The ABA Standards and Rules of Procedure for Approval of Law Schools establish the basic framework within which almost all law schools operate. Many aspects of the Standards are appropriate and unobjectionable. However, in too many respects the Standards operate as a significant impediment to the kind of experimentation and change that is needed in legal education.
First some background. It is not the American Bar Association itself, but rather the Council and Accreditation Committee of the ABA Section of Legal Education that is authorized by the U.S. Department of Education to accredit law schools. Department of Education rules require an accreditor to be separate and independent from a trade association such as the ABA, so the Section operates essentially autonomously.
The Standards are the rules with which schools must fully comply to receive or retain accreditation. The
Council is the governing body of the Section. The Council is assisted in its work by a number of committees, the most important of which are the Accreditation Committee (which makes determinations about whether schools are in compliance with the Standards) and the Standards Review Committee (which recommends changes in the Standards to the Council).
All members of the Council and the committees are volunteers. The Section has a rather small professional staff that aids in the processes, but all of the policy decisions are made by the volunteers. No more than half of the members of the Council and each major committee can be deans, professors, or other current full time employees of law schools. The remaining members are judges, lawyers, and at least one public (i.e., nonlawyer) member (it is not uncommon, though, for some of these members to be former professors). Contrary to what one often hears, the legal academics involved represent a diverse range of law schools, although deans and faculty from the most elite handful of schools infrequently participate. The vast majority of the Section volunteers I have worked with or observed are sincere and conscientious, although often very conservative in thinking about change.
The Standards are intended to identify minimum requirements necessary to ensure a high quality legal education. This is not an easy task. Reasonable people will disagree on which elements of legal education are essential. Almost no individual standard, in isolation, will probably be truly essential. The Standards as a whole should promote excellence in legal education without overly restricting the ability of schools to choose their own appropriate paths. Unfortunately, the Standards go well beyond any reasonable measure of minimum requirements. In doing so, they unfairly limit flexibility and experimentaton.
One problem is that the Standards are too law faculty-centric. They reflect too much of what deans and professors think legal education should be, rather than what is truly necessary to ensure quality. To some extent, this is probably an inevitable consequence of self-regulation. However, the Standards are more protective of faculty prerogatives than the rules of any other accreditor.
For example, the Standards require that full time faculty teach substantially all of the first-year curriculum and a "major portion" of the entire curriculum. Although the language of the rules is murky, there is an expectation that a large percentage of the faculty will be on tenure-track or have long term contracts. Every school must have a scholarly mission and devote resources to that undertaking. To give you one of my favorite examples, when I was on the Standards Review Committee, I was thoroughly rebuffed in my effort to have removed from a draft standard a requirement that each full time faculty member have an individual office. Office sharing exists throughout the economy today. Do law professors really have a right to insist on an individual office as a precondition for a school's existence?
Please don't misunderstand me. I am not in favor of "abolishing" tenure and I believe that legal scholarship has great value - even if Chief Justic Roberts doesn't think so (I also think that individual faculty offices are a good idea). But I think it takes a great deal of self-interest and rationalization to conclude that only a school following this model can provide an adequate legal education.
Similarly, the Standards are overly specific about certain aspects of legal education instruction. Each student must receive at least 58,000 minutes of instruction, of which 45,000 must be classroom-based (although time spent in a law school clinic counts). Distance learning is currently limited to 12 credit hours. Full time students may not work more than 20 hours per week in outside jobs (although there are no limits on part time students).
Some of these requirements are just silly (schools must require regular and punctual attendance). The limits on field placements and externships is serious. Why is a school prohibited from making much greater use of properly supervised experiential learning outside of the classroom?
I am not advocating complete deregulation by any means. The ABA should insist on rigorous instruction and successful outcomes. But the basic regulatory structure should take a much lighter touch. Each standard or group of standards should be examined to determine if change or deletion would have a seriously negative impact on the core educational mission of law schools. This could lead to much less expensive, but still high quality, legal education options. As an example, Dean Roger Dennis has examined what a $20,000 tuition private law school might look like. I should also add that although the ABA Standards should take a minimalistic approach, there is nothing wrong with a membership organization like the AALS having more rigorous requirements.
After six years on the Standards Review Committee, I recognize than my views on many of these questions are in the minority of those involved in law school accreditation. I would prefer to see more reform-minded membership on the Council and Standards Review Committee. Perhaps the climate will change, or perhaps outside forces such as the Department of Education or the state Supreme Courts will force the Section to liberalize the Standards.
Another path to reform might be drawn from the charter school movement. Charter schools receive significant relief from regulatory rules in exchange for being closely evaluated based upon a set of agreed-upon goals. The ABA Standards have an infrequently used (and nontransparent) variance mechanism. The Section should consider allowing a small number of existing or newly created schools to propose a detailed plan for operating a quality law school without being governed by many of the more onerous Standards. The success or failure of these schools could be monitored and studied, and sensible reforms to the Standards could emerge.