Why Florida Coastal's Lawsuit Against the ABA Should Go Forward

Earlier this fall, the ABA filed a motion for summary judgment, seeking a dismissal of the lawsuit filed by Florida Coastal and its parent company, InfiLaw.  Yesterday, Florida Coastal School of Law and its parent company, InfiLaw, filed a motion in opposition.  Florida Coastal argued that it is still entitled to, and actively seeking, discovery, and that there are plenty of genuine issues of material fact to be decided. Florida Coastal is challenging the ABA’s finding that Florida Coastal remains out of compliance with several ABA Standards, including Admissions Standard 501(b), despite the fact Florida Coastal has significantly raised its admission standards multiple times over the last few admissions cycles, and made other quality initiatives which have resulted in improved bar passage rates.  Although the Federal Courts have generally been very deferential to accrediting agency decisions, including the ABA, and often grant summary judgment motions in these cases, I think this is a case where there are good reasons for the court to permit the case to go forward.

Standard 501(b) requires a law school to “only admit applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar.” I have argued that schools admitting a quarter or more of students with LSATs at 144 and below should be found in violation of this standard.  And for the last three years, the ABA has seemed to agree. All of the schools that have been found out of compliance with this standard over the last two years have had an LSAT 25% at 145 or below.  Most have been well below that.   But Florida Coastal isn’t.  According to Florida Coastal’s filing, their 2018 entrance credentials are as follows: 75/50/25^th  LSAT: 152/150/147   UGPA  3.35/3.12/2.80.   Furthermore, no students were admitted or matriculated to Florida Coastal in 2018 with an LSAT below 145.    Based on logic and precedent, there is simply no reasonable argument that Florida Coastal is currently non-compliant with this standard.  The LSAT numbers represent a 6 point increase at the 25^thand 50^thpercentile from 2016, when Coastal’s profile was 149/146/141  3/27/2.87/2.57.  The difference between a 141 and 147 on the LSAT is HUGE.  A 147 is at the 33^rdpercentile, and a 141 is at the 16^thpercentile.   Students with a 147 LSAT and   reasonably good college grades have a decent chance of completing law school and passing the bar (except maybe in California).  Here are some more pertinent facts: there were 45 law schools in 2017 that had an LSAT 25^thpercentile in 2017 below 147; and no law school with a current 147 25^thpercentile has ever been found out of compliance with 501(b).

 

So how does the ABA justify continuing to find Coastal out of compliance with this Standard, after multiple appeals?  A major part of the ABA’s argument is that Coastal’s non-compliance with the Admissions Standard, prior to its recent improvements, was “substantial and persistent.”  And the ABA has a point.  Florida Coastal’s admission standards started to deteriorate in 2011 when their 25^th percentile declined to 145, and were pretty much terrible from 2012 to 2016, reaching their lowest point in 2014, when the 25^th percentile hit 140 and the median was 143.   But Florida Coastal was far from the only school which dramatically lowered its admissions standards during this period. Indeed, there were quite a few schools which had similar or even more lax admissions standards from 2012-16. And yet the ABA did absolutely nothing about it.  It was only in the summer of 2016 that the ABA began to enforce Standard 501(b) in any meaningful way, when it censured Valparaiso and ordered remedial action for Ave Maria for violations of the Admissions standard.   This was the first clear signal from the ABA about what credentials the ABA would consider to be too low.  At that point, Florida Coastal immediately began to raise its admissions standards to stay above the ABA’s apparent new baseline.  Presumably, this was the exact effect desired by the ABA.  Of course, Florida Coastal still had cohorts of students moving through that had been admitted under the earlier weaker standards, and these students, quite predictably, started failing the bar in large numbers.  And it was apparently this downward trend in bar performance that finally pushed the ABA to act against Florida Coastal (even though Florida Coastal remains, like every other ABA school, in compliance with the loophole ridden Standard 316 on bar passage). 

Even though Florida Coastal had terrible admissions practices from 2011-2016, and I was practically begging the ABA to sanction Coastal and its InfiLaw sister schools for much of that time (see, e.g., here, here, and here), I still think that the ABA is wrong to use this lengthy period of non-compliance to justify its actions. Because, if we accept the premise that Coastal’s non-compliance with 501(b) was “substantial and persistent”, then we must also acknowledge that the ABA’s non-enforcement of 501(b) was substantial and persistent.  What the Florida Coastal case highlights is that the ABA essentially stood by and did nothing for 5 years while dozens of law schools dramatically lowered their standards, including more than a dozen which the ABA has now determined lowered standards so far that they violated 501(b).   It is not fair for the ABA now to use Florida Coastal’s long period of low admissions standards as a justification to extend a finding of non-compliance, when the ABA gave no official indication to Florida Coastal during this time that their admissions policies were problematic.  Indeed, Florida Coastal had good reason to believe that their admissions policies were just fine with the ABA.  Consider that Arizona Summit, InfiLaw’s sister school, had a full ABA site visit in 2013-14 and was re-accredited. Arizona Summit’s LSAT/UPGA profile for 2013 was 148/144/141 3.21/2.88/2.51 for all students and even lower for part-time students.  This is even lower than Florida Coastal’s numbers for 2016, the most current numbers the ABA had when they initially found Florida Coastal non-compliant.  And Arizona Summit’s LSAT numbers for 2014 (which the ABA site visit team would have had at least partial information about) were even lower at the 25^th percentile – dropping to 140.  WMU Cooley was also reaccredited after a site visit in 2013-4, when their 25% LSAT was also at 141.  The following year, 2014-5, both Southern University Law Center and Texas Southern had site visits.  Southern’s LSATs for 2014 were 147/144/142.  Texas Southern’s were 148/145/143 for 2014 and 146/143/141 for 2015.  Both schools were reaccredited.  Based on the ABA’s apparent approval of these admissions practices, how was Florida Coastal supposed to know that their virtually identical admissions practices were running afoul of 501(b)?

