The ABA and Standard 501 – Still Inconsistently Applied

In March, the ABA sent a letter of non-compliance to Lincoln Memorial Duncan School of Law, a provisionally-approved school, stating that it had been found out of compliance with ABA Standard 501(a) and (b) and Interpretations 1, 2, and 3 of the Standard.  The school was ordered to submit a report over the summer and to appear at the November meeting of the Accreditation Committee.

What prompted the ABA’s determination that LMU was out of compliance?  For the fall entering class of 2017, LMU’s LSAT 75/50/25 profile was 152/148/145. For UGPA it was 3.47/3.08/2.64.  According to my LSAT risk profile chart, students with LSAT’s at 146 and 145 are at very high risk of passing the bar, and those at 144 and below are at extremely high risk.   Thus, up to 24% of LMU’s students could have been extremely high risk (144 or below), and somewhere around a third of students were either very high or extremely high risk. 

Also, according to their 2017 509 report, LMU had a 22.2% non-transfer attrition rate in the 2016-2017. Under the ABA Standards, first year attrition rates over 20% create a rebuttable presumption that a school is not complying with the admissions standard.

With its provisional accreditation in jeopardy, LMU significantly improved the credentials of its fall 2018 entering class.  (Although the official ABA 509 report is not out, the school has posted on its websitea profile of the fall admitted class.) The LSAT and GPA profile for the 2018 entering class is 152/149/147 and 3.51/3.07/2.73.  Importantly, the 25^thpercentile went from 145/2.64 to 147/2.73, and no student was matriculated with an LSAT below 142.    According to LSAC, a 147 is around the 33^rd percentile while a 145 is around the 26^thpercentile.  A 142 is at the 18^th percentile.  At its November 2018 meeting, the ABA Council reviewed these numbers and determined that LMU was in substantial compliance with Standard 501(a) and (b) and Interpretations 501(1)(2)and (3).  So, LMU’s latest numbers provide some useful data for gauging what the ABA currently considers to be acceptable admission standards.

But the ABA’s latest actions also add credence to the claim of some critics that the ABA is applying its standards inconsistently.

For example, a strong case can be made that the ABA has a different standard for Historically Black Colleges and Universities.  

Evidence in support of this theory can be found in the case of North Carolina Central University. This HBCU law school was found out of compliance by the ABA in last November.  NCCU announced in the spring that it was establishing an LSAT cutoff of 142.  As I noted at the time, 142 is the median score for African-American LSAT takers.  After meeting with the Accreditation Committee in late June, based on “concrete steps taken by the law school with respect to its admission policy”, NCCU was found back in compliance by the ABA.  What were these concrete steps?  The ABA didn’t say.  But NCCU recently posted its 2018-9 class profile as well, so we can see what they did.  The LSAT and GPA profile at NCCU for the latest entering class is 150/146/144 with GPA of 3.5/3.26/3.08.   This is an improvement from 2017 when the entering class had a 149/145/142 LSAT and a 3.42/3.23/2.96.  But NCCU is still admitting over half very high-risk students and over one quarter extremely high-risk students.  Furthermore, the entrance credentials of NCCU’s 2018 class are lower than LMU’s numbers (152/148/145) were last year when LMU was found to be out of compliance with Standard 501.  Additional evidence of a double standard for HBCUs is the inexplicable fact that Southern University has never been found out of compliance with Standard 501, despite having admissions standards that the ABA has deemed unacceptable at numerous other schools. Take a look at Southern’s numbers:

Southern ULC 75/50/25 percentiles LSAT and UGPA 2014-2017

2014 LSAT 147/144/142 GPA 3.20/2.82/2.52

2015 LSAT 147/143/141  GPA 3.16.2.79/2.53

2016 LSAT 146/143/141  GPA 3.16/2.86/2.52

2017 LSAT 146/144/141  GPA 3.17/2.91/2.58

Can anyone explain why the ABA finds it acceptable for Southern to enroll classes where at least three quarters of the students are at extremely high risk of failure? 

The school with the strongest claim of unfair/inconsistent treatment by the ABA is Florida Coastal School of Law.  Florida Coastal was found out of compliance with Standard 501(a) and (b) in October 2017, although it had significantly raised its admission standards for the Fall 2017 entering class.  Florida Coastal then raised their standards again for the Spring 2018 entering class, raising the 25^thpercentile to 147 (higher than Southern’s 75^thpercentile!).  Despite this clear evidence of significant improvements to Coastal’s admissions standards, the ABA still found Florida Coastal out of compliance with 501(b) in March 2018.  This was, by the way, at the same meeting where the ABA found WMU Thomas Cooley back in compliance with 501 even though Cooley had lower standards than Florida Coastal and had promised the ABA only de minimis changes to their admissions policies.  According to Florida Coastal’s website, the entrance credentials for the class of 2021 are 152/150/147  3.35/3.21/2.83.  And according to Dean Scott DeVito, the school did not admit any students with an LSAT below 145.    These numbers are even better than Lincoln Memorial’s numbers.  If the ABA is to maintain any credibility, it should immediately find Florida Coastal back in compliance with Standard 501.  The ABA’s failure to do so to date is providing powerful evidence in support of Florida Coastal’s claim of arbitrary and capricious enforcement of the ABA Standards in its ongoing lawsuit.  

 

Comments

[Anon]

It is shameful how many law schools are exploiting African-American students and other minorities. Admitting students who will not pass the bar does nothing for social justice. Instead it it keeps the salaries coming to social justice professors.

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[Kaizer]

You should recite your recent post on 9/30 or update your current post because they contradict each other.

https://www.thefacultylounge.org/2018/11/earlier-this-fall-the-aba-filed-a-motion-for-summary-judgment-seeking-a-dismissal-of-the-lawsuit-filed-by-florida-coastal-a.html

@Frakt you lost me there. You're essentially asking ABA to find FCSL liable and pay back millions of $$ back to the Department of Education. The main issue is FCSL/Infilaw/Sterling Partners do not want ABA to send a fact finder. They've been fighting all this time to prevent a fact finder from being sent to the school, yet they lost their TRO and the Preliminary Injunction through a Court Order.

You said: 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.

Are you for a 'Fact Finder' being sent to Florida Coastal or against it ? How can they find them in compliance if they don't send a fact finder and see the reality on the ground. You can't claim 'arbitrary and capricious' by simply preventing a fact finder from being sent to the school. You make no sense.

To claim arbitrary and capricious, it would make more sense if FCSL was denied due process but they were granted several hearings, including an appeal. The fact that they don't like the outcome and don't want ABA to send a fact finder to the school doesn't make ABA arbitrary and capricious.

[David Frakt]

Kaizer - Sorry I lost you. Not sure which post you want me to rescind. I am not asking the ABA to find FCSL liable and pay back millions of dollars to the Department of Education.

I believe that the ABA is not being transparent or consistent in its interpretation of Standard 501. Some schools that are admitting huge numbers of unqualified students have never been found in compliance. Other schools have been found out of compliance and then immediately found back in compliance based on very minor changes. No school with current admitted student credentials comparable to Florida Coastal's has ever been found out of compliance. Is Standard 501 based on current admissions policies, or is it based on historic admissions policies? I think the ABA should be clear about what Florida Coastal, or any other school, needs to do to be found in compliance if the ABA finds the school out of compliance.

I don't have a problem with the ABA sending a fact-finder to Florida Coastal.