Should Florida Coastal Be Sanctioned by the ABA?

Should Florida Coastal be Sanctioned by the ABA?

As I noted in my last post, Florida Coastal recently received a letter from the ABA with a finding of non-compliance for the following standards:

• Standard 301(a), with regard to the requirement that the Law School shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical and responsible participation as members of the legal profession;
• Standard 309(b), with regard to the requirement that the Law School shall provide academic support designed to afford students a reasonable opportunity to complete the program of legal education, graduate, and become members of the legal profession; and
• Standards 501(a) and 501(b) and Interpretation 501-1, with respect to the requirements that the Law School shall maintain sound admissions policies and practices consistent with the Standards, its mission, and the objectives of its program of legal education, and that the Law School shall not admit applicants who do not appear capable of satisfactorily completing its program of legal education and being admitted to the bar.

Florida Coastal was asked to submit a report by November 1, 2017, which it presumably has done, and has been summoned to appear before the Accreditation Committee at its March 15-17, 2018 meeting.

As I wrote about previously, Florida Coastal has seen its applications drop sharply and was forced to dramatically shrink its entering class this year in order to try to raise its admission standards to a level that would be likely to be found acceptable by the ABA.  Needless to say, the few students that have enrolled there, and the entire faculty and administration, are deeply concerned about this letter.  Such letters are often precursors to the ABA imposing sanctions on the school, including placing schools on probation.  Indeed, this is exactly what happened to Florida Coastal’s InfiLaw sister schools Charlotte School of Law (now out of business) and Arizona Summit (currently on probation and hanging on by a thread). 

Dean Scott DeVito has sought to reassure the students by sending them a letter addressing what he called “misconceptions” about the ABA letter, and he kindly sent me a copy, and has given me permission to publish it.

Understandably, Dean DeVito seeks to place the most positive spin on the letter, and he provides a number of “facts” to try to assuage the students concerns and place Florida Coastal in the most positive light possible.   His arguments presumably echo those made in Florida Coastal’s response to the ABA, in an attempt to convince the ABA that Florida Coastal is not currently out of compliance with ABA Standards and should not therefore be sanctioned.  Although he makes some interesting points, and his letter may be  factually accurate, the letter provides a misleading impression.  In this post, I address some of the key arguments advanced by Dean DeVito. 

Here is an extended excerpt from the letter: 

"I know that finals are around the corner, but I wanted to reach out to help dispel four misconceptions that have arisen relating to the ABA letter finding Florida Coastal out of compliance with three (out of 53) ABA Standards: Standards 301(a), 309(b), and 501(a)&(b).

The first major misconception I have heard is that Florida Coastal must have engaged in highly questionable conduct because Florida Coastal is one of just four schools noted on the ABA website.

The facts are:

1. The ABA has only just started publicly posting this information.  The short list of schools on the ABA website is an artifact of being one of the schools found out of compliance after the ABA started publicly posting this information. (I do not know why the ABA website does not also list Atlanta’s John Marshall’s non-compliance letter.)
2. There are approximately 23 other law schools listed on the Department of Education website that received an ABA letter relating to non-compliance since 2016 (the DOE website does not go back farther). Those schools are

             a. Schools listed as subject to “Heightened Monitoring or Focused Review”

                    1. Ave Maria School of Law.

                    2. Thurgood Marshall School of Law (Texas Southern University), and

                    3. Valparaiso University School of Law.

            b. Schools listed as subject to “Probation or Equivalent or More Severe Status: Show Cause”

                    4. Appalachian School of Law,

                    5. Arizona Summit School of Law,

                    6.  Florida Coastal, 

                        a.  Florida Coastal falls under the “show cause” designation

                    7. John Marshall School of Law (Atlanta),

                    8. Thomas Jefferson School of Law, and

                    9. SUNY Buffalo Law School.

            c.  Schools Listed as “Removal of Show Cause Status.”

    

10. Charleston School of Law,

11. George Mason University School of Law,

12. Gould School of Law (University of Southern California),

13. Hofstra University School of Law,

14. Loyola Law School (Loyola Marymount University),

15. Pontifical Catholic University of Puerto Rico,

16. Santa Clara University School of Law,

17. University of Maine School of Law,

18. Washburn University School of Law, 

19. University of California Hastings College of Law,

20.University of Dayton School of Law,

21. University of New Mexico School of Law,

22. University of North Carolina School of Law, and

23. University of Tulsa College of Law.                 

3. Thus, in the last two years, over 11%, 23 of the 204 ABA accredited, JD granting, Law Schools either     received a letter similar (or worse) than the one Florida Coastal received and 14 of those law schools were found back in compliance after receiving a letter similar (or worse) than the one Florida Coastal received."

