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

[anon]

Probation is a good intermediate step.

Law schools need to disclose probation. It tends to focus the minds of the greedy operators. Like any other greedy operation, the greedy operators have an inclination to run at the first signs of possible loss of money.

Anyone who doesn't believe this is true, let's enforce the rules and find out what happens.

This is long overdue.

ABA, ENFORCE THE STANDARDS!

If the ABA chooses to continue to shame itself, perhaps there should be a court action; for those who know, would this be possible? Is there any way to compel the ABA to enforce its own rules?

[Captian Hurska Carswell, Continuance King]

Ah yes, "Probation," just like criminal defendants who think they "beat their case." At a subsequent Probation Violation Hearing, the offending law dean can appear wearing a Budweiser frog T-shirt.

[Leo]

No law school will lose accreditation without first being placed on probation, although the ABA does not call it that. I believe the Standards refer to provisional or conditional accreditation which must be made public. The school is given, in fact, a list of things to fix, that is, Stanatds it is not in compliance with, and a year or so to correct the situation, at which time another site visit occurs to see if things have been corrected or the school reports in writing to the Section on the steps it has taken to remedy the defects. The Accreditation Committee then votes again on the school's status, deciding whether to give it full accreditation again or not.

The process is set out in the Standards, if anyone is that interested.

So if anyone expects to wake up one day and find out that law school XYZ has lost accreditation and is effectively out of business, that will not happen. There will be ample warning that the school is in accreditation trouble before that happens.