For me, based on long and deep experience in the accreditation, legal education, and bar admissions worlds,^[3] the answer to this question, at least as things currently stand, should be no.^[4] I encourage state courts and bar admissions offices to take a deep dive into these regional accreditors’ standards as well as the details of how law school programs might be reviewed under those standards before making this rather fundamental change in approach.

There are two primary reasons for this conclusion. First, regional accreditation lacks the specific guardrails that the Legal Ed Council’s standards put into place to assure state courts that accredited schools are delivering a sound program of legal education. Second, the site visit and program review processes of the regional accreditors do not focus enough on the teaching and learning taking place in the law school to assure state courts that the program that a law school offers is being effectively delivered.

On the first point - the generality of regional accreditors’ standards - no regional accreditor, to the best of my knowledge, requires a law school to maintain a specific bar pass rate, have a specific and modest rate of attrition, require a specific amount work for the J.D. degree, employ full-time faculty who teach a certain percentage of the credit hours or courses offered by the law school, impose specific standards for admission of students, or require students to complete a specific amount of experiential learning.^[5] Regional accreditors’ standards include general requirements relating to some or all of these matters which could be used to bring some of these more specific measures into play in particular cases. However, whether and when that would be the case is not certain. Further, what those specific measures are is uncertain and likely would vary from one regional accreditor to another. State courts should be cautious about simply allowing bar eligibility to all J.D. graduates of all law schools that are “regionally accredited,”^[6] on that basis alone.

Legal educators, judges, lawyers, and bar examiners will continue to argue about whether the specific measures under the Council’s Standards are necessary and appropriate. That is an ongoing and never-ending conversation, as it should be; over time change happens that result in the Standards better suiting the needs of the legal system and the public. Meanwhile, as the Standards evolve, the Council process has the virtues of both being one set of standards that will be consistent across jurisdictions and deploying specific measures on which courts can rely to assure that a J.D. programs are sound.^[7]

An example illustrates the point. How much and what particular work should be required for a legal education program to be sufficient in the eyes of state courts?^[8] The Council has specific answers to those questions. For example, Standard 311(a) requires a minimum of 83 credit hours for the J.D. degree. To the best of my knowledge, no regional accreditor requires any specific minimum amount of credits for a graduate level degree in law. There is certainly no magic in 83 credits rather than 80 or 85 or any other number; but 83 credits does suggest a program of five or six traditional, 14-15 week terms or semesters. Again, we can argue about whether that is too much or too little, but things would get complicated and messy rather quickly if each regional accreditor picked its own number of minimum credits, some being persuaded that a sufficient legal education, at least paired with a bar exam, could be completed in two years or less and others holding to something more like what the Council currently requires. Then there is the question of what particular work should be required. Would state courts want, for example, more courses or subject areas to be required for the degree if the time to degree was significantly reduced, or expanded? What should the role of experiential learning be in a much shorter J.D. program? How would the fact that J.D. programs might vary by as much as a year of education impact the form and coverage of the bar exam?

On the second point above – the program review/site visit process – my experience tells me that the attention that is (or could possibly be) focused on the law school during the regional accreditation review process does not provide state courts with appropriate assurance that the teaching/learning and assessment of the law school’s program is sufficient to assure that students are getting the learning that the program sets out to provide.^[9]

Those eager to find regulatory schemes that could be alternatives to or compete with the Council’s de facto national regulatory framework for legal education see regional accreditors as one possible and easy answer. I understand. These groups exist, are good at what they do, and are already recognized by the United States Department of Education (US DoE). For state courts and bar admissions offices looking for alternatives to the Council process, accepting a J.D. from a regionally accredited institution or law school would be a godsend and certainly less expensive. Instead of the court having to establish its own standards and processes and enforce them, courts could simply ask whether the bar applicant has a J.D. degree from a school that is either on the Council’s list of approved schools or on the list of one of six recognized regional accreditors, in essence delegating to these regional accreditors the responsibility that courts for decades delegated to the Council to assess the quality of law school J.D. degree programs.

But not so fast, please. Accreditation of higher education institutions and of a professional degree program are not the same thing. The standards, processes, and people who should be part of governing each process are different. If the peer review and quality assurance characteristics that justify self-regulation is at the heart of accreditation generally, then shouldn’t the regulators of the basic education for the legal profession be led by or comprised primarily of members of that profession, particularly those state court judges who have the primary responsibility in our system for admission to the profession. What roles do law faculty and administrators, judges, bar examiners, and members of the profession play is establishing the standards and processes of these regional accreditor regulatory frameworks? How many and in what way or these members of the legal community involved in the review process?

Further, what’s the rush? Right now, no current Council-approved school needs another accreditor; their graduates are eligible for bar admission in every jurisdiction. It seems highly unlikely that any school would give up its Council approval so long as a number of states require it.^[10] There are few existing law schools not approved by the Council that either have regional accreditation or have the mission, operation, and perhaps the resources to want to push for regional accreditation.

These few schools have the option of changing their program and operations to come into compliance with the Council’s Standards, but they are electing not to do so. I may (and do) agree with some of the objections that might block such schools from being Council approved at this time.^[11] The benefits of replacing the Council with a different national regulator or adding alternative accreditors might be to address some of those concerns, spur innovation, and reduce the cost of legal education.

Those are worthy goals. However, it is the responsibility and duty of state courts to make certain that pursuing them is done in ways that continue to serve the public interest. Because the current standards and processes of regional accreditors do not, in my view, measure up to what is needed, courts should not accept regional accreditation as it now operates as, as an alternative to the Council-led process.

^[1] See HERE for some history and context. Until recently, the United States was divided into six geographic groups for purposes of institutional recognition and accreditation, one accrediting group responsible for review of higher education institutions in its region (e.g. the Northwest Commission on Colleges and Universities covered six states in the northwestern part of the U.S. plus Alaska). Though the geographic constraints have been removed, these “regional accreditors” continue to be important and influential actors. They accredit higher education institutions (e.g., the University of Virginia), not the specific degree programs within that institution (e.g., the University of Virginia’s J.D. degree program; it’s B.A., M.A., or PhD in History programs).

^[2] “Legal Ed Council” or “Council” are shorthand ways to refer to the Council of the American Bar Association Section of Legal Education and Admissions to the Bar. It is the de facto national regulator of J.D. degree programs. It is currently recognized as a programmatic accreditor by the US DoE. The Council currently recognizes 198 law schools in the U.S.

^[3] The experience that leads me to this conclusion includes serving as Managing Director (2012-2020) and Deputy Consultant (2000-2004) of the Council during which I (a) was active in a variety of ways in accreditation activities, including participating in a number of CHEA and ACE meetings and programs and attending the annual conference of one regional accrediting group; (b) represented the Council at the Council of Chief Justices (CCJ) meetings; (c) represented the Council and participated at a number of National Conference of Bar Examiners (NCBE) programs and meetings; (d) served as a site visit/site team volunteer in the Council’s law school inspection process. I also was on the receiving end of several accreditation/reaccreditation program reviews/site visits from the Council, regional accreditors, and specialized and programmatic accrediting groups recognized by the US DoE as a faculty member, associate dean, dean, and governing board member. In retirement I have continued to follow the Legal Ed Council’s work, as well as the work of various state court task forces considering how legal education should be regulated and the parallel work being done by other interested persons and groups.

^[4] Do the regional accreditors want this authority and responsibility?

^[5] It goes without saying that some of these matters might be reformed or eliminated by the Council or not included in the standards and procedures of a new law school-specific regulator.

^[6] The current label is “institutional” accreditors.

^[7] It seems far better to continue to struggle with the existing process to get the standards right than it does to instantly credential a number of other accreditors’ standards whose particulars are not well known to or understood by state courts and the profession at large.

^[8] What is a Juris Doctor (J.D.) program anyway? There is no definition beyond that it is the term that we have come to use to describe the professional school degree needed to practice law. That definition is best found in the requirements of Chapter 3 of the Council’s Standards.

^[9] In many instances, this is simply the practical reality that inspection teams are small/modest in size (perhaps in the range of 6-12 members) and the academic program of the institution may be very large (think of the reaccreditation process for an institution as large as Texas A & M, where the law school is not even on the main campus of the university. I believe it to be a fair statement to say that many periodic renewals of accreditation of a university do not have a lawyer, judge, or legal academic on the review team assigned to a university with a law school. This may be due, in part, to the regional accreditor’s understanding of the separate review and accreditation of the J.D. program by the Council.

^[10] It is interesting to think about whether, should state courts accept regional accreditation as sufficient to qualify J.D. graduates to sit for the bar, law schools would simply drop Council approval and save the time and expense now invested in that process. How would the Association of American Law Schools (AALS), whose membership rules require a law school to be Council-approved, respond to such moves, particularly if that resignation of Council approval was for the purpose of becoming free from certain requirements in the Standards?

^[11] For example, changing the Standards to allow fully online J.D. programs. The particular pedagogy should not matter if the J.D. program can meet the other requirements of the Standards, particularly the outcome measures on attrition and bar passage.

Q. __ Should state courts and bar admissions authorities:

1. Eliminate the bar exam and allow bar admission based solely on a J.D. degree from an accredited law school.

2. Eliminate the requirement of a J.D. degree and allow bar admission based solely on a passing bar exam score.

3. Both 1 and 2.

4. Neither 1 nor 2.

With few exceptions and for longer than my 55 years of being a lawyer, entry to the legal profession required a person to both complete a legal education program and pass a bar exam. Why did this two-step requirement become the norm? Why is completing a legal education, typically from a law school approved by the Council of the ABA Section of Legal Education and Admissions to the Bar, necessary but not sufficient for bar admission? Similarly, why is passing a bar exam, typically the bar exam produced by the National Conference of Bar Examiners, also necessary but not sufficient for admission to the profession?

For me, for now at least, the best answer to the question above is 4. Each of the other answers has a fatal flaw.These are not new questions, but they became top of mind for me in the wake of recent events at a testing site in the State of Washington that resulted in cancelling the administration of the exam at that site and the very quick suggestion from the deans at Washington-located law schools and some others that the bar exam requirement for admission to practice be waived for the 600-700 individuals who registered to take the exam at that site.^[1]

Response 1 could be the best answer if the requirements for a J.D. degree were appropriate to serve the public protection purpose that is a the heart of the bar exam requirement. They do not.

Response 2 could be the best answer if bar exam adequately tested whether the fundamental concepts, habits of mind, and the tools needed to evolve and grow in the profession over a career. It does not.

