Law Schools Need a New Governance Model
This article appeared in Law & Liberty on June 25, 2018. (And was featured in Overlawyered.com a few days later, and in Real Clear Education and by Ramesh Ponnuru in National Review Online a bit later.) And again in Overlawyered.com (here).
A prior post (entitled “Who Runs the Legal Academy?”) attracted some much-needed attention from other sites, including Overlawyered.com, Instapundit, and the Tom Woods Show. The governance of law schools, although not a secret, is poorly-understood and seldom discussed. This lack of transparency empowers—or at least emboldens—some of the behind-the-scenes influencers to take unreasonable positions and to pursue self-interested goals that are contrary to the ostensible objective of training students to be effective and ethical lawyers. The result is a dysfunctional legal academy.
In my initial installment on this topic, I briefly discussed the role of the American Bar Association (ABA) in regulating legal education (through its Section of Legal Education and Admissions to the Bar), but I don’t want to suggest that the ABA exerts exclusive control, or constitutes the only problem. As explained in detail by Walter Olson in his 2011 book Schools for Misrule, and Professor Brian Tamanaha in his 2012 book Failing Law Schools, many different forces play a role in determining how law schools operate: faculty, administrators, alumni, the legal culture, donors, accrediting organizations, the marketplace for law graduates (which affects the applicant pool), peer pressure, compilers of rankings, and, in the case of publicly-funded schools, the state legislatures. And perhaps others.
I will leave for another column the profound irony that an entire industry cowers before the subjective—and in many respects questionable—ranking of schools by a defunct publication that was, in its heyday, an also-ran among weekly news magazines: U.S. News & World Report. Tamanaha states that law schools “loath” the U.S. News ranking and “endlessly gripe” that its methodology is flawed, but nevertheless are terrified of it due to its unwarranted credibility among law school applicants: “The rankings have law schools by the throat. No question.” Tamanaha laments that “The contours of a $5 billion educational industry are being carved by a self-appointed maker of lists, which are sold for a profit.”
However problematic the U.S. News ranking methodology may be, law schools and consumers are free to disregard the U.S. News rankings because they are merely advisory, and do not entail any legal or regulatory significance. The same cannot be said for the ABA, which has been granted monopoly status [1] over the accreditation of law schools by the U.S. Department of Education (for purposes of determining eligibility for federal student loans) and nearly all state supreme courts (for purposes of determining eligibility to take the bar exam). Monopoly status is inevitably prone to abuse, and in recent decades the ABA has gone far beyond its original mission of establishing minimum standards for legal education to protect the public. Professor John Baker maintains that “the ABA is an ideological organization forcing its ideology into the standards on accreditation.” [2]
One can debate whether the ABA is controlling the law schools, or whether some law schools—wishing to be “forced” to reduce teaching loads and spend more money on faculty and facilities–control the ABA accreditation process. It may depend on the circumstances and relative status of the particular law school. In 1995, the U.S. Department of Justice sued the ABA, alleging that “legal educators have captured the ABA’s law school accreditation process,” in order to raise salaries and restrict competition. As with most cartels, it is in the interest of established market participants to create barriers to entry, and regulatory schemes that increase operating costs often serve that purpose. The ABA settled the case by entering into a humiliating 10-year consent decree.
Undaunted, the ABA bullies law schools into compliance with its liberal agenda. As University of San Diego law professor Gail Heriot (who also serves as a member of the U.S. Commission on Civil Rights) recounted in the Wall Street Journal, in the early 2000s the ABA threatened to revoke the accreditation of George Mason University’s law school (now known as Antonin Scalia Law School) if it did not lower its admission standards for minority applicants (especially African-Americans), solely to increase the number of minority students it enrolled. In the name of “diversity,” GMU was forced to discriminate on the basis of race by accepting some students who did not meet its color-blind admissions criteria. The ABA literally forced an unwilling law school to engage in preferential admissions, in violation of Grutter v. Bollinger (2003). [3]
In 2006, GMU law professor David Bernstein complained (also in the Wall Street Journal) that the ABA’s proposed “diversity” requirements would, if adopted, “only embolden the accreditation bureaucracy, composed mainly of far-left law professors, to demand explicit racial preferences and implicit racial quotas — all in brazen defiance of the law.” Bernstein’s prediction has come true. In the official “interpretation” accompanying the ABA’s Standard 206 (titled “Diversity and Inclusion”), the ABA expressly states that “The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions [such as California’s Proposition 209] is not a justification for a school’s non-compliance with Standard 206.” (Emphasis added.)
