Responsible Law School Admissions

I've posted a lot of words and numbers about LSAT scores and bar passage rates. What should we do with all of this information? Here's what I suggest:

First, LSAT scores are indicators. Few admissions officers (I hope) base their decisions solely on LSAT scores, but most rely on the score as an important factor in an applicant's file.

In a similar way, an overall pattern of LSAT scores--especially when combined with bar passage rates--may suggest that a law school may be violating ABA Standard 501(b).  That standard, remember, provides that "A law school shall not admit an applicant who does not appear capable of satisfactorily completing its program of legal education and being admitted to the bar." Consider this combination of four indicators:

1. A school's 25th percentile LSAT drops into the range in which scores are associated with a very high risk of bar failure (i.e., the 25th percentile falls below 145);
2. The school does not have a demonstrated history of bar success by students admitted with those credentials;
3. Other indicia (such as UGPA scores) have not risen in compensation; and
4. These changes occur after a substantial drop in applications.

To me, this combination of indicators suggests possible noncompliance with 501(b). The indicators don't prove noncompliance (just as an LSAT score can't guarantee success or failure), but they raise sufficient concern that the ABA should explore the school's admissions practices. More on this below.

Interim Monitoring

Rule 6 of the ABA's Rules of Procedure for law school accreditation directs the Accreditation Committee to "monitor the accreditation status of law schools on an interim basis between site evaluations." The rule specifically mentions monitoring a law school's resources, bar passage rates, and data related to student admissions. Accredited law schools, in other words, have already agreed that the ABA should monitor them on an ongoing basis to assure compliance with Rule 501(b) and other accreditation standards.

Rule 7 complements this monitoring by allowing the Committee, Council, or Managing Director to request additional information from a law school at any time.

I suggest that the Accreditation Committee use its powers under Rules 6 and 7 to explore admissions practices at any law school with (a) a 25th percentile LSAT of less than 145 for any of the last three classes admitted to the law school (i.e., those matriculating in 2013, 2014, or 2015), and (b) a first-time composite bar passage rate of less than 65% for 2014. I would create composite rates in the manner suggested by ABA Rule 316.

Based on publicly available information, these two factors would identify about a dozen law schools. There may be other schools with indicia of violating Rule 501(b), but the ABA Accreditation Committee has limited resources; I would start with the schools associated with the strongest warning signals. If discussions with those schools unearth significant violations of 501(b), the Accreditation Committee might want to begin discussions with other schools.

Exploration and Discussion

What does it mean to explore possible violations of 501(b)? To me it means that the Accreditation Committee (0r ABA staff associated with the accreditation process) would seek additional information from the school about their admissions processes. Did the school discuss the relationship of weaker entering credentials with bar passage? Did it adopt new programs to help those students succeed? Did it use other means of identifying potential for bar success among students with weak LSAT/UGPA indicators? (Examples of other means might include participation in pre-law summer programs or submission of writing samples.) Or does it appear that the school simply admitted students to fill seats, without sufficient attention to each student's likelihood of success?

I think it is essential for schools to discuss issues like this--preferably before the ABA comes knocking. Those discussions should include all faculty, not just members of the dean's office and admissions staff. Faculty should be comfortable that their school is admitting only students who "appear capable of satisfactorily completing [the school's] program of legal education and being admitted to the bar." 

Some people may scoff at discussions and explorations, urging that only precise standards will work (and then complaining about the unfairness of those standards). But I have found that reasonable discussion among professionals often leads to responsible action. With professionals, the danger more often lies in failing to recognize the problem or have the discussion.

Of course, if discussion reveals a violation of 501(b), then the ABA should act on that violation.

What About Everyone Else?

What about faculty at schools other than the ones I identify generically in the previous section? Should we all forget about admissions, LSATs, bar passage, and duties to students? Not at all. (Really, what did you expect me to say after all these posts?) There are at least four lessons we should all take from this discussion.