The use of the “substantial and persistent violation” argument in the Florida Coastal case is also another example of the ABA’s arbitrary and inconsistent enforcement of the Standards, of which Florida Coastal rightfully complains in its lawsuit. Several other schools that have been sanctioned have had equally egregious histories of substantial and persistent predatory admissions practices, including WMU Thomas Cooley. Yet the ABA reversed its finding of non-compliance for WMU Thomas Cooley immediately upon Cooley’s announcement of minor changes to its admission policies -- changes nowhere near as substantial as those implemented by Florida Coastal.   Similarly, the ABA reversed its non-compliance finding for North Central Carolina University as soon as NCCU made modest changes to its admissions policies for the next admissions cycle, despite also having a history of highly questionable admissions policies dating back to 2012. The ABA states that it needs time to see if the changes that Florida Coastal will have the desired impact on attrition and bar passage, arguing that the changes introduced by Florida Coastal have “not been in place for a sufficient time to provide evidence that they have been or will be effective in improving the Law School’s outcomes.”  But the ABA did not require this of WMU Cooley or NCCU.

After encouraging the ABA for several years to get tough on admissions standards, including against Florida Coastal, it feels a little strange to be rooting against the ABA in this case.  But just as I called out Florida Coastal for unfair admissions practices when they were letting in droves of unqualified students, I feel obliged to call out the ABA when they are being unfair to a school that has made every reasonable effort to mend its ways.  The goal of enforcement was to get Florida Coastal to comply with the standard.  If the ABA wants to punish Florida Coastal for past transgressions, then it should require Florida Coastal to do something for the students who never should have been admitted.  But continuing to insist that the school is non-compliant after it is clearly back in compliance just makes the ABA look foolish.

Comments

[Alberto]

Your credibility went from 90% to 0% and you know why.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

Stop picking on these law joints already. It's like purchasing a car. Your 2010 Kia Rio that you still owe $2200 finally blew its motor. You go to the auto mall to check out new SUV's. F/I runs your credit it comes back as 609. You need to roll the upside down Rio into a new deal. Santander will only finance the following: A Dodge Journey with the black plastic mirrors, a Mitsubishi Mirage, or a Nissan Versa. The payment on the Dodge is %550/at 96 months and the cars are at $420 for 84 months. Same deal with law schools. Nobody dreams about Cooley, Costal or Jefferson. It is what you can get into. Same thing with cars. Nobody dreams about a Mirage, Journey or Versa. It's what you can get into.

[anon]

FCSL is very different than the other schools you mention because of InfiLaw. Maybe the ABA isn't going about it the right way, but I would bet that this would all stop if FCSL had no relationship with InfiLaw. What they did to the students at Charlotte and Arizona Plummet was unconscionable. And FCSL's improvements have zero credibility as long as all of its decisions are made by InfiLaw. In other words, as soon as the ABA backs off, admissions standards will drop as low as InfiLaw thinks it can go while keeping accreditation.

[David Frakt]

anon - I certainly understand your skepticism and I think I am well known as one of InfiLaw's biggest critics, but I'm not really sure that InfiLaw is calling the shots at FCSL at this time the way they were before. In fact, I think InfiLaw is basically dead. I can't even find their corporate website anymore. Former President Dennis Stone resigned this summer and FCSL no longer has a Dean and a President. They just have a Dean, who is a faculty member, Scott DeVito. My impression is that the faculty regained control of the school over the last two years and they have driven the improvements. The numbers don't lie. I know it is hard to believe that they are running an honest law school, but it is starting to look that way.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

^^^^^WRONG. Just like Kerry forgot Poland, you are wrong. Go to the Sterling Partners web site. Do a quick search for Infilaw. It's there. These guys are all about MONEY. Do you really thing they would relinquish control when it involves money????

[David Frakt]

I'm not saying InfiLaw doesn't exist, just that it is a shadow of its former self. Two out of three its schools have been shut down and lawsuits related to Charlotte took just about every penny that InfiLaw had. Of course, the lawsuits were unable to reach Sterling Partners.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

^^^^"Unable to reach Sterling Partners." Why? I must have missed that when I read Gilberts during law school 30 years ago. To boot, I slept in a lot during Corporations and business stuff. So why can't they come after Sterling Partners? Oh, by the way, the photos posted online of the Sterling Partners look a great deal like the people in Trump's ongoing campaign rallies.

[anon]

David, according the local Jacksonville newspaper, Stone was fired and is suing the school. I am quite skeptical that the faculty has any control at FCSL. My guess would be that DeVito is on the same page with Infilaw at the moment, making Stone's salary unnecessary. If they manage to turn things around, I am sure Infilaw will either sell the school (they have been trying) or cash in yet again. If they don't turn things around, i would have to think they will shut down. In fact, they might just be running out the clock so that Sterling isn't on the hook for the loans of the massive classes the school had in the past.