I follow law school news pretty closely, especially when it comes to ABA actions with respect to bottom-feeder law schools, so it came as a great surprise to me learn from the TaxProf Blog this week that the ABA sent letters of noncompliance to Thomas Jefferson School of Law and Appalachian School of Law back on May 19, 2017. The letters state that the Accreditation Committee “concluded that the Law School is not in compliance with the following standards” and then listed Standard 301(a) (rigorous program of legal education that prepares students for admission to the bar), 501(a) and 501(b) (maintain sound admissions policies, don’t admit applicants who do not appear capable of completing law school and passing the bar) for both schools. In addition, Appalachian was cited for non-compliance with 502(d) (failing to maintain copies of admitted students official transcripts), and Thomas Jefferson was cited for noncompliance with 202 (a) and (b) for lack of sufficient financial resources and 309(b) for inadequate academic support.
Thomas Jefferson’s class of 2016 had a woeful 147/143/141 and 3.15/2.89/2.61 LSAT and UGPA profile and has had a sub 50% first-time bar pass rate in California continuously since 2013, including 31% on the July 2016 California bar, and 24% on the February 2017 bar.
Appalachian’s entering class credentials in 2016 were even more dismal, 147/143/140 and 3.10/2.79/2.60. Appalachian has had the lowest bar pass rate of Virginia’s eight law schools for several years. Their first-time pass rate on the Virginia bar pass rate in July 2013 was 59%, July 2014 – 40%, July 2015 – 63% and July 2016 - 33.33%, dead last each time. Their first-time pass rate improved dramatically on this summer’s Virginia bar to 76.92% - after the ABA letter was sent - but the numbers were so small (10 of 13 passed) that this achievement is unlikely to get the ABA off the school’s back.
Thus, the fact that the letters were sent, or that these schools were found to be non-compliant with standards is not surprising. In fact, I noted that these schools were out of compliance with ABA standards and specifically recommended that the ABA take action at Thomas Jefferson well before these letters were sent out. (See here and here.) Rather, what is surprising is that over five months have passed since the letters were sent and we are just learning about them now, thanks to Paul Caron. The letters state that they will be posted on the ABA’s website, and they are there, but they are not readily found. I could find no reference or link to either letter on the ABA Section of Legal Education and Admissions to the Bar website where the other Council’s actions are publicized.
For their part, Appalachian and Thomas Jefferson were apparently perfectly happy to keep the letters secret. I can find no evidence that either of these law schools publicly disclosed that they had received such a letter. (If any readers are aware of evidence to the contrary, please so indicate in the comments or let me know.) A Google search does not find a single reference to these letters or any finding of non-compliance by the ABA with respect to these schools before the last couple of days, and the letters are not mentioned on the school’s websites, which indicate that the schools are fully accredited by the ABA. In contrast, very similar letters of noncompliance sent to Florida Coastal School of Law and John Marshall Law School (Atlanta) on October 12, 2017, were immediately shared with the schools’ students. So, credit is due to FCSL’s Dean Scott DeVito and JM’s Dean Malcolm Morris for prompt disclosure. (Of course, for students in their IL year, or 2Ls who decided not to transfer over the summer, October is just about the worst time to find out that their law school is in deep trouble with the ABA, but the timing of the letter was out of the school’s control.)
I believe all law schools have a duty to notify students, current and prospective, that the school had been found in non-compliance. Clearly, the existence of the ABA's findings would have been a highly relevant consideration back in May for an admitted student considering matriculating at Thomas Jefferson or Appalachian this fall. Similarly, this information would have been an important piece of information for a current TJSL or Appalachian student trying to decide whether to transfer to another law school after their first year (or a Whittier 1L considering transferring to TJSL). Indeed, there is a strong argument to be made that failure to notify current and admitted students is a breach of the fiduciary duty owed to the students under Department of Education federal loan program guidelines. When the DOE pulled federal funding from Charlotte School of Law, the department stated that law schools have a fiduciary duty to inform current and prospective students of any relevant information that may affect the accreditation status of the school. A letter from the accrediting agency stating that the law school has been found to be out of compliance with core quality standards would seem to fall into that category, as such letters have historically been sent as a precursor to placing a law school on probation, and the ABA has repeatedly and recently placed other law schools on probation for noncompliance with the same standards. Even if there was no strict legal duty to report, I believe there was a moral duty. As an advocate for transparency in law school admissions and legal education more generally (I serve as the Chair of Law School Transparency’s National Advisory Council), I believe there is an ethical obligation to keep current and prospective students informed about facts that could have a significant impact on them. Even if the school’s accreditation status is not in immediate jeopardy, a letter of non-compliance with basic standards clearly affects the reputation of the law school, which, in turn, impacts the career prospects of the school’s graduates.
The ABA should amend its own standards to include a requirement that a school found out of compliance with standards must promptly inform current and prospective students. Until such a standard is adopted, law schools should voluntarily disclose. If a law school finds out in the spring or summer (or fall for schools with a spring start option) that they have been found out of compliance, the school should voluntarily offer to return seat or tuition deposits to admitted students that choose not to matriculate. Instead of choosing the ethical path of full disclosure, it seems that these law schools decided to adopt a strategy of trying to keep these findings secret, perhaps in hopes of convincing the ABA that their findings were inaccurate or that the school had voluntarily corrected its past deficiencies, or just to buy time. Although disappointing, it is perhaps not surprising that law schools which have engaged in unethical admission practices by admitting students with little or no prospects of success would also choose not to notify their students that the school had been found out of compliance with ABA Standards. The strategy seems to have paid off, at least for Appalachian, which has reported a significant increase in enrollment this fall, from 38 entering students last year to 69 this fall. How many of these 69 students would have gone elsewhere or perhaps not enrolled in law school at all, if Appalachian had timely informed them of the ABA's findings? (I have not been able to find any information about TJSL’s fall 2017 entering class, but TJSL likely benefitted from the closure of its close competitor Whittier Law School. If any readers have any information, please share it.) Of course, it is entirely possible that if Thomas Jefferson or Appalachian had shared the letter from the ABA with current and prospective students back in May, that the schools might have experienced an exodus of current students and that some admitted students might have opted out. This would have further exacerbated the schools’ perilous financial circumstances and might even have forced the schools to consider closure. But the possibility that an already struggling law school might fail is an insufficient reason to allow that school to keep critically important consumer information from its customers.
This is the latest example of law schools placing the interests of its employees above those of its students. Law schools must model ethical behavior to the future legal professionals that they are trying to educate. Appalachian and Thomas Jefferson school have failed miserably to do so. Shame on them.