Why Law Schools Need External Scrutiny

Brian Tamanaha

Get ready law schools: A Senate hearing on the ABA regulation of law schools might be coming. That is the subtext of Senator Boxer's most recent letter to the ABA. It's overdue.

Law schools have demonstrated time and again that we are incapable of regulating ourselves. It started a century ago, when AALS and ABA wrote accreditation standards to keep out competition from lower cost urban law schools that educated immigrants and working class people. It was on display in 1995, when the Department of Justice filed a civil antitrust suit against the ABA, charging that legal educators had captured the accreditation process and were using it to ratchet up their wages and reduce their teaching loads. And it is happening again now--as highlighted by two recent examples.

The recent disclosure that Illinois law school had submitted false LSAT and GPA medians to the ABA and US News was bad enough (coming on the heels of Villanova's similar disclosure), but that is not the worst of it. The real scandal is that law schools and the ABA have created a bizarre arrangement that appears designed to allow false reporting.

Law School Admissions Council (LSAC) administers the LSAT and maintains records on every single law student at every accredited law school in the United States. The ABA and LSAC jointly publish the ABA-LSAC Official Guide to ABA Approved Law Schools. Both the ABA and LSAC put their imprimatur on the validity of the data.

Now here's where the arrangement gets strange. The ABA asks each law school to supply data on the LSAT and GPA of the 1L class, and it publishes in the Official Guidebook whatever information law schools submit. What's weird about this is that the co-publisher of the Official Guidebook, LSAC, has this information in its database (literally). The ABA could simply ask LSAC (rather than law schools) to supply this information (but it doesn't), and LSAC puts its name on a book that contains information that it could easily check (but it doesn't). As a result, law schools can submit false information with impunity.

Rumors have circulated for years that a few law schools have been submitting false information to the ABA (these rumors include prominent law schools as well as lower down schools). Yet the ABA never asked LSAC to verify the numbers, and LSAC never told--despite the fact that both organizations jointly put their name on the "Official Guide" to law schools.

LSAC could blow the lid off this tomorrow by supplying the true LSAT and GPA medians for every law school for the past ten years--but it won't. Why not? LSAC President Daniel Bernstine explains, “That’s just not something we have done historically, and I don’t see why we would. We are not in the reporting business. We don’t distinguish between our [law school] members.”

You see, LSAC is a non-profit organization controlled by law schools (revenue of $70,000,000 last year), with a board of trustees nominated by law schools (and the President, who earned $600,000 in 2010, is a former law school dean). LSAC apparently views its primary loyalty as properly oriented toward law schools--that is--toward protecting its constituent members.

One might wonder why the ABA would go along with such an arrangement, and would put its name on an "Official Guidebook" with an organization that exists to serve the interests of law schools. After all, the ABA is supposed to be regulating law schools.

Well, the thing is, the ABA Section on Legal Education has itself long been dominated by legal educators. That's what got the ABA into trouble with DOJ in 1995, and the intertwining of the ABA and AALS (a lobbying organization for legal educators) goes back more than a century. It's a good old-fashioned story of regulatory capture.

That brings me to the second recent event which confirms that law schools need external scrutiny.

As Senator Boxer's recent letter observes, the ABA made the inexplicable decision to remove from its survey of law schools for this year the question asking what percentage of the class of 2010 had obtained jobs that required a JD (nine months after graduation). This decision is inexplicable because the precise charge of the committee was to improve transparency, yet they chose to delete (this year) the single most important question.

The explanation for this decision is that they needed time to work out the meaning of "JD required." Never mind that the question is straightforward and that the definition they came up with for 2011 is essentially the same as the question that was used in previous years. By omitting this essential question, the ABA created an artificial gap in information which allows law schools to not disclose what percentage of the class of 2010 obtained jobs as lawyers.

Why would they do this? I don't know. It may have been a decision made in good faith for the reason they provide. But it is hard not to notice that a few key participants in this decision are from law schools that had dismal employment rates for 2009, rates which would be even worse for 2010. And now law schools will not be required to disclose the information because the ABA is not asking for it (of course they are free to voluntarily disclose it).

It's time to have external scrutiny by a body that is not beholden to law schools. The Senate has a particular interest in this matter because federal loans are keeping law schools afloat (and tuition high).
Posted 7:00 AM by Brian Tamanaha [link]