Lawyers Committee
Home Calendar Action Alert Press Release Donate Contact Us Gift Shop Lawyers Committee
Contents
About Us
Projects
Job Opportunities
Probono Opportunities
Public Policy
Pubblications
Local Committees
Links
Sitemap
Search
Legal Notices
Lawyers Committee
CRLRC.org
Press Release

July 16, 2007

Dan Freehling, Deputy Consultant
American Bar Association
Section on Legal Education and Admissions to the Bar
321 North Clarke Street, 21st Floor
Chicago, IL 60610

Re:  Proposed Revision to the ABA Standards for the Approval of Law Schools - Interpretation 301-6 for Bar Pass Rate

Dear Mr. Freehling:

Introduction

The Lawyers' Committee for Civil Rights Under Law (“Lawyers’ Committee”) provides the following comments on the record regarding the Council of the ABA Section of Legal Education and Admissions to the Bar’s (“Council”) upcoming consideration of modifications or additions to its law school accreditation standards.  These comments pertain specifically to the 10%/70%/80% requirements in the June 18, 2007, draft of the Proposed Interpretation of 301-6.

This letter supplements our May 10, 2007, letter which we request also be inserted into the record due to the large overlap in issues raised relating to diversity in legal education and across the profession.

The Lawyers’ Committee is a non-partisan, non-profit civil rights organization that, for the last forty years, has represented minorities who have been victims of racial discrimination. To that end, we have continually and vigorously advocated for equal opportunities for minorities within our nation's institutions of higher education.  This includes ensuring that all students are receiving a high quality education, which in legal education necessarily entails exposure to a diverse environment, and that students of color are not unnecessarily denied the opportunity to enroll.

The proposal specifically requires (1) schools with more than 80% of students taking the home state bar exam to 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 must additionally 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.  Finally, (3) if a school cannot demonstrate compliance with #1 and/or #2 supra, it 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.”

While we applaud the Section’s efforts in developing clear, transparent, and measurable accreditation standards, we cannot support Rule Interpretation proposal 301-6 in its current form.  Our concerns relate both to the process in which proposal 301-6 was developed as well as the adverse impact 301-6 could have on the ABA’s efforts to promote diversity in the legal profession.

Procedural Issues

With respect to process, we believe the Council has not given sufficient consideration to proposed Rule Interpretation 301-6.  The Council held a public hearing on May 16 and solicited oral testimony regarding the flat 70% version of the then-proposed Interpretation 301-6.  Despite 16 parties appearing and providing oral statements, supplementing the 50 sets of written comments submitted by May 10, the Standards Review Committee (“SRC”) proposed a drastically modified rule interpretation for consideration later that same day.  In such a tight time-frame, the Lawyers’ Committee contends it is unlikely the SRC could have adequately weighted the collective input offered through both oral and written testimony pertaining to the prior proposal.  For the sake of transparency, it behooves the Council to state why the SRC proposal is no longer being considered and indicate what committee decided to issue the new 301-6 interpretation for public comment.

Not only has the Council issued the proposal in a somewhat hasty and an opaque manner, it has not allowed sufficient opportunity for response.  In contrast to the prior proposal, the Council is not planning to hold any public hearings to listen to concerned stakeholders.  It must be recalled that the oral testimony from the May 16 hearings were in direct response to the flat 70% proposal.  Failure to meet the standards under the original 301-6 proposal triggered further inquiry but still provided such schools an opportunity to demonstrate the “rigor of its academic program.”  The new 301-6 proposal represents a radical departure from the prior proposal in that it requires a finding of non-compliance pursuant to rule 13(b) for any school unable to meet the proposed standards.  Therefore, the previous oral testimony is unlikely to be entirely relevant and exhaustive when weighing the 10%/70%/80% scheme.  Another hearing is necessary for the Council to make an informed decision, especially given the expedited proposal and approval process the interpretation has thus far received with final action scheduled in less than a month at the Council Open Session on August 10.

More fundamentally, however, stakeholder ability to respond is undermined by the utter lack of statistical data to evaluate the feasibility, operation, and impact of the proposal.  Although the impact of the 10 point rule can be ascertained with publicly available information, it is impossible to accurately determine neither the implications of the 70% out-of-state prong nor that of the 80% safe harbor provision.  The necessary data to apply these provisions is either not published or not tracked.  How can stakeholders offer intelligent comment for the Council to duly consider if this critical statistical data is not available? 

Moreover, schools will experience difficulty in assessing their compliance with proposed rule 301-6 without this key bar passage data which is either not published or subject to individual state privacy laws.  Consequently, school access to the data depends on the voluntary disclosure of results by bar applicants who fail. This state of affairs may lead to incomplete bar passage results to the detriment of the law schools.

As recommended by Dean William Wesley Patton of Whittier Law School in his comments submitted June 9, 2007, however, if the ABA has the relevant data regarding cost/benefit balance between the ABA's mission of “consumer protection” and the public policy of providing minorities and other underrepresented individuals access to the profession, then it should publish it immediately and extend the opportunity to comment.  If it does not possess this information then it ought to compile and provide it for public comment before voting to approve interpretations to Rule 301. 

