Law school accreditation drama: Darts against a dartboard right now

Let’s start with the positive: The broad and deep flaws with contemporary law school accreditation has generated attention and energy among myriad stakeholders. Two major task forces — one assembled within the Council of the Section on Legal Education and the other organized under the rubric of the Conference of Chief Justices — and likely another one to be announced shortly are hard at work at rethinking accreditation, hopefully both its premises and its structure. Meanwhile, a steadily growing number of states are working on their own accreditation strategies, although how different their deliverables will be from what the ABA does now remains to be seen. Again, to accentuate the positive, it is high time that accreditation receives a fresh look, and we can be hopeful that the results of this multifaceted and multi-institutional analysis will bear fruit and foment constructive change in American legal education.

But let us not lose site of the negative. Two seasoned law school pros, both of whom keep a close watch on accreditation issues, have just observed here and here that the latest Congressional hearing was more or less a farce. Incredibly, no one from the ABA Council was called before the committee, nor were there any legal educators with even a semblance of knowledge of what is going on now. And so, ineptly, the president of the ABA, an organization that is intentionally keep separate from law school accreditation was the principal witness. (I won’t bother to mention the others). The bottom line is that the Congressional committee learned absolutely nothing. More seriously, there doesn’t seem to be the slightest bit of interest either within Congress or the Department of Education of the executive branch to undertake the task of learning anything serious about accreditation or about legal education generally. Soon the DoE is going to do what it is going to do with regard to the institutional mechanism responsible for accreditation. But whatever the result, be it continuing the Section’s authority, subbing in, as Barry Currier has recommended, a different organization for this duty, or leaving a thousand flowers to “bloom” by decomposing accreditation into fifty-nifty authorities, the most dismaying aspect of the present state of affairs is that no one in positions in power seems to have the slightest interest in and commitment to the hard work of examining the relationship between the state and goals of American legal education and the best role of accreditation and oversight. Perhaps nature abhores a vacuum, but we are in a vacuum nonetheless.

Some friendly process recommendations to those in the room where it happens, while those of us who are invested in the subject are ideating, reflecting, discussing, convening and doing the blah, blah, blah that attends to task forces and meetings on the large subject of What is to be Done with Law School Accreditation:

1. Law school accreditation’s future needs a leader or a few leaders in Congress to lead efforts at change. Yes, I am talking to you, Rep. Jamie Raskin, my friend and law school classmate. But I am also talking to others who have an interest and a commitment to getting this right. For chrissakes, Congress is full of lawyers. Are there not a critical mass who might care about legal education’s future? Best to make it a bipartisan effort, and hopefully that is not expecting too much;

2. The DoE should be transparent about how it is seeking and acquiring evidence about how accreditation can be improved. While I am not ready to embrace my friend Barry Currier’s thoughtful suggestion that this should all be taken out of the hands of the ABA, I do think that Secretary McMahon and her team could help move the needle by assembling a group of folks inside and outside of government to advise her department about how best to think about the process of accreditation. If this is happening currently, it is not clear who are the folks involved and how they are going about their business;

3. Back to Congress, they should be engaged in serious and sustained dialogue with the various task forces that are working presently on accreditation. Each of these groups will generate one or more reports. But the time has come for real talk happening between those who will make these ultimate decisions in the coming months and those who have perspectives and, even better, access to data.

Let us all get a grip, me included. This is hardly the most momentous issue of the day. But there are several thousand law students, thousands more prospective law students, a few thousand faculty members, a giant cadre of lawyers and, perhaps most important, the general public whose dependence on the rule of law and the capability and skills of lawyers (including recent graduates) to serve the cause of justice in the U.S., who have an interest and a stake in how law schools operate and how to fulfill their justice missions. Figuring out how best to go about oversight and accreditation is important fulfilling our duties as lawyers and legal educators in a system committed to justice under the Constitution. So, please, no more darts against a dartboard, no more absurd virtue signaling, no more wheel-spinning. As Tony Kushner said in the last line of his extraordinary Angels in America: Let the Great Work Begin.