would hurt minority enrollment because it would deter law schools from accepting applicants with lower scores on the Law School Admission Test. Loyola University Chicago School of Law Dean David Yellen, who is a member of the standards review committee of the ABA’s legal education section, said that it was “highly inappropriate for the Department of Education to insist on bright-line rules.” Yellen added that it was “pretty likely” that the House of Delegates would approve the change. Eddie Koen Jr., national chairman of the Black Law Students Association, said that the new rule was particularly troubling in light of a recent report released by Columbia Law School showing that law school enrollment among blacks and Mexican-Americans has fallen by 8.6% in the past 15 years. “This will do nothing but exacerbate the problem,” Koen said.

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