Response 3 would be the best answer response for those who believe that, for a variety of reasons, the practice of law should be broadly open to anyone who wishes to engage in it, and that the public can be protected against incompetent lawyers by the rules of professional responsibility and the various dispute resolution processes that operate generally in society. In this scenario individuals who earned a law degree and/or passed a bar exam would advertise those experiences and qualifications in looking for a job or clients. The market would sort it out from there.

I do believe that the present system for training and licensing lawyers needs fundamental reform, in part because it does not provide convenient and affordable access to the system for too many individuals and entities, as many reformers have demonstrated. But I am not comfortable relying on the rules of professional conduct and our dispute resolution processes to develop cohorts of legally trained persons who will satisfactorily protect clients and the public in the absence of a formal licensing and regulatory system.

That leaves response 4. That answer, of course, is not without its problems and critics.

The de facto national system for regulating legal education, operated by the Council of the ABA Section of Legal Education and Admissions to the Bar, is criticized by some for unnecessarily micromanaging law school programs, being too protective of faculty interests and prerogatives, blocking or inhibiting innovation, and being too ideologically driven in its work.

The NCBE’s bar exam, some argue, tests too many subjects at too detailed a level, but does not test enough of the knowledge and skills that are essential for new lawyers to possess.

In analyzing these critiques, it helps to think about why the two-step process evolved in the first place. The bar exam is there to give us confidence that the test taker knows enough and possesses enough skills and judgment to be given a license to begin practicing law. Its primary purpose is public protection, and it does its heavy lifting in the early years of a lawyers’ careers when questions about competence to navigate the legal system on behalf of a client and to address a client’s need are most acute.

The legal education requirement is there to give us confidence that recent graduates will have acquired through that legal education enough perspective, knowledge, skill, and judgment to evolve, over time, into mature and seasoned lawyers. This requirement is aimed at the overall career of the lawyer. It recognizes that if that legal education does its job, a lawyer will grow become a better lawyer and leader because that legal education went deeper than the basics of daily practice and provided perspective that facilitates that professional growth.

Each step does a little of what the other is designed to do. But we neither rely on one high-stakes test for assurance that a new lawyer has what it takes to mature into a seasoned lawyer, nor rely on legal education for assurance us that a new lawyer knows enough and has enough skills to provide competent legal advice. Each step should focus on its primary role in the overall system. All professions face this issue. What one needs to know and be able to do to get started and what one should be able to know and do as experience is gained are two different things. Each of law’s two-step process serves a unique purpose in the overall approach. Even though both steps no doubt need constant attention, tweaking, and periodic review, are both so flawed that together they do not or cannot provide a workable framework for the legal profession? There are other ways to prepare and sustain a professional, but this is the approach that has evolved for our profession.

For me, this leads to the conclusion that in the particular case of what happened recently in Washington, the bar exam requirement should not be waived.^[2] Obviously, I have empathy for impacted test takers. Perhaps the number or percentage of those who would not have passed that exam is small, perhaps prior experience also suggests that those who have been admitted without passing the bar exam have not been any more likely to fail in their responsibilities than those who passed the exam. But a person who suffers loss, heartbreak, or disappointment from being represented and counseled by someone who would not have passed that exam might not agree that sympathy for those impacted by the recent mess, standing alone, should lead to a lifetime license to practice law without having met one of the two steps currently required to earn that license. Regrettably, stuff happens.

If the bar exam needs to be reformed, then let’s get on with that business, as the NCBE is doing with the Next Gen bar exam. That, too, will no doubt need to be tweaked and then reformed as time passes. Similarly, if the regulation of legal education needs to be reformed, whether that’s done by the Council or by others, then let’s get on with that business, as the Council is attempting to do, rather than suggesting that the requirement of a legal education be watered down or eliminated.

Maybe the MCQ posed above would be better as an essay, rather than a multiple-choice, question. Maybe what is going on right now is that all of us interested in the regulation of legal education, accreditation, admission to practice, and how those requirements relate to availability and cost of the delivery of good legal services to all are working together (at least most of the time) on a group essay response that will move us forward, at least a response called for at this moment in time. If so, then I am glad for that and pleased to be part of this conversation.

^[1] The Washington Supreme Court has issued an order that provides options for those effected, which includes a waiver of the exam requirement for some.

^[2] The Washington Supreme Court’s order provided the waiver for some but not all of those registered to sit for the bar exam at the affected testing location.

These matters have concerned me for some time. In my Managing Director’s column in the Spring 2019 edition of Syllabus,^[1] titled The ABA Accreditation Project: The $5M Solution to a $65M Problem, I observed:

If the ABA law school accreditation process did not exist, someone would invent it….

There is no national bar admission in the United States. Fifty-six (56) states, districts, and territories license U.S. lawyers. Each has plenary authority over bar admissions within their borders. Basically, every jurisdiction requires passing its bar examination as a condition of admission to the bar. Eligibility to take that exam generally requires completion of a qualifying legal educational program….

There are approximately 240 law schools in the United States, 203 of which are ABA-approved to award the J.D. degree. Each year, there are more than 30,000 [J.D.] graduates of those schools. Most of them want to take the bar examination and become licensed lawyers. Often, the graduate wants to take the bar in the state where she went to law school, but not always….

This is where the ABA law school accreditation project comes into play. All jurisdictions accept a J.D. degree from an ABA-approved law school as satisfying their educational requirements for eligibility to sit for the bar examination. In many states, earning a J.D. from an ABA-approved school is the only way to meet that education requirement. Jurisdictions retain their authority, but all exercise that authority by [at least in part] accepting that … [a J.D. from a Council-approved law school] demonstrates that the graduate has had an appropriately rigorous and comprehensive legal education…. And jurisdictions are relieved of the need to adopt education standards and enforce them….

Without the ABA law school accreditation process every school would have to have personnel and space to make sure it is in good standing with every admitting jurisdiction, and every admitting jurisdiction would have to have staff and space to adopt and enforce educational standards on over 200 law schools.

I estimate the total cost of this activity to be in the range of $65 million annually: 250 entities (about 50 jurisdictions and about 200 law schools) spending about $250,000 each (estimating two persons – salary and benefits – plus space, and other operating expenses = $62.5 million, rounding to $65 million for the sake of discussion). For the admitting jurisdictions the expenses cover setting standards and reviewing law schools for compliance with them. For schools, the expenses are to keep track of the rules in multiple jurisdictions and advise and provide services/support to students/graduates seeking admission.

The Council’s budget for doing this work is about $5,000,000. The efficiency of the process is compelling….

Some of the data and figures I cited are out of date.^[2] Further, I substantially understated the of the current system’s $5 million price tag by omitting the amount that schools now incur to participate in the Council’s scheme.^[3] But the basic point stands. No one should doubt that costs would be significantly higher than they are today if the current system disintegrated.

Of course, the change that happens may not be complete destruction of the status quo. What if, instead, one alternative regulator emerged with the intention of being national in scope and competing with the Council for acceptance by law schools and state courts based on a different set of standards and procedures? Or, what if several existing or new groups developed standards and procedures organized geographically/regionally or based on mission that schools and courts might accept?^[4]

Assuming that the state courts continue to believe that a sound and rigorous legal education is a prerequisite to admission to practice^[5] and that the quality of any J.D. program should not be assumed but rather confirmed by an appropriate regulatory process, any meaningful departure from the current framework will increase the total cost of the system. “Meaningful departure” would be changes in the legal education requirements in enough states with enough bar takers to cause law schools to develop expertise in the rules and processes of regulators other than the Council in order to routinely serve the needs of its students, and to lead state courts/bar admissions offices to develop their own regulatory system and expertise in the rules of regulators other than the Council and administrative capacity to apply that expertise.^[6]

Law students and graduates likely will absorb the increased costs of a fragmented regulatory framework. Increased costs at the law school level likely will be passed on to students through tuition increases. Increased costs of the courts/bar admissions offices likely will be passed on to bar applicants by increased fees to take the bar exam and to be admitted to practice.^[7] Ironically, the student’s extra expense might buy a degree that is less useful than the current Council-approved law school J.D. if that degree does not make the holder eligible for admission in every jurisdiction.

If we are going to have a legal education regulatory system, it is relevant and important to assess the costs of various approaches, whether that regulatory system is a modified version of the status quo or ends up with one, two, several or many regulators.^[8] Going forward, I hope that the costs of various regulatory frameworks be included as a central matter to be addressed.

^[1] Syllabus is the newsletter of the ABA Section on Legal Education and Admissions to the Bar.

^[2] For example, the Council current approves 198, not 203, J.D. programs; and the current number of law schools operating in the U.S. that are not Council-approved has declined slightly. The estimate of $250,000 per entity would certainly be higher today than it was more than five years ago. At a recent virtual program on law school accreditation Council Chair Daniel Thies reported that Council’s current accreditation budget was in the $5-$6 million range. It remains the case that more than 95 percent of all new bar admittees with J.D. degrees from U.S. based law schools come from Council-approved law schools.

^[3] The Council assesses an annual fee, based on enrollment. Schools have administrative costs associated with filing annual questionnaires, which include reports on 1L admissions, bar passage, and employment outcomes that require considerable labor. Schools must pay for the costs of an every ten year reaccreditation review, which includes a site visit of by, a team of seven site visitors.

^[4] For example, what if regionally organized groups emerged to compete for law schools’ business, including the existing U.S. Department of Education recognized regional institutional accreditors? The recent rule change in Ohio appears to allow this. Mission-driven accrediting groups might arise to serve religiously affiliated law schools, schools focused on public service or international practice, or schools who want to offer a J.D. aimed at those who do not intend to practice law at all (might this include B.A. in Law programs that are evolving in a number of universities?). Might a regulator be established that gave the equivalent of institutional accreditation to a law school, covering all degrees offered by a law school, not just the J.D. degree?

^[5] Is or should this be a matter for consideration? I doubt it and I hope not. But given some of the discussions about alternative routes to bar admissions, it is not out of the question that reform could eliminate this requirement. Legal education would continue to be available and would be a credential that most would seek to improve their ability to succeed in their careers and as a credential worth having, but it would not be required. Is a full-blown, three-year J.D. program necessary for admission to practice, or perhaps should more courts take a closer look at limited admission to practice in certain areas of law?

^[6] Or a new organization that might inherit or succeed to the role that the Council has played for decades as the as the de facto national regulator. Importantly, no court should accept at face value the soundness and rigorousness of a J.D. program offered by a school accredited by an agency that is not focused on legal education. There should be particular concern about allowing law schools that have or are part of a university that has regional accreditation. There are Council-approved law schools that have earned regional accreditor approval, but, of course, those schools also have Council-approval. A few law schools that are not Council approved are part of institutions that have regional accreditation. I have been involved in accreditation/reaccreditation in both situations – where the law school was Council-approved and where the law school was not Council approved. While the regionals’ accreditation standards are appropriate for their purposes and the school/institutional reviews that are done are appropriate to assure compliance with those standards, regional accreditation does not have standards and does not have processes that are adequate to assure the rigorousness and soundness of a law school program. Perhaps more to come on this in a later post.

