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Written by Carol Chomsky, SALT Observer at SRC

This report reviews the results of the April 2011 meeting of the Standards Review Committee (SRC), but omits discussion of the committee discussion of security of position, which is reviewed in a previous report, available here.  In each section, reference is made to subcommittee reports; those are subcommittees of the SRC, charged with drafting language and bringing it to the full committee for discussion and ultimate decision.

The standards and topics addressed in this report are:

• Bar pass rate requirements (Standard 301)
• Admissions and student services, including use of the LSAT in admissions (Chapter 5)
• Student learning outcomes (part of Chapter 3)
• Other issues in Chapter 3: Program of Legal Education, including discussions of  attendance policies, distance education, and paid externships
• Faculty responsibilities (Standard 404)
• Law school administration and organization (Chapter 2)
• Facilities (Chapter 7)

Bar pass rate requirements

The SRC is considering a significant change in the bar passage rates that must be demonstrated by each school to be or remain accredited.  The current standards require that each school demonstrate that, for law students who graduated from the law school within the five most recently completed calendar years,[1] one of the following tests is met:

(1) 75 percent or more of the graduates who sat for a bar exam passed, or

(2) in at least three of the past five years, 75 percent of the graduates who sat for a bar exam passed, or

(3) in at least three of the past five years, the annual first-time bar passage rate (in jurisdictions reported to account for at least 70% of the school’s graduates) is no more than 15 points below the average first-time bar passage rate for graduates of ABA-approved law schools taking the bar examination in those same jurisdictions.

The subcommittee report recommends, and the SRC is considering, increasing from 75 to 80 percent the percentage of students that must pass the bar in tests 1 and 2 above, and changing from 15 to 10 the number of points below the average first-time pass rate that must be demonstrated in test 3 above.  SALT submitted comments to the SRC opposing the proposed change, expressing concern about the impact on diversity in law school admissions; you can find the link to those comments here.

The subcommittee chair noted her appreciation for SALT’s comments, recognizing the importance of providing a meaningful standard without chilling access to law school for anyone, permitting schools to take risks on students with low predictors to fulfill their missions of expanding diversity in the profession.  Nonetheless, she defended the proposal as providing credible goals for bar passage, based on data unavailable in 2007 when the 75 percent and 15 point margins were adopted.  In particular, in the past three years, the Accreditation Committee has seen the ultimate bar pass rates for over 100 law schools, and found that only one of them would not have met the 80% passage requirement.  They have also collected information on academic support programs, she said, and seen schools effectively moving students with low predictors into position to pass the bar.

One committee member reiterated concerns over the impact on diversity, suggesting that schools are already shutting out a significant number of minority students (statistics shared at the public forum) and the increased pass rate will exacerbate that.  With an increased pass rate, admissions officials will put more emphasis on the LSAT as a predictor, and minority students on the bubble will be rejected.  It was noted that, even if the LSAT requirement is deleted from the standards, schools will still use it in relationship to the bar pass rate, so deleting the requirement will not fix the problem.

There was discussion over whether to retain the five year window for bar statistics, with some suggesting that three years should be enough.  The five years was described as necessary, however, because the low pass rate in California makes a three year window unreasonable.  The committee members agreed that it would be a good idea to push California to lower its cut score and so increase its bar pass rate, especially given the high minority population there.

Chapter 5: Admissions and Student Services (Including Use of the LSAT in Admissions)

There was some discussion of the proposal to change Standard 509 so that more detailed information on placement results for law schools would become available for students and applicants.  The subcommittee will consider some particular changes proposed by the ABA Special Committee on the Professional Education Continuum as well as further discussions with the students and others who have pressed for more transparency in these statistics.

