Recently, the ABA has been sued by Western Michigan University Thomas Cooley School of Law, and two InfiLaw schools: Florida Coastal School of Law and the defunct Charlotte School of Law. In addition, the ABA was named as a co-defendant along with InfiLaw and Charlotte School of Law in an amended complaint filed in a fraud lawsuit by a former Charlotte law professor and a Charlotte law student. These lawsuits allege that the ABA has failed in its duties as a law school accrediting agency in a variety of ways.
In this (very long) article, I will attempt to make sense of the various allegations made against the ABA in these lawsuits. In order to understand the lawsuits, it is important first to have some historical context regarding enrollment trends and the recent history of the ABA’s approach to law school accreditation, particularly with respect to its enforcement of Admissions Standard 501 of the ABA Standards and Rules of Procedure for Approval of Law Schools.
After peaking in 2010, law schools nationwide experienced a huge downturn in applications starting in 2011, a trend which continued unabated through 2015 before leveling off in 2016. The number of applicants went from 87,900 in 2010 to 54,500 in 2015, a decline of 38%. This huge decline in applications forced many schools to either shrink their incoming classes, or lower their admissions standards, or some combination of the two. Most law schools did both. As a result, although law school applicants decreased 38%, first-year enrollment only dropped from 52,500 to 38,000, about 27.5%. At many law schools at the bottom end of the prestige/selectivity spectrum, often referred to as fourth-tier schools (roughly the bottom 50 of the 200 or so of ABA-Accredited law schools), admissions standards dropped to historically low levels. In 2010, 69% of all applicants were admitted to at least one ABA-accredited law school. By 2015, 78% of all applicants were admitted to at least one school, and the least selective schools were admitting nearly 90% of applicants. Not only were there fewer applicants, but the overall quality of applicants declined during this time as law school became an increasingly less attractive option for the best and brightest college graduates. The bottom line is that law schools were admitting students with entrance credentials (LSAT scores and GPAs) at lower levels than had ever been admitted before. The least selective law schools were admitting students with such low indicators that there was little reason to believe that they would succeed.
By 2013, it had become clear to many observers that several bottom tier law schools were engaged in predatory, exploitative admissions practices, admitting large numbers of extremely poorly qualified students with no apparent aptitude for the study of law, in direct contravention of ABA Standard 501(b)’s mandate that “A law school shall only admit applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar.” Predictably, as the weaker cohorts of students started graduating, bar passage rates started to plummet nationwide in 2014 and 2015. Undeterred, many bottom-tier law schools continued to admit weaker and weaker students during these years. Initially, the ABA turned a blind eye to these blatant violations of 501(b). Indeed, between 2011 and the end of the 2015-16 school year, the ABA approved (accredited) several new law schools (full approval to UC Irvine, Elon, Charlotte, Charleston, Drexel, UMass Dartmouth, and LaVerne, and provisional approval to Lincoln Memorial, Concordia , Belmont and Indiana Tech). This influx of new schools placed further competitive pressure on many existing law schools to lower their standards even further to stay in business, yet the ABA took no action against any law school for improper admissions practices during this period.
Despite repeated disaster warnings and frequent calls by many critics, myself included, for the ABA to enforce Standard 501(b) and put a stop to the exploitation of extremely high-risk students, the ABA utterly failed to do anything about this glaring problem for over 5 years, at least arguably failing in its basic obligation as an accrediting agency. This failure has led directly to the recent spate of litigation. But before delving into the lawsuits, I want to address an important question: Why did the ABA fail to act for so long? There are at least three possible explanations.
Regulatory Capture: One theory about why the ABA failed to hold schools with questionable admission practices accountable from 2011-15 was that were many representatives of lower-tier law schools who were currently or who had previously been involved with the ABA Council and the ABA Accreditation Committee; the assumption is that these persons were reluctant to look too closely into the practices of similarly situated schools, and took steps to ensure that the Standards were not enforced or interpreted in a way that would harm the interests of the schools they were affiliated with and peer schools. For example, Jay Conison, who was previously Dean at Valparaiso and was later Dean at Charlotte, was on the Accreditation Committee for several years while serving as Dean. And Dennis Archer, a former Chair of the ABA Council, and later Chair of the ABA’s Task Force on Financing a Legal Education, served during this time as Chairman of the Board at InfiLaw. The professional staff of the ABA for much of this period also had prior associations with bottom-tier schools that theoretically may have made them more sympathetic to such institutions. Barry Currier, the Managing Director of Accreditation and Legal Education, was previously the Dean at Samford, and then Dean at Concord Law School, a California State Accredited School. His Deputy, Bill Adams, was an Associate Dean at Nova Southeastern and then Dean at Western State. (He was briefly my Dean there. We overlapped in 2009-10.) Although I think there may be some validity to this theory, I don’t believe this was the primary cause of the ABA’s inaction.