^[7] State bar admissions processes currently pay zero to the Council for operating the accreditation project, and that might have to change as they need to pay more attention to the standards of regulators and how well they are monitoring schools’ compliance with them.

^[8] While law schools participate and join in a number of organizations, AALS, LSAC, and NALP chief among them, no Council-approved law school needs more than one entity to approve its J.D. program for purposes of qualifying its graduates bar exam eligibility and bar admission throughout the land. It is difficult to see any Council-approved law school joining another accreditor/regulatory scheme with what would likely be costs and fees equal to or approaching the cost of being Council-approved. And it is unlikely, at least as far as the eye can see, that a law school that is currently approved by the Council would be induced by changes in the Standards or a lower-cost option to resign from the Council process to switch to a different regulator even if that regulator provided nation-wide bar admissions opportunities.

This hearing, nominally about law school accreditation, featured three witnesses: the current President of the American Bar Association (ABA), a former law student (for one semester) at a Council-approved law school, and a lawyer who is currently working as a fellow at the Heritage Foundation. Much was said about the big ABA, but very little was said about the Council, its separate and independent accreditation project, and the importance of that project in the way in which our legal system operates.

No witness represented or spoke for the Council, which is the United States Department of Education (USDE) recognized accreditor of J.D. degree programs and the de facto national accreditor of J.D. programs.^[1] Nor did any witness speak on behalf of state courts and bar admissions authorities who rely on the Council’s Standards and procedures to assure that students seeking admission to the bar have completed a rigorous legal education program that prepares students for admission to practice and for effective, ethical, and responsible participation as members of the legal profession.^[2]

The ABA President said, appropriately, that she was present to represent the ABA and that she did not/could not speak for the Council when it was acting in its separate and independent role as a regulator (or accreditor, if you prefer) of legal education programs. The former law student spoke about his distaste for a course he was required to take in his one semester of law school. He barely, if at all, acknowledged that the ABA Standards neither required that particular course nor did it prevent the school from offering or requiring it. The witness from the Heritage Foundation stayed a little more on task, but most of his testimony (oral and written) focused on actions of the big ABA that with which he disagreed and which had nothing specifically to do with law school accreditation.

My major takeaway from this hearing was that the Council’s accreditation project is unlikely to find its way through the current attention focused on it with its de facto national regulatory scheme intact so long as it remains a formal part of the big ABA and a USDE recognized accrediting agency. I have written on those matters HERE and HERE.

Whether the Council itself can lead the legal education community through the mess that exists is a question only it can answer. To do that it needs to make clear(er) its willingness to subordinate other important issues of the day to the most important goal – continuing to operate a system that will continue to make the Council-approved J.D. the dominant educational credential for admission to the legal profession that it is today. That system works best for the public, the profession, the courts, law schools, and students looking for a law school, and law graduates looking for a job.^[3]

I would be pleased to be wrong, but I am increasingly convinced that the Council cannot survive in its current role unless it separates from the big ABA. If the Council does not move with dispatch to consider that path, then I hope that others will step in to lead or broker both short-term and longer-term solutions that will avoid substantial fragmentation of the current system. “Others” surely includes the law school community and the state courts. The two most likely organizations to represent those groups are the Association of American Law Schools (AALS), and the National Center for State Courts (NCSC), which supports the work of the Conference of Chief Justices (CCJ).

^[1] Either Council Chair Daniel Thies or Managing Director Jennifer Rosato Perea would have been helpful to the committee. See the excellent memo they filed in Ohio Supreme Court’s undertaking to review its requirements for the legal education necessary to qualify to take the bar exam and be admitted to practice in that state.

^[2] See ABA Standard 301(a).

^[3] See HERE for comments on the effectiveness and efficiency of a national process.

A roadmap for a successful separation of the Council’s accreditation function from the larger ABA is far from clear. It would require time and patience to build; but it is possible, and the idea merits serious consideration. This option should be considered alongside a number of others.[3] In light of the current attacks on the Council regulatory process and the rush by some state supreme courts to open up other options, most of which have little chance of gaining much traction in the law school marketplace, or to set up their own regulatory process in their state, thinking this through should happen ASAP.

By far, the number one goal of any reform to the current legal education regulatory scheme should be to retain the benefits that the current Council process provides, having developed into and now being the de facto national regulator of legal education.[4] This has significant benefits for courts, law schools, and law students/graduates, resulting from the fact that every U.S. jurisdiction accepts a J.D. degree from any Council-approved law school as meeting the legal education requirements to sit for the bar examination and to be admitted to practice in their jurisdiction. Every such graduate can be admitted in any jurisdiction, thereby de facto nationalizing the Council’s regulatory scheme.

The portability of this degree benefits students who can shop for the best legal education program for them regardless of where that program is located.[5] For law schools, it expands a law school’s market for recruiting students to a national market; and it reduces the necessity to monitor education requirements that J.D. programs must meet that will vary from state to state. State courts save money and time by relying on a process that (at least until recently) they trusted to establish standards that assure that every graduate will have been provided with a sound program of legal education sufficient to support admission to practice.[6]

To assure the continuation of a regulatory scheme that is national in its scope, if:

• the ABA accepts that it should not stand in the way of the Council leaving the ABA resisting risks the decline and fall of the current portability of the J.D. degree

• the Council appreciates it role and recognizes the concomitant responsibility to develop and operate a system that all of legal education and the legal profession will accept as legitimate and credible at the national level

• state courts understand that operating even a very lean and slim regulatory process will be costly and confusing

• law schools clearly communicate to the state courts and others how confusing and costly it will be for them to monitor the regulatory requirements of many states and how potentially chaotic the process will be for students.

Then there are plenty of incentives for the broad legal education and legal profession communities to take time now to develop a roadmap for reform, pragmatically and collaboratively. There are more ways than one to get this done.

Here are a few facts and comments to help stimulate consideration of the Council cutting ties with the ABA, with more to come in future posts:

• The current system is self-supporting.[7]

• The cost of a regulatory scheme for legal education is modest.[8]

• State courts pay zero for the services performed by the Council in establishing the Standards and monitoring schools’ compliance with them.[9]

• Without a national system, the cost of regulations to law schools and, particularly, state courts would be much higher.[10]

• The Council could move out of the ABA without losing the staff and the much of the infrastructure of the current process.[11]

The ABA deserves great credit for creating this system in the first place by establishing the Section on Legal Education as its first formal section and supporting its early work with its influence and financial support. By the latter part of the 20^th Century, the regulatory system that the ABA nurtured had clearly became the de facto national regulator of law schools and legal education in the United States.

This was all good for the ABA. The tag “ABA-approved” that became quite visible in the world of law complemented the ABA’s claim to being the national voice for lawyers and the legal profession. For a variety of reasons, the claim to being the national voice of lawyers and the legal profession is not as strong as it once was. While the ABA continues to serve the profession well in a number of important ways, its critics assert that it has become a more political, even partisan, organization. Whether or not one agrees with these criticisms, the claim that the ABA is the right home base for the national regulation of law schools is less strong today than it was a generation ago.

Even though there may be disagreement about what fundamental reforms of the legal education regulatory scheme are the most urgent, the need for substantial reform appears inevitable. It is “when and what,” not “whether.” I hope that the conversation about that reform will include consideration of whether the national legal education regulatory process should remain within the formal structure of the American Bar Association, independent though the Council may be in managing that activity.

I hope all of us who believe in our system of legal education as the fundamental first step in the making of good lawyers, while acknowledging the important role that the ABA has played in the development of U.S. law schools and legal education through its support of the law school accreditation process, will also accept the need now to ask whether having that regulatory scheme’s continuing close and visible identification with the ABA is the right thing for the health and sustainability of that scheme.

I look forward to continuing to participate in the conversation with you. Thank you for reading this Substack.

[1] The actual accrediting authority is vested in the Council of the ABA Section of Legal Education and Admissions to the Bar, not the ABA. The word “accreditation” may be used to specifically describe the Council’s recognition by the U.S. Department of Education as an approved accrediting agency. This can be distinguished from the “approver” role, which the Council plays vis-à-vis state supreme courts and bar admissions processes, all of which recognize a J.D. degree from a law school on the Council’s list of approved schools as meeting the jurisdiction’s legal education requirement for admission to practice. The two terms are often used interchangeably with respect to the overall role the Council plays in the regulation of legal education. I have recently suggested that the Council resign its recognition as a federally-approved accrediting agency.

[2] Though often misunderstood, the ABA’s role is quite limited. Overall, it is fair to say that the Council operates separately from and independently of the larger ABA, as the United State Department of Education standards for accrediting agencies require.

[3] These would include at least (a) sticking with the present arrangement of the Council within the ABA, but with meaningful reforms to the Standards and Procedures along the lines the Council is now exploring; (b) moving the Council and its work to another entity [perhaps the National Center for State Courts, perhaps even the National Conference of Bar Examiners]; (c) forming a new regulatory body jointly funded and controlled by the judiciary and legal education through, perhaps, the Conference of Chief Justices and the AALS; (d) state courts accepting accreditation of law school degree programs by another federally-recognized accreditor, such as the existing regional accrediting agencies [HLC, SACS, WASC, etc.] or (e) new entities formed specifically for the purpose of approving law schools or the J.D. degree with or without federal recognition; and (f) state courts creating their own processes for approval of law schools.

[4] Typically, 90-95 percent of all new bar admittees in U.S. jurisdictions are graduates of Council-approved schools.

[5] Of course, many students have little to no idea of where they might want to settle after law school. Further, many students will go wherever the best opportunity is, which may not be in a location they had on their radar screens when they began their law studies.

[6] Clearly, however, the authority over bar admissions is a matter for each state to determine, including whether or not to recognize as sufficient the legal education programs of the 190+ Council-approved law schools in the U.S.

[7] In my years as Managing Director of Legal Education for the Council and the ABA, revenue from accreditation services exceeded the expenses of delivering those services by a small margin. Accreditation-related revenue is earmarked for the Council’s accreditation work and does not help (and its removal would not impact) the overall financial situation of the ABA.

[8] There are a lot of ways to think about this. The annual fee schools pay is based on enrollment. For a small school (say 300 J.D. students) the annual fee is ~$74/student. For the largest schools (say 1,300 J.D. students), the fee is ~$28/student. For the benefits students derive from obtaining a J.D. degree from a Council-approved school, this is a bargain. From the standpoint of a law school budget, the annual fee assessed ranges from ~$22,000 to ~$36,000 based on enrollment. This is not insignificant, for sure, but it is a minor expense in the scheme of things for most schools.

