ACTA is an independent, non-profit organization committed to academic freedom, excellence, and accountability at America's colleges and universities.

ACTA is an independent, non-profit organization committed to academic freedom, excellence, and accountability at America's colleges and universities.

ACTA is an independent, non-profit organization committed to academic freedom, excellence, and accountability at America's colleges and universities.

Law School Oversight Suits May Point To Needed ABA Reforms

Law360
June 8, 2018 by Emma Cueto

In the past month, the American Bar Association has been hit with four lawsuits criticizing the way the association accredits and regulates law schools, but while experts are somewhat skeptical about the suits’ chances of success, many agree that the suits do get at least one thing right: The ABA’s approach to law schools is in need of reform.

Three for-profit law schools owned by the consortium InfiLaw and nonprofit Thomas M. Cooley School of Law have taken to court to challenge ABA enforcement actions targeting their admissions policies. Alleging the ABA's oversight has been inconsistent and arbitrary, the schools have asked courts to declare the ABA actions are invalid and block the ABA from trying to enforce its noncompliance decisions.

On the heels of Cooley's allegation it was wrongly censured over its admissions practices, the Infilaw schools — Florida Coastal School of Law, Arizona Summit Law School and Charlotte School of Law, a North Carolina school that shuttered in 2017 — each filed suit in May. In addition, a former Charlotte law professor earlier that month brought the ABA into an existing suit related to the school’s alleged mismanagement.

Kyle McEntee, executive director of Law School Transparency, told Law360 that he thinks all of the schools deserved ABA scrutiny and are unlikely to prevail in their suits — but that they may have point about the way the ABA goes about enforcing its standards.

“From a policy point of view, I want and expect the ABA to enforce its standards consistently and predictably,” McEntee said. “And from the outside it doesn’t look like they are.”
The recent wave of suits hit on concerns that the ABA has fallen short in its role as an accreditor.

“What one wants from an accreditor is to protect the interests of students and the public,” said Michael Poliakoff, president of the American Council of Trustees and Alumni. “In that regard, we have been very concerned about the ABA for some time.”

In the past, he said, the association’s actions had seemed more geared toward protecting the interests of schools, rather than students. For instance, he said, the ABA regulations made it difficult to innovate and experiment with ways to make law schools cheaper.

Armand Alacbay, an ACTA vice president, added that any accusation of inconsistency against an accreditor was troubling.

“By law, the Higher Education Act requires any accreditor to have consistent processes with regard to how they approach the enforcement of their standards,” he said.

However, the issue that observers most frequently cited was a lack of transparency at the ABA.

The association does not explain why it chooses to target the schools it does for enforcement action, nor does it seem interested in explaining its reasoning for decisions, both the suits and the experts say. That includes a March ruling that Cooley, an affiliate of Western Michigan University that had been notified in November that its admissions practices didn’t measure up, was now in compliance.

The Cooley decision was shocking, McEntee said, given that there was no outward indication that Cooley had changed its policies or practices since November. “It’s still not clear what changed about Cooley’s admissions policies warranted lifting the sanctions,” he said.

Cooley was the first school to file suit against the ABA. The Cooley lawsuit, which was filed in Michigan federal court in November shortly after the initial decision that Cooley was out of compliance, alleges that the ABA’s Section on Legal Education and Admission to the Bar did not have solid evidence of noncompliance and that its standards regarding admission are too vague to be enforceable.

David Frakt, a criminal defense attorney and former law professor who tracks issues related to law schools and is head of LST’s advisory board, said that initially, he thought the decision to find Cooley in compliance might have been part of a settlement in the lawsuit — but then the lawsuit kept going.

Indeed, the decision was so seemingly odd that Cooley itself referenced it in its filings in its suit against the ABA to back up accusations of arbitrariness.

The three for-profit schools owned by Infilaw are making similar arguments in their own suits, which are each helmed by Kirkland Ellis partner and former U.S. Solicitor General Paul D. Clement. According to the Infilaw schools, the ABA process violates law schools’ right to due process because it is arbitrary and capricious. The ABA did not fully explain to the schools exactly how they were out of compliance or what results they needed to achieve to be back in compliance, the complaints allege. The schools also allege the ABA standards are often not clear and are not consistently applied.

