The ABA Finds Thomas Cooley In Compliance. But Why?

UPDATED APRIL 30 (SEE BOTTOM)

The ABA made a surprise announcement this week, reversing their earlier decision that WMU Thomas Cooley Law School was out of compliance with Admissions Standard 501(b) and finding the school is now in compliance.  So how did the least selective law school in the country convince the ABA to let it off the hook?  I have been trying to make sense of this decision and have a theory.  But before I share it, let’s review the history. 

Cooley law school has been known as a law school of last resort for many years. Often it has been the least selective law school in the country and always in the bottom 5 or so.  Over the last couple of years, Cooley’s admissions standards dropped further than ever before, into virtually uncharted territory,  In 2015, as I wrote in this column,  “the class that Cooley admitted in 2015 is statistically the worst entering class of law students in the history of American legal education at an ABA-Accredited law school.”    (As an aside, this quote has made it into a couple of stories about Trump lawyer and Cooley alum Michael Cohen in recent weeks.)  I called for the ABA to take action against Cooley in January 2016, and repeated that call several times subsequently (see, e.g., here and here). 

Eventually, the ABA decided it could ignore Cooley’s flagrant disregard of Standard 501(b) no longer.  Thus, on November 13, 2017, the ABA Council notified Cooley that the school was out of compliance with Standard 501(b) and Interpretation 501-1.  The Council was affirming a decision of the Accreditation Committee made in September 2017 which Cooley had appealed.  The school was ordered to submit a report by February 1, 2018 with additional details.   The next day, Cooley sued the ABA, seeking a preliminary injunction to prevent the ABA from posting the letter of noncompliance on its website.   Cooley’s injunction request was denied, but Cooley continued to pursue the lawsuit against the ABA, disputing the ABA’s findings of non-compliance with the Admissions Standards, and the ABA’s denial of their request to open a new location. 

The ABA filed two summary judgment motions, most recently on March 2, 2018, defending their actions and arguing that the lawsuit was without merit.   The brief in support of the summary judgment motion had several pages devoted to explaining why Cooley was non-compliant with Standard 501(b) (see pages 4-10 of brief).  The brief cited the following facts (copied verbatim from the brief) in support of the Council’s determination that Cooley was out of compliance:

• The first-time bar passage rate for Cooley students had dropped dramatically, from 76% to 48% over a seven-year period;
• Many Cooley students with low GPAs and LSAT scores were not taking, let alone passing, the bar exam. In one relevant period, only 118 of the 316 students in the bottom quartile by LSAT and undergraduate GPA—excluding those still enrolled in good standing and those who left Cooley in good standing—had attempted the bar, and only 69 (less than 22% of the 316 students) had passed;
• The percentage of entering students with LSAT scores of 143 or less more than doubled over a six-year period, from less than a quarter of the entering class to more than 60%; and
• The percentage of entering students with LSAT scores in the very bottom range of 138 or below had increased from 4.6% of the entering class to approximately 30% of the class over a six-year period.

The brief included this explanation of these statistics:

“For context, from 2014–17, students with LSAT scores of 143 or less have been in approximately the bottom 20% of all LSAT takers nationwide (including those who never apply to law school and those who apply but are not admitted), and those with scores of 138 or below have been in approximately the bottom 10%.”

According to footnote 7 of the brief, in 2016, the percentage of the class with an LSAT of 143 or less was 62.7%, totaling 259 students.   That is simply appalling.  There is a large body of evidence that students at this level of aptitude are extremely likely to fail. 

In short, the ABA’s finding of non-compliance was completely justified.  In fact, Cooley’s admissions practices were worse in almost every respect than all of the other dozen schools that the ABA has found to be out of compliance with Standard 501(b).  

Yet when the ABA Council discussed Cooley at its March 15-17 meeting, less than two weeks after filing this brief, the ABA Council found Cooley in compliance with Standard 501(b).  How could this be?  It is not as if Cooley’s substantially raised its admission standards in 2017.  In fact, Cooley continued to be the lease selective law school in the country in 2017, according to the most recent ABA 509 Reports.   Their LSAT scores of 146/142/139 barely budged from 2016 when they were 147/141/138, so it is likely that nearly two thirds of the class continued to be from the bottom 20% of LSAT takers.  Cooley also had the highest acceptance rate in the country, by a considerable margin, accepting 85.6% of applicants. 

And Cooley’s bar passage rates continue to be deplorable.  According to the recently released ABA Bar passage spreadsheet, the school was in the bottom 10 of ABA law schools for the 2015 Ultimate Bar Passage rate at 69.75%, bottom 20 for first-time pass rate in 2016 at 48.13%, and bottom 10 for first-time passage rate in 2017 at 45.95%, with over 40% of the graduating class unaccounted for.