[9] I know how strained state court budgets are. However, operating the bar admissions process is a fundamental task for the courts. They do not get the bar exam at no cost. They do not get the services of the National Center for State Courts at no cost. Perhaps a regulatory process jointly organized, funded, and controlled by both legal education and the courts would be a good idea and a way for the courts to contribute to the cost of the system and to have a say in the governance of the process.

[10] Schools would need staff to monitor the rules in the various states and to comply with whatever annual reporting requirements are imposed. State courts would have to substantially increase their funding of the bar admissions process to support a law school review process.

[11] One cannot say enough about the staff, which manages a heavy load with skill and grace. The office could remain in Chicago; working remotely works well for this undertaking; most if not all of the technology that support the current process could be moved to a new environment.

The sooner the better, I’d say. This has something, but not everything, to do with the current controversy about Council Standard 206.[4] Important as that discussion is, the reasons for the Council to remove itself from the federal higher education regulatory regime are broader and structural. As attention to the regulation of legal education increases at both the federal and state levels, the time for the Council to act on this piece of the overall system is now.

While much that could be said about each item listed below has already been said, let me begin with a brief, bullet-point list that highlights reasons to resign:

• This authority is not necessary. Resigning it would have no (as in ZERO) impact on the utility to J.D. degree holders from Legal Ed Council approved schools to sit for the bar exam in any U.S. jurisdiction.

• Qualifying for and maintaining recognition adds a significant layer of work, expense, and bureaucracy onto the Council and the Managing Director’s Office that is not necessary nor helpful to the discharge of the Council’s primary responsibilities to regulate J.D. degree programs and to gather and disseminate comprehensive and accurate data about legal education.

• Resigning would avoid or at least minimize using the US DoE recognition criteria and processes as a way to force matters of public policy and the politics of the day into the discussion about legal education and the regulation of legal education when those matters are not central to establishing a regulatory framework that sets appropriate minimal educational requirements for all lawyers to meet prior to being licensed to practice law.

• Resigning would free the Council from the US DoE recognition criteria that are more prescriptive than they should be regarding the qualifications, experience and characteristics of the Council membership.

The US DoE process is more directly aimed at higher education institutions, not programs or subparts of those institutions. Further, the recognition criteria are much more focused on matters related to administrative and financial affairs of the institution or program, not on the substance and structure of the academic programs themselves where the Council’s attention should be focused.

The Council would remain free, of course, to include in its standards and procedures anything that it would otherwise be lawful to adopt, including provisions currently in the US DoE criteria. Importantly, the Council would not be operating without any oversight, to the extent that is a concern, because the practical and legal authority of the state supreme courts over the rules and process of bar admissions in their jurisdictions would remain in effect as a check on whether the Council is doing its job.

A regulatory system developed and managed by a governing body that understands the important role that our legal system and lawyers play in our society, culture, and government and that is laser-focused on the legal education programs that undergird that system seems preferable to a broader and more general system often focused on finance and management matters and that deals with accreditors of programs ranging from acupuncture to zoology.[5]

On the flip side, the reasons often offered for why the Council should not resign its US DoE recognition seem comparatively weak.

The most substantial justification for the Council to continue in the US DoE system is the fact that some law schools depend on the Council’s recognition as an accrediting agency to make their J.D. program and students eligible to participate in the federal student loan programs. These “independent” or “freestanding,” law schools are not part of a larger college or university that itself has regional or other accreditation status that qualifies its students and the law school to participate in those loan programs. Without that affiliation, law students at these freestanding law schools cannot borrow a federal student loan to fund all or part of their legal educations. The unavailability of these loans could well have an impact on these schools substantial enough to threaten their continued existence.[6]

The Council should address and work through this problem, should it choose to consider resigning its US DoE recognition. There are options. If nothing else, the Council should begin an honest, direct conversation with schools that would be impacted by the Council’s resignation, the US DoE, and others to figure out a smooth transition plan that would allow those schools to get approvals/accreditations necessary for them to continue to participate in those programs to the extent any other Council-approved law school can. Without minimizing the problem, the fact that a handful of schools would be impacted should not be the only or even the primary reason for the Council not to resign its recognition.

A second reason to remain in the US DoE system might be that it provides a forum for those interested in improving the quality of higher education and the regulation of higher education in the United States (accrediting groups, institutions, faculty, administrators, and so on) to meet and discuss best practices and related quality issues. Law schools and law school regulators can learn a lot from being part of these groups, for sure. However, many other groups and events already exist that will serve this purpose (e.g., CHEA, ACE).

Whether the Council’s recognition as an accreditor by the US DoE recognition is necessary, helpful, or even appropriate for the Council is a good place from which to begin a discussion about modernizing, improving, simplifying, and reducing the cost of the regulatory system that the Council has adopted and manages most directly for state supreme courts, but also for law schools, students, and the public.

I confess that I do not understand the resistance to at least exploring this idea when the idea is raised. Over my years working in the Managing Director’s Office, I discussed it with a number of the Council Chairs, other Council members, deans, and others. The fact that it never gained any traction suggests either that I am missing something or that I am simply naïve. If I am missing something, then I am glad to be informed and corrected. If the answer is that it may not be a bad idea but there are other better ideas for how to spend our limited time and resources on improving the process, then, let’s develop a big-picture, forward thinking list of improvements to work through, prioritize them in some logical order and get going. Maybe the Council believes that it is doing that with its work on “core principles,” which now seems to be moving toward seeing how the current standards and procedures fit with them. I certainly applaud that effort. However, at the moment I can say from my many years of experience as the manager of the Council’s process, including helping the Council work through the US DoE re-recognition process, that the benefits of recognition are significantly outweighed by its costs – monetary and otherwise. I would put this matter at or close to the first step I would get to work on. It does not seem a heavy lift.

[1] I am choosing to use the name “Legal Ed Council” (sometimes just “Council”) rather than “Council of the American Bar Association Section of Legal Education and Admissions to the Bar,” its formal name; “ABA Council,” or “ABA Section Council” to acknowledge the two distinct roles this body plays within the ABA – one as a section for those who are interested in the topic of legal education, similar to dozens of other groups within the big ABA framework; and the other role as the de facto approver/accreditor of J.D. programs in the United States. In this latter role, the Legal Ed Council acts on its own account, separately and independently from the big ABA.

[2] It is the Legal Ed Council, not the big ABA, which is the recognized accreditor. That recognition (the scope of authority of the Legal Ed Council) as an accreditor extends only to the J.D. legal education programs, not to any other degree programs, certificate programs, or other activities of the law school.

[3] The list of US DoE recognized accrediting agencies is HERE.

[4] The Council’s memorandum seeking comment on proposed changes to Standard 206 are HERE and the comments received are HERE. At its recent May meeting, the Council voted to repeal Standard 206. That action will now go to the ABA House of Delegates for its review at the House’s August meeting.

[5] That is true, I believe, even if the current controversies suggest to some that the system as it exists right now is too insular and has failed the very law schools, legal education programs, and legal profession that we all claim to value so greatly, regardless of where you stand on any particular issue.

[6] A list is HERE. Of the 14 schools listed (out of 195+ Council-approved law schools), some have earned their own regional accreditation.

I filed a comment on that proposal today. The deadline for filing comments is December 1. I encourage those following developments on the question of the continuing role of the Council of the ABA Section of Legal Education and Admissions to the Bar in the bar admissions processes of the state courts to file a comment letting the Texas Supreme Court know your views on the matter.

The substance of my comments:

1. There is no reason to object to the proposed rule change. It states what has always been true. The Texas Supreme Court, with the help of its bar admissions office, has always had the final say over which applicants could sit for the Texas bar exam and be admitted to practice in Texas.

2. Texas’ current definition of an approved school – that it is a law school approved by the American Bar Association (ABA) – is not accurate. The accreditation comes from the Council. The larger ABA has no role in and does not vote on the approval or removal of approval of a law school. Further, the Council and not the larger ABA has control over the setting of the legal education accreditation standards. If the Texas Supreme Court has reservations about the Council as an approver of schools, those reservations should not be based on concerns about the larger ABA. The Council is separate and independent from the ABA in its accreditation work. In my experience as Managing Director of the Council process, that independence was honored by the ABA.

3. I appreciate the Texas Court’s concern about maintaining the portability of J.D. degrees from an approved school for bar admission, while still giving itself room to approve other schools’ J.D. degrees for bar admission in Texas. The reality is that the Council’s process is accepted in every jurisdiction and Council-approved schools’ J.D. degrees are sufficient to meet the educational requirements for bar admission everywhere. We live and work in what is in reality a national legal education and legal services marketplace, and the portability of the degree is the right thing to do for students and for the profession. Whatever reforms come down the pike, portability of the J.D. is very important to preserve.

4. In my view the proposed rule change is not the most effective way to give the Texas Court the room it wants to have to approve schools other than those approved by the Council while acknowledging and respecting the need for portability. Texas is proposing to publish a long list of schools that are approved for purposes of bar admission in Texas. That list will include all Council-approved schools. If that is so, for a couple of reasons, it would be better to the rule to simply refer and link to the list of approved schools on the Council website. The rule could be restated to say that an approved school is “a school of the Council’s list of approved schools or a school that is approved by the Court.” It would certainly be better for prospective bar applicants attending Council-approved schools to not have to separately check a long list of schools on the Texas website to make sure that the school is approved in Texas (or, if other jurisdictions follow Texas’ lead, a number of state websites), and it would be less confusing for law schools as they advise their students on bar admissions. Moreover, it would obviate the need for any new law school that obtains Council to have to take the additional step of reaching out to Texas to make sure that it gets added to the list of approved schools for that state. All of this would require at least some staff and expense; and much more staff, rules, and infrastructure would be required to manage an ongoing process to approve and periodically review other schools that the Court might recognize.

5. If the Texas Court decides to publish a long list of law school J.D. programs it approves, including both Council-approved and approved by its own accreditation system, the Court could, of course, remove one or more Council-approved schools from its list. What could cause the Court to do that? If the reason was because a Council-approved school was complying with a Council standard that the Texas Court thought was unnecessary or inappropriate, then that would put all Council-approved schools at risk of losing approval in Texas, since the Council process requires every school to be in compliance with every standard. Would the Court not, therefore, be putting every Council-approved school to a choice between Council approval and approval by Texas? This is clearly not your intention.

