During the past year, the hottest topic concerning the ABA accreditation of law schools has been the debate over the bar passage rule, Interpretation 301-6. The final version of the rule was adopted at the February 2008 mid-winter ABA meeting. The impetus for the new rule is at least two-fold:
1) it represents a continued effort by the ABA to make its accreditation decisions more predictable and more transparent, and 2) it meets the concerns of the U. S. Department of Education to have legitimate output measures so that the ABA continues to receive its own approval from DOE as the only nationally recognized accreditor of law schools. Over the next several days, I am going to offer a series of observations about the larger higher education context for the rule as well as its substance.
It is often claimed that ABA accreditation is remarkably detailed and intrusive. I have a different view. The ABA accreditation is not an exceptional process. Rather ABA regulation of law schools is remarkably similar to other programmatic accreditation processes. Sometimes we lawyers draft our rules with more verbiage than do other accreditors, but the subject matters and concerns are the same. Interpretation 301-6 is an excellent example of an accreditation standard that is matched in content by other accrediting bodies. Performance on licensure examinations is universally considered important as an assessment and output measure. Certainly our colleagues in medical and nursing education make accreditation decisions in significant part on the basis of licensure performance.
Interpretation 301-6 is also a wonderful example of how regulatory complexity arises. It is a multipart rule that looks like a convoluted tax statute. The rule considers first-time pass rates, ultimate pass rates, and pass rates across multiple jurisdictions. These features respond to the specific concerns of individual law schools dealing with very different student bodies and facing very different state bar examination regimes. For example, the bar passage issues for law schools in low bar pass states like California are very different than those for law schools in high bar pass states like Illinois. The rule also regulates in detail the cases of national law schools whose students scatter to take many different bar examinations as well as law schools where most students take a single bar examination. So for those of you who teach administrative law or regulated industries, if you need an example of where multiple forces engage with a regulatory agency in ways that create intricate solutions, have your students work through the history and text of interpretation 301-6.
Comments