For some time, I have been arguing that many bottom-tier law schools have been violating Standard 501(b)’s mandate to admit only students who “appear capable of satisfactorily completing its program of legal instruction and being admitted to the bar,” by admitting many students who are at extremely high risk of failure. Through my writing on this site and through my work with Law School Transparency, I have encouraged the ABA to more vigorously enforce this Standard and hold schools accountable for their exploitative admissions practices. Over the last couple of years, the ABA has begun to heed this call. In fact, the ABA has notified at least 11 law schools that they are out of compliance with this Standard. I discussed the first 10 in this post. The eleventh and latest, notified just last month, was North Carolina Central. (Note – The ABA’s notice came three weeks after I urged the ABA to “take a hard look at NC Central” in this column. Turns out that the ABA Council had already done so at its meeting the week before.)
The notified schools have responded in a variety of ways to the ABA, but most have acknowledged a need to raise their LSAT scores at the 25th and 50th percentiles to come into compliance. The first two schools found out of compliance were Ave Maria and Valparaiso. Ave Maria raised its standards enough to get out of the ABA doghouse and seems to be on the path to stability and maybe even respectability. Valparaiso also admitted that it lowered its standards too far, and raised its standards significantly, but found that it could not attract enough students meeting its new higher standards to remain economically viable, and appears headed for closure. This may explain why Texas Southern, Appalachian, and Thomas Jefferson have made little, if any, effort to raise their standards despite the ABA’s warnings. Florida Coastal, informed by the disaster at sister school Charlotte Law School, and warned repeatedly by me that sanctions were inevitable, tried a different approach. It began to voluntarily raise its standards last year, before the ABA got around to issuing its non-compliance letter. Coastal is are now arguing that the school should not be found out of compliance just because their standards used to be too low. Arizona Summit has also admitted that it allowed standards to drop too far and has announced that it plans to try to raise standards, but it is far from clear that it is economically feasible for them to do so. In contrast, NC Central promptly announced it would shrink its incoming class in order to raise admission standards, and take additional steps to evaluate its admissions process. With the support of the University as a whole, it seems likely that NC Central will be able to rebound.
Western Michigan University Thomas Cooley Law School (Cooley) has taken a very different approach. Not only has it refused to admit any wrongdoing, it has actually filed a lawsuit against the ABA challenging the finding of non-compliance and attempting to block any enforcement action. In their most recent amended complaint, Cooley asserts, in essence, that Standard 501(b) is simply too vague to be enforceable, and complains that the ABA has refused to “state or explain the meaning of the term ‘appear capable’”. Cooley also complains that the ABA is playing hide the ball, asserting “on information and belief, the ABA has provided its site inspectors and other evaluators guidance on the meaning of ‘appear capable’ which has not been provided to WMU-Cooley or other institutions.”
In fact, according to Cooley, they are utterly mystified about why they have been found out of compliance with this standard:
WMU-Cooley does not know why the Committee and Council believe that WMU-Cooley is admitting students who do not “appear capable.” The Committee has not provided LSAT or GPA metrics to justify its decision, nor did the Committee explain what changed between WMU-Cooley’s successful reaccreditation in December of 2015 and May 2016, the date of the initial monitoring request, only five months after reaccreditation.
While, for reasons that I explain below, Cooley’s assertion that they don’t understand the basis for the ABA action is specious, I believe that Cooley does make a fair point about the ABA’s lack of transparency. I believe the ABA probably does provide secret unpublished
As Cooley’s complaint observes, two measures that the ABA is known to consider in evaluating compliance with 501(b) are a school’s non-transfer attrition rate, and the bar passage rate. Obviously, if a high percentage of students are flunking out that would suggest that those students were not in fact capable of completing the program of legal education. (And indeed, the ABA has set a presumption that attrition over 20% is indicative of non-compliance with the admissions standard.) Similarly, if a high percentage of graduates are not passing the bar within a reasonable time after graduation, that is further evidence of the admissions standards being too lax. But the rule is clear that compliance with the incredibly lax and loophole-ridden bar passage Standard 316 is not sufficient to prove compliance with 501(b). In any event, Cooley asserts that they are in compliance with Standard 316, and that their non-transfer attrition is below 20%. Clearly, as Cooley suggests, the ABA is relying on the entrance credentials (LSAT and GPA) of a law school’s admitted students in determining non-compliance. And presumably, the ABA has some data or metrics supporting their actions. It is not unreasonable for Cooley to ask that it be provided with this data.