6. Could the evolution of the regulatory environment for legal education toward offering mote options to schools, however, be sped up if a number of jurisdictions joined together to form an alternative approval process, as suggested by section 6.g. of the Court’s September 26 Order?

The NCBE bar admissions data is helpful in thinking about this possibility. For 2024, the most recent annual data reported, there were 50,468 new bar admittees across the United States. Twenty-nine percent (29%) of those were in New York and California (14,452/50,468), and 59 percent (29,845/50,468) were from the eight largest jurisdictions.[1] If a number of these states (and others with smaller numbers of admittees) bought into a different new regulator with a different set of standards, there might be a critical mass that would cause other jurisdictions to consider switching from Council recognition to being recognized by the new group.

It may be that the new group would adopt standards that are more appealing to schools, but the change process would be slow and there would be costs to schools that decided to make a switch that would offset any perceived savings of workload or money that would result from leaving the Council process. Law schools will prefer one-stop shopping – one accreditor that provides their graduates with access to admission in all states. They certainly do not want to see multiple accreditors arise with requirements that conflict or arguably conflict with each other.

If one of the Texas Court’s primary objectives is to see some de-regulation occur, the better and faster route to that end is likely to be to continue to work with the Council and continue to press for changes it wants to see, perhaps helping to lead an organized effort for reform with some other jurisdictions. That effort could include pushing the Council to leave the larger ABA and find a new home, either as an independent organization or as part of another organization such as the National Center for State Courts (NCSC), pushing for change in particular standards, and taking on significant matters other than the substantive standards themselves, such as reforming how the Council is composed and its members are chosen. Certainly, other stakeholders less critical to the Council than the state courts are actively pushing for reforms that they would like to see.

7. Section 6.e. of the Texas Court’s September 26 Order states that the Court intends to develop a deliberative approach to handling requests from existing or new law schools that are not and do not intend to be Council-approved but would like approval for their graduates to qualify for admission to practice in Texas. Those schools would include some existing schools that are approved by other U.S. Department of Education recognized regional or national accreditors, or law schools who are approved by other state courts, whose graduates can sit for the bar exam in the state where the school is located. Currently there are a modest number of such schools, most of which are located in California. They, no doubt, would welcome the opportunity for their graduates to sit for the bar in all jurisdictions without having to modify their current practices in any way.

My comment offers some words of caution. Simply accepting approvals or accreditation by other accreditors or state bar admissions groups is not a quick and easy solution to concerns that this rule change is trying to address.

Regional and national accreditors are not focused on legal education. I have been on the receiving end, as dean, faculty member, or Board member for a number of accreditation/reaccreditation reviews by these organizations. They are good at what they do, no doubt. The regional and national accreditors are particularly good on matters related to strategic planning and reviews of the process of educational program development (for example, the development and use of course and program learning outcomes at a school). But they are not focused particularly on law schools nor the interests of the courts and the legal profession in the foundational education that law schools should provide. These entities play a different role in the regulation of higher education in this country than does the Council, which is focused on legal education as the required first step toward becoming part of the legal profession. If we are going to regulate legal education, which we certainly should do, then we should require regulators and regulations that are specialized and focused on legal education.

Law schools approved by a state court but not by the Council often have a long history in the state where they are located. They are well-known to the court and the local bar. These schools often have closer relationships with the local bars and the local courts they serve than do most Council-approved law schools. Even those Council-approved schools whose graduates primarily end up in practice in the state where the school is located typically think of themselves more as part of the larger national law school community, rather than the local/state law school or professional community where they are located. This context helps explain the importance of those non Council-approved schools to the state and the way in which their programs are reviewed; and it also suggests that Texas accepting another state’s conclusion that such a school is good for that state does not mean, without a closer look, that the school’s program works for Texas.

To my mind, the infrastructure of the Council’s process a good job of assuring Texas and all jurisdictions that J.D. graduates from a Council-approved school are prepared to sit for a bar examination and to begin practice anywhere in the United States, as well as establishing a framework that deters exploitation of students in the national marketplace.

Key provisions are Interpretation 501-3,[2] Standard 315,[3] and Standard 316.[4] Basically, a school must admit only students it determines are capable of completing its J.D. program and passing a bar exam and it must operate a program that accomplishes those objectives. Interpretation 501-3 considers attrition. The more students that attrit (other than those who transfer to another law school), the more likely it is that the school is not doing as good a job as it should in determining which of its applicants have a reasonable likelihood of success and offering a program that leads to that success. The current bar is set at 20 percent. If a law school attrits more than 20 percent of the students who begin study at the law school for reasons other than transfer, the law school is presumptively out of compliance with the standards. Standard 316 considers bar passage. The lower the percentage of graduates who sit for a bar exam who have passed a bar exam within two years of graduation, the more likely it is that the school’s program is not adequate for the students it admits. The current required bar pass rate is 75 percent. Thus, a school must operate so that it has less than 20 percent attrition and more than a 75 percent ultimate bar pass rate. Together, these two outcome measures give schools some flexibility in both admissions and program design, but prevents them from taking too many chances on students who do not have good predictors of bar success or too many program choices that may not be directed appropriately toward student success on the bar exam. Standard 315 focuses on how a school evaluates how well its program is operating and how schools are adapting their academic programs to ensure that the outcomes required are realized.

There is, of course, no magic in 20 percent and 75 percent. They may not be perfect, but they are not too restrictive. They do not require close to zero academic attrition, although the data the Council collects annually from schools shows that many schools have zero or not far from zero attrition. Nor is the bar passage set at 100 percent or close to it, although many schools have bar passage outcome over 90 percent. One can quibble with where these bars are set. But these are the judgments that the Council has made, and they seem reasonable to me. Currently, almost every Council-approved law school meets them. It is no doubt time-consuming and expensive for schools to collect these outcome data, but systems have evolved to help schools gather and report it. Moreover, these two outcome measures would seem to be foundational for even the simplest regulatory regime. Whatever slimmed down system might be developed, data collection and verification will be central to it.

For Texas, then, the question is whether any other accreditors or other state courts that approve law schools have systems good enough to assure it of the quality of the schools they approve without a closer and periodic look at their standards and process to monitor and review schools’ programs.

Non-Council approved law schools do have a meaningful role to play in the development of a bar that can satisfy the need for legal services in our society. It would be a mistake, however, to let schools that have a particular history or mission in a particular state where the Court and the bar know those schools well or schools that have earned accreditation by a body that is not focused on legal education expand their scope to compete with schools that have much more regional or national student bodies who may go to law school in one locale with every intention of practicing elsewhere. This is particularly a concern as legal education moves more online and students rely on loans to fund their educations. I would be very cautious about a regulatory scheme that allowed law schools that have those approvals to qualify to for admission in states other than the state where they are located without a deep dive and periodic review of into what those accreditors or state courts require.

Again, the deadline for comments on the Texas proposed rule change are due by December 1.

[1] By my count, in order: New York, California, Texas, District of Columbia, Florida, Illinois, Massachusetts, and Pennsylvania.

[2] Interpretation 501-3 provides: A law school having a cumulative non-transfer attrition rate above 20 percent for a class creates a presumption that the law school is … [out of compliance with Standard 501]. Standard 501(b) requires that a school only admit applicants who appear capable of completing its J.D. program and being admitted to the bar.

[3] Standard 315 requires a law school to conduct ongoing evaluation of the law school’s program of legal education, learning outcomes, and assessment method and that the school use the results of this evaluation to determine what changes are needed to improve the legal education program.

[4] Standard 316 is the bar passage standard. It basically requires that at least 75 percent of a law school’s graduates who sat for a bar exam have passed a bar exam within two years of after their graduation.

If we did, I would start with two assumptions:

• Entry to the legal profession, at least for the foreseeable future, will generally be a two-step process (qualifying legal education and passing a bar exam).

• Legal education should be regulated,[2] but that regulation should maximize the discretion given to approved schools and be the minimum necessary to assure the profession and the public that approved law school programs provide an education (knowledge, skills, values) sufficient to allow those who complete them to have a license to practice law and to support the use of that license over a long career.

Isn’t it more productive to work from nothing to the minimum rather than working backward from an existing, substantial set of requirements toward the minimum? Starting with a blank page does not mean that there is no context to take into account. That context is my first assumption. It comes from my experience as the Managing Director of the ABA law school accreditation process. In that role I had the opportunity and privilege to attend the regular meetings of the Conference of Chief Justices (CCJ), which sometimes were held concurrently with the meetings of the Conference of State Court Administrators (COSCA), both under the umbrella of the National Center for State Courts (NCSC). These are the two national groups most directly concerned with the operation of the bar admissions processes around the country. While there was certainly some interest in the CCJ in a deep dive into both law school accreditation and the bar exam, my own reading of the room was that the Chief Justices were comfortable with and appreciative of the roles that the ABA Legal Ed Council and the NCBE were playing for their courts in those processes. Although recent events in a few jurisdictions about alternative pathways to bar admission or questioning the continuing reliance on the ABA Legal Ed Council’s standards and procedures suggest that interest in reform and change might be increasing, we are a long way from abandoning the two-step combination of a JD from an approved law school and passing as the basic requirements for admission to the profession.

Legal education and the bar exam serve different purposes. The bar exam requirement recognizes that the license to practice law grants full authority to undertake any lawyering task or client representation, even those that might be best handled by a more experienced hand.[3] The requirement of a qualifying legal education serves the public’s longer-term interest by providing assurance that those who are allowed to enter the profession have a foundation from which to grow in the profession.[4]

These two requirements, though distinct, are overlapping and related. Law students count on law school to be helpful on both. Students’ expectations have not changed much in the 50+ years since I graduated from law school. What has changed is almost everything else – the law itself, society, culture, business, the role of government, the complexities of modern life, the K-12/undergraduate education environments, and so.

Despite the fact that everything around it seems to have or be in the process of changing, what counts as a qualifying legal education for bar admissions remains remarkably unchanged: a ~90-credit, ~six-semester, ~3-year undertaking.[5] There have been many changes and important changes in what law schools do within that envelope, but the framework has remained very stable. For a variety of reasons, including cost, a qualifying legal education is not likely to get longer.

Lately we may have been asking legal education to do too much within that envelope to make lawyers “practice-ready” before bar admission. This reflects perceived demands[6] of the bench and bar for lawyers to have more practical training as part of their legal educations. Importantly, this conversation fails to acknowledge and deal with the (at least partial) withdrawal from the formal and informal role the profession traditionally played in the training and mentoring of young lawyers.