Most discussion centered around the proposed deletion of Standard 503, which currently mandates schools to require that each applicant “take a valid and reliable admission test,” which means, for now, the LSAT.  Several members expressed concern about what admissions would look like without the mandate to use the LSAT, though ultimately the committee did not question the choice to propose deletion of the standard.  One member talked about a meeting he had with admissions directors, who expressed grave concerns about opening up the process in this fashion.  First, they thought the committee has it backward; they would prefer that the test be required but schools should not be required to report the information.  If the current proposal is adopted, they expressed concern that all the current understandings and cultural norms would disappear and the admissions process would be in a “Lord of the Flies” situation, with schools doing anything and everything, including advising applicants to report their scores only if the scores were above the announced median for that school.  He hoped that schools would understand how risky that would be and would not follow that route, but the concern persists.   Another committee member expressed concern about the unintended consequences of the change (including the impact on LSAC services), and thought the test may be especially important now, with schools turning to uncharted territory with learning outcomes.    In response, another member talked about the experience in undergraduate education, where making the SAT and ACT optional has not produced enormous changes of the kind feared.  Most students still supply their scores, and schools ask for more information on a student if there are no scores.  In the latter case, the school has some additional burden, but it hasn’t “rocked the world.”  Another committee member expressed concern about the impact on diversity of admissions; there would be some positive effect (preparing for the LSAT is a greater financial burden on low income applicants, which they may be able to forego if the test is not required) as well as uncertain effect (one knows how to advise an applicant with the LSAT in place, but not without it).

One member noted that there should be limits on how the test can be used, if the requirement is removed.  A school should not be able to receive an LSAT score from a student and then claim it did not use it in admissions; a school should be required to provide information on the scores for students admitted with LSAT data and also release information on the students admitted without testing; schools should be required to provide information on the pool of applicants, with and without LSAT scores, and the number admitted.  One member asked whether there should be more guidance on admissions practices if the LSAT requirement is removed; the subcommittee chair noted that Interpretation 501-1 had been considered adequate for that purpose (indicating what may be included in “sound admissions policies and practices”).

At the conclusion of the discussion, the chair said he thought the committee was “done” with the matter, that a redline version would be produced and circulated, and there would be action at the next meeting.  The subcommittee chair noted that there was “pain in the room” about the change, and that Council will have to struggle with this.  She said it will be important to give a balanced report on the arguments before and against retention.

Student Learning Outcomes

The committee discussed at length whether there should be a credit-hour requirement on the mandated course integrating doctrine, theory, skills, and values.  The concerns were (1) a minimum might become a maximum, (2) whether specifying number of credits for this course means number of credits should be specified elsewhere (i.e., for the professional responsibility and legal writing mandates), (3) ensuring that the mandated “integrating” course provided sufficient depth and would not be considered satisfied by work constituting a credit’s worth inside another course (e.g., preparing a suppression motion in a criminal procedure class), (4) workability, especially with respect to part-time evening division students.  The committee decided to add a 3-credit minimum for the “integrating” course and a 2-credit minimum for the professional responsibility course.  No minimum was seen as necessary for the legal writing mandate, because that’s described as an “experience,” not a course, and experiences like law review satisfy the requirement.

Responding to a point made in the public forum earlier in the day, the committee decided to add to 302(b)(4) a reference to “appreciation” of values, so the standard will read that the learning outcomes should include “knowledge, understanding, and appreciation of the following values.”  One member asked how that would be evaluated.  The liaison from the Accreditation Committee said that, as with the rest of this aspect of the standards, his Committee will ask schools to identify outcomes, create assessment mechanisms, and see how well students achieve the designated results.

In proposed Standard 307, the reference to “matriculated” students having reasonably comparable opportunities to take advantage of the school’s academic programs and student services was changed by removing the word “matriculated.”

This portion of Chapter 3 will be circulated with the changes adopted at this meeting and will be voted on after it is reunited with the rest of Chapter 3.

Chapter 3: Program of Legal Education (minus learning outcome standards)

There was lengthy discussion of whether to keep, delete, or further amend the provision that, in the subcommittee draft, would require that a law school “have a policy that requires regular class attendance” (changed from the current standards which says “a law school shall require regular and punctual class attendance”).  The debate focused on whether schools use the accreditation standard to justify enforcing attendance, whether schools go through the motions of enforcing attendance during a site visit but not otherwise, whether it would be enough to require a policy without requiring enforcement of that policy, and whether the standard should mandate publicizing of the law school policy on attendance.  The vote taken was inconclusive, so the subcommittee was charged with sorting this out for the next draft.

