ABA Section of Legal Education Takes A Hasty and Ill-Considered Step Away From Transparency—Urgent Request For You To Make Your Views Known

Jerry Organ of the University of St. Thomas School of Law, a leader in the quantitative understanding of the course and status of the legal academy and a perennially measured and thoughtful authority on these issues, has posted on TaxProfBlog a detailed description of several disturbing and important changes to law-school reporting and disclosure that were made suddenly and with no public input in June. 

For a link to the proposal the Council adopted and all of the particulars, Jerry’s post is here.  Here is a somewhat briefer summary (and if I get some of the bureaucratic details wrong, I encourage those better informed to correct me):

At a meeting in June, the Council (that is, the governing body) of the ABA Section of Legal Education and Admission to the Bar approved a proposal that begins a process, as Jerry puts it, “to completely eviscerate the steps [the Section] approved in 2015 to assure greater transparency in reporting law-school-funded positions,” and to undo the disclosure of other potentially valuable and important employment-outcome information. The proposal intends to implement the following changes to law-school disclosure and reporting:

1. To my mind most importantly, the proposal apparently seeks to eliminate disclosure of the number of students graduating from a law school each year, at least as part of the employment report, thus making it difficult or impossible to determine what percentage of the graduating class got what kind of job, or any job at all. This is an incredibly easy number to determine and disclose, and is essential in measuring employment outcomes year by year and over time.  It has been disclosed for decades.  There is no conceivable reason grounded in informed markets, fairness, reason, or common sense to conceal it.
2. The proposal also makes it more difficult to determine how many postgraduate positions a law school itself has funded, and makes it impossible to differentiate any school-funded position that is long-term, full-time and pays more than $40,000 annually in its first year from any other LTFT Bar-Passage Required or JD-Advantaged job.
3. In the guise of “simplification,” the proposal seeks to eliminate a number of different employment outcome categories that have been reported for years and in some cases decades, namely:

                    Collapsing “Employed—Professional,” “Employed—Non-Professional,” and “Employed Undeterminable” into a single category entitled “Employment Other”;

                    Collapsing five size-based categories of private firms into two, specifically combining “Firm 11-25,” “Firm 26-50,” and Firm “51-100” into one category entitled “Firm 10-100”; and combining “Firm 101-250” and “Firm 251-500” into one category called “Firm 100-500”;    

                    Collapsing “Unemployed—Seeking Employment,” “Unemployed—Not Seeking Employment,” and “Unemployed—Start-Date Deferred,” and “Employment Status Unknown” into a single category entitled “Unemployed or Status Unknown”; and

                    Collapsing “Clerkships—State and Local” and “Clerkships—Other” into a single category.

The process by which these proposals were adopted was utterly unworthy of any responsible system of representative policy-making.  According to Prof. Organ, the justifications offered for these changes were factually inaccurate in some instances, and apparently many of the changes were not even discussed before being voted on.  Even more disturbingly, the proposal was offered to the Council just two days before its meeting, with no public notice or opportunity for comment. 

I want to be clear that it is entirely possible that some of the “simplifications” that have been suggested, upon careful consideration and perhaps some adjustment, might prove worth doing.  But some of them make no sense at all, and others probably need to be fixed.  The inexcusably summary and secret process by which the proposals reportedly were rammed through, whatever its cause or motivation (and I’m prepared to assume it was simple oversight of the gravity of the matters under consideration), is thoroughly inappropriate. 

It’s not too late to slow this train down and correct its course.  The current proposal creates a curious two-track reporting and disclosure regime for the coming year (see Jerry’s post for the details).  To his credit, Barry Currier, the Managing Director of the Section of Legal Education, has essentially requested that the Council and the Standards Review Committee rethink this (again, see Jerry’s post for a description of the procedural mechanism Mr. Currier has adopted).

The legal academy opened itself to a great deal of criticism for what was widely viewed as burying the details of its students’ difficulties in the job market in the early part of the Great Recession and its aftermath.  A considerable increase in transparency followed, some would say too slowly and too grudgingly, but the eventual improvement was nevertheless clear and substantial.  Many of us who follow these issues closely would happily agree that the current state of affairs could still be improved, including by simplifying current reporting and disclosure in some respects. But to impose a rash of half-considered measures under cover of darkness is antithetical to the concerns that the Department of Education, responsible members of the academy, and our current and prospective students have fairly and appropriately raised.

Jerry Organ has prepared a petition.  I join with him in asking you to review and consider it.  Following the petition are directions for submitting it should you see fit.  Here is the Petition:

Petition Requesting That the ABA Council for the Section of Legal Education and Admissions to the BarSuspend Implementation of the Proposal Approved at its June Meeting Regarding Changes to the Employment Summary Report and the Classification of Law-School Funded Positions

At its June 1-2 meeting, the ABA Council for the Section of Legal Education and Admissions to the Bar approved a proposal submitted on May 30 to dramatically change the format of the Employment Summary Report.   

Most significantly, the proposal called for a reversal in policy regarding the treatment of law-school-funded positions from the policy and definitions the Council approved nearly unanimously in 2015 (after notice and an opportunity to comment had been provided to law schools and others).  The proposal calls for the elimination of the separate “above the line” classification of law-school-funded positions, and the reclassification of some positions so that they no longer count as law-school-funded positions, eliminating transparency for such positions.