If we are playing a zero-sum game, adding to what is required to earn that qualifying J.D. law degree means that something that is now required or offered must be eliminated, reduced, or modified. For example, if we have concerns (as we do) about the writing and critical thinking skills that law students have when they enter our school and we cannot count on K-12 or undergraduate education to address them, then what shall we do? If the role that the profession played in practical training and professional development goes away or is substantially diminished, then what shall we do? We can expand the legal writing requirements in the ABA Standards, and we can add to the experiential learning and professional formation standards that we now have. But as we do that, how do we eliminate, reduce, or modify what we have to make room?

For me, these questions are related to the question of what a set of minimal standards should be, particularly in a market that is as segmented as ours is. Law schools have widely varying missions, resources, students, opportunities for graduates, and opportunities for schools and the faculty. How well can a set of standards work in that environment if all of the details of each standard apply to every one of the ~200 very different law schools? If we adopt standards that might be a good idea for some schools that constrain what other schools that do not need those restrictions can do, are we doing more harm than good?

Might the fact that accreditation generally has become more driven by outcomes rather than inputs provide an opportunity for the regulation of legal education to be recast in a way that protects the public interest and yet remains flexible enough to give space for some schools to grow existing programs and develop new ones that are responsive to today’s environment and that can more easily adapt to the changes in higher education, the legal profession, and society that are coming our way? The default principle should be to leave as many choices and policy decisions as possible to each school to make based on their situations.

Arguably, the current the current ABA Standards require all law schools to do the following: limit the amount of distance learning, require a significant amount of experiential learning, have most credits taught by full-time faculty, protect the jobs of faculty, not offer degrees other than the J.D. without review of the plan by the Council, require applicants to submit a law admissions test score, not to offer too much instruction off-campus, and not to award too much credit toward the J.D. for coursework completed outside the law school or completed before admission to the school.

Need the standards require all of this of the many schools that have very low academic attrition, very high bar pass rates, and very high job placement rates for their graduates? Assuming that there were good reasons for each of these regulations when they first came into the ABA Standards, some of them could surely be eliminated for at least some law schools today.

How do we have that conversation? What would a new, more flexible approach look like? That conversation can happen within the current Council framework or outside of it. But, wherever it happens, it is important that those leading it have the credibility and experience to give the process legitimacy in the profession as a whole and with the state courts.[7]

Some important matters (academic freedom, compliance with applicable laws/regulations, accuracy/honesty in communications come to mind) should be addressed by the regulations regardless of the excellence of a school’s outcomes. But when standards are written that insist upon a certain view of how legal education should be done or what it must include, or when rules are written primarily to address the shortcomings of a very few, then the cost of compliance by with those rules by the many seems unnecessary. Further, more detailed and complex regulations and regulations can stifle innovation, particularly by schools in a good market position to creatively respond to the challenges all of legal education is facing that might lead us to a better place.

The conversation that is unfolding about what the regulation of legal education should require of schools will be more useful if we talk about what minimal standards should be rather than creeping to a less complicated and expensive regulatory system by looking for places to cut and trim what is now in place. Who knows where a fresh look might lead?

[1] That order is the ABA Standards and Rules of Procedure for the Approval of Law Schools (ABA Standards). There have been a number of recent useful comments and ideas on reforming those standards and procedures. They include the ABA Legal Ed Council’s recent Core Principles and Values of Law School Accreditation; the Civitas Institute at the University of Texas’ symposium, Texas and the Future of Legal Education; posts from Professor Derek Muller including The ABA Is Inventing New Principles for Law School Accreditation, Quietly Abolishing Others; posts from Professor David Yellen, including What Should the Council on Legal Education Do?; and posts from Professor Dan Rodriguez, including ABA Accreditation Council Is Playing a Game of Chicken.

[2] It would make no sense to require a J.D. or some legal education as a requirement for bar admission but to not define what that education needed to be. The attention given to projects in Texas, Florida, Ohio, Tennessee, and maybe other places to consider whether jurisdictions should continue to rely on the ABA accreditation process is way ahead of where those projects actually are. The projects, which basically challenge the Council’s de facto leadership role are have not yet put forward anything to replace it.

[3] The bar exam, tests basic knowledge and skills across a broad spectrum of topics and situations. The test should reflect the bar admissions process’ (and, therefore, the state supreme court’s judgment about what a new lawyer needs to have learned or what skills a new lawyer needs to have acquired to be permitted to provide legal advice and deliver legal services, but also to learned enough to know when a matter requires a lawyer with more or different experience, knowledge, or skills. That the new lawyer can do anything does not mean that new lawyer should. “Practice ready” means “ready to begin practicing” not “ready to practice anything and everything.”

[4] It reflects the bar admissions process’ judgment that the new lawyer acquired the tools (learning and skills) in law school that over time will be used to gain the experience and expertise to become a better lawyer for the clients she serves, and more knowledgeable and sophisticated about the areas of law in which she works.

[5] This does not means that law schools and legal education have not changed. They have, dramatically and for the better. The fact that legal education has continued to evolve is a reason to give law schools as much room to change/grow as we can.

[6] Real or perceived demands? A number of surveys show that the bench and bar would like to see law students more prepared in a practical sense, but how does that play out in the actual hiring process of a new lawyer? How does the employer’s perception of the law school attended, class rank, or recommendations compare to the experiential coursework that a job applicant took in law school? No doubt it depends on the job being filled. The job market sends at least mixed messages on the relative merits of a number of qualities and experiences that will most help students get the job they would most like to have.

[7] David Yellen’s recent post makes a number of good points in this regard.

Truth #1: The current de facto primary regulator is the Council of the ABA Section of Legal Education and Admissions to the Bar of the American Bar Association (Council), not the American Bar Association (ABA).

Truth #2: The Council does not need recognition as an accrediting agency from the United States Department of Education (US DoE) to play the role that it currently plays. It has that recognition, but it could resign it, or it could be removed without any meaningful loss to its role or influence.

Truth #3: State supreme courts do not need to “reclaim” authority over the regulation of legal education from the Council or the ABA. The authority is, and has always been, vested in those courts and the state bar admission processes.

Each of these truths has been discussed in earlier Legal Education Matters posts. It is true that almost all persons admitted to practice in U.S. jurisdictions each year are graduates of “ABA-approved” law schools. But “ABA-approved,” while a convenient shorthand, is not technically accurate. A more accurate designation would be to say that a law school is a “Council of the Section of Legal Education of the American Bar Association approved law school.” That just doesn’t roll off the tongue as easily as “ABA-approved.”

The shorthand is fine, but it is important to understand and remember where the actual authority lies. Some have argued that the Council’s role should be constrained or removed because of concerns about the larger ABA organization. Those concerns are not relevant to whether or how to reform the ABA Standards or the Council’s law school review/approval process. If one has problems with the ABA Standards or the law school approval process, blame the Council, not the ABA.

Further, if one takes issue with the ABA Standards or the law school approval process, do not look to the US DoE for help. The Council’s role and influence does not derive from the fact that the US DoE recognizes it as an accrediting organization. If the US DoE removed the Council from its list of recognized accreditors, the Council’s role as the de facto regulator of legal education in the United States would continue unabated.

Finally, there is no need for any state supreme court or bar admissions process to reclaim any authority from the Council or the ABA. The authority over the practice of law is vested in the states and usually the state judicial branch, and so it has always been.

Over my professional life, state courts/bar admissions processes have increasingly relied on the Council’s work with regard to the regulation of the legal education. The same thing has happened with the bar examination, with the state courts/bar admissions processes relying more and more on the work of the National Conference of Bar Examiners (NCBE). While perhaps disagreeing about the reasons for the renewed interest, we should welcome it.

If we can keep these three truths clear in our minds, then we can focus our attention on the important issues that are on the table about the appropriate contours of a regulatory system for legal education.

Much of what another round of notice and comment will generate will be regurgitation of comments and points previously made, pro and con. I hope that the Council, instead of following the Standards Committee’s recommendation, will not seek further comments and take whatever action would be appropriate to put this matter to rest (either postpone the matter indefinitely or terminate further work on it).

The push to increase the amount of experiential learning required by the Standards has been ongoing since 2014, when the Council adopted the current six-credit requirement, but the reasons to support or oppose an increase have not changed. Indeed, for the most part, the line-up of groups (and even many of the individuals) on both sides of the matter remain the same. While I respect the persistence of those in favor of these changes, and while it would not be unreasonable for a law school to choose to require 12 (or even 15) units of experiential learning for its students, the case that the Council should require all schools and all students to meet this requirement has not been made.[2]

The Standards Committee’s memorandum responds to some of the critique of its original proposal by allowing experiential course credits to be chopped into different bits and pieces. That, however, misses what for me was (and remains) the primary problem with the proposal: the case for requiring that amount of experiential credits by every school for every student as a matter of the approval or accreditation of the school’s J.D. program has not been made. Further, the revised proposal offered by the Standards Committee would introduce complexities and ambiguities into the Standards that are best avoided.

The additional six experiential course credits that the proposal requires would have to purchased from other parts of the curriculum, unless a law school chose to increase the credits needed to earn its J.D. degree by that number of credits.[3] Schools could reduce their current required 1L course of study to make room for the new proposal to allow “up to three” experiential credits in the first year of study, add credit to and/or rework the coverage of some upper-division courses to include experiential learning, or simply add new courses or sections of existing experiential courses to cover the additional units that students would need to meet the increased requirement. These changes reduce flexibility for the schools and choices that students can make. They also have follow-on resource implications on the size, shape, and workload of the faculty and staff. Of course, a law school is free now to do any of these things if it chose to do so.

I appreciate the Standards Committee taking seriously many of the comments that were submitted on the original proposal, but it misses the main point. No matter how it is described, the proposal would move six credits of the typical 86-90 credit J.D. program from the “school choice” column to the “ABA requires it” column. That is a significant change that requires substantial justification, which the Standards Committee has not been offered. Nothing in the Mary 14^th or the current August 15^th Standards Committee memorandums supports further intruding upon and reducing the flexibility law schools now have to design their JD programs in the way that best suits their missions and markets. Six credits is six credits, anyway you slice it. It is time to move on.

[1] The “Council” is the Council of the ABA Section of Legal Education and Admissions to the Bar which is responsible for the ABA Standards and Rules of Procedure for the Approval of Law Schools and the review and approval of law school J.D. programs under those Standards.

[2] On the point that the original proposal, although doing a good job of explaining why experiential learning courses belonged in the curriculum of every law school and why students should have some of that education, failed to justify the doubling of the required credits, see, in particular, the comments of Deans Logue (p. 18), Chemerinsky (p. 38), and Kearney (p. 41); and Professors Muller (p. 58) and Leiter (p. 245).

[3] That is very unlikely to happen. An additional six units of experiential learning courses is about one-half of a semester, or an additional two credits for each of the four upper-division semesters in the typical J.D. student’s courseload.

