ABA accreditation reform: Who are the real stakeholders?

The Council’s recent rescission of its diversity standard (209) in the face of Trump administration pressure will likely engender angry reactions by a large number of law school deans. Efforts to revise the standard in order to head off at the pass conservatives’ ire had this result, and there is every reason to believe that this caused the Council to back off on this strategy many months ago (unwisely, as I suggested at the time, but that’s water under the bridge). Any way you slice it, the Council was in a pickle, with pressures to change, or ultimately abandon, this longstanding DEI policy alongside pressures from deans and others to dig in and keep things the way they were.

Leaving this particular episode to one side, this predicament raises — as does the omnibus effort at reforming ABA accreditation more generally — the interesting question of exactly are the stakeholders in this reform project? To whom as a practical and as a normative matter ought the ABA Council attend to? Whose voices count?

The accreditation scheme in law (as in other professions) has long been built on the premise that it is the general public that is the prime stakeholder in all this. Occupational licensing and attendant regulation has rested, both at the level of principle and of constitutional power on the part of the regulators, on the idea that this system is necessary in order to protect the public against bad actions that would happen in the absence of ex ante regulation and oversight. So far as regulation of law schools is concerned, there is a discernible interest group whose interests are uniquely implicated by decisions of law schools, and that is the group of current and potential law students. Minimum standards of effective legal education are designed to protect the interests of those who would part with their time and treasure to attend law schools and prepare for post-law school careers in law, mostly as lawyers.

Does this exhaust the category of those who have a stake in successful accreditation? Not necessarily, as experience shows. Law school deans regularly speak up on behalf of law schools in the accreditation process (not to mention their significant role in accreditation as members of the relevant committees and of the Council itself). More often than not, they will speak on behalf of their students and thereby position themselves as the main representatives of their constituents, that is, their students (current and prospective), and much less centrally, the interests of their faculty and perhaps even their alumni. But judging by how deans invest and participate in the regulatory process, it is too pat to see them as merely the mirror of constituent interests. Rather, they often speak more boldly and expansively on behalf of the well-being of legal education in a broader sense. They raise matters that are at least ostensibly connected to the overarching objectives of legal education as such, and not limited to ensuring minimal quality of education. And, importantly, they are engaged by the ABA Council in ways that promote these bigger visions. For example, the references in the “values” document recently put out by the Council as a description of what the current reform project is intended to accomplish speak about such matters as the rule of law and educational innovation (AI, distance ed, etc.). These are ideas connected to the larger question of “how to make legal education better” and we can see through this lens a more eclectic group of stakeholders, certainly including education leaders.

Indeed, this more expansive lens suggests that the stakeholders group might include consumers of legal services, for certainly they have a stake in the ways in which law schools are better at educating future lawyers — better not in the sense that minimal standards of competence suppose, but better in that they will be more effective lawyers (it is presumed by the accreditors) if regulation improves educational quality. To take just one example, efforts to expand the scope of experiential learning and clinics are hard to see as anything but regulations designed to, as advocates of such changes suggest, improve legal education and, perhaps even more than this, to reorient legal education from where it is currently (in the aggregate) to a more practical, less doctrinal/theoretical approach to educating lawyers. Not to fight over whether and to what extent that is a sensible strategy, it is worth noting that such messaging has the second-order effect of creating new stakeholders — legal services’ consumers, but also those involved in doing (or not doing) this work of clinical education.

The external political pressures that have been brought to bear from the Trump administration suggests the emergence of a potent group of new stakeholders. This includes folks who would fight fiercely against what they see as the ideological slant of contemporary accreditors. It doesn’t take much imagination to see that this new stakeholder group is organized around their own ideologies; their efforts cannot avoid the claim that they are basically proposing (insisting?) on the replacement of current ideology with a better one. They may claim a neutral stance, but we ought to see through that.

This discussion of “who are the stakeholders” aims to help unpack the difficult matter of to whom should the Council respond in making and remaking its regulations? Whose views should count? Of course, this should be decided deliberatively by the Council. But here is a suggestion that emerges from this discussion:

The Council should recur to the foundational purposes of accreditation as the Section on Legal Education has historically articulated it, drawing from the roots of occupational licensing & regulation in the U.S. At the core is the idea that certain rules are necessary to ensure the protection of the public. This suggests a quest for minimum standards, produced through a deliberative and evidence-based process, one that draws input from a myriad of sources (think, by analogy, to the principles that undergird notice and comment rulemaking in our system of administrative regulation). Something more than that — say, improving the quality of legal education — may reflect appealing goals, but it requires a big leap to show that these are accreditation-related goals. Pedigreeing deans as privileged stakeholders may make sense, but with the caveat that where deans give their input, it should be input directed toward assisting regulators will fulfilling their mission of accreditation, not simply to advance either their own institutional interests or even directing the Council toward rule reform that enhancing quality as they see it, much pursue external goals (as some saw the diversity rules as doing).

Likewise, external stakeholders such as public officials or ideology-driven groups, should be considered stakeholders only insofar as their interests are tied too to the foundational purposes of accreditation. There are plenty of other venues for deliberating over the best practices for legal education; we can and should have vigorous debates about say, the value of adding clinical credits to the curriculum, of insisting on tenure for law teachers, for requiring some percentage of in-person instruction, etc. And for these conversations, there will be many voices, and many stakeholders. Let me add that this doesn’t suggest that the efforts undertaken by the Trump administration are inappropriate on this measure. There is a way of reading this effort as focusing in earnest on convincing accreditors to, say, abandon the diversity rule because it has no connection to the fundamental mission of accreditation, to the articulation and maintenance of minimal standards of quality. Perhaps they are right, perhaps they are wrong. But the smaller point is that we ought to look carefully at the structure of the argument and also the real reason for this strategy. That will help us understand whether this is a group that is worth listening to, a group that is truly a stakeholder.¹

But occupational licensing and accreditation regulation is arguably a different enterprise. Or, to say it differently, if accreditation is an enterprise essentially equivalent to the development and maintenance of best practices, it behooves the Council to articulate why that should be so and, further, to be intentional about whose voices must be heard and whose views matter. IMHO.

1. I am leaving to one side whether the Administration can be a stakeholder because of its distinct role in deciding, under the aegis of the Department of Education specifically, whether the ABA Section on Legal Education is the right accreditor of law schools. Likewise, state supreme courts have a special place in the accreditation process simply by virtue of their authority to decide whether and to what extent to accord power and discretion to the ABA as an accreditor. Recent moves by Texas and Florida show that the delegation of authority by the states to the ABA cannot be taken for granted.