The ABA, Cooley and Standard 501 – The Rest of the Story

The ABA’s March decision to find WMU Thomas Cooley School of Law back in compliance with Standard 501(b) was puzzling, given the fact that Cooley has been America’s least selective law school for the last three years.  In 2017, virtually the entire entering class at Cooley was comprised of very high and extremely high risk students, with LSATs of 146/142/139 at the 75^th, 50^thand 25^th percentiles, respectively.  The public notice claimed that “the further report [from Cooley's Dean] and concrete steps taken by the Law School with respect to its admission policy and practices demonstrated the Law School’s compliance” but the ABA did not explain what was in the report or what steps had been taken to warrant reversing their earlier decision.  Given that the ABA was vigorously defending the earlier decision in federal court, it seemed reasonable to assume that Cooley must have made some very significant changes to their admissions policies.

A further suggestion that Cooley had made major changes came from Barry Currier, Managing Director, Accreditation and Legal Education.  In response to an inquiry from Dean Paul Caron of Pepperdine Law School about the Cooley decision, Mr. Currier stated: 

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.

Thanks to a document filed on May 25, 2018 as an exhibit in the ongoing lawsuit between Cooley and the ABA, we now know two things: first, we know what concrete steps Cooley has promised to take with respect to their admissions policies and practices, and second, we know that these changes were not significant and did not adequately address the concerns of the ABA.  The document in question is the private letter sent on April 18, 2018 from the ABA to Cooley explaining the public decision of the Accreditation Committee.  And although the letter answers some questions about the ABA’s decision, it raises far more questions than it answers.

Concrete Steps:

So what has Cooley actually done, or promised to do, to change their admissions standards? To understand the changes, you have to understand how Cooley makes admissions decisions.  The letter helpfully explains that Cooley uses a formula (based on the applicant's LSAT score and UGPA, derived from the academic performance of 3410 Cooley students) to predict an applicant’s GPA at Cooley. Admissions decisions are based on this predicted GPA.

For 2017 (and presumably in earlier years), students with a predicted GPA of 2.50 or above were automatically admitted. Students with a predicted GPA of 2.20 to 2.49 were “presumptively admitted”, although the files were submitted to some further (no doubt cursory) “individual review”.   Most students with a predicted GPA of 2.20 to 2.34 that were admitted were limited, at least initially, to a part-time status of 12 credits or less.  Students with a predicted GPA of 2.0 to 2.19 were invited to participate in a one-week admission by performance program known as Professional Exploration Program, or PEP.

For 2018, Cooley has tweaked its standards.  There are no changes for students with a predicted GPA above 2.50.  Students with predicted GPAs between 2.24 to 2.49 will be admitted but will be limited to take a maximum of 12 credits initially. Students with a predicted GPA between 2.10 and 2.23 will be invited into the PEP admission by performance program. Students with a predicted GPA of 2.0 to 2.09 will no longer be admitted.

What does this mean? How will these changes impact Cooley’s admissions?

The impact of these changes are likely to be minimal:

1. A few students at the very bottom of the applicant pool (those with predicted GPAs of 2.0 to 2.09), who previously might have been admitted through admission by performance, will now no longer have that opportunity. But this group represents a tiny fraction of Cooley’s students.  Of 6780 students who matriculated between January 2009 and September 2016, only 100  (1.5%) had predicted GPAs less than 2.10. 
2. A few more students, those with predicted GPAs of 2.19 to 2.23, now must earn admission through PEP instead of being offered regular admission. Again, this is a tiny fraction of the school’s admitted students. Students with predicted GPAs between 2.10 and 2.23 have made up 2.6% of Cooley’s matriculated students.  So, the 2.19 to 2.23 group likely represents about 1.0%.
3. Students with predicted GPAs of 2.35 to 2.49 who previously were admitted as full time students will now be admitted initially as part-time students, limited to 12 credit hours. This group has represented somewhere between 11 and 15% of Cooley’s student body.

In summary, only the bottom 1.5% of students who were previously admitted will now be denied admission, and another 1.0% or so will be required to take PEP, some of whom may not perform well enough in the program to be admitted.  So at most, 2.5% of applicants who were previously admitted will now be denied admission.

Do these changes really address the concerns that led to ABA’s finding of compliance?

No.  There are several statements in the letter that demonstrate that these changes don’t fully address the ABA’s concerns.  Indeed, the letter states that “Notwithstanding Conclusion (1)[that Cooley is now is compliance with Standard 501(b) and Interpretation 501-1], the Committee has ongoing concerns about the Law School’s continuing compliance with the Standards.”  Accordingly, the ABA has imposed significant additional reporting requirements and has directed that a fact finder be appointed to visit Cooley during academic year 2018-9 “to allow the Committee to evaluate the impact that the changes in admission policy have had on the Law School’s ability to remain in compliance with Standard 501(a) and (b) and Interpretations 501-2, 501-2, and 501-3, and to evaluate the potential impact of these changes on the Law School’s attrition and bar passage outcomes going forward.”

