Not So Slow and It’s Not That Complicated - A Reply to Justice Berch and Barry Currier

The most recent volume of the ABA Council of the Section of Legal Education’s journal, Syllabus, contains two articles that seem to be a response to Law School Transparency and individuals like me, who have called upon the Council to take action to curb the irresponsible and exploitative admissions practices at a significant number of ABA-Accredited law schools.  The first article, by the Hon. Rebecca White Berch, Chair of the Council, explains the steps the Council is taking to address concerns about admissions practices.  A second article, by Managing Director Barry Currier, also discusses the issue of rapidly declining admissions standards, especially the drop in LSAT scores.

Deborah Merritt has a typically thoughtful post about these two articles on her blog lawschoolcafe.  I have some additional thoughts about these two articles, below the fold.

First, I am pleased to see that both Judge Berch and Mr. Currier are at least claiming to take seriously ABA Standard 501(b), the standard which requires that schools not admit students who do not appear capable of satisfactorily completing law school and being admitted to the bar.  And both articles recognize that the plummeting admissions standards at many law schools raise legitimate questions.  For example, Justice Berch notes “if the entering LSAT scores of a school with an already low bar pass rate should fall precipitously, the school may be asked to explain how it expects admittees with very low scores to succeed in law school and pass the bar, given that entering students with higher scores have not been successful.” Both articles also promise accountability.  According to Mr. Currier: “If the evidence shows that a law school’s admissions process is being driven by the need to fill seats and generate revenue without taking appropriate steps to determine that students who enroll have a reasonable chance to succeed in school and on the bar examination, as ABA Standard 501(b) requires, then that school should be, and I am confident will be, held accountable.”

Unfortunately, the overall tenor of the two articles, both of which urge caution and patience, (the titles say it all: “Not So Fast” says Justice Berch, “It’s Complicated” says Mr. Currier) does not give me the same degree of confidence that the Council will hold even the most obviously exploitative law schools accountable. In fact, both Justice Berch and Mr. Currier appear to be telegraphing to the schools exactly what answers to give to avoid accountability.  For example, Justice Berch writes, “The school may reveal increased tutoring or academic support, more intensive focus on admissions indicators other than the LSAT, or other reasons to think that the entering students will be successful.” And she notes that “schools also rely on other factors that may show leadership, drive, grit, or other factors that provide reason to believe the applicant may perform well in law school. Schools may require a writing sample and proof of accomplishment, such as professional position, or participation in volunteer work or student government, or other factors that demonstrate to the school’s satisfaction that the student has characteristics that indicate a reasonable chance to succeed.” Mr. Currier provides a similar laundry list of factors other than LSAT and UGPA that schools may use to justify the plummeting entrance credentials of their admitted students, such as “grit, determination, and the motivation for studying law” and also “the applicant’s undergraduate experience (not just the UGPA but also the institution attended, major, and courses taken), graduate study, work experience, extracurricular activities, obstacles overcome, letters of recommendation/ interviews, and other accomplishments and leadership positions held.”  If a law school under scrutiny asserts that it considered all of these factors in its holistic admissions process, and it is taking extra steps to provide academic support, what will it take to convince the Council otherwise?  Is there any point at which the Council will say that the students being admitted are just too academically untalented, as a group, to accept these claims at face value? 