There was discussion of the provision that bars a student from both doing an externship for credit and receiving pay for the work.  A number of committee members expressed concern about making any change, noting that the learning experience would be adversely affected if the student were a paid employee rather than an unpaid intern.  A committee member also noted that deleting this provision would invite students to approach faculty regularly to sponsor them in their current jobs so they could credit as well as earning money, which would be problematic.  The committee noted that students had asked for this change because of the current economic situation, but there was no support for making the change.

There was discussion about the proposed increase from 12 to 20 credit hours of the amount of coursework that a student can take in distance education.  The number was chosen to permit a student to take a single course using distance education to try the method, and then complete a whole additional semester’s work using the method, e.g., to complete coursework from a different location for a final semester.  Concern was expressed about the nature of the distance education that might be taken under this standard and whether it is too soon to increase to 20.  There seemed to be consensus to reduce the number to 16, representing a single-semester’s coursework.

Chapter 4: The Faculty

Standard 404(a) says that a law school “shall provide written policies with respect to a full-time faculty member’s responsibilities” and that the policies shall require the faculty “as a collective body,” fulfill the listed core responsibilities.  Discussion focused on 404(a)(2), engaging in scholarship.  The proposed draft included in this category “keeping abreast in areas of legal specialty”; the committee advised moving this to the section on teaching responsibilities, because keeping up with developments is part of the teaching rather than research responsibilities.  The committee discussed whether to include the proposed language that scholarship includes “legal research, commentary, analyses of legal issues and advocacy.”  The subcommittee chair noted that a more detailed definition of scholarship could be used, but the committee advised removing the definition entirely, as the determination of what kind of scholarship is required should be left up to the individual law school faculties.

Chapter 2: Law School Organization and Administration

The subcommittee had recommended deletion of old Interpretation 210-2, which said that the resources generated by a law school that is part of a university “should be made available to the law school to maintain and enhance its program of legal education” and that the university “should provide the law school with a satisfactory explanation for any use of resources generated by the law school to support non-law school activities and central university services.”  After considerable discussion, the committee decided to bring back at least part of that language in new Interpretation 203-1, to provide that a university should provide the law school with a satisfactory explanation for any charges and costs assessed against the law school resources to support non-law-school activities.

The subcommittee had recommended new Interpretation 206-2, which says the law school “may invite other constituencies to participate in the planning and assessment process, including administrative staff, adjunct faculty, students, alumni, representatives of the university, and members of the legal community served by the law school.”  SRC members were concerned that, because a law school should always have the option of inviting others into its work, including this affirmative grant of authority to do so this might be seen as indirectly suggesting that such authority does not exist elsewhere.  At the same time, there was support for the idea that the named constituencies be involved in planning, and for including something in the standards rather than relegating the encouragement to a consultant’s memo, which would be less likely to be read.  The committee decided to put the idea into Interpretation 206-1, which already talks about “best practices” for planning.

The draft for chapter 2 was approved as proposed, with the amendments noted above.

Chapter 7: Facilities

The following changes were approved to the committee draft:

1.     Live client clinics should provide confidential space not only for interviewing clients but for working on and discussing client cases.

2.     Providing “sufficient and suitable space appropriate for conducting its clinical program” should be a standard for all schools, not limited by “for law schools that offer ‘live client clinics’ or similar real life practice experiences,” because all schools are supposed to offer substantial opportunities of that kind.

3.     Amend proposed 701(c), which says a law school shall provide reasonable accommodation to persons with disabilities if equal access is not achievable, to simply refer to providing reasonable access to persons with disabilities, which is the appropriate and required standard.  Also, amend proposed 701(e) to remove the reference to persons with disabilities, since it would be duplicative and is a weaker standard because the law school would fail to comply with the standards only if the facilities “have a negative and material effect” on its ability to provide reasonable access or accommodation.

The draft for Chapter 7 was approved as proposed, with the amendments noted above.