The Diversity Problem: Perhaps a more compelling explanation has to do with the ABA’s goal of increasing diversity. There is no question that the legal profession has a diversity problem. To address the lack of diversity, the ABA has made diversity a central pillar of the Standards and places great pressure on ABA law schools to admit increasingly diverse classes. The requirement for diversity is embodied in Standard 206(a) which states:
Consistent with sound legal education policy and the Standards,a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.
Standard 206 is indisputably a worthy aspirational ideal. Minority enrollment as a percentage of overall law student enrollment has, in fact, steadily increased in recent years, but the overall percentage of minority lawyers is still low. But increasing diversity in a manner “consistent with sound legal education policy and the Standards” has proven to be extremely challenging, especially for bottom-tier schools, particularly in a time of sharply declining applications. At fourth-tier schools, the goal to have a highly racially and ethnically diverse student body often comes into direct conflict with Standard 501(b) because many of the minority students who might be interested in attending such schools often simply do not “appear capable of satisfactorily completing [their] program of legal education and being admitted to the bar.”
As I have written about extensively, students with LSATs of 144 and below are at extremely high risk of attrition of failing the bar, often repeatedly. Thus, sound legal education policy and compliance with Standard 501(b) would require that law schools admit students with LSAT scores at 144 or below very rarely, if at all. And therein lies the rub, for the mean LSAT score for African Americans is 142, and the mean score for Hispanic LSAT takers is 146. Therefore, setting a LSAT cutoff of 145, or even 144 or 143, would exclude over half of all African American LSAT takers, while also eliminating between a third to nearly half of the Hispanic applicant pool. (For comparison purposes, Caucasians and Asians both have a mean LSAT of about 152, so a far smaller percentage of Caucasians and Asians would be excluded by a sensible LSAT cutoff.) Realistically, setting a firm LSAT-cutoff at an appropriate level would result in classes virtually devoid of African-American students, and with very few Hispanic students, at many bottom-tier law schools. This is a result that nobody wants. In fact, many of these schools have a mission to serve historically underrepresented groups. But the reality is that in the highly competitive world of law school admissions, students from underrepresented minority groups with LSATs at 145 or above can attain admission, and in many cases, significant scholarships, from more prestigious schools. Since such schools offer far better employment prospects than fourth-tier schools, it is usually an easy decision for the minority applicant to attend the higher-ranked school. In order to maintain a highly diverse student body (and, in some cases, to maintain profitability and/or just stay in business), law schools at the bottom of the pecking order have, for several years, been admitting large numbers of very poorly qualified minority students. This has led, predictably, to extremely high attrition rates and bar failure rates for minority students, typically much higher than for their Caucasian and Asian classmates.
The ABA has known about this problem for years, but it seems that nobody at the ABA is willing to candidly address the issue, because it is clear that tightening admission standards would have the undesirable result of decreased diversity. Another complicating factor was the fact that several of the law schools with the lowest entrance credentials were at Historically Black Colleges and Universities (HBCUs). Enforcing Standard 501(b) consistently would require that some of these schools be sanctioned. Lumping HBCUs together with for-profit and proprietary schools like the InfiLaw schools Thomas Jefferson, and Thomas Cooley, was a politically fraught and highly unsavory prospect for the ABA. Instead, the ABA chose to turn a blind eye for many years to all schools which were quite clearly admitting huge numbers of unqualified students, so long as these schools admitted very diverse classes. Indeed, the ABA arguably helped to perpetuate admission practices that exploited vulnerable minority students by specifically cautioning against overreliance on LSAT scores and advising against LSAT cutoffs. Appendix 2 to the ABA Standards states “Cut-off LSAT scores (those below which no applicants will be considered) are strongly discouraged.” This document continues: “Significantly, cut-off scores may have a greater adverse impact upon applicants from minority groups than upon the general applicant population.” While this is undoubtedly true, the converse is also true. Failure to utilize reasonable cut-off LSAT scores also has a greater adverse impact upon applicants from minority groups than upon the general applicant population because of the very significant costs and other adverse affects of failure that are disproportionately experienced by minority students. But protecting minority consumers was not a priority of the ABA during this era. Interestingly, after being found out of compliance with 501(b), at least three schools have announced an intent to use LSAT cutoffs (Appalachian, North Carolina Central, and Florida Coastal). These schools selected their cutoffs based on data which showed a significant increase in attrition and bar failure for students with LSAT scores below the cutoff score. NCCU, an HBCU, set its cutoff at 142, which is the median LSAT score for African-Americans. The ABA seems to have come to the realization that LSAT cutoffs are not inappropriate and should not be discouraged, at least at bottom-tier schools, because they are arguably the best way to prevent exploitation of unqualified students. But during the period 2011-2016, the ABA was sending a very different message, namely, so long as your law school admits a highly diverse class, we won’t look too closely at the entrance credentials of the students you admit.