In addition, it is imperative the ABA distribute the empirical evidence, if any, that justifies the suitability of the precise thresholds selected for the “bright line standards” of 301-6.  For instance, why was 80% chosen as the standard for eventual bar passage when the ABA is aware the historical eventual bar passage rate for Black students is approximately 78%?  Furthermore, we maintain establishment of any bar passage rate should be based on a thorough analysis and study of the correlation between a program of education that prepares students for the bar and a numerical percentage pass rate.

Impact on Diversity

We join Chairman Laura Rothstein of the Diversity Committee for the ABA Section of Legal Education and Admissions to the Bar in expressing concern over the adverse and disparate impact Interpretation 301-6 may have on diversity in the legal profession.  The ABA has long advocated for increasing the ranks of minority attorneys in order to enhance access to the law for diverse communities. Yet Rule Interpretation 301-6 in its proposed form would undermine this aim by disproportionately sanctioning, at least based upon the 10 point rule, schools with proven missions of serving the African-American and Hispanic/Latino communities. These schools serve the critical purpose of expanding legal education to include those who are under-represented and who also may be the first in their families to pursue higher education.  Penalizing these schools would be tantamount to discouraging diversity in the profession.

Not only do the standards jeopardize sanctions for schools that cater to minority populations, they will also likely have a chilling effect in law school admissions offices across the country.  Schools that are near or below the levels set in 301-6 will have no choice, lest they be found non-compliant with ABA standards, but to rely more heavily on traditional criteria identified with high bar passage rates such as LSAT and GPA in lieu of a holistic-oriented review that considers an applicant’s life experiences.  Again, this shift would create a disturbing incentive for law schools to reject minority applicants who score traditionally lower in these quantitative metrics. This mechanism will help drain the pool of minority attorneys during a period when they are so desperately needed to serve their communities, especially in states with high minority populations such as California and Texas.

The most striking dimension of the proposal is the severity of its consequences. Violation of the standards proposed in Interpretation 301-6 does not just lead to further investigation by the ABA, which is troubling in own its regard  Instead, it  necessarily requires the ABA to find the school out of compliance with Rule 13(b), a measure  that can lead to loss of ABA accreditation.  The results of the 10 point test offered by Dean Patton demonstrate that many of those schools with the greatest missions for increasing diversity in the legal profession would be swept up into proceedings that can result in loss of accreditation if Rule Interpretation 301-6 were to be adopted. Likewise, law schools in states with a large percentage of minorities in the general population who correspondingly enjoy a large minority presence in their student bodies would be at-risk for loss in accreditation, particularly those in California which has a reputably difficult bar exam and high “cut-score.” 

Proposed Next Steps

While we appreciate the Council addressing one of the previous concerns specified in our May 10, 2007 letter through incorporation of a cumulative bar passage provision, the Lawyers’ Committee cannot fully endorse proposed Rule Interpretation 301-6 until a number of measures are taken.  Specifically, we request the Council:

  • Publish, if available, (1) the number and names of the laws schools that would be subject to the provision triggered when 20% or more law students take the bar examination in out-of-state jurisdictions; (2) the data on each of those schools regarding their students' bar passage rates in those out-of-state jurisdictions; (3) the number and names of law schools that have met or failed to meet the 80% safe-harbor bar passage rate within three years of graduation.
  • Initiate reform in tracking and collection of bar passage by state bar authorities to ensure uniform protocols for tracking and collecting the data needed by schools to comply with the various numerical requirements in the June 18, 2007, draft of the Proposed Interpretation of 301-6, and allow for these protocols to be developed and implemented before the Council’s proposed interpretation takes effect.
  • Collect, analyze, and share with the public empirical data regarding the feasibility, operation, and impact of both the 20%/70% rule and the proposed 80% safe-harbor provision before the Council’s proposed interpretation takes effect, with particular focus on law schools who serve diverse populations.
  • To the extent the proposed regime adversely and disparately affects law schools that serve diverse populations, consider alternatives, under the discretion afforded the ABA through 34 C.F.R. 602 to fashion standards “as appropriate” for the profession,  that account for the burning need for an increased number of minority attorneys across the United States.
  • Hold public hearings to provide for oral testimony regarding any proposed interpretations to Rule 301.

Conclusion

We appreciate your attention to this matter and look forward to following the developments that result. The Lawyers’ Committee urges the Council not to adopt the 10%/70%/80% regime as Rule Interpretation 301-6 without taking the proposed next steps listed above.

Should you have any further questions or if we can be of help, please feel free to contact me.

Sincerely,

John C. Brittain
Chief Counsel and Senior Deputy Director




The Lawyers' Committee is a nonpartisan, nonprofit civil rights legal organization, formed in 1963 at the request of President John F. Kennedy to provide legal services to address racial discrimination.

For more information on the Lawyers' Committee, visit us at www.lawyerscommittee.org



back to Press Releases