 

These "facts" are highly misleading.  Twenty-three law schools did not receive a letter “similar or worse" than the one Florida Coastal received.  Looking at the actual content of the letters, the only ones that are comparable in seriousness are the letters received by Appalachian, Thomas Jefferson, Arizona Summit and John Marshall.  Thurgood Marshall was directed to take remedial actions for similar standards violations, Valparaiso was censured for prior violations of admissions policies, and Ave Maria was ordered to take remedial action to correct its lax admissions standards.   These schools, along with Charlotte School of Law and Whittier School of Law, both now out of business, have had the most egregiously exploitative admissions standards of all ABA Schools from 2012-2016, and among the worst bar results in the country over the last three years.  (The major school missing from this list is Thomas Cooley School of Law.)  The law schools listed from 9 through 23 have not been found non-compliant on multiple core Standards; it is thus disingenuous, in my view, to lump these schools in with the first 8 schools on the list.

Also, the assertion that Florida Coastal was only found non-compliant with 3 of 53 standards and the implication that the noncompliance is therefore not serious is deeply misleading.  Standards 301, 309 and 501 go to the very essence of what a law school is supposed to be doing, and are among the few standards violations which are likely to lead to serious sanctions.

It is highly misleading to suggest that this letter from the ABA is somehow routine, or that it doesn’t imply misconduct on the school’s part.  It is true that just because a school receives a letter of noncompliance it does not necessarily mean that the school engaged in “highly questionable conduct”; however, in this case, Florida Coastal has received the letter precisely because it has engaged in highly questionable conduct, specifically, admitting and enrolling hundreds of unqualified students between 2012 and 2016 for the purpose of making a profit for InfiLaw’s investors, even though the school knew, or should have known, that these students  had extremely poor prospects of success, and were highly likely to flunk out or, if they managed to earn a degree, fail the bar (which, in fact, is exactly what has happened).  Through their unethical admission practices, they have caused great misery to hundreds of students, and saddled them with huge debt burdens.  

Dean DeVito makes a second argument in his letter that relates to the quality and rigor of the school’s educational program and its academic support program.  He disputes the perception that Florida Coastal “does a poor job of educating its students.”  He asserts that students that have transferred to other Florida ABA law schools have had a lower bar pass rate at those other schools than students with similar credentials who remained at Florida Coastal.   If true, this would be a persuasive argument in favor of Florida Coastal, but I am skeptical about the methodology of calculating the bar pass rates.  For example, Dean DeVito provides a chart which shows that 31 students transferred to the University of Florida between 2012-2015 and had a bar pass rate at UF of 74.19%.  These students had LSATs ranging from 139 to 158 and 1L GPAs ranging from 2.8-4.0.  Dean DeVito claims that the pass rate for comparable students at Florida Coastal is 91.1%.  Similarly, Dean DeVito claims that 34 students transferred to Florida State, with LSATS of 138-159 and 1L GPAs of 2.66-3.75.  These students allegedly achieved a bar pass rate at Florida State of 64.71%.  According to Dean DeVito’s chart, “comparable Florida Coastal students” passed at a rate of 89.06%.    The ABA should require Florida Coastal to produce the underlying data that supports these claims.  If the data does bear out these claims, that would suggest that the cause of Florida Coastal’s declining bar pass rates was not necessarily the quality of the legal education and academic support programs, but rather with the large number of unqualified students who were admitted.

The third argument Dean DeVito makes is that Florida Coastal has recently raised its admission standards, and plans to continue to raise them further, so therefore the school should not be considered noncompliant with Standard 501.  In support of this assertion, Dean DeVito notes that Florida Coastal’s 2017 admitted students have comparable or better credentials (at least at the bottom LSAT quartile), than 22 other ABA law schools admitted in 2016.  The list includes three schools in Puerto Rico, four HBCUs, and several other schools which the ABA has found fault with their admissions practices, including Arizona Summit, Ave Maria,  Thomas Jefferson, Texas Southern, Appalachian, and several other poor performing law schools  such as Thomas Cooley, and Whittier (now closed).

In essence, Florida Coastal argues that because their bottom quartile LSAT scores (now at 145) are no longer in the bottom 2-3% of law schools, but rather are likely somewhere in the bottom 10-20% of ABA-accredited law schools, that they are now in compliance with ABA Standard 501 and should not be subject to sanctions for their grossly exploitative admissions practices between 2012-16.  While Florida Coastal deserves credit for modestly raising its admissions standards in 2017, given that their 2L, 3L and 4L part-time classes were all admitted in years when the law school was clearly not in compliance with ABA Standard 501, it is premature to say that Florida Coastal is now in full compliance with this Standard.  Furthermore, with a 25% LSAT at 145, that means that up to 24% of the class were at 144 or below.  Generally, students at 144 and below  (the bottom 23% of LSAT takers) are at extremely high risk of failure.  The ABA should very closely scrutinize the records of these students to determine if there are other reliable indicators suggesting that these particular students appear capable of satisfactorily completing a rigorous J.D. program and passing the bar.  