Focus on Outputs, Rather Than Inputs: Another explanation for the ABA’s failure to act to curb exploitative admission from 2011 to 2016 was the ABA’s focus on outputs, namely bar passage, rather than inputs like LSAT scores and grades. During this timeframe, ABA accreditors paid very little attention to the credentials of admitted students, focusing instead on bar passage rates. The working assumption seemed to be that if a school had a decent bar passage rate at the back end, then it must also have acceptable admissions practices at the front end. Furthermore, bar passage rates were easily quantifiable and there was an objective formula for determining compliance with Standard 316 (even if it was ineffectual and ridden with loopholes), whereas Standard 501 was vague and open to interpretation. While this output- focused approach was arguably reasonable during a period of stable or rising admissions, it was highly problematic in an era of declining applications and falling admission standards. A law school could have a perfectly decent bar pass rate in 2013 because the students admitted in 2010 were reasonably talented. Yet at many law schools, admission standards fell steadily during the three years those students were in law school, so that the entering class of 2013 was of an entirely different caliber from the class that just took the bar. Thus, a school’s bar pass rate in 2013 or 2014 bar told us nothing about the quality of the class admitted in the Fall of 2013 or 2014. Exacerbating the problem with relying on bar passage rates as a proxy for the quality of the student body was the unreasonably long reporting periods for bar passage which were in use by the ABA at the time. Schools were not required to report bar passage date for a calendar year until the fall of the following year. The slow reporting requirements meant that the most recently available bar passage data for a law school at any given time was usually from the class admitted five years earlier. Understanding that the ABA was more focused on bar passage than admissions, law schools recognized that they had an extended window of opportunity to engage in highly dubious admissions practices with little likelihood of consequences; and several took full advantage of it. These law schools recognized that they could admit four or five extremely weak classes before their unethical admissions policies would even begin to be reflected in their published bar pass rates. This delayed impact of their dubious admission practices gave these schools the opportunity to collect tuition from thousands of unqualified students over a period of several years. For these reasons, I and others urged the ABA to decouple bar passage and admissions and start focusing on inputs to determine compliance with 316, rather than rely on bar exam results that were measuring students admitted years earlier. (See, e.g., here.) The ABA eventually accepted this wisdom, which led to the addition of the following language to Interpretation 501-1 in the 2017-18 Standards “Compliance with Standard 316 is not alone sufficient to comply with the Standard.”
Another problem with relying on bar passage rates as a proxy for admissions policies is that schools could admit more and more unqualified students each year and still maintain decent bar pass rates by simply flunking out more students. The ABA eventually responded to this concern by adopting a rebuttable presumption that an attrition rate greater than 20% was a violation of Standard 501. (See Interpretation 501-3: “A law school having a cumulative non-transfer attrition rate above 20 percent for a class creates a rebuttable presumption that the law school is not in compliance with the Standard.”) The ABA has now found multiple law schools out of compliance with Standard 501, at least in part because of high attrition rates.