Here is another interesting point of information.  At the very same meeting where the ABA Council found that Cooley was in compliance with 501(b), the ABA Council found that Florida Coastal School of Law remains in non-compliance with 501(b), and ordered the school to take remedial actions.  Yet, Florida Coastal significantly and voluntarily raised its standards from 2016 to 2017 and had publicly announced a plan to further raise those standards before it was found out of compliance.   For 2017, Florida Coastal’s LSATs are at 151/148/145, six points higher at the 50th and 25th percentiles than Cooley.  Now, I am not suggesting that Florida Coastal should have been given a free pass.  Indeed, I have specifically argued that Florida Coastal should be found out of non-compliance despite their recent improvements, but on their face, at least, these actions do not seem consistent.   

Also at the March 15-17 meeting, the Council found that Golden Gate and Lincoln Memorial University Duncan School of Law were out of compliance with 501(b).  I discussed these decisions in this post.  Both of these schools have far higher admission standards than Cooley. In fact, Golden Gate’s 25^th percentile LSAT of 146 for 2017  (151/148/146) is the same as Cooley’s 75^th.  Duncan’s 25^th LSAT is at 145 for 2017 (152/148/145), the same as Florida Coastal.   Again, while the ABA’s actions towards Golden Gate and Lincoln Memorial appear defensible, it is hard to square their decisions towards these schools with the Cooley decision. 

The ABA Council’s actions aren’t consistent with other past actions either.  For example, Ave Maria was found out of compliance by the ABA Council and ordered to take specific remedial actions in June 2016.  Ave Maria was found to be back in compliance and the remedial actions were removed in February 2018.  Similarly, Valparaiso was found out of compliance by the ABA Council with Standard 501 and censured by the ABA in October 2016.  Valpo was found to be back in compliance and the censure removed in November 2017.  In both cases, the schools had already started to raise standards at the time they were sanctioned, and both schools had gone through two admission cycles from the time that they were first notified that they were potentially out of compliance and had demonstrated that they had significantly raised their standards and reformed their admissions practices before the ABA let them off the hook.  Cooley has done nothing of the sort.

So how does the ABA explain its about- face on Cooley?  The Council doesn’t provide much of an explanation. Here is what the ABA’s letter announcing the decision says:

Following consideration of the record in the matter, the Committee concluded that the further report and concrete steps taken by the Law School with respect to its admissions policy and practices demonstrated the Law School’s compliance with Standard 501(b) and Interpretation 501-1.

The “further report” refers to the February 1, 2018 submission to the Council.  But it is hard to believe that report could have caused the Council to change its mind, given that Cooley provided very extensive data to the Council just a few months ago, which the Council found singularly unpersuasive. 

So here is my theory of what is really going on:  the Council’s decision must be part of a settlement between the ABA and Cooley to resolve the lawsuit that Cooley has filed against the ABA.  Cooley must have agreed to make significant changes to their admission practices (the key words in the ABA Letter are “concrete steps taken by the Law School with respect to its admissions policy and practices”) and drop their lawsuit in exchange for the ABA finding that the school is now in compliance.   Maybe Cooley agreed to pay for the ABA’s legal fees as well. I expect to see an announcement in the near future that the suit has been voluntarily dismissed.    Anything else just doesn’t make sense.   Presumably, the terms of the settlement are confidential so we may not get independent confirmation of this from either party, nor are we likely to find out the details of the promises Cooley made to the ABA.  Our first indications of how much the ABA forced Cooley to raise its standards may not be until the next 509 reports come out in December 2018.   But if the ABA gave Cooley a couple of admissions cycles to meet certain admissions targets we may not know until December 2019 or later exactly what was required of Cooley.  Meanwhile, Cooley gets to claim that they are in full compliance with ABA Standards right now, which is a complete joke.

While settling the lawsuit with Cooley may have made sense for the ABA (if that is indeed what happened), such a decision may have unintended consequences.  By finding Cooley to be in compliance with 501(b), when several other schools with less egregious admission practices have recently been found out of compliance, the ABA has opened itself up to more accusations of arbitrary and capricious decision-making (exactly the accusations that Cooley has made) and potentially additional litigation.  After all, if the least selective law school in the country is in compliance with Standard 501(b), then how can any other law school be found out of compliance?

If any readers have additional insight on this matter, I would welcome your thoughts in the comments.