So, what is the ABA telling its site inspectors and evaluators to look for? What does the ABA mean by “appear capable”? Schools deserve to have a clear and workable standard that they can apply so they can know if they will be found out of compliance without trying to read the ABA’s tea leaves. My guess is that the ABA’s internal guidance looks a lot like my LSAT Score Risk Bands, in which the bottom band, defined as 144 and below, is categorized as “Extreme Risk.”
An analysis of the data from the 11 schools found out of compliance demonstrates that if a school is admitting 50% or more of students in the extreme risk band, they are at very high risk (one might even say “extreme risk”) of being found out of compliance by the ABA with Standard 501(b). Every school to be found out of compliance with Standard 501(b), with the exception of John Marshall Atlanta, has had a median LSAT at 144 or below. (John Marshall currently has a median of 146, but had a non-transfer attrition rate over 20% last year so was presumptively out of compliance.) If the ABA has decided that schools must have a median LSAT of 145 or higher to comply with 501(b), then I agree with Cooley that the ABA should come right out and say so. And it should enforce the standard uniformly, meaning that Southern Law School should also be found out of non-compliance.
But even though Cooley has a point about transparency, Cooley’s claim to be mystified about what has changed since their last accreditation visit is laughable. Let’s look at the facts.
Cooley’s last ABA site visit was March 26-29, 2014. The ABA site-visit team would have had access to full admissions data from 2013 and likely had some projected or preliminary data for 2014. In those years, Cooley’s median LSAT was 145, just above the extreme risk band. Also, it is worth noting that there were several law schools with significantly lower admission standards than Cooley in both 2013 and 2014, a change from the historic pattern in which Cooley was usually the least selective law school in the country. So, although Cooley’s admissions standards were at the very low end of acceptable, the ABA apparently believed that there was no basis to find the school out of compliance with Standard 501(b).
But, as the chart below demonstrates, as soon as the ink was dry on the site visit report, and it became clear to the school that its reaccreditation was secure, Cooley dramatically lowered its admission standards. In fact, as I observed at the time, the class they admitted in 2015 was, “statistically the worst entering class of law students in the history of American legal education at an ABA-Accredited law school.” As I noted in that post, extrapolating from Cooley’s 509 report, it was possible to determine that Cooley matriculated over 100 part-time students with LSATs of 137 or below, comprising the bottom 8% of LSAT-takers.
And this was not a one-time aberration. Cooley’s numbers in 2016 were virtually identical.
GPA/LSAT 75th% 50th% 25th%
2013 3.32/150 2.96/145 2.49/141
2014 3.28/149 2.90/145 2.53/141
2015 3.19/147 2.85/141 2.51/138
2016 3.20/147 2.90/141 2.60/138
2017 3.27/146 2.94/142 2.59/139
And even after Cooley had the opportunity to observe that several law schools with higher standards were found to be out of compliance by the ABA, Cooley continued to have the lowest admission standards in the country in 2017. So it is risible for Cooley to feign ignorance and about the reasons for the ABA’s enforcement action.
Further proof of Cooley’s disingenuousness can be found in a January 2015 Inside Higher Ed article, “Lowering the Bar”. In this article, the author, Ry Rivard, noted that other law schools had lowered their standards considerably and singled out Cooley for praise for maintaining its standards in an environment of declining applications, even though this was significantly cutting into the school’s profitability. The author sought out Cooley’s Dean and President for comment. Here is a telling excerpt from the article:
Don LeDuc, the president and dean of Cooley, said the school’s level student profile is a result but not the intent of admissions policies that have remained virtually unchanged despite the shocks in the market. It is working on a new admissions metric that relies more on college grades than LSAT scores, but LeDuc predicted it will not change the LSAT score much, if at all.
Because it has not lowered its admissions standards, Cooley has taken quite a hit. Its first-year class had 1,161 students in 2011. This year’s incoming class was about 60 percent smaller – just 445 students. As a result of the enrollment losses, Cooley is working to close one of its five campuses.
LeDuc said Cooley, a private nonprofit, is facing more competition for students with an LSAT score of around 145. The dean worries about law schools that do not have as much experience with low-LSAT or low-GPA students. “I would hope they are not going to just bring them in and do exactly what they did with their student profile in the past,” LeDuc said.
Cooley uses a predictive model to tell all students their chances of success based on their GPA and LSAT. The school doesn’t admit anyone with less than a two-thirds chance of succeeding.