Both Justice Berch and Mr. Currier seems to acknowledge that there is a correlation between LSAT scores (and UGPA) and likelihood of passing the bar, but they seem to be going out of their way to provide justifications for admitting low-performing students.  Justice Berch notes, “Many whose LSAT scores were not distinguished later achieved great things, in law school and in the profession. Thus, an applicant with a low LSAT score might appear to a school quite capable of satisfactorily completing its program of legal education and being admitted to the bar, if other indicators are present.”   It is hard to argue with broad generalizations like this, when no actual LSAT scores are attached.  But what does she mean by an undistinguished LSAT score and a low LSAT score?  Undoubtedly, there are people who did below average on the LSAT but were excellent law students and attorneys,  But can Justice Berch identify many attorneys, or even any attorneys, who achieved great things in law school and in the legal profession who had an LSAT in the bottom 10-15 percent? Mr. Currier makes a similar argument: “No one that I am aware of disputes the notion that it is acceptable, indeed desirable, for law schools to offer opportunities to applicants whose overall profile suggests that they are good candidates for law study and might well become outstanding and contributing members of the legal profession, even if their LSAT score varies from the bulk of the students admitted to the school.”  But critics like me are not concerned about law schools admitting a small number of students with slightly lower than average LSAT scores who are otherwise impressive. The real problem is schools where the “bulk of the students admitted to the school” have extremely low LSAT scores and correspondingly low UGPAs.

Consider the example of Valparaiso Law School.  In 2013, their median LSAT was 143, the median GPA was 3.0 and their 25% percentile was 141 and 2.75%. With an entering class of 208, that meant they matriculated over one hundred students with LSATs in the bottom 20% of test takers, and over 50 from the bottom 15%. Anyone scoring at this level is statistically likely to fail the bar (and keep in mind that schools report the high LSAT score of an applicant, not the average, which is a more accurate predictor). Are we to seriously believe that Valpo’s admissions process was able to find over 100 students whose applications suggested that they were likely to outperform their predictors?  Incidentally, Valpo admitted over 81% of the applicants that year, so it was hardly applying intense scrutiny.  The reason I single out Valparaiso is that Valpo had an accreditation visit from the ABA April 6-9, 2014, which it apparently passed with flying colors despite these horrifying admissions numbers.  This does not inspire confidence in the accreditation process.  And this was not a one-time aberration for Valparaiso.  In 2014, Valpo’s entering class shrank to 174, but their bottom 25% was still 141 and 2.77, and for their part-time division, the LSAT 25% was even lower.  For 2015, the LSAT 25% went up a point to 142, but the 25% GPA dropped to 2.64.  So, for at least 3 years, Valparaiso’s admission practices have been clearly exploitative.  Yet according to Justice Berch, it is not reasonable to expect any law schools to be sanctioned anytime soon because the Council “cannot act precipitously.”

And Valparaiso is far from the only school which is obviously violating ABA Standard 501.  Consider Charlotte School of Law. In 2013, Charlotte matriculated 522 students. Their 25% LSAT was 141 and GPA an abysmal 2.59 (the average college GPA is 3.1 and rising).  Their part-time division of 94 students was even less well-qualified with a 25% LSAT at 139 and GPA of 2.48.  Did Charlotte School of Law really find 130 students from the bottom 15% of LSAT takers that they reasonably believed could succeed in law school and pass the bar? Did Charlotte’s Admissions Committee really believe that 23 students from the bottom 11% of LSAT takers could successfully manage law school while also working full-time, as part-time law students typically do?  The very question is laughable.  But the Council didn’t act in 2013, so what did Charlotte do in 2014? They let in even weaker students: matriculating a class of 446 with a median LSAT of 142, a 25% LSAT of 138 and a 25% UGPA of 2.53.  Did Charlotte reasonably believe that 112 students from the bottom 10% of LSAT takers with poor grades had the aptitude for law school?  Of course not.  But again, the Council stood by and did nothing.  So this year, Charlotte admitted a class of over 300 students made up almost entirely of extremely high risk students.  The top of the class – the 75% percentile - has dropped to 145 (27%), exactly where their 25% was in 2011.  The part-time division admitted at least 14 students with LSATs of 135 or below, the bottom 5% of LSAT takers.  I kid you not.  

