Summary For Op Ed News
Andy Starkis, a professor at the Massachusetts School of law, exposes some of the absurdities of law school accreditation as done by the American Bar Association.
Law schools qualify for the game by getting approval from the American Bar Association (ABA). Those – like U.S. News & World Report – who bring you the annual standings in the race for “best law schools” look only to ABA-approved schools, presumably because they think the best schools would be found there.
Here, I’m not sure whether to invoke George Orwell or Garrison Keillor. The ABA’s accrediting arm evaluates the school according to a set of “standards” whose primary effect is to make legal education more expensive. For example, only under considerable external pressure, did the ABA jettison some of its more transparently ridiculous “standards,” like the Lake Wobegon requirement that all schools pay faculty above-average salaries. But the ABA still clings to equally silly “standards”: for example, the ABA standard for student/faculty ratio, an apparently beneficial policy aimed at greater interaction between students and faculty.
Harvard Law School, ABA-approved and the model for law schools everywhere, has a student/faculty ratio between 10 and 15, but it was recently making a public promise to get its average class size down to 85 students. How could that be? Well, under ABA “standards” there’s no requirement that faculty teach in order to be counted, and there is a policy discouraging faculty from teaching too much, say ten hours per week. The ABA doesn’t want to count any law teachers, like practicing lawyers and judges, who only teach part-time. Nor does it want to count full-time teachers with a significant private law practice. Nor does it even want to count any full-timers who carry significant administrative responsibilities, regardless of credit hours taught. (At one time, such teachers were not counted at all, but again, external pressure forced the ABA to retreat a bit.) Now the ABA counts those instructors, but only as a fraction of a faculty member. Thus, the school where I teach has an unacceptably high ABA ratio despite an average class size of about 15 students, as opposed to Harvard’s 85 plus.Now for the truly Orwellian. The ABA’s accrediting body has driven the cost of legal education so high that law school survival now depends on student borrowing through federal programs. Participating schools are only those accredited by a U.S. Department of Education-approved body. Thus, because some law schools depend on ABA accreditation to be eligible for federal programs, the ABA needs federal approval to continue as the accrediting agent – and thereby the governing body – of most law schools. But federal regulations prohibit any trade organization (like the ABA) from being an accrediting agent. No problem. The ABA has persuaded the Department that it is not the ABA, that it (the “ABA Council for the Section on Legal Education and Admissions”) is separate from itself (the ABA), thereby maintaining its position as the gatekeeper of legal education.
Once past the game’s entry contest, ABA approval, the schools, desperate for money to pay the high cost of ABA compliance, go into the arena to attract students and put them through the three-year program designed to meet the “standards” and keep the money flowing. It is not required that the schools prepare the students to be lawyers – indeed in many places such an endeavor will be frowned upon. Nor is it essential even to prepare students for the bar exam; there are after-law-school bar-review courses who own that job. The traditional law school is in effect little more than a mandatory three-year obstacle course for would-be lawyers, who must learn elsewhere how to pass the bar exam and how to be lawyers.
Not surprisingly, students want to go to the “best” law schools they can get into. But which are the best? US News & World Report asks the other participants in the system, the ABA-approved faculties in whose interests the whole system has been maintained in the first place. It also reviews the “statistics” compiled for ABA accreditation, including students’ scores on the Law School Admission Test, the creation of a close ally of the ABA (which of course has a “standard” requiring use of the LSAT or similar test, though no similar test exists). The LSAT, with a mild correlation to first-year law school grades, becomes a device for comparing law schools in terms of the “quality” of the students they reject. A school that can turn away what would otherwise appear to be very qualified students must be very, very good. “Exclusive” becomes not a pejorative but a term of praise.
And so, tweaking statistics hardly seems out of bounds. Imagine the shock of those caught tinkering with their numbers that their peers might think them less than straight and honest?
Andrej Thomas Starkis is an assistant professor of law at the Massachusetts School of Law at Andover, and a practicing attorney. He teaches business associations, motions and litigation practice, and is director of the writing for lawyers program. He can be contacted at email@example.com