Conceptually, it should be fairly simple and straightforward.[1] A new organization would form for the purpose of replacing or competing with the law school regulatory process now controlled by the Council. This new organization would adopt standards for the J.D. degree. Law schools would apply for approval by this entity. A number of state supreme courts would recognize that a J.D. degree from a law school approved by this entity would satisfy the legal education requirements for eligibility to sit for the bar and for bar admission. Voilà! It would be done. This new entity might co-exist with the current Council system, or it might eventually replace it.

Before you conclude that this is crazy, consider the following scenarios:

New process driven by law schools. A number of selective/prestigious law schools become disenchanted enough with the Council and its Standards and processes to support an initiative to create this new entity. They inform the state supreme courts of the initiative and state that they would intend to resign their ABA approval and to instead be approved by this new entity once it is established; they encourage the state courts to recognize this entity’s standards and process so that their J.D. graduates may continue to sit for the bar exam and be admitted practice in their states.

New process driven by state courts. Jurisdictions in a number of states with large lawyer populations become disenchanted with the Council’s Standards and processes and lead an initiative to remove or loosed the requirement that applicants for admission to practice must have graduated with a J.D. degree from an ABA-approved law school; the courts agree to recognize this new entity’s regulatory system, creating a second path to qualify for bar admission in their jurisdiction. Law schools could then choose to be approved by this new organization, the Council, or both.

There is a chicken-egg problem here. Which happens first? Would the creation of a new law school regulatory system be driven by law schools or the state courts? Law schools would want to know that state courts will recognize this new entity, and courts will want to know something about whether law schools will join it. That said, these scenarios are not implausible. The more likely scenario is that some law schools and some state courts work together to establish such an alternative law school regulatory system.

As this is written, two state courts – Texas and Florida – have already launched projects to address whether they should change their rules to eliminate the requirement that a bar applicant’s J.D. degree be from an ABA-approved law school; others will surely follow. Moreover, over the years there have been numerous suggestions, often coming from within the legal academy, to substantially modify the ABA standards and process or replace them with something else. The “something else” might be more or less prescriptive; it might be or more or less political in its objectives. Depending on the issue, these calls may come from the left or the right, the woke or the unwoke.

Two points worth noting:

• The state supreme courts are in the driver’s seat, as they should be. They have the authority and responsibility to determine the rules for bar admission in their jurisdictions.

• The selective/prestigious/elite/T-14 (pick your own number) law schools also have considerable leverage in the conversation about what should happen. That leverage has always been there, but it has seldom been used.

State courts have largely delegated both the regulation of the legal education required to sit for the bar exam and the bar exam itself to the Council and the National Conference of Bar Examiners (NCBE), respectively, resulting in the Council being the de facto national regulator of law school J.D. programs and the NCBE being the de facto national provider of the bar exam. While many state court judges have given generously of their time and wisdom to both of these activities, it would not be accurate from my experience to say that either the ABA law school regulatory system or the bar examination process has been closely watched and supervised by the state courts. That may reflect confidence and satisfaction in the leadership of the Council and the NCBE, of course. However, the authority needed for reform in either activity remains with the courts, and they can exercise it more vigorously if they chose to do so.

Regarding the influence of the most selective and prestigious law schools, consider a somewhat-ridiculous-not-going-to-happen hypothetical: what if the deans of Yale, Stanford, and Harvard Law Schools (just to pick three schools that would likely be on anyone’s list of highly selective and excellent law schools) wrote to the Chief Justices/Judges of the California, New York, and Texas high courts (or pick other courts in large population states) suggesting their intention to resign their ABA approval, offering credible reasons for doing so, pledging to continue to offer an excellent J.D. program, and closing with a short paragraph saying something like, “we sure hope that you will continue to let our J.D. graduates sit for your bar exam.” While this will not happen, does anyone doubt that it would at least start a conversation?

That conversation would be about the schools’ concerns about the ABA Standards and regulatory processes and how they are negatively impacting these and other schools’ J.D. programs, the overall business of the law school, the legal profession, and the public interest.

It was interesting to me in my time as Managing Director how seldom elite law schools engaged with the Council on its Standards or process. The situations that generated the most participation from these elite schools were standards or data collection efforts that impacted, directly or indirectly, the U.S. News law school rankings. My own theory on this is that although their were complaints about the cost and the hassle of the ABA Standards and processes, neither interfered significantly with what these schools wanted to do with their programs, and the costs were not a significant item in their annual budgets. A drop (or potential drop) in the rankings was perhaps a different matter that got their attention.

If it is true that the process of adding a second approver of J.D. programs (or several new approvers) or replacing the Council with a new organization with a different set of standards and processes can be easily described, it is probably just as true that the reality of actually accomplishing this sort of major change would be very difficult, contentious, and time-consuming.

Would it be worth it? Who would organize the effort? Who would own it? How would it be governed? How would it be financed? How might a transition happen? Whatever happens, it will be important to remember the benefits, bordering on the necessity, of a system or systems that are national in scope.[2] That requires careful thinking about the objectives of any system so that it would be widely accepted without the friction that too often arises when one segment of the legal education world wants to insert their agenda into standards that must be accepted by all. Another objective should be to create a system that leaves the maximum amount of flexibility to law schools to design programs that suit their missions, markets, resources, and students.

That is the rub. There are many different ideas about the contours of a set of appropriate minimum standards that should control the law school education that lawyers must obtain before entering the profession. Future posts will consider what a set of minimal standards might be.

[1] A new entity would not need to seek to be recognized by the United States Department of Education (US DoE) as an approved accrediting agency. This makes the process much simpler. No approvals are required other than state court approvals in their bar admissions rules of the new entity and its standards and processes. Law schools would gain access to the federal student loan programs, which is the primary benefit flowing from the ABA being recognized by the US DoE as an accrediting organization, by being part of a university that is institutionally accredited by a regional accreditor; or an independent law school earning that accreditation, as a number have already done.

[2] There have been a number of good comments on this point. I offer some views HERE.

I do not know of other state courts that are considering this question, but one would have to believe that there are or will be others. As I asseted in an earlier post, the argument for some sort of national system is compelling. As I suggested in another post, it is important to have the conversation about the need for reforms in this area, wherever that may lead.

If nothing else, if the Council’s de facto national legal education regulatory system fragments into a number of pieces, the costs of regulation would significantly increase. Keeping it simple and at a very high level to make the point, if there needed to be one full-time employee in each of 200 law schools and 50 bar admissions office to do all this keeping up and monitoring of what is going on in each law school and in each bar admitting jurisdiction, and that employee cost an average all-in (salary, benefits, space, other expenses for support), of $150,000/year, then the total cost of regulation would be $37.5 million.

From my experience, that is a low estimate of the total cost of a fully fragmented system. Unless the Council budget has changed dramatically in the several years that I have been gone, that cost is several times the Council’s budget. Who will absorb that increased expense? Most likely new lawyers as those costs are passed along in higher law school tuition and bar application fees.

There would be ways for schools and jurisdictions to share these expenses. I have seen a suggestion that like-minded states could enter compacts to recognize each other’s systems, for example. Maybe I would start a service for schools to keep up with changes in the state rules that would spread the costs of monitoring over my client schools! There would be, I am sure, other better ways to address this problem.

At the end of the day, however, as has been the experience with the bar exam where the NCBE emerged as a national solution to limitations on problems of each state maintaining its own bar exam (subjects, question development, grading), one primary system of regulation for law schools, whether at the ABA or elsewhere, would seem to benefit us all.

I hope that the Texas Supreme Court and the Florida Work Group will hear from many of you. This is an important discussion.

Currier Comments To Fl Work Group On Maintaining Bar Admissions Rules' Requirement Of Graduation From An ABA Approved Law School

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Currier Comments On Texas' Continuing To Rely On ABA Law School Standards And Process June 2025

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The Council and committee members with whom I worked were talented and experienced law faculty, deans and law school professional staff, lawyers, judges, and public members who gave generously of their time and effort. All the volunteers and ABA staff members deserve credit and thanks for contributing to the tremendous growth and positive change that law schools have experienced in the more than a century of the ABA/Council’s involvement. This is not to say that during my time as a member of the ABA staff, as Council members could attest, I always agreed with the actions the Council took, whether that action was to change a Standard or not change it; to grant a school’s request for acquiescence in a major change or a variance or deny that request; or to collect data or not, and whether and how to publicly report the data that was collected.

The regulatory system worked well, but not perfectly well, and there is always room for improvement. This may be a moment when significant change is needed and possible. How can a law school regulatory system best support, permit, and encourage change and innovation? Is the Council in its present form the best entity to have that regulatory role? Are the current Standards and Procedures a satisfactory platform from which to start that change process? If we were writing on a clean slate, and the question today is what would be the best place to house the responsibility for the regulation of legal education, it is unlikely that my answer would be within the ABA.

For this discussion I assume: (a) admission to practice will remain a matter for each state, assigned, exclusively or primarily, to the judicial branch; (b) the current two-step process – obtaining a formal legal education and then passing a bar exam – will remain the primary or dominant bar admissions process; and (c) that some regulation of the legal education required for bar admission is necessary. I am certainly aware of the efforts to push or experiment with alternative pathways to practice. Perhaps those will be subjects of future posts.

Because we are not starting from scratch, the questions to consider are: (a) what are the pros and cons of continuing to have that regulatory function in the ABA under the authority of the Council, (b) where else could this regulatory process be housed, and (c) what could be gained by a move? Relatedly, would it be helpful to have another entity or other entities come on the scene and compete with the Council, or would it make sense for there to be a new regulator with a new set of standards and process to replace the Council and the current system?

Pros and Cons of Standing Pat

The least disruptive, costly, and confusing way forward would be for the Council to continue its work from its current location, physically and structurally, as a “separate and independent” ABA entity responsible for the regulation of law schools. If the Standards or the process needs fixing, let the Council do it.

However, and unfortunately for those who think that significant change to the law school regulatory process should happen, this “no change” approach, with history as our guide, likely means that fundamental reform will not happen or will not happen fast enough. Moreover, various stakeholders in legal education have very different ideas about what meaningful change is urgent or needed. We all have our least favorite standards; our most frustrating, burdensome, or useless processes; and changes that we would cram down on all schools through the Standards. What one thinks needs changing would influence the choice of forum for those change discussions, of course. Is the current Council situated inside the ABA the right place from which to launch a rethinking?

