Law Schools

ABA Takes Giant Step Backwards On Transparency

An abuse of the accreditation process that will benefit a handful of schools and hurt prospective law students.

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Without public input, the Council for the ABA Section of Legal Education and Admissions to the Bar has rolled back measures that make law schools more transparent. The ABA has eliminated from the current consumer information report, available for every ABA-approved law school, several pertinent job categories. It has also obfuscated whether jobs are funded by the law school or earned on the open market. The result: students will be misled after years of progress.

Both the process and substance have already stirred the ire of those in and around legal education.

To see why, it’s worth recounting the recent history of transparency at U.S. law schools. In 2010, my organization made national hay about deceptive employment statistics used by law schools and blessed by the ABA. In their marketing materials, law schools used a “basic employment rate,” typically ranging from 85% – 95% because the rate did not, among numerous flaws, distinguish between jobs at Starbucks, in the law library, and with major law firms. Schools would also advertise six-figure salaries without reporting response rates, which were sometimes as low as 10%. As a result, the ABA and law schools took a beating in the national press, which undoubtedly contributed to demand for law school decreasing dramatically.

Fast forward a few years, beginning with job statistics for the class of 2011, and the ABA began to require law schools to publish far more transparent data. This was accomplished through a very public, deliberative process. In subsequent years, the ABA made additional changes to data collection, reporting, and publishing. Sometimes the changes were positive, other times they were not, but the process was collaborative and transparent.

This June, the Council did a complete about-face when it implemented revised disclosures and ordered a change to the data collection/reporting process. There was no public notice and comment. Neither Law School Transparency nor the National Association for Law Placement, a key player in law school jobs data reporting since the 1970s, were even privately consulted. Jim Leipold, NALP’s executive director, told me that “NALP was not involved in the decision. Technically, no one was. They did this behind closed doors without any period of notice and comment.”

Writing for TaxProf, Jerry Organ, a law professor at St. Thomas University, Minnesota School of Law and transparency advocate, said that the Council “simply approved a proposal purporting to simplify reporting of employment outcomes that was submitted by one Council member, Paul Mahoney, whose law school was among several that would benefit from the reclassification of law-school-funded positions.”

Meanwhile, the newly adopted proposal has sparked considerable discontent on the deans-only listserv, with a number of deans echoing the concerns expressed in a lengthy email this morning by Matthew Diller from Fordham Law. Many career services deans are also upset with the changes coming from nowhere.

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Here’s the timeline of events:

May 30, 2017. Paul Mahoney, the former dean of the University of Virginia School of Law, writes a memo to the Council. He argues that the consumer information report each law school must publish should be simplified. He also argues that various definitions and categories should be revised.

June 1-2, 2017. The Council approves, after minimal discussion, the exact form report Mahoney mocked up. The plan is to change the data collecting/reporting process to reflect the new report for students graduating in 2018.

There is nothing positive to say about the process by which the Council adopted the proposal. Trust in law schools and the ABA have not been restored. Substantially changing the available consumer information without any input makes restoring that trust even more challenging.

As for the actual substance of the proposal, simplifying the current report makes sense if done properly, but the new form makes consequential mistakes.

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Three Good Ideas From The New Form

(1) School-funded jobs get their own category under “employer type”
On the current report, if a law school funds a job with the government, the graduate counts as working in “government.” On the new report, these graduates will count as “school funded.” This makes the government hiring picture clearer. After all, the government was not willing to pay them to work—the school picked up the tab.

(2) Local, State, and Other Clerkships combined
On the current report, these clerks are reported in two categories: local/state in one, other clerks in the second. In 2016, just 20 graduates (of over 37,000) were in the latter category.

(3) Collapsing part-time and short-term jobs into one category
The current report includes five columns that categorize jobs by term and time.

The new report includes three columns. If a job is either short-term or part-time, it gets lumped into the “other” category.

These three changes make the report more readable without prospective law students losing valuable information.

Four Terrible Ideas From The New Form

(1) Eliminates the total number of graduates from the report
The new report does not include the number of graduates, which means someone using the report will have to add up other columns to figure out what percentage of the graduating class falls into a given category.

(2) Combines law firm categories
The current report breaks the law firm category down by the number of attorneys at the firm. The categories are solo practitioners, 2-10 attorneys, 11-25, 26-50, 51-100, 101-250, 251-500, and 501+. Inconsistent with more than two decades of data collection by NALP, the new report combines these categories differently: 2-10, 10-100, 100-500, and 500+. Amazingly, Mahoney’s mock-up report, which the Council approved, sloppily created overlap in these categories. The Section of Legal Education will fix that oversight, but it demonstrates the seriousness of the process.

Sloppiness aside, the new categories group law firms that have nothing in common. Firms with 10-25 attorneys are vastly different from firms with 50-100 attorneys. Further, firms with 251-500 attorneys are more alike firms with 501+ attorneys than firms with 100-251 attorneys.

(3) Eliminates important school-funded transparency
While the new report does reapportion graduates in school-funded jobs from government or public interest into their own category, it does the opposite “above the line.” That is, school-funded jobs have been moved back into the ever-important bar passage required category, obfuscating whether a school’s graduates are getting jobs on the open market. As Jerry Organ pointed out (quoted above), this change substantially affects the statistics at a handful of schools. It is a completely inappropriate use of the accrediting process to benefit these schools.

(4) Combines unemployed and unknown.
The new report combines three categories of unemployed with the unknown employment status category into one “bad” category. Among other benefits, the unknown category provides useful information about which schools do a very poor job with collecting data. The various unemployed categories also shed considerable light on shady practices. Most egregiously, this will preclude reporting a school’s unemployment rate.

Finally, it’s one thing to simplify the public report for consumers. It’s another to stop providing the disaggregated data to researchers who may, for instance, want to investigate the relationship between part-time or short-term jobs and race or gender. And it’s even worse to stop collecting the relevant data all together for accreditation purposes. This will make the auditing process more difficult. It will also make interim monitoring of accreditation status more difficult on the Section of Legal Education staff.

The Council meets again in a week. I hope and expect to see the Council reverse course. But it will not be enough to acknowledge the considerable procedural and substantive mistakes and to start the revision process. The Council must overturn its June decision. Otherwise, I suspect we’ll see Congressional involvement and Department of Education complaints yet again, along with the prolonged, negative, and national attention that comes with it.

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.

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