I was wrong. WMU Thomas Cooley School of Law and the ABA haven’t settled their lawsuit after all. After I wrote the column on April 28 speculating that they had, there was no action in the lawsuit for a couple of weeks, so it seemed like the parties might be biding their time waiting to inform the Court that they had reached a settlement. But today, I went onto Pacer and found that both parties are still actively litigating, with a recent flurry of motions and replies and responses. In fact, Cooley filed a response to the ABA’s motion for summary judgment yesterday, and it’s a doozy.
Not only was the ABA’s decision to find Cooley in compliance not part of a settlement agreement, but the decision has complicated the lawsuit and may very well end up coming back to haunt the ABA as Cooley’s lawyers have very effectively incorporated the ABA’s decision into their litigation strategy. Recall that the basis of Cooley’s lawsuit is their claim that the ABA’s finding that Cooley was violating Standard 501(b) by admitting students who do not “appear capable” was arbitrary and capricious. There were several prongs to this argument, including that the ABA refused to tell Cooley what this Standard means or what the school would have to do to come into compliance with it, and the ABA’s inconsistent application of this Standard. In Cooley’s response to the Summary Judgment Motion, Cooley builds on this argument by pointing out the ABA’s inconsistency in applying this Standard not only against law schools generally, but against Cooley specifically. Cooley basically argues that their admitted student credentials haven’t changed much over the last three years, which is true (they’ve been horrifyingly low throughout this period). That being the case, Cooley asks a reasonable question: Why did the ABA reaccredit us in December 2015, finding us fully in compliance with all standards, then, in May 2016, subject us to interim monitoring, then in November 2017, with no real changes to our admissions standards, find that we are out of compliance with Standard 501(b), and then a few months later, in March 2018, again, with no real changes to our admissions standards, find us in compliance with Standard 501(b)?
As the brief notes:
The November 2017 Letter concluded that WMU-Cooley was out of compliance with 501(b). Based on substantially the same bar exam and matriculant data, in its April 2018 Letter, the ABA concluded WMU-Cooley was in compliance with 501(b). As it did in May of 2016, the ABA changed its position about WMU Cooley’s compliance wit h 501(b) without explanation or rationale.
Cooley’s frames the legal issue in their brief this way:
Is the ABA’s enforcement of subpart (b) of Standard 501 arbitrary and capricious as it has twice reached opposite conclusions about WMU-Cooley’s compliance with the subpart based on substantially similar available data?
Another question that Cooley raises is identical to an issue raised by Florida Coastal in its recent lawsuit. Cooley asks how the school should be in compliance with Standard 501(a), requiring adherence to “sound admissions policies and practices”, if the School is admitting students who don’t appear capable of earning a law degree and passing the bar? Again, this is a very good question that I’m not sure the ABA can convincingly answer.
The root of the ABA’s problem is their complete lack of enforcement of Admission Standard 501(b) from 2011 to 2015, as I described in my recent post. The ABA never should have reaccredited Cooley in 2015 given that Cooley’s entering class of 2015 was arguably the least qualified entering law school class in the history of American legal education. But, at that time, Cooley’s bar pass rates were not yet in the toilet, because they were still reporting on the entering class of 2010 and 2011, and because Cooley was able to hide their true bar passage rates by not including their results in California and other states where their graduates fared poorly. This was completely allowable under then existing ABA reporting requirements, but was misleading nevertheless.
Having realized that their non-enforcement of Admissions Standard 501(b) was a problem that was leading to the national crisis in bar passage, the ABA started enforcing 501(b) in the Spring of 2016, and Cooley was naturally one of the first schools to be subject to monitoring. The ABA’s decision finding Cooley out of compliance with this standard in November 2017, was wholly defensible. . . until the ABA completely undermined its own position by flip-flopping for no apparent reason in March 2018.
My attempt to find a logical explanation for the ABA’s perplexing decision finding Cooley back in compliance was not unreasonable, but was apparently wrong. Even Cooley, the beneficiary of this about-face, doesn’t seem to understand why the ABA changed its mind. This decision not only undermined the ABA’s own legal position in the Cooley lawsuit, but has also given Florida Coastal, and every other school ever found out of compliance with 501(b), a good faith basis to make claims of arbitrary enforcement. In other words, instead of sticking to its guns, the ABA shot itself in the foot.
What initially looked like a slam dunk case for summary judgment in favor of the ABA, is starting to look like a much closer case, with Cooley having a decent chance of surviving summary judgment. Although the law requires that the Court give substantial deference to the accreditation agency, that deference is not unlimited. Where a school can make a strong prima facie case of arbitrary and capricious enforcement, the Court may well allow the lawsuit to proceed.
The saddest part of this whole fiasco is that, because of the ABA’s baffling decision-making, Cooley remains free to lure in and enroll unqualified students by pretending to be ignorant about what it means to “appear capable” of earning a J.D. and passing the bar. Just when the ABA was gaining some momentum, and some credibility as an accreditation agency with real teeth, the ABA has scored an "own goal". The ABA has some explaining to do.