ABA Law School Accreditation: Getting the Frame Right

A groundswell of valuable writing has been generated of late by the efforts of the Trump administration to restrain and perhaps even supplant the ABA’s law school accreditation authority. In just the last few days, interesting essays have appeared here, here, here, here, and here. Alongside these efforts has been Texas and Florida (so far) rattling the sabre of state-specific accreditation free from the fetters of the ABA. The thoughts expressed by a group of leading academics helps to advance this conversation, a conversation long overdue. While I am much in alignment with the views expressed by these critics, I want to try in a modest way to help rescue this debate from a framing that is mainly around the current culture wars.

What I mean by that framing is the focus on the ways in which the ABA has aligned itself squarely with progressive agendas. The focus is often on the ABA’s work on judicial nominations, although as Professor Muller and others note, the accreditation function of the ABA is rather strictly separated from the views of the “big” ABA, views that emerge from the Board of Governors, House of Delegates, or other entities within that organization that can speak for the ABA as such. We would do well to remember this separation when we critique accreditation as a particular function of one organization within the ABA.

That said, there is still room for concern, as has been expressed, with the shape of the ABA Council’s views on diversity in legal education. As I have written elsewhere, the important diversity objection embedded in the accreditation rules has been taken as something fairly close to a quota system, and I have seen first hand it being applied in this way by accreditation teams, committees of the Council, and the Council itself. While the Council has put this mandate on pause for now, it has failed to develop a more coherent and legally defensible requirement and, inexplicably, eschewed an off-ramp a year or so ago which would have put this objective on stronger ground. Careful institutional reflection on how best to urge (require?) law schools to pursue diversity, and diversity along many different dimensions, would likely yield something better than the status quo. Yet, thus far a strong and vocal cadre of deans have pushed the ABA to continue largely with business as usual. Beyond this, inertia remains a powerful force, as does the self-replication of Council members, all of whom are recommended and vetted (mostly) by those who have become invested in Section activities over many years.

A more central concern than the struggles over diversity (whether and how much) is that the ABA Council seldom engages in any serious way with the fundamental questions of how best to encourage and incentivize law schools to innovate. To put it bluntly, the Council, speaking for the Section on Legal Education & Admissions to the Bar, could and should be a powerful engine for innovation in legal education. Leaders in that group could, for example, provide peer advice to assist law schools in reforming their business model, perhaps to bring down the high costs to law students of pursuing a high quality legal education. It could help law schools to experiment with different delivery models, including variegated models of faculty, models that escape the binary of tenured/untenured and the related binary of full-time/part-time. It could think more creatively about the integration of experiential learning into the curricular orbit than by merely mandating, often driven by particular interest groups, more credits. It could undertake an evidence-based analysis of distance education and, further, analysis of the continuing efficacy of the three-year, one-size-fits-all, paradigm of law school. Finally, and urgently, it could mobilize resources and expertise to help law schools think through the rapidly evolving use and misuse of generative artificial intelligence. AI is hitting legal education hard, and would that the organization that is responsible for overseeing the processes of legal education would be at the center of efforts to furnish advice of collective value and, where justified, accreditation rules that account well for the AI revolution.

All of these ideas, and many more that could be added, presuppose that the ABA Council is acting as an engine of innovation. Relatedly, it assumes the Council has its ears to the ground, and is actively listening to the opinions of educators, employers, students, and all those who can credibly be viewed as stakeholders in the enterprise of maintaining and improving our systems of legal education in the U.S. Sadly, the ABA Council does not present itself as very much open to external input; nor would anyone seriously view it as an organization that actively collects pertinent data about outputs and performance and, further, runs (or even reads) credible experiments that could shed light on what does or does not work, and how to measure success and failure and how to leverage the results of these experiments to improve the state of the art.

I suggest that those calling for meaningful reform in how we do law school accreditation should frame the central problem as not about left/right ideological schisms, but about the lack of an innovation mindset. The Council, and its administrative leadership, should be thinking anew about how to mobilize energy and resources to assess law school performance, which necessarily involves building capacity to collect and analyze data, to oversee experiments using tools (causal inference and others) that are available and appropriate, and generating both peer advice and accreditation rules that are evidence-based and are constructively helpful, not overbearing and anachronistic. With the right frames, we can make progress in improving our system of law school accreditation and, with it, our law schools. As I have said in previous posts about the present system, mend it, don’t end it.