UPDATE:  Over on TaxProf Blog, Blog Emperor Paul Caron reposted this post.  He also reached out to Barry Currier, (Managing Director, Accreditation and Legal Education, ABA Section of Legal Education and Admissions to the Bar), and who provided the following statement:

As the Public Notice posted on the website of the Section indicates, the Accreditation Committee has concluded that Western Michigan University Thomas M. Cooley Law School is now in compliance with Standard 501(b) and Interpretation 501-1. The ABA law school accreditation process includes opportunities for schools to address matters of non-compliance determined by the Accreditation Committee and the Council. When that occurs, and the committee or the council conclude that the steps taken by a school have addressed the concerns that led to the finding of non-compliance, then the appropriate action is to find that the school has returned to good standing on those issues.

This is strong circumstantial evidence that my theory was correct.  If I were wrong, and there were no settlement, then Mr. Currier would have simply said so.  But if there is a settlement, Mr. Currier is likely precluded from discussing it, so he has offered this bland generality.  His reference to "steps taken by a school" that "have addressed the concerns that led to the finding of non-compliance" without any reference to what those specific steps are, is also suggestive of a confidential agreement.  If the ABA was able to extract binding promises from Cooley to end their abusive admission practices, then this settlement may well be in the public interest (and consistent with the ABA's role as accrediting agency), but it is hard to assess without knowing any of the details.  Time will tell.

Comments

[Rick Bales]

I had the same reaction as David to the ABA's announcement. Until now, the ABA's actions on accreditation have been relatively consistent and predictable. I think the ABA owes all law schools a better explanation of how Cooley's situation is different from that of the other schools David mentions. If the only difference is Cooley's litigation tactic, I would expect a lot of future litigation by other schools. I sincerely hope there is a better explanation.

[Litowitz]

Don't look for logic. The ABA and these schools are in a revolving door, some of the Deans and Admins are former ABA people and vice versa. It is a racket. I used to teach at one of the schools you mentioned, they openly violated the ABA rules against the revolving door -- but they did it anyway. The whole thing is rotten to the core. It is rife with favors, inconsistencies, and some of the most limited thinkers that you can imagine. It's a morass of imbecility, a knot of conflicts, and a ball of confusion that you will never untangle. Don't try.

[twbb]

Disgraceful. The ABA has obligations under the law re accreditation, and those duties can’t be abrogated via settlement agreement. I hope a functioning DoEin the future launches a full investigation, names and shames the ABA people who did this, and strips ABA of accreditation authority.

[r]

twbb hit the nail on the head - the ABA didn't take any action at all until the Department of Education threatened to revoke the ABA's law school accreditation authority. Now, with a new administration in place, it is reasonable to believe that much of that pressure has been removed, and the ABA is reverting to business as usual.

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

"a functioning DoE in the future" because it certainly isn't today:

https://www.washingtonpost.com/news/grade-point/wp/2018/04/28/senate-democrats-question-the-role-of-a-former-for-profit-college-lobbyist-at-the-education-department

"Lawmakers sent Education Secretary Betsy DeVos a letter this week raising concerns about Diane Auer Jones. She is a former education official under George W. Bush and a former senior vice president at Career Education, a for-profit college operator. Jones, who was appointed senior policy adviser to the assistant secretary for postsecondary education in February, has also worked with for-profit colleges as a lobbyist and consultant.

Senate Democrats say those relationships color Jones’s objectivity in advising on policy and regulatory matters that affect her former employers and the for-profit industry. They are requesting detailed information about how the Education Department plans to address potential “conflicts of interest and appearances of impropriety that exist” in Jones’s role advising the agency.

***

This is not the first time Senate Democrats have challenged DeVos on hiring former for-profit college officials. Sen. Elizabeth Warren (D-Mass.) inquired a year ago about the advising roles of Robert S. Eitel and Taylor Hansen. Eitel is another Career Education alumnus who also served as an attorney at Bridgepoint Education, a for-profit college operator. Hansen, a former lobbyist at the Association of Private Sector Colleges and Universities (now called Career Education Colleges and Universities), held a temporary position at the Education Department.

DeVos also selected Julian Schmoke Jr., a former DeVry University dean with no legal or investigative expertise, to lead the student-aid enforcement unit at the Education Department. She also tapped Carlos Muniz, a corporate lawyer who has advised Career Education, as general counsel."

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

Or to put it another way - anyone think that the Trump administration, with education under Betsy DeVos, with Mulvaney in charge at the Consumer Financial Protection Bureau hasn't said - hey, fleece these student loan bearing suckers....