In his essay, Mr. Currier asks: “How much risk should a school take, or be allowed to take, by the law school accreditation process?” This is precisely the question LST has tried to raise through its 2015 State of Legal Education report which has been so vilified by defenders of the status quo. But perhaps the more pressing question is this:  How many thousands of woefully unqualified students have to be taken advantage of before the Council is willing to step in and enforce its own standards?  The fact that the Council has stood by for five years without sanctioning a single law school while law school admissions standards have plunged to unprecedented and unconscionable lows suggests that the Council’s tolerance for risk in the admissions process is very high indeed.  But the plunging bar pass rates of the past two years have proven that, in the end, it's really not that complicated -- there is no substitute for decent grades and test scores.  It's high time for the Council to stop pretending otherwise and start holding law schools accountable.  

 

David Frakt is the Chair of the National Advisory Council for Law School Transparency.  However, the opinions expressed above are his own.

Comments

[Captian Hurska Carswell, Continuance King]

A fitting parallel is the Cadillac brand. Not so long ago, Cadillac was the "Standard of the World." If you owned and drove one, it told the world that you made it. It said class! Today, if you own a Cadillac, you are viewed as dumb or old. A Cadillac is no more than a gussied up 40K Hyundai or a chromed out 85K Suburban. The brand was devalued by cheap leases, cheap rentals, cash back deals and the big one, inferior quality. The same thing is happening with our hard earned law degrees from once SELECTIVE, ranked law schools. The value of our degrees has been eroded by the grotesque over supply of attorneys from schools that have slashed admission standards and the ABA's accreditation of additional schools. Prior to 1999, to be admitted to an ABA accredited law school one needed at least a 3.4 GPA (even then you were likely wait listed), a decent LSAT score a great essay and other life experiences. It was highly competitive. Today, its open enrollment at many schools. If that devalues our degrees, what does it do to your professorships and teaching careers? Were in this together.

[anon]

The proof is in the pudding

Will anyone enforce Standard 316?

Do we have some law schools already out of compliance?

[Jojo]

David,

Thanks for the insightful post. I hope it prods the regulator (or at least makes members of the ABA committee feel dirty).

Defenses of the status quo no longer are good lawyering. Rather it is the worst of "thinking like a lawyer." First, it was excuse ("The Great Recession! Things will change."). Then it was to ignore structural changes ("Historically prestigious. Million dollar degree."). Now it is deny. ("There is no legal Ed crisis. There is no connection between LSAT scores and bar passage.")

Can we all please be honest about what has happened? Too many schools enrolled too many students for too long at too high a cost. The profession is struggling though a glut, but the Infilaws, Valpos, and Cooleys refuse to hold the line on academic floors because it will put them out of business. The ABA is impotent and beholden to the diploma mills and refuses to use the stick to preserve quality.

The crystal ball says:
The profession drops in quality alleviating Justice Scalia's concern that too many of America's best and brightest are studying law.
Because law will take all comers, it loses prestige like the Cadillac.
The worst schools will scream racism or diversity, but those cries will fall on increasingly deaf ears.
Congress will tighten grad plus, which will be denounced by the law deans.
Ten more law schools will close or merge by 2021.

[JM]

David Frakt, let me ask you an honest question. Do you really think the ABA would ever enforce its own rules about accreditation? The fact that you and LST engage with them seems to imply that you view them as something other than cronies put in place to protect law school's right to extract student loan money from unsophisticated consumers. Do you really think you can appeal to their decency or integrity? If so, why?

[[M][a][c][K]]

JM,

A subsidiary question would be does anyone think the the US Department of Education might put pressure on the ABA to tighten up its accreditation scheme - and to that I think the answer is that right now Congress has a number of backers of for-profit colleges that would not be keen on any toughening of standards, but wait and see.

