In March, the ABA Section of Legal Education's Council approved for notice and comment revisions to the ABA Standards 316 and 501 related to stricter bar passage rate requirements, admissions and attrition. Here are the key provisions:
Standard 316. BAR PASSAGE
At least 75 percent of a law school’s graduates in a calendar year who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.
Standard 501. ADMISSION
(a) A law school shall adopt, publish, and adhere to sound admission policies and practices consistent with the Standards, its mission, and the objectives of its program of legal education.
(b) A law school shall admit only applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar.
Interpretation 501-3. ATTRITION
A law school having a non-transfer attrition rate above 20% percent bears the burden of demonstrating that it is in compliance with the Standard.
(For those wanting more detail, a marked up copy of the Standards (showing a comparison of the old rule and the proposed new rule) and the comments submitted regarding the proposal are available here.) Several thoughtful comments have been submitted related to these proposed standards, but this post is devoted to a comment submitted by Don LeDuc, the President and Dean of the Western Michigan University Cooley Law School. Mr. LeDuc has written to express his vociferous opposition to the proposed changes to ABA Standard 501 and 316.
It should not be at all surprising that Mr. LeDuc opposes any tightening of the rules regarding admissions given that he presides over the law school that admitted the statistically weakest law school entering class in history in 2015. What is surprising are his outlandish claims that it is an “unproven assertion” that bar results are tied to admission factors, and it is a “flawed premise” “that factors involved in law school admission decisions can be used to predict bar examination success.”
If the low LSAT scores of Cooley's admitted students do not explain Cooley's bar results, then that would tend to suggest that Cooley is simply providing a lousy legal education. While that may or may not be the case, I am fairly sure that is not the message that Mr. LeDuc was hoping to convey to the ABA. It seems that in his desperation to prevent these new standards from taking effect, he is willing to make almost any argument. Mr. LeDuc surely understands that if the ABA actually closely scrutinizes Cooley’s admissions practices, as the new language in Standard 316 suggests that they might, Mr. LeDuc will be extremely hard-pressed to justify them.
Mr. LeDuc devotes considerable attention in his comment to explaining why the LSAT should not be relied upon in admissions. This is highly ironic given Mr. LeDuc’s prior explanations of Cooley’s admission practices. Mr. LeDuc was interviewed for a January 2015 article in Inside Higher Ed about dropping admissions standards at law schools. In his interview, he explained to the author that “Cooley uses a predictive model to tell all students their chances of success based on their GPA and LSAT. The school doesn’t admit anyone with less than a two-thirds chance of succeeding.” Ironically, the article actually praised Cooley for not lowering its admissions standards despite financial pressures to do so. Yet, at the very time that Mr. LeDuc accepted praise for maintaining standards at Cooley, especially holding its median LSAT at 145, Cooley was in the process of dramatically lowering those standards for the incoming class of 2015, to unprecedentedly low levels, allowing its median to drop from 145 to 141.
Thomas Cooley’s entering class profiles from ABA Standard 509 reports
GPA/LSAT 75th 5oth 25th # of students
2014 3.28/149 2.90/145 2.53/141 445
2015 3.19/147 2.85/141 2.51/138 448
I would be very interested in seeing Cooley’s data that supports the conclusion that a student with a 2.51 UGPA or lower or a 138 LSAT or lower has a reasonable likelihood of succeeding in law school and on the bar, much less a two-thirds chance of success. The ABA should also be very interested in the data.
It also should not be surprising that Mr. LeDuc opposes any tightening to the bar passage standard. Based on recent bar results, and the declining entrance credentials of recently admitted students (notwithstanding Mr. LeDuc's claim that there is no correlation between entrance credentials and bar passage rates), there is a good chance that Cooley will not be able to make the new proposed standard of a 75% pass rate within two years of graduation, taking into account all graduates who take a bar exam.
Law School Transparency estimates that any law school with a 60% first-time bar pass rate or higher will very likely meet the new standard of 75% within two years. Schools just below 60% might still make it, but schools well below 60% would be at considerable risk of not meeting the standard, and schools below 50% likely would not make it. An analysis of Cooley’s recent bar results reveals why Mr. LeDuc is panicking. According to Cooley’s ABA Standard 509 report, in 2012, Cooley had an average school pass rate for first time takers of 55.30%. This was based on reporting from only 698 students out of 966 first time takers. In 2013, Cooley’s average school pass rate dropped to 51.45%, based on reporting from 716 of Cooley’s 1062 first-time takers. In 2014, Cooley’s reported that its average pass rate was up slightly to 52.73% based on reporting from 584 of 822 takers (71% reporting). But the overall rate could very well have been lower. Cooley omitted its California results, for example, where Cooley students passed at a rate of just under 18% (5/28).