Both Florida Coastal and Arizona Summit back up their arguments by referencing the March decision regarding Cooley.

Charlotte, which shut down before Cooley was declared not in compliance, does not.

The Infilaw schools also claim that the ABA singled them out because of their for-profit status, and that the association was pressured to do so by Obama administration officials.

The ABA declined to comment on the suits because litigation is pending, but it has released a statement regarding its accreditation and regulatory processes that says the Section on Legal Education and Admission to the Bar “provides meaningful opportunities for every law school to establish that it is operating in compliance with the accreditation standards.”

Schools have multiple opportunities throughout the process to act on the ABA’s findings and bring the school back into compliance, it said. If it cannot, the ABA follows an established enforcement process that has been upheld in court in the past, it said in the statement.

Experts are largely skeptical of the schools’ chances for success in these suits, citing the schools’ poor metrics.

For example, Cooley admitted 85 percent of students who applied in 2017, the most recent year for which data is available. Fewer than half of its 2017 graduates passed the bar on their first try, according to the school’s own required disclosures, compared to a national average of 73 percent.

With these sorts of numbers, it would be difficult to conclude that the ABA was not justified in taking
action, experts speculated.

“Courts are very deferential to decisions made by accreditation authorities," Frakt said. “It’s very hard to overcome that presumption of regularity.”

However, Frakt said that he thinks Florida Coastal may have a legitimate argument. Of the four schools suing, Florida Coastal had the best admissions and bar passage numbers — its acceptance rate is 45 percent, though its first time passage rate was still only 47 percent in July 2017 — and had voluntarily undertaken certain reforms even before the ABA began openly scrutinizing the school, he said.

But for the other three schools, their metrics would likely undermine their case, Frakt said.

McEntee said that, despite his criticisms of the ABA, he did think it was valid for the association to go after the three Infilaw schools, and that he doubted the for-profit status was a major factor.

“The outcomes of these schools are just so atrocious — from job outcomes to debt outcomes to bar passage rates to high attrition rates,” he said. “There’s ample reason to look at the schools and see that it makes sense that the ABA went after them, without looking at for-profit status.”

While Cooley and the Infilaw schools all allege that the ABA was too harsh, a qui tam suit by former Charlotte professor Barbara Bernier alleges that the association instead wasn’t harsh enough.

Bernier, who left a tenured position to work for Charlotte in its early days, said she never would have made the switch if the school hadn’t been accredited, and that the ABA hadn’t done its due diligence before giving the school its “stamp of approval.”

“The beginning of the story for Charlotte School of Law — for both the professors who worked there and the students who went there — starts with the ABA’s decision to accredit the law school,” said Coleman Watson, an attorney for Bernier.

Bernier added the ABA to her suit in May. The ABA has moved to dismiss the suit, arguing that it was filed too late, that the Florida court does not have jurisdiction, and that the claims against the ABA were not sufficiently related to her claims against Charlotte and Infilaw.

No matter how the various suits play out, it may be time for the ABA to rethink the way it certifies and regulates law schools, though some of the problems may be more difficult to solve than others,
experts suggest.

Some of the ABA’s troubles, McEntee said, may be due to the fact that the Section on Legal Education and Admission to the Bar doesn’t have unlimited resources. According to LST’s analysis of admissions criteria, there are 42 schools that the organization classifies as either "very high" or "extremely high" risk, meaning they admit a high percentage of students who are unlikely to pass the bar.

Realistically, he said, it simply might not be possible to scrutinize all of those schools.

Watson, however, argued that the ABA could divert resources to regulation if it chose. The ABA could also stop accrediting new schools in order to focus on regulating schools already operating, Watson argued.

“For years, anyone who’s practiced law has known that the industry has slowed down some,” he said. “But when you look at the fact that it’s slowed down but we’re still accrediting law schools, it doesn’t make much sense.”

The organization should also consider increasing transparency, experts said, and many agreed that if it didn’t, the courts could be a useful way for schools and other interested parties to force the ABA to explain its reasoning and get a peek behind the curtain.

“Ultimately … the ABA needs to explain why they did what they did in March,” Frakt said about the compliance finding for Cooley. “Because right now, you just cannot reconcile their decision to find Cooley in compliance and find Florida Coastal ... out of compliance on the same day. They basically invited all this litigation by making facially inconsistent decisions.”