[David Frakt]

JM -

As an attorney who has enjoyed a modicum of success both in the courtroom and in the public policy arena, I am a strong believer in the power of advocacy. So yes, I do believe it is possible that the ABA might start enforcing law school accreditation standards more strictly if they are given sufficiently persuasive reasons to do so, although I concede it is a longshot. But even if they don't, that does not necessarily mean that I or LST are wasting our breath. There are many different actors who could potentially help curb these exploitative admissions practices. First and foremost among the groups with the potential power to make a difference are law faculty members, which is why I post my comments on The Faculty Lounge. Other groups that could bring pressure to bear on the law school administrators setting these admission policies are trustees, alumni, state and local bar associations, university administrators and donors. Another benefit of spreading the word about these reprehensible admissions practices and attempting to publicize the extraordinary risks that prospective students are making by enrolling in bottom-feeding law schools, is that at least some students with very poor prospects of success may be deterred from attending law school and thereby wasting three or more years of their life and tens of thousands of dollars in pursuit of an unrealistic dream. If I my writings convince even one student who does not belong in law school to divert into another field for which they have greater aptitude, then I will consider my efforts to be worthwhile. Although it may be impossible to identify specific reasons, it does seem that students are increasingly avoiding schools like Valparaiso and the InfiLaw Schools, which have all experienced very dramatic declines in enrollment in recent years, despite approaching an open-admissions policy. The bottom line is that some things, like fairness and justice, are worth fighting for, even if they are very hard to accomplish and possibly unattainable in the short run.

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

David Frat:

With respect (I'm not going to use all due respect (which means the opposite of what it appears (it's a barristers circumlocution to a lousy judge by the way)), three or four years into this controversy, I think those "law faculty members" with the moral courage to ask the hard questions and demand reform have already stuck their heads above the parapet and suffered the consequences - indeed consequences it is fair to say you have personally experienced. As Upton Sinclair so memorably put it "It is difficult to get a man to understand something, when his salary depends upon his not understanding it" is an analysis that has been amply demonstrated.

There are between 8,000 and 12,000 law professors in the US. I can name most of those who are prominent in calling for reform, who has raised the issues you have:

Unambiguously:
Brian Tamahama
Paul Campos
Deborah Merritt
David Frat

From time to time:
Bernie Burk
Paul Caron

That is it, that is the list that comes to mind. Six out of thousands! Professors who openly think there is a problem are less than 0.1% Those who openly say nothing is wrong is a long list, not just the blighter and the jewel, and the million dollar man, but many who post in this forum regularly. Indeed, look along the list of bloggers, guest bloggers and others up the side of this site and you will see just two, maybe three that have remotely criticised the status quo - who knows, maybe one they they'll be ashamed, but not any time soon.

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

David Frakt

Apologies for not noticing that spellcheck had transformed your name. Given my abysmal proofreading skills I tend to rely on it, but then I miss the fause ami.

[[M][a][c][K]]

Faux ami -

Memo to self switch ****** spellcheck language ..... Arghhhhh

[MT]

David: When you refer to enrollment in bottom-feeding law schools, which schools specifically are you referring to?

[twbb]

Maybe one solution is to have suprise audits of applications. If a school is intent on admitting students with sub-140 LSATs, let ABA accreditation committee staff sit down with the law schools' admission committee and go through each enrolled sub-140 student and let the schools make the case for each student as to what in their background distinguishes them.

[Jojo]

The quality slide is of recent vintage. That fact alone reveals that the whole argument is incinsere. Why weren't these hundreds of rough diamonds admitted in 2009? Concern about the US News Boogeyman? They weren't in the ranked eschelon of academia then, so that wasn't it.

It's an admission that though these poor LSAT performers are high ability at some things, they really aren't suited for law. We are still talking about a group of individuals who graduated from high school and college. They likely are of average academic ability and intelligence vis-a-vis the general public. They will struggle with the material, though, and find the bar exam to be a steep obstacle.

[David Frakt]

M@ck -
I am confident that there are more faculty members who support responsible admissions policies then the ones that you name, although they may be the most outspoken. In fact, we had several faculty members respond to my call for volunteers to serve on LST's National Advisory Council. Check out their bios here: http://www.lawschooltransparency.com/who_we_are/NAC/
Faculty members include: Ben Davis, Toledo; Billie Jo Kaufman, American; Eric Fink, Elon; Lucy Jewel, Tennessee; Dean Martin Katz, Denver; Michael Hoeflich, Kansas, and, of course, Deborah Merritt.