While Cooley has not yet publicly reported its 2015 results due to the ridiculously long lag-time that the ABA currently allows for bar result reporting, it appears very likely that their overall bar results for 2015 will remain in the low 50s or worse. The majority of Cooley’s graduates take the Michigan bar. Michigan has released results from 2015 and Cooley’s first time pass rate was 58.8% (194/330), 2.7% lower than Cooley reported for 2014. Cooley grads tend to do much worse outside Michigan. In fact, for each of the last five years, Cooley’s grads have done worse in every other jurisdiction from which Cooley has reported results. If California is any indication, Cooley students fared worse in 2015 in other jurisdictions as well. Mr. LeDuc can only hope that he will able to exclude the California results again from Cooley’s 2015 calculations; Cooley grads went 0 for 10 in February in California, and 0 for 8 in July, providing an unusual example where repeaters did better than first time takers, as 6 of 69 (8.7%) Cooley repeaters passed the California bar on these two administrations.
It is not at all clear that Cooley is currently in compliance with ABA Standard 316. If they are, it is only because Cooley is taking full advantage of the standard’s loopholes. An analysis of Cooley’s Michigan results demonstrates the ineffectiveness of the current standard.
In Michigan in 2015, the state average for first time takers (February and July bars combined) was 71.8% (667 of 929). Cooley’s rate was 58.8% (194 of 330), a very poor result, but within 15% of the state average (-13%), so therefore in compliance with the current Standard 316 (if 70% of Cooley grads that took a bar took the Michigan bar). But Cooley is only able to be within compliance in this hypothetical because of one of the loopholes in Standard 316, namely, that a law school, especially a large law school, can benefit from the poor performance of its own students. Cooley’s graduating classes are so large that they distort the bar pass statistics for the whole state. If we remove Cooley’s students from the equation, the first-time pass rate in Michigan in 2015 was 79% (473 of 599), 20% higher than Cooley’s first-time pass rate. A similar analysis can be applied to Michigan in 2014, where the statewide rate was 73.2% (843/1151) and Cooley’s rate was 61.1% (259/424) (-12.1%). Graduates from all law schools other than Cooley passed at above 80% (584/727 or 80.3%). Again Cooley benefited by lowering the statewide average by over 7%.
The new proposed Standard 316 would eliminate the “within 15% of the state average” alternative test, which enables schools to lower their admission standards so long as other law schools are also dropping standards more or less commensurately. By setting a uniform standard for all schools, the loophole by which a large school can skew the statewide results to its own benefit will also be eliminated.
Also, not surprisingly, given Cooley’s very high level of non-transfer (academic and other) attrition, Mr. LeDuc opposes placing the burden on a law school to justify greater than 20% non-transfer attrition. Although difficult to calculate based on the way the numbers are currently reported, it looks like Cooley’s non-transfer attrition rate was at or near 20% for the most recent year, as reflected in their 2015 Standard 509 report, if first and second year attrition are combined.
While most of Mr. LeDuc’s comments cover well-trodden, easily rebuttable ground, he does have one good pro-consumer idea buried in his missive. He states:
the Council should adopt as Interpretation 501-3 language that requires each school to develop admissions policies that are based on the academic outcomes of their past students, using either the LSAC correlation formula or a similar formula involving regression analysis. Schools should then be required to inform each student they admit of their potential likelihood of success, based on the performance of similarly credentialed students.
I too have called for law schools to be required to inform law schools of their chances for success based on the past performance of similarly credentialed students at that school. The difference is that this is all that Mr. LeDuc thinks law school should have to do. According to him, “We should treat law school applicants as capable of making their own decisions.” This caveat emptor argument is essentially an argument for no admissions standards at all (which is pretty close to what Cooley has right now -- in 2015, Cooley admitted 88% of applicants), as long as there is disclosure. While there may be a place for a law school that will admit virtually anyone willing to pay for a chance to become a lawyer, I don't believe that such a school should receive the taxpayer supported benefits afforded to ABA-Accredited law schools. ABA-Accredited law schools have an obligation to set reasonable admission standards to screen out applicants with minimal chances of success and that is all that the new 316 and 501 will accomplish. If Cooley truly limited admission to those who they legitimately calculated had a 66.7% chance of earning a J.D. and passing the bar, then Cooley would have no reason to fear these proposed new standards. But Cooley’s recent bar results and attrition rates suggests that if Mr. LeDuc is truly admitting only students that he believes have a 2/3 chance of success, he is either wildly optimistic, or his data is flawed.
Law School Transparency, the organization which I serve as the Chair of the National Advisory Council, has submitted a comment providing well-reasoned support for the modest reforms proposed by the ABA. The strident but utterly specious defense of the status quo by the Dean and President of the least selective ABA-Accredited law school in the country -- a school with unconscionable admission practices which has generated tens of millions of dollars in revenue from federal student loans taken out by hundreds of unqualified students, leaving many of them saddled with six figure debts and worthless degrees -- provides perhaps an even more compelling argument for supporting the proposed reforms.