As Richard Sander and Stuart Taylor demonstrated in their excellent book Mismatch (2012), placing under-qualified (or in some cases unqualified) applicants in an academic environment for which they are not suited increases the likelihood that they will drop out or fail the bar exam. Educational outcomes are worse for “preferred” (or mismatched) students than for their counterparts who attended schools to which they were competitively admitted. The ABA’s “diversity” edict, in other words, may be harming minority students, and possibly contributing to record-high fail rates on bar exams in Texas and California (e.g., here and here). (Moreover, many marginal law schools have lowered admissions standards–to what one commentator has called “unconscionable levels”–in recent years due to a sharp decline in the number of applicants.)
The ABA (and what Professor David Elder calls its “incestuous paramour,” the Association of American Law Schools [4]) have done a poor job regulating legal academia, often engaging in transparent feather-bedding and self-dealing. The ABA has also “pressured all law schools to impose racial preferences in faculty hiring.” [5] Some of the ABA’s accreditation standards are simply nonsensical, such as requiring that the law school faculty have veto power over the selection of the dean: “Except for good cause, a dean should not be appointed or reappointed to a new term over the stated objection of a substantial majority of the faculty.” [6] Imagine how dysfunctional the U.S. auto industry would be General Motors was required to obtain the approval of the UAW when appointing a new CEO!
In recent decades, at the behest of the ABA and AALS, law schools have been “forced” to increase the ranks of full-time faculty, grant them tenure, increase their salaries, and reduce their teaching loads; hire many “clinical” faculty to provide students with actual skills-training involving real clients (something the “research” faculty teaching “doctrinal” courses are ill-equipped to do, since most of them have scant private practice experience), in small classes; engage in minority outreach, offer scholarships, and provide staff support for “diverse” students whose academic credentials are not competitive with their peers’; and expend considerable resources to maintain their accreditation every seven years in a burdensome regulatory gauntlet.
These higher expenses have—in combination with nearly unlimited access to federal student loans– produced an explosion in tuition costs, which result in a sharply-increased student debt load for the average graduate. In a flat (or declining) job market, many law school graduates find themselves burdened with mortgage-sized loan balances and unable to find suitable employment. Law schools, taught primarily by overpaid “scholars” who impart little in the way of practical legal skills, produce graduates ill-prepared for practicing law. The clinical programs are usually cause-oriented activism. Many debt-ridden graduates cannot even pass the bar exam–and all require attendance at an expensive post-graduation bar review course to have a fighting chance, since most schools eschew teaching black letter law. In addition, the legal academy has become a left-wing echo chamber, utterly lacking ideological balance, a situation which surely diminishes the cultivation of critical thinking by law students.
The governance model that has led to this dysfunction must be replaced. The Department of Education should re-evaluate the ABA’s monopoly status as the accrediting organization for law schools, or at least insist that the ABA confine itself to legitimate quality control objectives—not social engineering. State supreme courts should likewise re-introduce competition into the process of determining eligibility to take the bar exam, or establish their own standards, or both. Legal education is broken; law schools need a new governance model.
Future posts will consider other reforms.
[1] Douglas W. Kmiec, “Law School Accreditation: Responsible Regulation or Barrier to Entry?,” 11 Texas Review of Law & Politics 377 (2007).
[2] John S. Baker, “Seeking Competition in Law School Accreditation,” 11 Texas Review of Law & Politics 385, 387 (2007).
[3] Ironically, GMU, which has recently been (falsely) demonized as a “right wing” law school running amok under the influence of the Koch-funded conspiracy (e.g., here, here, and here), was brought to heel by the ABA a decade ago.
[4] David A. Elder, “‘Hostile Environment’ Charges and the ABA/AALS Accreditation/Membership Imbroglio, Post-Modernism’s ‘No Country for Old Men’: Why Defamed Law Professors Should ‘Not Go Gentle into That Good Night,’” 6 Rutgers Journal of Law & Public Policy 434, 620 (2009).
[5] George W. Dent, “Toward Improved Intellectual Diversity in Law Schools,” 37 Harvard Journal of Law & Politics 165, 175 (2014).
[6] Interpretation 203-1, ABA Standards and Rules of Procedure for Approval of Law Schools 2017-2018.