First, faculty at every school should review the credentials of recent entering classes, as well as bar passage profiles, to be sure that their school is not admitting students with little chance of success. As I indicated in a previous post, every law school can generate internal data related to that question.

Second, faculty should support the ABA in enforcing Rule 501(b). Professionals have an obligation to govern themselves, and the ABA is our collective engine of governance. It's uncomfortable for professionals to ask hard questions of one another; doctors and hospitals don't like to inquire into one another's practices any more than professors and schools do. But if a profession doesn't regulate itself, it loses both public respect and its claim for independence.

Third, even if you conclude that all students admitted by your school are capable of passing the bar exam, think about ways that you can better support the students who struggle. This debate isn't just about students at the margins; it's about a lot of students who find the bar exam challenging. Schools are developing excellent programs to help their students succeed, both on the bar exam and in practice. But we can always ask: What more can we do?

Finally, we need to examine the ways in which we disclose bar passage information. I've been looking at some law school sites, and I'm troubled by what I see. But that's a matter for another post.

 

Comments

[Anon]

Is it any wonder that law school critic Professor Merritt now offers a modestly more nuanced approach to the LSAT than her pals at LST? After all someone has to excuse the significant drop in LSAT scores of her own law students at OSU - apparently necessary to maintain their 1L enrollment numbers. Even so they have lost more than ten percent of that enrollment over the last few years.

[PaulB]

Anon, the OSU 25th percentile is 156, not 145. Yes, they've lowered their numbers and reduced the size of their entering class as virtually all schools below HYS have done. Perhaps you should share with us your views on how LSAT scores should be used to limit enrollment from almost all schools rather than taking anonymous potshots in the manner of a certain notorious professor.

[AnonAnon]

Anon what makes this more nuanced? It is of course nuanced but I am uncertain it is more.

Deborah, very thoughtful post. I will be talking to my administration.

[John Thompson]

"I think it is essential for schools to discuss issues like this--preferably before the ABA comes knocking."

If the ABA were remotely serious about investigating the relationship between disappearing admissions standards and bar exam failures, it probably would have happened already, no?

[[M][@][c][K]]

Is it any surprise that one of the "straw men" stuffers (Anon at 05:53 PM) now complains that, having falsely accused LST and DJM of advancing LSAT scores as the sole criterion for law school admission, engages in another ad hominem which misrepresents LST and DJM (and numerous others.)

Anon is beginning to sound like a certain well known stalker of legal and philosophy blogs, denouncer of anonymous postings, sock-puppeteer, defamation suit threatening, and defenestrated blogger. All he has to do is question people's mental health and we'll all know who it is. All good reasons to be an Anon...

Of course Anon still dodges the real question - what evidence is their that the bottom feeding law schools are doing anymore than looking at LSAT scores and asking "will we get away with admitting this one ... can he/she borrow federal loans?"

[Dupednontraditional]

In fact, the "Anon" in question teaches at a very well-regarded, respectable school that produces good results for graduates. There is no danger of said-Anon's law school closing. Whence, then, the vitriol? If other schools close, so much the better for Anon's
Law school.

It's not about the truth, or what's reasonable policy. It's not even about the students overall and their well-being. It's about "being right" and shouting down all other voices who do not agree, full stop.

[philosophistry]

C'est posible, M@c|<;

Also, I enjoyed your psychoanalysis of him in the other thread, but I think you are way off. He's not mad at Campos and Merritt because they're the iconoclasts and rebels he wishes he was. Hes mad at Campos because he thinks Campos was denigrating law professors and his ego can't take any criticism without falling into narcissistic rage. Now hes projected that onto anyone he thinks is on Campos' side. "Anon" never wanted to be a rebel, he always wanted to be part of the establishment and status quo. He wants to be the Grand Old Man of philosophy, the guy that everyone genuflects to at philosophy conferences, the ultimate arbiter of the status quo and establishment.

[Jojo]

Professor Merritt,

The ABA, as currently composed, will never go for this. Please consider seeking a position on the committee so that you could actually effectuate some change.