2016: The ABA Gets Tough
Although some combination of the factors discussed above prevented the ABA from acting against exploitative admissions practices, eventually the ABA recognized that it could no longer ignore the problem. In 2014 and 2015, bar exam pass rates plummeted. Despite creative claims to the contrary, this was unquestionably primarily as a result of less capable students being admitted in 2011 and 2012. There was a public uproar over these atrocious bar exam results. Meanwhile, law school tuition was rapidly rising while the legal job market was contracting, leading to huge numbers of unemployed recent graduates with enormous student debt burdens. This combination of factors, informed by criticism from law professors like Paul Campos and Brian Tamanaha, and advocacy groups like Law School Transparency, led to a widespread sense that the ABA was not doing an adequate job as an accrediting agency, and increasing pressure to do something. This pressure came to a head in June 2016, when the ABA was threatened with suspension of its accreditation authority from the DOE’s National Advisory Committee on Institutional Quality and Integrity, finally forcing the ABA to act.
The ABA’s first enforcement actions on the basis of admissions policies commenced in the summer of 2016, when the ABA directed Ave Maria Law School to take Specific Remedial Actions to correct its admissions policies. Ave Maria’s LSAT profile for its admitted students had dropped to an unconscionably low 148/143/139 for the entering class of 2014, although it had rebounded significantly in 2015 to 153/148/142. The ABA’s decision was made at the June 2016 meeting, but was not announced until August 2016 -- too late to have any influence on admissions decisions at any other law schools for the fall 2016 entering class. The ABA then publicly censured Valparaiso in October 2016 for its lax admission standards. Valparaiso’s low-ebb had occurred in 2013 when its LSAT scores were 148/143/141, and had a median LSAT of 145 in 2014 and 2015. At the same October 2016 meeting, Charlotte School of Law was placed on probation, in large part for violation of Standard 501 on Admissions. Charlotte’s admission standards had hit bottom in 2014, when it admitted a class with LSAT scores of 146/142/138, but it had continued to accept extremely weak students in 2015 and 2016. Their median LSAT for 2016 was 144. From the actions against these three schools the ABA started to make the vague Standard 501(b) a little clearer. At the very least, it became clear that a median LSAT of 143-145 was unacceptable.
Yet, despite this clear warning, there were still several ABA law schools that admitted classes with a median LSAT at 145 or below in 2017: Thomas Cooley at 142, Texas Southern and Appalachian at 143, Thomas Jefferson and Southern at 144, and Charleston and N.C. Central at 145. These schools were the obvious next targets for ABA action, and several of these schools have received accreditation notices. Texas Southern was found out of compliance with Standard 501 in June 2017 and directed to take remedial measures. Appalachian was found out of compliance with Standard 501 in April 2017, notified in May 2017, and directed to take remedial actions regarding Standard 501 in December 2017. Thomas Jefferson was found out of compliance by the ABA in May 2017 with Standard 501, but this did not become public until November 2017, at which time Thomas Jefferson was placed on probation. At the same meeting in November 2017, Thomas Cooley Law school (median LSAT 142) was also found out of compliance with Standard 501.
Florida Coastal School of Law was found out of compliance with Standard 501(b) in October 2017 and directed to submit a report and appear before the Committee in March 2018. Florida Coastal’s median LSAT had dropped to a low of 143 in 2014, and was at 144 for 2015 and 2016, but the school had announced a plan to substantially increase its admissions standards in the Fall of 2016 and there were already signs of progress at the time the ABA gave notice to the school.
In December 2017, North Carolina Central was found out of compliance with Standard 501(b). NC Central had its lowest median LSAT of 144 in 2016, and was not much better in 2017 with a 145 median.
Based on these actions, the ABA seemed, for the most part, to be enforcing Standard 501 consistently and logically, starting with the very worst offenders (those with median LSATs of 142 and 143), and gradually moving up from the bottom to take action against those with median LSATs of 144 and 145, and even 146. John Marshall Atlanta, with a 2017 median of 146, and a high attrition rate, was also found out of compliance with 501(b) in October 2017. (This decision will be reviewed at the June 2018 meeting.) Although the schools that were chosen for enforcement actions seemed by and large to be logical choices, there were some notable omissions. In particular, Southern Law School, with a median between 143 and 145 from 2013-2017, seemed to be an obvious target for ABA action under Standard 501(b); yet, so far, Southern has avoided the ABA’s wrath. Charleston, with a 145 median LSAT in 2016 and 2017 (after a 145 in 2015), and terrible recent bar results, is the other logical candidate for accreditation action.
