The ABA Must Enforce Its Non-Exploitation Standard

If the ABA waits too long to act, we will end up with yet another group of students in 2016 being set up to fail.

Dozens of law schools around the country have made unethical admissions choices in the face of financial pressure over the past few years. Bar exam rates have already fallen dramatically, with the worst yet to come. As these choices continue to erode the public’s trust in the legal profession, the ABA Section of Legal Education and Admissions to the Bar must not stand by watching. As accreditor of law schools, the ABA is uniquely situated to hold law schools accountable.

Two questions: What can they do? And will they?

Next week, the ABA Section of Legal Education’s Council and staff will meet in Atlanta. This meeting is an opportunity for the Section to regain some of the trust it has lost over the years.

It can start immediately by announcing its intention to enforce its non-exploitation standard. Standard 501(b) provides that a school shall not enroll a student who does not appear capable of completing the JD program or passing the bar.

To date, the ABA has interpreted the Standard in a mystifying fashion. The ABA equates an entering applicant’s “capability” for the purposes of Standard 501(b) with a school’s bar passage rate as measured by the school’s compliance with Standard 316, the minimum bar passage standard. This interpretation has no textual basis. The plain text requires schools to consider the abilities of an individual applicant at the time of admission, not the abilities of the collective graduating class that chooses to take the bar exam.

The text directly contravenes the drafter’s clear intention to stop schools from exploiting individuals. But the ABA’s current application of Standard 501(b) allows schools to admit (and charge tuition for) as many students as they want, regardless of their ultimate ability to be admitted to the bar, as long as those students do not eventually graduate and take the bar exam. If the ABA’s application of the Standard were correct, the ABA could do nothing about a school that takes even just a few students who they know have no hope for completing school.

Moreover, the Standard lists additional factors besides bar passage rates, including pre-enrollment predictors of academic and bar success. The ABA does not explicitly link Standard 316 to compliance with Standard 501(b). This directly contrasts the ABA’s decision to explicitly link Standard 316 to automatic compliance with Standard 301(a).

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As written — again, not as applied — the Standard makes sense. The accreditor should be concerned with non-completers and bar exam failure. Additionally, student admission credentials may not remain steady over time, thus analyzing school admissions and retention policies is separate from bar exam outcomes. The graphic to the right shows how quickly class profiles can change.

By using Standard 316 to test compliance with Standard 501(b), the ABA effectively uses a school’s admissions choices from many years ago to determine whether a school’s admissions choices today are exploitative. When entering class credentials stay the same, this may be effective. But when the admissions credentials dramatically decline, Standard 316 loses its utility for establishing a school’s current Standard 501(b) compliance. A school that admitted too weak of a cohort in 2015 will not have an accreditation threat from the ABA until late 2020 at best.

Given these and other problems with Standard 501(b), the Council needs to announce its intention to enforce the Standard using the plain text. The situation is bleak and, though the minority of law schools making these choices are most to blame, the ABA shares blame when it declines to enforce the standards it has on the books.

[See the full memo on the improper interpretation of Standard 501(b) submitted by LST to the ABA here.]

To those inside and outside the ABA, it’s apparent that Council leadership needs to inspire confidence that the ABA will act on its legal and professional duties. If the ABA waits too long to telegraph its intention to do something more than make assurances that everything is being handled privately, we will end up with yet another group of students in 2016 being set up to fail.

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I’m cautiously optimistic; reactions to our report from people inside the ABA have been extremely positive. Admittedly, however, some of my confidence comes from knowing that many on the Council understand the stakes. They know that the Department of Education and influential members of Congress are watching to see what the ABA does next. Hopefully it proves to be a perfect storm of external pressure.


Kyle McEntee is the executive director of Law School Transparency, a 501(c)(3) nonprofit with a mission to make entry to the legal profession more transparent, affordable, and fair. LST publishes the LST Reports and produces I Am The Law, a podcast about law jobs. You can follow him on Twitter @kpmcentee and @LSTupdates.