[Deborah Merritt]

You know, I get a little tired of hearing about this Chicago law professor. I know who you mean, and I doubt very much that he is every "anon" or other alias on the internet. There are plenty of people who disagree with my perspectives as well (I think) as many who agree. Let's focus on that discussion and see where it leads us.

[anon]

What about responsible professor admissions? You can only teach if you've been a lawyer or tried to get the types of jobs that students want after graduation. There also should be pay disclosure, like tuition disclosure.

[Matthew Bruckner]

It seems entirely reasonable to ask the ABA to enforce its own standards (but I can offer no comments on the likelihood). I see that you even propose a standard for deciding when to investigate whether a school is admitting candidates who do not "appear capable of satisfactorily completing [the school's] program of legal education and being admitted to the bar."

But do you also have opinions you're willing to share on an absolute lower boundary of acceptable first-time bar passage rates before the ABA should find a 501(b) violation? If someone has a 4.0 uGPA, is there a LSAT score that is simply too low? Or is it case by case?

[AnonProf]

Professor Merritt,

I've enjoyed your series of posts, and I'm inclined to agree with much of what you have to say. I wonder if you might express your thoughts on whether the antitrust consent decrees of the 90s and 00s handcuff the ABA in these matters. If the ABA is powerless thanks to those decrees, what can be done?

My own sense is that the letter of the consent decree does not prohibit bar passage-based accreditation suspensions or terminations. My concern, though, is that because the for-profit schools spearheaded the antitrust claims and those same schools would be most directly impacted by your proposed measures, the ABA is unlikely to take any real action for fear of raising the ire (again) of the DOJ.

Thank you in advance.

[twbb]

AnonProf,
I am familiar with the 1996 consent decree, which expired in 2006, but am unfamiliar with any other one. Was there another one?

I'm not Deborah, but I will point out that (a) the consent decree I am aware of expired long ago, and (b) it was aimed squarely at ABA rules that the DOJ (convincingly) thought were intended to line the pockets of law schools and their associated administration and faculty but had little to do with maintaining educational standards. What part of the consent decree do you think would stop the ABA from conditioning accreditation on maintaining admission standards?

[Deborah Merritt]

Matthew, I think these decisions have to be made case-by-case, both for individual admissions and for schools. For a school engaged in individual admissions, I think the question depends on the applicant's other qualities (including work experience, disabilities that can lower LSAT score, and GPA) in addition to the school's own success in helping people with those qualities pass the bar. States vary in bar passage rates, and schools vary in their academic support, so the school is in the best position to know with a particular applicant.

The inquiry would also have to be case-by-case from the ABA's perspective when assessing schools--although here I mean case-by-case with respect to schools rather than individual applicants. Two schools with the same LSAT percentiles and bar passage rates might have made different decisions with respect to strengthening academic support, identifying candidates who are likely to succeed despite their scores, etc.

I don't envision the ABA going through individual applicant files at schools and declaring "aha, here's someone who never could have made it!" Instead, the school inquiry would involve inquiries like the ones I note in the post: How did the school approach this change in applicant credentials? Did it explore its own records to identify indicators that would signal success for low-scoring applicants? Did it enhance academic support programs in evidence-based ways? And, of course, how are bar passage rates changing for those schools?

[[M][@][c][K]]

AnonProf:

The antitrust issue has been raised again and again. There is a simple defence - the law governing accreditation and the US department of education regulations both allow, indeed require the accrediting agency to consider admission standards, and also employment, exam success etc. See 20 U.S.C. 1099b reproduced below. That is a straight defence in antitrust.

(5) the standards for accreditation of the agency or association assess the institution’s—

(A) success with respect to student achievement in relation to the institution’s mission, which may include different standards for different institutions or programs, as established by the institution, including, as appropriate, consideration of State licensing examinations, consideration of course completion, and job placement rates;

(B) curricula;

(G) recruiting and admissions practices, academic calendars, catalogs, publications, grading and advertising;

(H) measures of program length and the objectives of the degrees or credentials offered;

(I) record of student complaints received by, or available to, the agency or association; and

(J) record of compliance with its program responsibilities under this subchapter and part C of subchapter I of chapter 34 of title 42 based on the most recent student loan default rate data provided by the Secretary, the results of financial or compliance audits, program reviews, and such other information as the Secretary may provide to the agency or association;

§ 602.16 Accreditation and preaccreditation standards.

