To:
ABA Section on Legal Education
From: Eddie L. Koen Jr., National Black Law Students Association - National Chair Date: July 16, 2007 Re:
ABA Proposal for New 301-6 Standard
I write today on behalf of the National Black Law Students Association (“NBLSA”), the sole African-American law student organization formed to articulate and promote the needs and goals of black law students since 1968. We submit this comment with significant thought of the potential impact of the 301-6 proposal. Thank you for reviewing our comments. The purpose of the American Bar Association’s (“ABA”) new rule is to maintain its accrediting authority with the Department of Education (“DOE”) in 304 CFR 602.16, which states: “The agency meets [the accreditation authority] requirement if (1) the agency’s accreditation standards effectively address the quality of the institution or program in the following areas: (i) Success with respect to student achievement in relation to the institution’s mission, including, as appropriate, consideration of course completion, State licensing examination and job placement rates . . .” (Emphasis added). In an effort to comply with DOE, the ABA opts to raise the bar passage rates for two overarching reasons: (1) Insuring Compliance with rule 301(a) which states, “[a] law school shall maintain an educational program that prepares its students for admission to the bar, and effective and responsible participation in the legal profession,” and (2) Consumer protection for law students. The ABA lists suggests that the new standards for compliance are: 1. Schools with more than 80% of students taking the home state bar exam: A school must demonstrate that within three of the last five years its students scored no more than 10 points below the state ABA first-time bar passage rate; 2. Schools with more than 20% of students taking the bar in out-of-state jurisdictions: In addition to demonstrating compliance with the 10 point rule, these schools must also demonstrate that their 20% or greater number of students pass out-of-state bar examinations on the first attempt at 70% or higher on the two most recent tests; 3. If a school cannot demonstrate compliance with #1 and/or #2: The school must demonstrate that its students pass a bar examination at a rate of eighty percent or more within three sittings and within three years of graduation.
We respectfully disagree with the above new standards for the three principle reasons: 1. Unscientific Methodology The ABA’s proposal for 301-6 is presented with no empirical evidence of how it would provide a nexus between increasing bar passage rates requirements for accreditation and increasing the quality of legal education. The triggering factors fail to show any statistical evidence or scientific basis for deeming them effective. This critical measure cannot be decided with haste. Before enacting such a stringent measure such as 301-6, at the very least, we would advise the ABA to consult with the National Conference of Bar Examiners. We echo professor William Patton’s request that the number and names of the laws schools affected be made immediately available to the legal community if the ABA is privy to such information. Any new standards with such a drastic effect should be well examined before enacted. In light of the recent Supreme Court decision in the Louisville and Seattle cases, we feel the timing of this proposal could not be worse. We implore the ABA to proceed more judiciously. 2. Advocacy for the Consumer or for Private Bar and LSAT Services? This rule claims to be rooted in consumer protection. It is portrayed as a way to ensure that thousands of dollars spent on law school will produce a sufficient return on investment. We find this rationale incredibly unrealistic and intellectually dishonest. If adopted, the proposal will create more opportunities for privatization of LSAT and Bar Prep services to profit from the very consumers the ABA intends to protect. This will have an effect of increasing the demand for non-institutional organizations to exploit consumers and administrations with the fear of losing accreditation. Immediately beginning law school, thousands of firstyear students are bombarded with “opportunities” to lock in low rates for bar prep courses. Law students substantially rely on private companies to prepare for bar examinations. If the ABA is so concerned about consumer protection, perhaps a study should be done to see how many students would pass the bar without these private services. If the ABA is truly to address the problem of bar passage, then the entire curriculum needs to be assessed from the moment students set foot in the classroom until graduation. Implicit in this ABA proposal is a rhetorical impatience for analyzing the law school curriculum, teaching methods, and a belief that competitive law schools propagate a quality environment. We implore the ABA to adopt a more reasonable standard and protect the students by thoroughly searching for all causal connection of low bar passage rates and arduously working through a reasonable solution. 3. Disparate Impact on Blacks and Latinos We find the changes presented by the ABA have a negative long-term effect on the enrollment of minority applicants. We view this proposal as an implicit assault on minorities in the professions, especially on all Historically Black Colleges and University Law Schools. As noted in the National Bar Association’s (“NBA”) testimony to this body on May 16, 2007, A recent study by a member of the NBA’s Law Professor Division indicates that
during the past five years, 63% of all African-American applicants to America’s law schools and 49% of all Hispanic applicants were completely denied admission from every ABA-accredited law school they applied to, compared with 35% of our counterparts. This study has been accepted for consideration by the St. John’s Law School Journal of Legal Commentary and is based on publicly available data from the Law School Admissions Council. One of the perceivably key indicators of bar passage rates is the LSAT score. If Black, Hispanic/Latino, and other minority students traditionally have lower LSAT scores, naturally, the law school will assign a high-risk factor to the potential applicant. If the applicant is deemed high-risk, then we fear that schools will overlook otherwise qualified applicants in an attempt to satisfy this ABA standard. There has been independent evidence that shows the following law schools would be impacted: Appalachian Barry University Capital University The Catholic University of America City University of New York University of the District of Columbia Golden Gate University Gonzaga University Howard University Oklahoma City University
St. Mary's University St. Thomas University Southern University Texas Southern University Thomas M. Cooley Touro College Western New England Western State University Whittier Widener University – Wilmington Widener University - Harrisburg
To put this rule into context, this would negatively affect almost 4,000 minority law students immediately.1 This rule challenges the pipeline initiative not only established by the ABA’s Presidential Advisory Council on Diversity, but all law school, law firms, and non-profit organizations who have similar projects to help diversify the profession. Based on the ABA’s official report to the Law School Admission Council, these schools admitted a total of 1,666 African-American, 1,105 Hispanic or Latino, 1,081 Asian-American, and 121 Native American students enrolled in 2006-2007. However, this number does not take into account the negative effect on the admissions process with the remaining “safe” schools. Nor does this number taking into account provisionally accredited schools or other minority applicants affected (i.e. disabled, women, sexually diverse, etc.).
1
See Appendix 1
NBLSA RECOMMENDATIONS NBLSA recommends the following: • • • • • • •
A comprehensive assessment on the effectiveness of law schools without supplemental help of private bar prep companies. Focus attention on resources versus bar passage scores. Assess the relationship and any conflicts of interest between bar examiners and private for-profit bar prep services. Protect the consumers by offering bar prep courses through law schools that are state specific at no cost or substantially lower than private companies. Assessing any systemic problems through reliable and accurate research. Assessing the law school’s curriculum structure. Assessing how financially constraints may affect bar passage rates.
Conclusion We feel the main effect of this law would negatively impact minority applicants and force the “at risk” schools and students to focus primarily on bar preparation and ignore any other critical factors that enrich the law school (i.e. Clinical courses, Moot Court, Flexibility in Course Selection, etc.). These benchmarks will have a crushing effect on law school diversity. The ABA has been presented with evidence that the adoption of this rule would not only disparately impact blacks and other minorities, but that it would disproportionately affect lower tiered schools. We fear that this rule oversimplifies the problem of bar passage. We ask that the ABA does not act in haste in this decision. We implore the ABA to consider improving the bar passage rate through improvement strategies like smaller class sizes, law school curriculum reform, and assessing the overall bar examination process. Adopting this measure would have the effect of closing the door on otherwise qualified applicants who are perceived as “high risk.” We appreciate the opportunity comment on such a critical issue. We are more than willing to work toward a viable solution. Kindest Regards,
Eddie L. Koen Jr. /s/ Samford University – Cumberland School of Law National Black Law Students Association National Chair 2007-2008