Clearly, LeDuc’s prediction that his new admissions metric “will not change the LSAT score much, if at all” was faulty, if not an outright lie, as the school’s LSAT scores plummeted at all quartiles within weeks of this assertion. If Cooley’s adjusted admissions metric emphasized grades more than LSAT scores, as LeDuc claimed, then we would have expected average UGPAs to go up, but in fact, UGPAs declined across the board in 2015 as well. So whatever Cooley told the ABA about its admissions standards during the ABA site visit in 2014, there was clearly a dramatic shift in admissions policy in 2015, when Cooley thought that the ABA was no longer paying attention. This shocking decline in admissions is undoubtedly what triggered the initial monitoring in May 2016, a few months after Cooley would have reported its 2015 admissions numbers in its 2015 509 report. And clearly, whatever explanations Cooley has supplied to the ABA over the last two years to justify this sharp decline in standards have failed to convince the ABA that the school is not exploiting unqualified students.
So, while I have little sympathy for Cooley Law School, which I believe has been engaged in predatory admissions practices for at least the last three years, I am in accord with their call for the ABA to be more forthcoming about the basis for their decision-making. If the ABA has a de facto LSAT standard, then it should just publish it, while releasing any supporting data it has to justify the standard. Most likely, the ABA will resist Cooley’s demand for transparency and will be reluctant to admit that it is using a clear LSAT cutoff as its primary basis for determining compliance with 501(b). Historically, the ABA has been reluctant to set anything like a bright-line cutoff for LSAT scores, and indeed it cautions law schools against overreliance on the LSAT. Much of this reluctance is related to the fact that underrepresented minority groups (especially African-Americans and Hispanics) score so much lower, on average, than white applicants on the LSAT. If the ABA were to suggest, as I have, that students with LSATs at or below 144 should rarely, if ever, be admitted to law school (and only if they have better than average college grades), this would have the result of excluding over half of African-American LSAT takers (average score 142) and close to half of Hispanic LSAT takers (average score 146). This would obviously conflict with the ABA’s laudable goal of increasing diversity in law school admissions and in the profession. But the ABA owes it to its member law schools, and to the public, including to minority college graduates considering law school, to be fully transparent about what it means by the term “appear capable” and what it knows about what it takes to succeed in law school and pass the bar. If the ABA has data (either from individual schools or in the aggregate) about the likelihood of success in law school and on the bar based on student entrance credentials that is informing its decisions to find schools out of compliance with Standard 501(b), the ABA should publicly release this data. If Cooley’s otherwise meritless lawsuit forces the ABA to disclose this data, that will be at least one positive result of this litigation.
Striking an Appropriate Balance in Admissions: A Proposal for Reform
Assuming that the ABA does have an unspoken policy of requiring a median LSAT of 145, is this reasonable? Although I tend to think it probably is, without supporting data, it is hard to say. Bottom-tier law schools tend to talk a lot about “access” and “opportunity”, and they frequently invoke “diversity” and “underrepresented groups” as well to justify their admissions practices. They argue that students with below average predictors should be given the opportunity to go to law school because at least some of these students will succeed in law school. Because it is difficult to predict with any certainty who will succeed and who will fail, they argue, it is unfair to deny the opportunity to attend law school to someone who has any reasonable chance of success. After all, these are consenting adults, college graduates who are capable of weighing the risks of failure, so there is nothing improper or unethical about giving them a chance to pursue their dream. This argument does have some intrinsic appeal, but in my opinion, it is flawed. The primary problem with the argument is that there is ample evidence that students with poor chances of success do not fully appreciate just how dim their prospects are, and they tend to significantly overestimate their likelihood of success. To combat this problem, I have argued that schools should be required to provide students with very clear information about what their likely chances of success are, based on the success rate of similarly qualified students at that school. I have also argued that this data should be readily accessible to prospective students so that students can make better informed choices about which schools have better outcomes for students with credentials similar to theirs. But is it enough to fully inform students about their chances of success (caveat emptor), or is there a point below which a student’s poor chances of success should result in denial of admission, even if that student is willing to assume the risk of failure? Does a student with a one on three chance of success “appear capable” of success? What about one in five, or one in ten? At schools like Whittier and Arizona Summit, students in the bottom quartile of the class appear to have lower than a 20% chance of success in recent years, and perhaps closer to 10%. But could those schools still legitimately claim that the students “appeared capable” of success at the time of admission? Either those schools thought that they could, or the school were intentionally violating the Standard. These examples demonstrate that without any guidance on the meaning of the term, law schools like Cooley can argue that a student who has any predicted chance of success “appears capable” of succeeding.