(a) The agency must demonstrate that it has standards for accreditation, and preaccreditation, if offered, that are sufficiently rigorous to ensure that the agency is a reliable authority regarding the quality of the education or training provided by the institutions or programs it accredits. The agency meets this requirement if—

(1) The agency's accreditation standards effectively address the quality of the institution or program in the following areas:

(i) Success with respect to student achievement in relation to the institution's mission, which may include different standards for different institutions or programs, as established by the institution, including, as appropriate, consideration of State licensing examinations, course completion, and job placement rates.

(vii) Recruiting and admissions practices, academic calendars, catalogs, publications, grading, and advertising.

[Deborah Merritt]

AnonProf, like twbb, I think there was just one decree in 1996--although the ABA was fined in 2006 for several violations of the decree. The decree lapsed shortly after that, although I agree that there are always concerns about antitrust violations.

I doubt, though, that the DOJ would pursue the ABA (or any other educational accrediting body) for enforcing a standard clearly aimed at preventing exploitation of students (rather than raising faculty salaries or preventing transfers from unaccredited schools, which were some of the issues in the 1996 decree).

There are also a variety of remedies that the ABA could impose short of monetary sanctions or loss of accreditation. The ABA could, for example, require a school to prominently publish its bar passage rates by LSAT score band. An ABA investigation might also prompt Congress and the Dept of Education to adopt regulations curtailing federal loans to schools with poor bar passage results. These outcomes would not raise antitrust concerns.

That's not to suggest that the ABA couldn't impose monetary sanctions or loss of accreditation. Depending on the findings of individual investigations, I think they could--without fearing any antitrust liability.

A final note on this would be for any committee investigating violations of 501(b) to follow the procedural guidelines of the 1996 consent decree. Part of the DOJ's concern in the 1990s was that ABA-accredited law schools included only deans and faculty from those schools on their accreditation committees. That type of closed shop really raises antitrust eyebrows. I'm not familiar with the process that the ABA would use to investigate 501(b) violations, but it would seem wise to involve people like respected judges, university administrators outside of law, and even a community representative.

[Deborah Merritt]

Thanks, M@CK, always good to go with the law!

[AnonProf]

Thanks, everyone for the responses to my query regarding the DOJ/ antitrust consent decree. To be clear, I'm not positing that issue in order to argue that the ABA should not pursue law schools for falling beneath the standards for bar passage. To the contrary, I was hoping to learn of solid retorts to the line of thinking that "there's a consent decree out there somewhere that makes the ABA unable to take real action."

Luckily, you all provided many retorts, but I think that those of us in favor of real and enforceable standards of quality must be more vocal about the inapplicability of the consent decree to the issue at hand. As one commenter put it, this argument HAS been raised time and time again, and I've heard it myself countless times IRL as well. We should be more vocal on this issue so that the argument is laid to rest.

And let me be clear that THIS law professor believes that the ABA should be investigating any school whose output results suggest the exploitation of students.

[California guy]

The present situation is drastically different from 1996. At that time, the DOJ alleged that the ABA had been involved in anti-competitive conduct when it allowed its law school accreditation process to be misused by law school personnel who had a direct economic interest in the outcome of accreditation reviews. The 1996 consent decree, which resulted from this suit, prohibited the ABA from fixing faculty salaries and compensation, from boycotting stateaccredited law schools by restricting the ability of their students and graduates to enroll in ABA approved law schools, and from boycotting for-profit law schools.

In other words, back then, the DOJ alleged that a gang of law school professors was mobbing up on the competition to line their own pockets. I hope the readership can see that this is not analogous to our current problem.