The American Bar Association is loosening its reins on law schools following years of criticism that its myriad rules have driven up the cost of a legal education and discouraged experimentation.
The ABA's Council of the Section of Legal Education and Admissions to the Bar on August 9 embraced a series of changes that outgoing chairman Kent Syverud described as the most "momentous" reforms the section has pursued in recent history. Some of those changes would eliminate rules deemed too onerous, while others are intended to encourage schools to innovate.
The council moved to eliminate the tenure requirement for doctrinal faculty and deans, make it easier for students to take online courses, get rid of the minimum faculty size rule, and create a clearer path for schools seeking variances from the accreditation standards, among other changes. Even a new accreditation standard that will require law schools to track the learning outcomes of their students was drafted in a way that gives schools plenty of leeway to determine what those outcomes should be and how they should be quantified.
"This is the first time in many years that we are so thoroughly revising the standards," said council member Cynthia Nance, a professor at the University of Arkansas School of Law. "We're asking, 'What is it you really need to require in order to ensure students receive an adequate legal education?' We're trying to get rid of the standards that are unnecessary vestiges of regulation."
The council is accepting public comment on the proposed changes and the ABA House of Delegates could take a vote next year. However, the council will have final say.
The need for greater flexibility to manage law school curricula and operations emerged as a dominant theme within the 21-member council. That push creates a natural tension with the need to protect the interest of students and ensure a strong faculty, Nance said. The strongest voices for scaling back accreditation standards came from the judges, practitioners and law deans who constitute two-thirds of the council. The law professor members generally were more cautious about significantly altering the regulatory regime.
The ongoing upheaval in the legal profession and the serious economic pressures facing law schools are also propelling change, said Syverud, who is dean of Washington University in St. Louis School of Law. "I do think that the current environment has created an urgency about things," he said. Even so, the scope of the changes the council is pursuing has taken some people by surprise, he continued. "What you're witnessing is the profession and the judiciary pushing for change."
Not everyone is comfortable with the new direction. Deborah Post, associate dean at the Touro College Jacob D. Fuchsberg Law Center who observed the council proceedings in San Francisco on behalf of the Society of American Law Teachers, voiced concern that the deregulation is being driven by university administrators who have grown accustomed to law schools operating as profit centers and don't want to see the financial well run dry. Law deans without tenure won't have the power to fight the so-called "tax" universities levy on law schools, Post said.
"We're discussing law schools as though they aren't part of a broader university," she said, accusing university interests of using the mounting concern over rising law school tuition as leverage. "Prices are driven by the desire on the part of universities to subsidize the undergraduate programs. Somehow, this is not part of the discussion."
Kate Kruse, director of clinics at Hamline University School of Law and president of the Clinical Legal Education Association, said she is worried that council members from outside the academy don't fully understand the dynamics of law schools and how their decisions — particularly the elimination of the tenure requirement — will play out on campus.
The clearest signal that the ABA is ready to relax control over law school operations was the council's lopsided vote to do away with the requirement that law schools protect faculty tenure as a condition of accreditation. The council reasoned that the ABA should not dictate what level of job protections law professors should enjoy, as long as schools can "attract and retain a competent full-time faculty." Maintaining tenure costs too much and forces all law schools into a similar mold, Boston University School of Law dean Maureen O'Rourke argued.
There were many less controversial revisions to the accreditation standards that also would roll back minimum requirements or get rid of rules deemed unnecessary or confusing.
For example, the council voted to eliminate a rule requiring law schools to maintain at least one full-time equivalent faculty member for every 30 students and preferably one for every 20 students — under the theory that determining the actual size of a law faculty is overly complicated, given the number of adjuncts and part-time professors. Additionally, law faculties have grown significantly in size over time and most schools are already well below that 30-to-1 ratio, the council reasoned. The consensus was that a rule spelling out the minimum size of a faculty is no longer necessary.
The council also voted to loosen the rules pertaining to distance education. Students would be allowed to take up to 15 credit hours of distance courses, up from 12. Additionally, the council voted to drop a rule that students may take no more than four credits of distance education at the same time. This would open up the possibility for students to complete an entire semester-worth of credits remotely and likely would encourage schools to experiment more with nontraditional courses.
The council voted to do away with the rule preventing full-time J.D. students from working more than 20 hours per week on the ground that enforcing it was impossible.
The new standards would allow law schools to seek variances for programs that are "experimental or innovative and have the potential to improve or advance the state of legal education."
Earlier revisions to the accreditation standards eliminated certain specific facility requirements, such as a mandate that each full-time faculty member have an office or that the law school must own its library collection. The new standard requires only that law schools ensure students have "reliable access" to legal information.
'CADILLAC' LEGAL EDUCATION
The ABA's law school accreditation rules have long been a target for critics who view them as needlessly restrictive and costly for schools and, in turn, students. A 2011 front-page article in The New York Times reported on the Lincoln Memorial University Duncan School of Law's unsuccessful attempts to gain ABA accreditation. Duncan administrators argued that the accreditation rules demand that schools become the "Cadillac" of legal education while effectively prohibiting leaner, lower-cost alternatives.
There is some truth to those claims, according to a working paper by the ABA's Task Force on the Future of Legal Education, convened last year to examine the economics of a legal education. While the ABA rules have not forced law schools to be "stamped from the same cookie cutter," they haven't encouraged experimentation or cost reduction either, the task force found.
Among that panel's initial recommendations is that the ABA enable "more heterogeneity among law schools" by "dramatically" revising or repealing a number of its accreditation standards.
This is not a new position. The ABA committee reviewing the standards has been contemplating elimination of some prescriptive requirements for five years. For example, the committee at one point suggested eliminating the rule requiring law schools to use the Law School Admission Test in admission decisions on the ground that it is not the proper role of an accrediting body to endorse a particular standardized test. It later reversed course.
In 2006, the American Law Deans Association — a group formed by some high-profile law deans in part to oppose what they considered overregulation by the ABA — wrote a letter to the U.S. Department of Education complaining about the tenure requirement. More than a dozen university presidents echoed those sentiments in a 2009 letter to the ABA.
"Our concern is very straightforward: the ABA continues to impose requirements on the law schools it accredits that are not only extraneous to the process of 'assuring the quality of [legal] education,' but also that improperly intrude on institutional autonomy in seeking to dictate terms and conditions of employment," the deans wrote. "Such extraneous requirements are in fact counterproductive in that they discourage precisely the innovation and flexibility that are called for in contemporary professional education."
Not all of the proposed changes to the ABA standards would represent a relaxation of the rules. A handful of the revisions would add new requirements, such as a mandate that students complete at least six credit hours of practical courses. The council is likely to endorse tightening the minimum bar passage rate rules, but has yet to take that matter up. But those additions are outnumbered by the changes intended to lighten the regulatory burden on law schools.
"Many of these issues have been on the table for years," said Nance, who encouraged interested parties to weigh in on the proposals before the council makes any final decisions. "But now they're being examined from the broader view of the shifts in the legal profession and the financial challenges to the practice of law."