Then, in March 2018, things got weird. At the March meeting, the ABA took action against three schools: Florida Coastal, Golden Gate, and Lincoln Memorial University Duncan School of Law. Golden Gate had a median LSAT of 149 for 2016 and 148 for 2017. Lincoln Memorial University Duncan School of Law had a 2016 and 2017 median of 148. Since being found out of compliance in October 2017, in December, Florida Coastal announced that it had raised its median to 148 for 2017. In a submission to the ABA, Coastal reported that it had further raised its median for its Spring 2018 entering class to 150. Although these schools seemingly had substantially stricter admissions policies than the schools which had previously been found out of compliance, nevertheless all three schools were found out of compliance with Standard 501(b). (Florida Coastal was also found out of compliance with two other standards, 301(a) and 309(b).) Meanwhile, Thomas Cooley, with a 2017 median of 142, and a 2016 and 2015 median of 141 -- the lowest ever for an ABA-accredited law school (excluding Puerto Rican schools) -- was, shockingly and perplexingly, found to be back in compliance with 501(b).
Reasonable commentators might ask why the least selective law school in the country was found in compliance with the ABA’s admissions standards, when numerous schools with stricter admissions standards were not. The one obvious difference between Thomas Cooley and all the other law schools previously found out of compliance is that Thomas Cooley sued the ABA rather than accept the ABA’s decision. I have speculated that this decision to find Cooley back in compliance was the result of a settlement of a lawsuit by Cooley against the ABA. Neither the ABA nor Thomas Cooley has contradicted my speculation, suggesting that my guess was on the mark. (UPDATE - I WAS APPARENTLY MISTAKEN. THE LAWSUIT CONTINUES. SEE THIS POST ) Whatever the reason for the ABA’s decision, the decision was starkly at odds with all the other accreditation actions made at the March meeting (and over the last two years). The decision thus created the appearance that the ABA was acting arbitrarily and capriciously, practically inviting further litigation over its other accreditation decisions. It didn’t take long for other law schools to take up that invitation.
Current Lawsuits Against the ABA
Florida Coastal School of Law: The first plaintiff to file suit against the ABA, on May 10, 2018, was Florida Coastal. The suit challenges the ABA’s March decision finding Florida Coastal out of compliance with three standards. The complaint alleges a variety of grounds, including the vagueness and subjectivity of the standards in question, and the inconsistency and arbitrariness of the ABA’s enforcement. One odd aspect of the ABA’s March decision is that the ABA found Florida Coastal in compliance with 501(a), which requires that law schools “adopt, publish and adhere to sound admissions policies and practices consistent with the Standards, its mission, and the objectives of its program of legal education” yet found the school out of compliance with 501(b), which requires the school only admit students “who appear capable of satisfactorily completing its program of legal education and being admitted to the bar.” The lawsuit reasonably asks the question how a school could be adhering to "sound admissions policies and practices consistent with the Standards” while violating 501(b). The lawsuit also raises the glaring contradiction between the finding that Cooley was in compliance with 501(b) which was made the same day that Florida Coastal was found out of compliance. And the lawsuit noted the recent significant improvements in admissions standards, which seem to belie the finding that Florida Coastal is admitting students who don’t appear capable.
As I noted in my previous post about this lawsuit, I believe the suit has considerable merit. It seems to me that by finding Florida Coastal out of compliance with 501(b) (which the ABA earlier termed “persistent and substantial”) the ABA is punishing Florida Coastal for its admissions policies from 2013 through 2016 during the era of non-enforcement by the ABA, while the finding that it is in compliance with 501(a) is a recognition that its current admissions policies since Spring 2017 have been reasonable. Had the ABA acted when I repeatedly urged them to, starting back in 2014, sanctions would have been perfectly appropriate. But there is a real question as to the appropriateness of imposing tough remedial measures on a school that has already self-corrected.
Charlotte School of Law: The next school to file suit against the ABA is Florida Coastal’s InfiLaw sister school, Charlotte. Charlotte ceased operating last year after being placed on probation by the ABA in October 2016, then losing its federal funding for student loans from the Department of Education in December 2016. The lawsuit alleges that the ABA violated Charlotte’s due process by placing the school on probation, citing a variety of alleged procedural irregularities. The ABA’s basis for placing Charlotte on probation were repeated findings that Charlotte was in violation of Standard 501 (a and b) and Standard 301(a). Standard 301(a) provides: 21. Standard 301(a) provides: “A law school shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.” A central argument of Charlotte’s complaint is that the law school was in compliance with Standard 316 on bar passage and had a respectable “ultimate bar passage rate.” While these claims may be true, the lawsuit neglects to mention that Charlotte’s first-time pass rate had been steadily dropping for years as a direct result of its dropping admissions standards. In 2015, Charlotte’s first-time pass rate in North Carolina was 45.6%, and in 2016, it dropped further to an estimated 42.6%. After the school was placed on probation, the bar pass rate continued to drop. In 2017, it was under 30% for first-time takers in North Carolina. The lawsuit also fails to mention Charlotte’s horrific attrition numbers.