What questions remain unanswered?

What impact will these changes to admission policy have on the school’s 50% and 25% LSAT and GPA? 

Comment: It is entirely possible that these changes will have no impact at all.  Cooley has apparently not promised any changes to their LSAT median or 25% or offered any specific LSAT or GPA cutoffs.

What percentage of students who participate in PEP are admitted?

Comment: The ABA describes PEP as a “one-week, intensive admission qualifying program”. But how intensive can a one-week program be? And how can such a short program provide reliable indicators of likelihood of academic success in law school?  What have been the attrition and success rates for students admitted through PEP compared to students with slightly higher predicted GPAs that were offered regular admission?

What is the rationale for offering part-time admission to students with weak entrance credentials?

Comment: What reliable data exists, if any, that Cooley students who take fewer credits in their first-semester are more likely to succeed than similarly credentialed students who take a full course load?  Should law schools be admitting students at all if the law school doesn’t believe the students can handle a full course-load?  Why should the admissions standards for part-time study be lower than the admissions standards for full-time study?

What impact are these changes likely to have on Cooley’s unacceptably low bar pass rates?

Comment: The letter notes that Cooley hasn’t met bar Passage Standard 316(a)(2) (within 15% of the state average) for the last five years and appears unlikely to meet the alternative standard 316(a)(1) requirement of a 75% ultimate bar pass rate for calendar year 2015, when the school’s first-time bar pass rate was 51.86%.  The letter also notes that Cooley’s first-time bar pass rate dropped to 48.13 in 2016 and 45.95 in 2017, suggesting that the school will also have difficulty reaching a 75% ultimate pass rate for those two years.  The letter states “it will be important to determine what impact the January 2018 change in admission standards has on bar pass rates going forward.” But of course, we won’t know that until at least spring 2022 when 2021 bar pass results will be reported.  Based on my analysis, the impact on bar passage is likely to be minimal (perhaps a 2 to 3% improvement at best), since only a tiny percentage of students will be denied admission under the new standards. Furthermore, within the small cohort of students who were admitted and matriculated under the old standards but who would be denied admission under the new standards, many never completed their J.D. or took the bar. So even assuming a higher than average bar failure rate from those who did manage to graduate, the impact on the overall pass rate was negligible.  

What was it that convinced the ABA to change its decision? 

Comment: Cooley has apparently convinced the ABA that it is complying with the ABA requirement to only admit students who appear capable of completing their program and passing the bar by pointing to the “academic success” rate of students with predicted GPA’s above 2.10.  The ABA letter indicates that students with predicted GPAs of 2.10 to 2.23 have had a 66.7% academic success rate at Cooley.  But what does academic access mean in this context?  Does it mean that two thirds of students who matriculated with these predicted GPAs have actually earned their J.D. (or perhaps transferred to another school while in good standing)?  Does it mean that one third have academically attrited?  And assuming that two thirds of this group did graduate, how did this group fare on the bar?  If half or more of the group that graduated failed, that means that less than one third of this group who started actually became a member of the bar. Does the ABA consider that acceptable?

How is this letter likely to impact the ABA’s litigation with other law schools? 

Comment:  In each of the lawsuits by law schools against the ABA, the ABA has been accused of arbitrary enforcement of Standard 501(b).  The letter explaining their decision regarding Cooley will not be helpful in the ABA’s efforts to prove that their enforcement efforts have been fair and reasonable.  In fact, the ABA’s decision to find Cooley back in compliance with 501(b) is very inconsistent with its past decisions regarding compliance with 501(b).  Two other schools (Valparaiso and Ave Maria) have previously been found out of compliance with Standard 501(b) and then later found back in compliance.  First, it should be noted that Ave Maria and Valparaiso had much higher admissions standards than Cooley at the time they were found out of compliance with 501(b) in 2016.  Ave Maria’s 2015 LSATs were 153/148/142 while Valpo’s were 148/145/142.  By the time these schools were found back in compliance in November 2017, Ave Maria had raised its LSATs 25^thpercentile to 145, and Valpo had raised its 25^thpercentile to 147, even though doing so essentially drove the school out of business.  In contrast, Cooley was found back in compliance before it had even admitted a new class, even though the changes to its admission policies are designed to raise the quality of the incoming class only marginally if at all.  The decision to find Cooley back in compliance is also impossible to square with the decision made at the very same meeting to find Florida Coastal out of compliance with the same standard, even though Florida Coastal had already implemented far more robust changes to its admissions policies than Cooley, which had already resulted in substantial improvements to the entrance credentials of its Fall 2017 entering class and Spring 2018 entering class.   Indeed, Florida Coastal’s Spring 2018 entering class had LSATs as good or better than Ave Maria and Valparaiso’s fall 2017 numbers, with a 25% at 147 and a median at 150, meaning that Florida Coastal’s weakest admitted 1LS have predictors as good or better than Cooley’s strongest 1Ls.  In short, this letter provides strong evidence in support of Florida Coastal’s claim of arbitrary enforcement.  