The Council considered the proposal at its June 1-2 meeting without presenting the proposal to the Standards Review Committee for comment and without notifying the broader community and requesting comment.  In other words, in what could be considered a “contested matter” given the extensive dialogue that took place in 2015, the Council basically heard the proposal, which primarily benefits a handful of law schools, as an “ex parte” request for changes to the policy, while providing those who might be opposed no opportunity to be heard.

Somewhat remarkably, in fact, the Council approved the proposal immediately after approving the Employment Questionnaire (including instructions and definitions), even though the Council’s approval of the proposal effectively requires significant rewriting of the Employment Questionnaire it had approved moments earlier.    

Some aspects of the proposal may make sense after due consideration in terms of simplifying the reporting of graduate employment outcomes.  That said, the complete reversal of policy regarding law-school-funded positions, and the elimination, without discussion, of several other categories of employment outcomes that are being consolidated, highlight the profound need for more deliberate process with notice and opportunity to comment.

Accordingly, we, the undersigned, concerned about transparency and consistency in reporting law school graduate employment outcomes, hereby:

1) petition the Council to suspend implementation of the proposal until at least the Class of 2018, and direct the Section to implement for the Class of 2017, the Employment Questionnaire as approved at the June meeting, together with the Employment Summary Report used for the Class of 2016, and

2) petition the Council to direct the Standards Review Committee to

1. delineate all of the changes in the Employment Questionnaire that would be necessary to implement the proposal, and
2. provide notice of all proposed changes to the Employment Questionnaire and Employment Summary Report and an opportunity to comment on the proposed changes before the Council takes any further action to implement the proposal.

Name ________________________ Affiliation/Position_____________________________

Date _________________________ Contact Email ________________________________

***************************************************************************************************************************************************************************************

Copy the Petition and paste it into an email.  You may sign the Petition electronically by typing your name.  Please Email your signed Petition to Barry Currier at [email protected] with a cc to Jerry Organ at [email protected].

It is NOT necessary to send a copy to me.  Any copies I get will be deleted if they indicate they have already been sent to Messrs. Currier and Organ, and forwarded to the two of them if not.

Be heard!

--Bernie

Comments

[anon]

It appears to be clear that the ABA has been captured, and it now is principally preoccupied with protecting the bottom feeders from actual closure. See, the outrageous recent post claiming that the overall decline in enrollments equals closing law schools! (This is like saying that if restaurant patronage in fine dining is down, it is perfectly ok to keep open restaurants serving rat-infested, spoiled and poisonous food, because an overall decline in patronage is "like closing restaurants"!)

The DOE really needs to step in and divest the ABA of its authority. It is demonstrably incapable of sustained, meaningful efforts and has, apparently, no shame.

[Anon]

Why aren't the legitimate law schools more concerned about this? The bottom feeders and their regulatory grab are hurting your brand and harming students and taxpayers alike. Before law school became a social justice warrior incubator (which occurred some point during the early 1970s), law schools were primarily concerned with the law and with preparing people to work as legal professionals.

It seems that today legal academics are primarily concerned with legal academia, then social justice issues, then with left leaning political causes, then with pet projects, . . . then with lunch, and finally then with the actual legal profession.

[Leo]

There are a lot of judges and practitioners on the Council. I was surprised to see this. I would have thought that it was controlled by lower ranked schools. I wonder what the back story is on this rush to push these changes through. It will only draw the attention of the DOE.

[Litowitz]

17 years ago I was a law professor at a bottom-feeder school and a bunch of professors got dismissed (actually they dismissed all the productive ones), so I sued the ABA in Illinois State Court in a derivative proceeding, since I was a member of the ABA. Basically the Legal Education division does whatever it wants with no accountability, even if their decisions lack basic procedural or substantive safeguards. They do whatever they want and are unaccountable to even the larger ABA. I alleged that the rulemaking process for the Legal Education division was in violation of Illinois law because an Illinois corporation can only act through its members (by a vote of directors) and not through a delegated division acting on its own. I said that the Legal Education division was acting like a mini-sovereign but it lacked the authority to do so.

I saw the revolving door between the Legal Education division and the bottom-feeder schools. I saw how the schools had to hire ABA people as Deans in order to get accreditation. I saw how the numbers were being cooked. I saw how the whole system was rotten. And I was dealing with the same clowns that you mention in your post.

I SAW THIS COMING 20 YEARS AGO. AND I DID SOMETHING. The ABA hired a big law firm to go against me, and I was pro bono. The judge said that the process at the ABA smelled bad but he refused to go further and strike it. I did not have time or money for an appeal.

Back then law schools were riding high, and no one was there to help me. I was alone.

So now things are bad. And you want to do a petition. Good luck with that.

When I needed you guys, you were nowhere to be found. People laughed at me for taking on the Legal Education division. I was called a lunatic.

I have no sympathy for this fight at this late stage. You can choke on your petition.

[NY101]

The higher ranking schools want teaching jobs for their graduates. Its a Ponzi scheme.