[David Frakt]

I agree that the DOE is unlikely to put pressure on the ABA, but I'm not sure I agree with the idea that the ABA is reverting to business as usual. The ABA has found quite a few law schools non-compliant since Trump and DeVos took over. In addition to the schools mentioned in this post (Florida Coastal, Lincoln Memorial, and Golden Gate), the ABA has placed Arizona Summit and Thomas Jefferson on probation, required remedial action of Appalachian and Texas Southern, and notified North Carolina Central and John Marshall Atlanta of non-compliance. So it is a bit early to say there is a trend, or that the ABA is backsliding. The one thing that is different about Cooley than all of the other schools that have been found non-compliant since 2016 is that Cooley sued the ABA. I think that is the key to understanding the ABA's decision. Hopefully, the ABA will be forthcoming with some kind of explanation of this otherwise inexplicable decision.

If the ABA is being consistent, I would I expect to see action against Charleston and Southern in the not too distant future. If they don't take any action against these schools, then I might start to believe that they are reverting to their old ways.

[AnonProf]

Two words: Regulatory Capture.

[r]

So the three theories identified so far are that (i) the ABA is backsliding, and after reading David's last comment, I agree it's too early to reach that conclusion, (ii) it's all a huge corrupt mess (Litowitz), or (iii) Cooley is getting special and confidential treatment because they were the only school to sue the ABA.

None of these sound good.

[anon]

Have you taken into account, in your post above, the relationship between 501(b) and "the academic attrition rate of the law school’s students, the bar passage rate of its graduates, and the effectiveness of the law school’s academic support program."

WHen comparing the subject school to others (like Golden Gate) I don't see a full and complete analysis.

[AnonProf]

Why was David Frakt made a regular contributor of this blog? It’s just become a mouthpiece for his incessant rants.

[Leo]

AnonProf at 802, you clearly must work at one of the schools David has criticized. Someone has to hold the ANAs feet to the fire. It’s accreditation Committee has damaged thousands of people who should never have attended law school and believed the deceptive information these schools have published for years. The ABA has not moved quickly enough to tighten standards or rescind the accreditation of many of the schools David has written about.

Regulatory Capture, indeed.

[David Frakt]

AnonProf,

I welcome opposing or alternative viewpoints, especially if supported by data. If you disagree with something I have written please feel free to share your thoughts.

[anon]

I agree with Leo. AnonProf, if you are a professor, what is your rationale for ignoring failing law schools?

Or, do you believe that all law schools are in compliance with the weak, ineffectual and poorly enforced "rules" the ABA has grudgingly imposed?

Instead of posting some snarky comment, explain your position.

Again, if you are a professor ...

[Deep State Special Legal Counsel]

I give credit to President Bush II. He "de-certified" the ABA's power to recommend or veto Supreme Court and Federal Judicial nominees. The ABA is nothing more than a run of the mill trade association on the level of the American Truckers Association, AAA or Retail Federation. What does the ABA do? Put on a trade show so Lexis can give out stress balls? A magazine?

[Joe S]

My guess is that the ABA wants to obtain compliance from Cooley (through a settlement process) as opposed to punishing or eliminating Cooley. Regulatory bodies do not generally have the same attitudes as prosecutors. The ABA is probably attempting to get Cooley to set itself right. My guess is that we'll see a dramatic reduction in Cooley's student body in the next year or two in order to come into compliance with whatever the ABA requires. If Cooley becomes and succeeds at being a small regional law school successfully serving Western Michigan, more power to it. However, unfortunately for Cooley, I think the small regional law school is on its way out as a matter of economics. If Southern Illinois, South Dakota State, and Valparaiso couldn't make it, I don't see how Cooley can either. All of these types of schools attached to small cities and rural areas are on the bubble as there is no need for that many lawyers in small cities and regions anymore.

[Deep State Special Legal Counsel]

^^^^Joe S,

You are so wrong with your fake post. Illinois has a law school gap. I said a law school GAP. There is no law school in Peoria, Rockford, Moline, Naperville, Aurora, Sp0ringfield, Danville, Galesburg, Effingham, Watseka, Lansing, Charleston and Alton. There are only 9 law schools and a mere 98,000 lawyers in Illinois. Read my lips, LAW SCHOOL GAP.

[anon]

"fake post"

Geez, Freudian slip and projection anyone?

[Deep State Special Legal Counsel]

You are $4200 dollars upside down on your 2010 Sonata. You credit score is 540. Dodge will put you into a new Journey with black plastic mirrors and poverty caps financed by Santander for 84 months at 15.2% interest with $200 down. This my friends is Cooley law school. Nobody dreams about a Mitsubishi or cheapo Dodge. It's a new car and that's life in the big city. Cooley is a law school and that's life in the big city. It is what you can get into.