If law school enrollment today is made up largely of the white and the wealthy, it is because the American Bar Association, the chief accreditor of the nation’s law schools, has designed the rules that produce this outcome.
It’s not that minorities and students from low-income households don’t want to attend law school; it’s that they are being priced out by soaring tuition costs, up 267 percent since 1990, and shut out by the culturally biased Law School Admissions Test(LSAT). Only 3.9% of the nation’s one million lawyers are Black, only 3.3% are Hispanic, and whites of modest means likely are underrepresented as well.
How many families can afford to pay $100,000 to $150,000 to put a child through three years of law school? At present, law school enrollment is just 6.6% for African-Americans and 5.7% for Hispanics.The ABA is aware of this. Five years ago, then-president William Paul decried the alarming lack of “minority representation in the legal profession.”
And the ABA’s own Commission on Racial and Ethnic Diversity in the Legal Profession has since reaffirmed his view. New York Law School professor Elizabeth Chambliss, author of the Commission’s report, described law as “one of the least racially integrated professions in the United States ...” She called the LSAT “one of the main barriers to increasing diversity among law students.” Yet ABA insists that the 200 law schools it accredits administer the LSAT, and for ABA schools it often is the main determinant of admission and is always one of the two main determinants.
What the ABA continues to be about is lining the pockets of law professors, some of whom earn as much as $300,000 or more a year, often for teaching very few hours. Renowned Federal Judge Richard Posner thinks the ABA conducts itself like a “medieval guild” in behalf of its members. George Leef, vice president for research at The John William Pope Center for Higher Education Policy, Raleigh, N.C., believes the ABA’s aim is to keep legal fees high by restricting the overall number of attorneys. Leef, a Juris Doctor from Duke University School of Law, says that because of the “connivance” between state bodies and the American Bar Association, “law school costs much more than it needs to. If we allowed a free market in legal education, the cost of preparing for a legal career would fall dramatically.”
Leef adds, “The ABA’s accrediting body, the Council of the Section of Legal Education, has established standards that are designed to keep law school very costly and very restrictive.”
As President Saul Levmore and Vice President David Van Zandt of the American Law Deans Association (ALDA) stated: “The ABA continues to impose requirements on the law schools it accredits that are not only extraneous to the process of assuring the quality of legal education, but also that improperly intrude on institutional autonomy in seeking to dictate terms and conditions of employment.” Levmore is dean of the University of Chicago Law School. Van Zandt is dean of Northwestern University Law School.
ALDA’s “improperly intrude” depiction is an understatement. In 1995, the Justice Department formally charged the ABA with fixing law professors’ salaries, among other Sherman Anti-Trust Act violations. Justice asserted the ABA acted to further “the self-interest of professors instead of improving education.” In 1996 the ABA entered into a consent judgment agreeing to reform its practices and to stop dictating a number of dubious, costly and illegal regulations to schools. Yet, in 2006, the Justice Department charged the ABA with violating provisions of the decree and called for it to take remedial action as well as to pay Justice $185,000 for its enforcement troubles.
The ABA shackles law school deans by imposing accreditation rules on them that focus on “inputs” --- the ABA’s idea of the kind of plant, policy, and personnel a law school should have. These rules do not focus on what students learn or if they are learning what they need to know to practice law, i.e., the “outcomes.”
The ABA input rules demand hiring of very large and expensive full-time faculty with light teaching loads; they place de facto limits on hiring of less expensive adjunct professors from the ranks of expert lawyers and judges who could contribute their expertise; they demand the building of $70- and $80 million palaces; they require stocking of large, multi-million dollar hard copy libraries even though nearly all needed legal materials may be found on line or obtained on CD-ROMs; and they require applicants to post high LSAT scores.
If many of the ABA’s costly rules are in writing, the ABA has other, unwritten policies that make the published rules even more daunting. The existence of these subterranean codes was brought to light in 2006 at a Federal Department of Education hearing in Washington on renewing for five years the ABA’s federally-approved accreditation status.
A classic example of the ABA’s secret rules is that, although ABA guidelines do not specify that the LSAT is obligatory, in practice the ABA secretly requires law schools to use the test and has never accredited a law school that did not use it. By discouraging law schools from accepting applicants who score below a particular score, the ABA screens out large numbers of low-income whites, Hispanics, and African-Americans -- graduates of poorer quality high schools and colleges than those attended by the children of the rich.
Writing in the Journal of Legal Education, Emory law professor George B. Shepherd notes if the ABA lowered its LSAT score accreditation cutoff just slightly, it “would allow the creation of more than 40 new 600-student majority-black law schools. Eliminating the LSAT cutoff altogether would permit more than 80, an average of one or two per state.”
“The ABA ’s accreditation standards and the way the ABA applies them have had the same impact on blacks as (former Governor) George Wallace standing with policemen at the school house door in Alabama, blocking blacks from entering,” he wrote.
No other professional accrediting body uses input rules as does ABA: not in medicine, not in dentistry, nowhere. But in the world of legal education, a law school that finds better, less expensive ways to teach effectively is not allowed to exist in almost any state. The private initiative of such schools is deliberately choked off by the controlling ABA accreditors, each a hand-picked employee of or friend to the ABA schools toeing the ABA line. Even many state-supported law schools must charge $15,000 to $30,000 or more in tuition to survive.
The ABA’s input-based policies begun in the 1970s are driving law school tuition and fees far ahead of inflation. During the 1990s, tuition, room and board at undergraduate institutions increased by 58%, but comparable law school costs jumped 88%.