The ABA’s Proposed New Standard: Predicting Effects

Who are the losers under the ABA's proposed new bar pass standard?

Otherwise Occupied, New ABA law school standard interpretation may kill 5 CA schools does some calculations, and even attempts to figure out second-order effects,

The end result: As many as five current ABA-approved law schools could lose their accreditations. Four schools (Golden Gate University School of Law, Thomas Jefferson School of Law, Whittier Law School, and Western State University College of Law) would immediately fail to meet this standard.

But the fallout may be greater. The loss of those schools bumps the ABA passage rate up, which causes some collateral damage, taking out Chapman University School of Law:

Interestingly, some commentators see the US Department of Education's pressure on the ABA to enact a bar pass standard as an attempt to gut the ABA's support of affirmative action,

Michael Dorf, The Bush Department of Education Tries to Gut Grutter Below the Radar Screen

[The Dep't of Education's] pressure on the ABA is designed to make it hard for law schools to pursue diversity, not to make it voluntary. Under that pressure, the ABA now proposes to make bar passage rates an element of accreditation. [… ] Officially, the Department of Education and the ABA (under pressure) are concerned about the quality of education, but this is pretty clearly also a means of limiting affirmative action at non-elite law schools. (The bar passage rates at elite law schools are sufficiently high that admissions policies would be largely unaffected by the new rule.) Students with weaker numerical qualifications coming into law school fail the bar in larger numbers than those with stronger ones; by requiring higher bar passage rates at the back end, the new standard would limit the ability of law schools to admit students with weaker numbers (but with other qualifications, including their contributions to student body diversity) at the front end.

The proposed changes are objectionable in at least four ways. First, bar passage rates are a very crude measure of the quality of a legal education. Second, to the extent that the issue is consumer protection, simply publicizing bar passage rates should be sufficient to warn prospective students that admission into law school as a 1L does not guarantee admission into the profession after graduation. Third, under the pressure of US News rankings, law schools already have ample incentive to pay attention to their bar passage rates, so the pressure of the new standard would only be felt at those schools that fare poorly in those rankings and/or have made a commitment to taking a chance on students with weaker numbers notwithstanding the price they thereby pay in the rankings. So long as students know what they're getting into (see “Second”), there is no good reason to limit schools' flexibility to pursue such an approach to admissions. And fourth, whether accreditation ought to turn on bar passage rate should ultimately be a matter for the judgment of the legal profession and legal academy, not the ideologues of the Bush administration.

Vernellia Randall, ABA Proposal Threatens Diversity In Legal Education,

Contrary to the implication in this statement that the proposed standard takes a school’s mission into account, and will be receptive to arguments about diversity, the proposal issued by the Council rejected the suggestion that they take a school’s mission into account in determining compliance. Instead, they inserted language about consideration of “student populations served” in a section of the proposal that only applies to schools that are in compliance.

This story is receiving some play in other media outlets. It may mislead individuals and groups concerned about diversity into a false sense of security about the impact of the proposal. As the Patton Study showed, the proposal will put almost all of the diversity-friendly schools out-of-compliance and worsen the state of minority enrollment.

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2 Responses to The ABA’s Proposed New Standard: Predicting Effects

  1. Ben Hyde says:

    Clearly a bit of common cause and coordination is called for. For example: the candidates buddy up and take the test twice each half can arrange to do poorly assuring that their buddies all pass. Does that reduces the work around to a contracting problem?

  2. Michael says:

    I don’t see how in a state with multiple law schools any single school can do this in a way that doesn’t hurt it more than it lowers the state average. And I don’t see students from other schools being quite this ‘helpful’ given the personal career consequences….

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