Conclusion:

The ABA’s decision to find Cooley in compliance based on such minor, superficial changes raises the question of whether the ABA capitulated as a result of Cooley’s ongoing lawsuit.  Ironically, the ABA’s actions have ended up being cited in the lawsuit by Cooley itself as further proof of arbitrary enforcement.  The additional requirements placed on Cooley, which look a lot like the kind of remedial measures that the ABA imposes when they find a school out of compliance,  substantially undermine the assertion that the school is currently meeting Standard 501(b), and demonstrate the ABA’s lack of confidence in its own decision.  If the ABA’s goal is to eliminate  exploitative admissions practices, this decision has done little, if anything, to advance that goal.  Indeed, by providing fodder to the InfiLaw schools and Cooley in support of their claims of arbitrary enforcement, the decision may prove to have done more harm than good.

UPDATE:  The ABA is seeking to consolidate the three separate InfiLaw school suits into one.  See story here and motion here.  My initial take is that the motion to consolidate has a good chance of being granted.

Comments

[Deep State Special Legal Counsel]

Nobody would care about these unranked schools if there was enough work, clients, fees for all of the practicing lawyers who wanted it. Until the real issue is confronted, the "grotesque oversaturation of lawyers" this poster is going to be scapegoating these schools. When in actuality, every school from Harvard on down is to blame. The dentists got smart and closed several dental schools. Being n a solo or small firm lawyer is not longer a reliable path to a middle class lifestyle. My income and work has not returned to pre-recession levels. I know many attorneys in the same position as me.

[anon]

One has to agree that this limp action by the ABA does more harm than good. It is so sad that the ABA has fallen into a state that most closer observers can only conclude proves that the ABA is incompetent (or, if it is intentionally muddying the waters and making any real enforcement nearly impossible) captured and thus ... (fill in the blank here).

David: in the materials to which you have access, can you say how the changes made will affect "diversity" and "opportunity"?

[David Frakt]

anon -

I have no information regarding how Cooley's changes will affect diversity at the school.

[anon]

It seems that the absence of this information is telling.

After hearing for years that nothing can be done about sub standard law schools for fear of "disadvantaging" those whose "opportunity" to get ripped off by rapacious, greedy law school operators would be threatened by fair enforcement of MINIMAL standards, it seems that there is no proof - ever - in the pudding.

[ChicagoD]

I sued the ABA twenty years ago for having a revolving door of impossible conflicts with these low tier law schools. The ABA accreditation team is tied in with the administration at these schools, and the ABA has no objectivity and no desire to fix the schools. I said this 20 years ago and no one listened to me. Finally the Tribune picked it up -- does this sound familiar:

Law deans linked to accrediting task
ABA executives hired by schools
February 15, 2004|By Ameet Sachdev, Tribune staff reporter.

In December, Concord Law School, a 5-year-old online law school, hired Barry Currier as its new dean.
A senior official involved in accrediting law schools at the Chicago-based American Bar Association, Currier is among a number of ABA officials to become deans at fledgling, unaccredited law schools in recent years.
Officials at several law schools acknowledge that administrators like Currier provide credibility and help them meet the rigorous standards that are all important to a school's survival.
The coziness between the ABA and law schools, though, troubles some educators and others involved in accreditation. They question whether such hiring is at odds with the ABA's ethics policy and contend such arrangements raise the appearance of a conflict of interest.
"I think it's wrong that people in leadership in the accreditation process end up back at law schools doing business before the accreditation council," said Gary Palm, a Chicago lawyer who has served on the ABA's governing body overseeing law school accreditation. "Particularly where it's clear that they are there because of their special knowledge of the system.

http://articles.chicagotribune.com/2004-02-15/business/0402150068_1_aba-accreditation-accreditation-process-law-schools

[David Frakt]

ChicagoD -
Thanks for sharing.

[Leo]

I have always believed that all accreditation related reports, letters, self studies, etc should be publicably available. Maybe the feds can make this a requirement for federal student loans. Colleges, too, should be required to do so.

It is also time for the DOE to find another body to accredit law schools. ABA process is subject to regulatory capture and the big ABA’s Uber liberal, PC leanings.

[anon]

It is time for the DOE to find another body to accredit law schools.

Can we all agree?

Can even the ABA agree?

At long last, have they no shame?

[Dave Garrow]

Wow is that 2004 Trib story striking--14 years ago! This is all SO sleazy, & it's never been fixed. I hesitate to think about what the sum total number of law students who've seen their lives harmed over this long period of time comes to....

[Deep State Special Legal Counsel]

^^^A number of these "poor, ruined and harmed" law students are not victims. They are nitwits who attended these schools for Michael Cohen cushy, easy money. It's the LaSalle Extension University advertised in the ads of Popular Mechanics circa 40s-70s.. next to the toilets that flush up and rug cleaner careers,,,"become aa law trained man" for an easy career. These people should have been mature enough to know that there is no free lunch in America, except for Pruitt and his wife. They like dried chicken sandwiches and greasy fries...