Overall, I consider this lawsuit to be largely without merit. The ABA’s accreditation decisions against Charlotte were factually well-supported and fully justified. Charlotte was placed on notice in February 2015 that the ABA was concerned about its compliance with Standard 501(a) and 501(b), and chose not to change its predatory admission practices for the Fall of 2015. Charlotte was advised again in February 2016 that its admission practices were not in compliance. Again, Charlotte chose to continue its exploitative admissions practices for the fall of 2016, admitting a class with LSATs of 148/144/141.
Charlotte claims that Standard 501 was vague and the ABA never told them exactly what they needed to do to comply with this standard. While this may be true, it should have been obvious that they needed to substantially raise their admission standards. And there were plenty of people (including me, see here and here) telling them what they needed to do. Charlotte made a conscious choice not to do so and to continue to enroll huge classes with 50% or more extremely high-risk students. In that sense, Charlotte got exactly what it deserved.
But Charlotte does make one valid point in its lawsuit concerning the ABA. The lawsuit notes that Charlotte had a routine ABA site visit in March 2014, and that the inspection team’s report, submitted in September 2014, was largely positive and gave Charlotte no reason to believe that it was failing to meet standards. Given that Charlotte’s admission standards had been steadily plunging since it received full accreditation in 2011, and that Charlotte admitted its weakest class ever in 2014 at the exact time that the ABA site team was conducting its visit and preparing its report, the fact that the ABA apparently gave Charlotte a clean bill of health is deeply troubling. The site team’s failure to fault Charlotte for their egregious admissions practices reflects the ABA’s approach at the time to focus on outputs, not inputs. (Charlotte’s most recent bar passage rate at the time of the ABA visit was just fine.) But from Charlotte’s perspective, the school had been given a green light by the ABA to continue what they were doing, so it was very unfair to turn around and place the school on probation two years later when the school’s practices really hadn’t changed. Although this argument has some superficial appeal, I don’t think that it is ultimately a winning argument. The fact that the ABA failed to properly enforce its standards for a period of time should not preclude the ABA from appropriately enforcing its standards once the agency realized that its former approach was not working.
One interesting question is what InfiLaw hopes to achieve with this lawsuit. The lawsuit seeks damages “for causing Charlotte to cease to operate as a law school” but it seems farfetched that a Court would grant damages against an accrediting agency for doing its job to try to protect consumers. The Charlotte lawsuit also claims that “a judgment declaring that the ABA violated due process in the accreditation process would make it possible for Charlotte to begin the process of attempting to obtain the approvals necessary to resume operating as a law school”. It is hard to conceive of Charlotte reopening, but the lawsuit also mentions that a judgment that Charlotte’s due process rights were violated would “benefit InfiLaw and the other law schools owned by InfiLaw, Arizona Summit and Florida Coastal.” In addition, the lawsuit seeks an injunction against the ABA from enforcing Standards 301(a), 501(a) and (b) and Interpretation 501-1 against any law school. As noted earlier, Florida Coastal has been ordered to take remedial measures for violations of some of these rules. And Arizona Summit has been placed on probation and found in violation of all of these rules. So, an injunction would prevent the ABA from enforcing the sanctions they have already placed on these other InfiLaw schools and prevent further enforcement actions. This may be InfiLaw’s true end-game -- trying to keep their other law schools alive long enough to return them to profitability, or perhaps until they can find a buyer or a University willing to take them over.
Qui Tam - Charlotte
InfiLaw’s lawsuit on behalf of Charlotte against the ABA is not the only lawsuit involving these parties. In an updated fraud lawsuit filed by former Charlotte Professor Barbara Bernier (recently joined by co-Plaintiff Ese Love, a former Charlotte student) originally against Charlotte School of Law and InfiLaw, the ABA was added on May 7, 2018 as a co-defendant, after the private Qui Tam lawsuit was all but dismissed in an opinion by Federal District Court Judge Roy B. Dalton, Jr., here in my hometown of Orlando, Florida, on April 23, 2018.