[Leo]

Exactly, Jojo. I made this point when the law school defenders sunk to using the "opportunity" argument and hinting that those who were opposed to lowering standards were somehow racist.

Why was this opportunity not offered when applications were through the roof?

I would not want any of these people representing me. They are not very good lawyers if these are the best arguments they can make to defend their position.

Without doubt, the lower ranked schools dominate the Section, serve on the committees and accreditation teams. I have never been on a team with someone from Harvard, Yale, etc. these people are never going to pull the plug on any law school.

[David Frakt]

MT - When I refer to bottom-feeding law schools, I am referring to those that are admitting classes with a substantial component of extremely high risk students, which I define as having an LSAT of 144 or below (bottom 24% of LSAT takers) and correspondingly low grades. In 2014, there were 26 law schools that matriculated at least a quarter of their entering classes with 144 and below LSATs, and 7 which matriculated over half of their class at 144 and below. This group includes both private not for profit, private for profit and public schools.

[Captian Hurska Carswell, Continuance King]

Unfortunately, the law school sector is being dragged kicking and screaming into our Uber Walmart world. The Tax Prof Blog has the data on how many full time professors were let go between 2010-14. If the ABA and Deans would have maintained admission standards, not accredited new schools and not enrolled hordes and hordes of new folks, the profession would not have been over saturated. The pie is only so big. Eventually, like UBER or Walmart, the world becomes awash in cabbies and cheap goods. Not enough to sustain all comers and lift all boats. If law schools standards remained high, there would be balance. Graduates would find high paying work...or work they desired. Then this would attract the new students, but it would still be limited to the best and brightest. A good cycle would be established.

[Jojo]

What has changed in law school since 2010? The answer is that it is more transparent. If your industry declines upon more publicity, then you aren't in a very good industry.

[anon]

"Why was this opportunity not offered when applications were through the roof?"

This is a great, and devastating point. During the gold rush for government dollars, law schools were flush.

Did these humanitarians use the flowing funds to support "opportunity admissions" backed up by extra support for those admitted (which would have been possible then, given the steep profits racked in)?

Nope. Most lined their pockets, created ever more titles to justify increased compensation ("Director of the Center for Pencils and Erasers," "Assoc. Dean for Faculty Cinnabons," etc.), took expensive junkets and travelled to conferences for frivolous reasons and topics, demanded "summer stipends" to do what their job required in the first place, demanded "research budgets" to have others do what their job required in the first place, demanded, and this is a doozie, extra compensation to teach beyond the part time teaching load most expected to be the norm, and finally, devoted huge amounts of the surplus to building projects, many of which were so grossly mismanaged that nothing much was achieved.

These are the humanitarians who now claim that they are scraping the bottom of the LSAT taking barrel because they care about opportunity for students! They care about opportunity for students knowing so many will not pass the bar and not obtain employment? This is really so despicable, does no one care?

Where is the shame among the ABA and Dept. of Ed. regulators?

[Captian Hurska Carswell, Continuance King]

anon and JoJo:

To stay in business, they have no choice but to "scrape" the bottom of the barrel for students. The Deans. the ABA and the unranked diploma mills created this Walmart spiral. If legal work, salaries, and jobs decently supported a smaller pool of attorneys from competitive, selective schools, why flood the market? The flooded attorney market lowers salaries, jobs and thins out work. The pie is too small. The best and brightest no longer enroll because they know there is not enough pie. Even the bottom feeder applicants are starting to avoid law schools because of that pie. Its all about Walmart and pie.

[Subscriber]

It's hard to believe that ABA committee members will essentially vote to put their fellow profs out of employment, which is basically what would happen to many of those teaching at a school if accreditation were pulled. So an intermediate step is needed. Perhaps these schools should be required to communicate their bar passage rates more prominently-- like in their acceptance letters. And perhaps the connection between those rates and applicant traits should be prominent as well:
"Congratulations on your acceptance.... Our records show that past graduates in your lsat range passed the NY bar at a rate of 25% last year."