Dean DeVito concludes his letter by stating that “there is no reasoned basis for closing the school.”  That is debatable.  But realistically, the ABA is not going to close the school.  The ABA hasn’t actually revoked a fully approved law school’s accreditation in decades (if ever). What the ABA has done, in analogous cases, is place a law school on probation, and no doubt this is Dean DeVito’s biggest concern.  If Florida Coastal is placed on probation, many of the few students that they have remaining are likely to try to transfer, and the school may no longer be economically viable.  While there is certainly a case to be made for probation (and I have argued for probation myself in the past), looking at the list of available sanctions, I believe there is another sanction which would be even more appropriate. Under Rule 16(b)(2), the ABA may impose a “requirement that the law school refund all or part of the tuition or fees paid by students.”  I would recommend that the ABA appoint a fact finder to review Florida Coastal’s admissions records from 2012-16 and determine which students were admitted in violation of Rule 501 and subsequently were academically attrited or dropped out or were never able to pass the bar.  The school should be required to refund a significant portion of the tuition paid by these students who never should have been admitted in the first place.  Requiring the law school to disgorge the profits it made by exploiting these vulnerable students would be a fitting punishment.

Florida Coastal also needs to admit the error of its ways.  While Dean DeVito may be reluctant to do so for liability reasons, other law schools, namely Valparaiso and Ave Maria, have escaped harsh sanctions from the ABA by admitting that they had admitted unqualified students in prior years and voluntarily changing their ways, so it is a strategy worth considering if Florida Coastal wants to convince the ABA that it is serious about reforming itself.   Of course, at an InfiLaw school, such an admission carries its own risks. Last year, Charlotte Law School’s interim Dean Scott Broyles admitted in an interview with a local news station that Charlotte had “accepted unqualified students”.  He was forced to resign shortly thereafter.  So, while Dean DeVito might be understandably reluctant to use a "radical honesty" approach, trying to sugarcoat the facts is unlikely to fool anyone at the ABA or to achieve the desired result of avoiding harsh sanctions. 

Comments

[AnonForThis]

I taught at FCSL for a year after having taught at two "tier-2" law schools. It was a shock. Jonestown comes to mind.

If you want a better analogy, imagine this: An airplane crashes on a deserted island, and the survivors assume different roles - one is the 'doctor' one is the 'judge' one is the 'teacher' one is the 'cook' -- and they walk around calling each other by these titles even though none of them have any experience in these areas. So you are calling the non-doctor a 'doctor' and so forth. That is what it was like watching these people call each other 'professor.'

You ask whether FCSL should be sanctioned.

THEY SHOULD KILL IT WITH FIRE.

[anon]

Ha! Sadly, this is the impression of the faculty at top tier schools that I am compelled to reach as well.

It seems that a bare JD makes many of these pampered elitists believe that they are capable of pontificating on any subject, whether they could have qualified as a "professor" in that department of the university or not. So, one is the "economist," another, the "historian," another the "sociologist," and so on.

It is sort of funny, in a sad sort of way, these JDs, who have little or no training or experience in ANYTHING (not legal experience, certainly) posturing. Worse, the trend to hiring the pompous PhD, who pretends to be able to teach law.

So pathetic.

[Anon]

anon - unless you've been inside a for-profit school, you have no idea about what goes on inside of one. I think AnonForThis's description is pretty accurate.

[twbb]

"Looking at the actual content of the letters, the only ones that are comparable in seriousness are the letters received by Appalachian, Thomas Jefferson, Arizona Summit and John Marshall. Thurgood Marshall was directed to take remedial actions for similar standards violations, Valparaiso was censured for prior violations of admissions policies, and Ave Maria was ordered to take remedial action to correct its lax admissions standards. These schools, along with Charlotte School of Law and Whittier School of Law, both now out of business, have had the most egregiously exploitative admissions standards of all ABA Schools from 2012-2016, and among the worst bar results in the country over the last three years.

Big hand to Jay Conison, who managed to be directly in charge of 22% of "the most egregious" schools you cite during the relevant time period, and a member of the ABA accreditation committee for the years leading up to that time period.

[Deep State Special Legal Counsel]

It may not be the school, but the individual. I know and attorney (yes, licensed) who got divorced in middle age (I think he sold cars) and decided to start all over. He choose Florida Costal because he "could sit and study on the beach all day and look at the hotties" (His words and his name is not Weinstein). If I was ever rendered sick, sore and disabled because someone ran a pallet cart into my thighs at Walgreens ($7.3 million-Cook County Jury), I would hire this attorney in a heart beat. He is affable and everybody loves him. He schmoozes with the best of 'em. Law is not about academics or even the law. It is all about relationships...

[Mike Hutter]

May be the answer to the ABA is to have John Grisham named Dean and his inspiration Paul Campos named vice-dean. They know what's going on.

[Deep State Special Legal Counsel]

Yes, of course. John Grisham.

The same John Grisham who doesn't like drunk white guys in prison who view child porn late at night. He apologized for it. I guess its all good now that he wrote a shitty new book and in a recent Vanity Fair interview calls Trump a fraud.

And we question why Hillary lost?