In an ironic twist, several of my highly critical Faculty Lounge blog posts about InfiLaw and Charlotte were introduced into evidence by InfiLaw in a motion to dismiss the lawsuit and were cited by Judge Dalton as a basis for dismissing several of Professor Bernier’s claims. InfiLaw’s motion to dismiss was not on the basis that the allegations of fraud in the complaint were untrue, but rather that they were old news. The gist of the argument was that the fraudulent conduct allegedly engaged in by Charlotte School of Law and InfiLaw in violation of the False Claims Act had already been publicly disclosed in the news media before the lawsuit was filed, and thus Plaintiff was not a true whistleblower or “original source” of the fraud allegations. Because prior public disclosure acts as a bar to a private qui tam action, they argued, the lawsuit had to be dismissed. In support of this argument, the defendants produced numerous news accounts published between 2012 and 2016, including fourteen articles from periodicals, five “postings on blogs run by law-school faculty”, and five articles from online publishers focused on legal news, as evidence that their scheme to defraud the federal government had already been exposed by the news media long before Professor Bernier’s complaint was filed. Four of the five exhibits from “blogs run by law-school faculty” were posts written by me here on the Faculty Lounge, identified in the suit as Document 53-3, Document 53-5, Document 53-6, and Document 53-17. (The other was by Paul Campos from his Lawyers, Guns & Money blog.) My blog posts were specifically cited as proof that InfiLaw’s fraudulent admissions practices were a matter of public record before the suit was filed. While InfiLaw did not admit that any of the allegations in the news articles they submitted were true, Judge Dalton seemed to accept them as true. Even though his opinion largely eviscerated Professor Bernier’s suit, it is nevertheless a scathing indictment of the actions of InfiLaw and Charlotte School of Law.
In an effort to keep her faltering lawsuit alive, Professor Bernier added the ABA as a defendant, and came up with a new theory -- that the ABA failed to ensure that Charlotte was in full compliance with ABA Standards when granting accreditation and failed to enforce its standards thereafter. I don’t know if Charlotte was in full compliance with ABA standards at the time they received full accreditation in 2011, but at least their admissions practices prior to that time were not problematic. But by 2014, when the ABA came back for a routine sabbatical site visit, there were huge warning signs, especially with respect to admissions practices, that the ABA seemingly missed. Whether this is enough to prove that the ABA “failed to act as a reasonable accreditor” and whether that gives rise to liability to students who relied on Charlotte’s fully accredited status in choosing to attend Charlotte are interesting questions. Count me as dubious that a Court would allow liability to be imposed on the ABA for failing to promptly take action against Charlotte in 2014. As detailed in Charlotte’s lawsuit against the ABA, the ABA started raising concerns about Charlotte’s admissions practices in February 2015, and when Charlotte did not adequately address the ABA’s concerns, the ABA placed Charlotte on probation in the Fall of 2016. According to InfiLaw’s lawsuit, the ABA acted too precipitously. According to this lawsuit, the ABA acted too slowly. My guess is that neither argument will gain much traction and that both these efforts – one to hold the ABA accountable for harming Charlotte School of Law by overly aggressive enforcement and the other to hold the ABA accountable for harming Charlotte students due to under-enforcement -- will fail.
Other law schools that have recently been subject to accreditation actions by the ABA are no doubt watching all of these suits with interest, and may well be contemplating lawsuits of their own. UPDATE - INFILAW SCHOOL ARIZONA SUMMIT HAS NOW FILED SUIT AS WELL. SEE HERE) Even if the lawsuits are ultimately dismissed or settled, through the discovery process, the public could gain some valuable insights into the inner workings of the law school accreditation process. With any luck, these lawsuits will bring about changes to the ABA’s accreditation practices so that the accreditation process is more transparent, consistent and fair for all law schools. In the meantime, it will be interesting to see if the ABA continues to assertively enforce Standard 501(b) by taking action against other schools like Southern and Charleston, or whether instead, the lawsuits cause the ABA to back off. Or maybe, due to the recent Trump Bump in applications, the law schools that have lowered their standards to unconscionable levels in recent years got enough applicants this spring that they have been able to raise their admissions standards back to acceptable levels, and the ABA will be off the hook. Stay tuned.