Because the term “appears capable” is so readily susceptible to abuse, I believe that instead of the vague “appear capable to succeed” standard, the ABA should adopt an “appear likely to succeed” standard, along the lines of the following:
A law school shall only admit applicants who appear likely to successfully complete the school’s program of legal instruction, pass a state bar examination, and be admitted to the bar.
The interpretation of the rule should state something like this:
Schools must be able to demonstrate, either based on their own internal data, or national composite law school data, that a student with a specific LSAT (or GRE) and GPA profile and any other objectively measurable qualifications has a greater than 50% chance of graduating from law school and passing the bar within two years of graduation. A school relying on its own internal data must make that data publicly available. Schools must also determine whether an applicant is likely to be able to pass a state bar’s character and fitness examination.
I believe all law schools (other than recently opened law schools that have not been operating long enough to have bar passage data) could readily determine based on data they are already collecting what combinations of LSAT and GPA gives a student at their school a greater than 50% likelihood of success. If the ABA required all fully accredited law schools to share this data, it would also be possible to develop national composite statistics that could guide newer schools in setting admissions standards. Law schools with a proven track record of success with students below the national 50% cut line would be free to continue to admit those students so long as they could continue to replicate that success. This would reward law schools which developed best practices to help high-risk students succeed.
Based on my research, I believe that under this standard, it is likely that students with a 144 LSAT, especially when coupled with a below-average UPGA, would not be admissible. If so, there is little doubt that this would significantly reduce the number of minority students eligible for law school admission. Therefore, in the interests of promoting diversity and to provide some flexibility to law schools with a true access mission, I believe that law schools should be permitted to have a “special admissions category” under which a certain percentage (perhaps 10-15%) of students who fall below the 50% likelihood of success standard could be admitted through a rigorous admission by performance program. In the alternative, schools could offer special admission to students with less than a 50% likelihood of success but only if the school guaranteed such students at least an 80% percent tuition refund if they academically attrited at any point. This would ensure that law schools would not be able to continue the current widespread practice of using the tuition of unqualified students to subsidize scholarships for students with greater prospects for success, and would also properly incentivize law schools to ensure adequate academic support for the at-risk students admitted under this program. It would also ensure that the economic consequences of attempting law school would not be catastrophic and that high-risk students would have the funds to pay off taxpayer-backed federal student loans even if they flunked out. Students admitted under a special admissions category would have to be specifically informed in writing that, based on their admissions credentials, they were more likely to fail than to succeed, so that there could be no doubt that they were making an informed choice.
My proposed admission standards would promote transparency, fairness and objectivity, while providing sufficient flexibility to promote diversity and provide opportunities for deserving candidates with sub-par academic credentials.
Although I don’t have the data to prove it, I would bet good money that a law student admitted to Cooley with a 138 LSAT and a 2.51 UPGA does not have a greater than 50% chance of graduating from Cooley and passing a state bar within two years, and that therefore the ABA’s action in finding the school out of compliance with 501(b) are fully justified. If I am wrong, then Cooley should be allowed to continue to admit students with similar credentials and the ABA should rescind its finding of non-compliance. Hopefully, either through discovery in Cooley’s lawsuit or through much-needed changes to ABA Standard 501(b) spurred by the lawsuit, we will get the data to find out one way or the other.
If one student passes the Bar, they are a success. I know several Cooley grads who better off financially in their practices than me and I graduated from a ranked law school.
The real issue is the grotesque over saturation of lawyers. All law schools pumped us out like chord wood for far too long. There is a lawyer on every corner and its a cage fight for clients, fees, and work. It doesn't do the client any service if a lawyer is worried about feeding her family and chasing the next fee because of real income scarcity and law school debt. The under served really aren't served.
Posted by: Deep State Special Legal Counsel | February 06, 2018 at 08:44 PM
"The real issue is the grotesque over saturation of lawyers. All law schools pumped us out like chord wood for far too long."
And Cooley is one of the poster-children for this problem. That said, you're right, the issue facing all players is cost and oversaturation, and the resultant decline in quality that can occur. More is not always better.
The invisible hand smacks everybody, even law schools.
Posted by: dupednontraditional | February 07, 2018 at 09:27 AM
The invisible hand smacked the dental profession during the 90s. The ADA recognized and admitted that there was an oversaturated market. They closed and consolidated dental schools throughout the country and strengthened standards. Why are law schools any different? Don't tell me either that it revolves around fundamental "societal services" and preservation of the system. If you don't have teeth, you can't eat...what is more fundamental than that?
Posted by: Deep State Special Legal Counsel | February 07, 2018 at 07:34 PM