One benefit of moving the Council out of the ABA while maintaining its current structure, Standards, and processes would be to take concerns about and criticisms of the larger ABA out of discussions about the law school regulatory system. Many today see ABA as more of a political organization, not an organization devoted to advancing and safeguarding the legal profession and the rule of law that the profession supports. The fact that the Council’s accreditation work is separate and independent of the big ABA is oft acknowledged, but, as often, that is not believed or is ignored. That is unfortunate. I cannot recall, in more than a decade of work in the Managing Director’s Office, that an ABA policy was pushed on the Council by ABA leadership; or that an ABA policy was critical to, or even mentioned in, a Council discussion about what a Standard should say or about how the Council should resolve a question about a law school’s compliance or not with the Standards. That said, it would clearly be helpful to the Council’s work if it Council were not part of an organization that is suspect in the minds of many.

Another positive impact of the Council leaving the ABA would be to free it from the one vestigial remain of the days when it was the big ABA and not the Council that had the final say on accreditation matters. This is the requirement that the Council send changes to the Standards and Rules of Procedure to the House of Delegates for the House’s “concurrence” in the changes. Rule 55 of the Council’s Rules of Procedure and Rule 45.9 of the ABA Rules require this process. If the House does not concur in the changes, the matter(s) are referred back to the Council for further consideration. While at the end of this process a change approved by the Council prevails over House objections, in recent years, groups opposed to changes approved by the Council have, in my view, abused this concurrence process by intensive lobbying to slow or stop those changes. While the Council could stand its ground by re-approving the changes and sending them back to the House, it has not chosen to do that.

I recall no instance where new evidence was brought forward in the House of Delegates. Before the Council acts, it goes through a serious and lengthy process that includes opportunities for public comment. The House is a large body ( ~550 voting members) that meets twice a year. Its members are predominantly representatives of state and local bar associations and ABA sections and divisions. Few of them are involved directly in legal education. In my experience, most have at best a minimal understanding of the work that the Council does or of the Standards. On balance, this extra step impedes reform. Removing it would require consent of the House, which is unlikely to happen. While eliminating this roadblock to change would not be reason enough for the Council to separate from the ABA, the regulatory process would be much better if this extra layer of process were removed.

Being part of the ABA community benefited the Council and law schools in many ways over the years. This includes the interest and support of many ABA leaders, many of whom served as Council members, and senior ABA staff. The ABA has also provided financial and administrative support, although today the cost of the regulatory process is borne by the fees that law schools pay to the Council.

At the end of the day, the Council does not need to be within the ABA to get its work done.

If the Council left the ABA, where might it go?

The regulation of legal education has been in the ABA for so long that it is difficult to imagine where the process might move. There are a few possibilities: the Council becomes an independent non-profit organization; the Council associates itself with the National Center for State Courts, perhaps operating independently within it much as it does now with the ABA organization; or the Council and the National Conference of Bar Examiners join together in an overarching non-profit organization that manages the two connected activities – legal education and the bar examination – that the state supreme courts rely on for assessing the qualifications of bar applicants for admission to practice. There are, I am sure, other possibilities. This is not the place to explore these options in depth, and I am sure that there are others to consider as well. We should simply acknowledge here that there are possibilities, and open our minds to idea that a move by the Council could lead in the long run to a better regulatory environment for legal education. Then, let the discussion begin.

Things have changed in the century since the ABA stepped up to help create the modern law school world. Legal education serves a bigger, more complex profession; law schools are engaging in a wide variety of programs and undertakings beyond the traditional J.D. program; higher education operates much more like a business than may have been the case decades ago; the bar is more segmented/fragmented than it was and the ABA’s claim to represent or speak for all lawyers is not as strong. I could go on. We should not be surprised that a system that served us well 50-100 years ago is not optimal today. We must be willing to entertain the possibility of significant change, even if we ultimately decide to stay put and work harder to fix and improve what we have.

What might be gained by moving? Would it be worth it?

Much of what needs fixing is in the Standards and Rules of Procedure, unrelated to where the Council is situated. Even if “separate and independent” sometimes felt a little illusory when I was part of the process, the Council, not the big ABA, gets the blame as well as the credit for the current state of the Standards and Rules. The questions then become whether the current Council, with its current structure and governance process, can provide the leadership needed to push for and accomplish meaningful change, compared to a new entity with a different governance structure; and whether the current Standards and Rules can be the foundation on which change can be built, encrusted as they are by history, compromise, and band-aids being put on band-aids as change happened, such that major changes are difficult, compared to starting with a clean sheet of paper.

My experience tells me, at the outset of this conversation, that moving the regulation of law schools out from under the ABA umbrella makes sense, that starting with a clean slate for that regulatory system is better than trying to fix what we have, and the answer to the question of whether this change can be accomplished within the current governance structure of the Council situated somewhere other than the ABA or creating a new entity is not clear but will emerge as more attention is paid to the foundational questions about the purposes and the scope of the regulatory system.

In the next installment of Legal Education Matters I will work through reasons why it may be smarter to start from scratch than try to reform and reshape the current Standards and Rules if we want a regulatory framework that best serves the interests of legal education, the legal profession, and the public.

I did not want these to be the first topics discussed; they fall too close to interesting only accreditation nerds like me. But circumstances changed. President Trump issued an Executive Order attacking accreditation generally and the Council particularly, and two jurisdictions announced plans to study whether to continue requiring bar applicants to have a J.D. from an ABA-accredited law school as a condition of sitting for the bar examination and admission to practice.

I will take up these topics in the next two posts. This post focuses on the Council as “accreditor” and suggests that the Council consider giving up its recognition as a US DoE recognized accrediting agency. We will get to more familiar matters before too much time passes. Please stick with me.

The Council has been the only US DoE accreditor for first professional degrees in law (the J.D. degree), a status it first obtained in 1952. The reasons supporting the Council resigning its authority have something (but not everything) to do with the recent Executive Order on accreditation. That order states that the Council has abused its authority by compelling law schools to adopt discriminatory ideology, and by inferring that the Council has failed its duty to assure that programs it reviewed were of sufficient quality to merit accreditation. It directs the Secretary of Education to “assess whether to suspend or terminate the Council’s status as an accrediting agency under Federal law.”

The accusations are false, as discussed in an earlier post. In my view there is no basis for removing its authority. That said, the question remains whether the Council needs to be or should be a US DoE recognized accreditor. Are the benefits of US DoE recognition worth its costs? If not, then why shouldn’t the Council resign it US DoE recognition?

A little history helps here. Accrediting organizations and the ABA both began and took root in the late-19^th/early-20^th centuries. Both were aspirational and forward-looking undertakings for a growing and changing society. Accreditors focused on improving the quality of the education at America’s colleges and universities, and the ABA focused on nurturing the evolution of a nascent legal profession. Both were voluntary, non-governmental, peer-driven, membership groups. Their work proceeded for decades along different trajectories, addressing different concerns.

These different activities began to converge in the wake of World War II, as the GI Bill and related programs for veterans increased the federal government’s attention to and participation in higher education. The intertwining of the two activities deepened from the mid-1960s forward as enrollments in post-secondary education exploded and the federal government’s presence in that space grew through the federal student loan programs. Although accrediting organizations remained private/non-governmental organizations, the federal regulation of their activities increased while the government continued to rely on accreditors to establish and enforce institutional/program standards for participation in the student loan programs.

The ABA’s (now the Council’s) recognition as a US DoE recognized accrediting organization in 1952 qualified the law schools that were accredited at that time to participate in the federal student loan and related programs. That recognition and that qualification continues to the present day.

That access to the federal student loan programs was and is the major benefit of the Council’s participation in the US DoE accreditation process. Most J.D. students pay for all or part of their J.D. educations with the proceeds of those loans, and the funds from those loan-funded tuition charges are a significant portion of the revenue of all or most law schools. Indeed, the continuing flow of those loan funds is likely an existential matter for some schools.

Nonetheless, the Council’s status as a US DoE recognized accrediting group and what needed to be done to maintain that status was deep in the background of conversations about legal education. Seldom, if ever, was the US DoE cited or relied on as a reason or incentive to make positive change in a J.D. program or an ABA Standard. The changes in the Standards and the Rules of Procedure that did occur because of the US DoE were usually changes in terminology or process. It is not that some of what the US DoE recognition criteria required the Council to include in the ABA Standards was not pertinent to what a sound program of legal education should include, nor that some of the change to the Standards (e.g., learning outcomes) were not driven in part by changes in the US DoE recognition criteria. Rather, the US DoE and what it required were not relevant to conversations about legal education in the Council and, particularly, at law schools. The ABA Standards, on the other hand, were part of these conversations. This reflects the fact that the Council’s “approver” role was, and remains, the primary source of its authority and influence.

If the primary benefit of US DoE recognition is access to the student loan programs, how much of a benefit is that to legal education, and what are the costs of maintaining that status?

Obviously, the federal student loan programs are important to law schools; but, in reality, the Council’s status that provides access to those programs is needed by only seven (by my count) of the approximately 200 ABA-approved law schools. Approximately 185 ABA-approved law schools are part of colleges and universities that have institution-wide accreditation from one of the six regional accrediting organizations recognized by the US DoE to accredit colleges and universities. That institutional accreditation provides access to the loan programs to students in all degree programs at the institution, including the J.D. program.

Of the remaining approximately fifteen “independent” or “freestanding” law schools (a law school with no parent institution), eight appear to have earned their own accreditation from one of these regional associations. That leaves seven schools that depend on the ABA’s US DoE status to provide access to federal student loans for their students.

The Council’s US DoE status is very important for those seven schools, of course. However, as eight or so schools have demonstrated, these schools would have other options if the Council resigned its recognition. Are the costs and burdens of the Council’s status for the Council and all 200 approved law schools worth it if the beneficiaries are seven schools, who have another option that would allow their J.D. students access to the loan programs? Certainly, if the Council takes up the matter of whether to resign its approval, it should consider how a resignation might be arranged so that the seven schools have the time and the opportunity to obtain a different accreditation that would allow their participation in the student loan programs to continue without interruption.

Turning to the costs of the Council’s recognition, they include (a) costs and burdens imposed by the requirement that the Council must conform its Standards and Procedure to the recognition criteria adopted by the US DoE, regardless of their relevance to or potential inconsistency with what a sound J.D. program should require; (b) the time and expense that the Council must invest in monitoring and operating in accordance with the US DoE process; and (c) the time and expense that law schools must invest in operating in accordance with those requirements as they flow through to the schools in the ABA Standards.

From my experience as Managing Director of the accreditation process for the Council, I will attest that it takes more than an incidental amount of staff and volunteer time to (a) stay current with what is going on at the US DoE, and (b) prepare for and undergo a periodic re-recognition review by the US DoE. That review is similar to what law schools experience in the ABA site review process, which now routinely happens every tenth year. The US DoE renewal of authority process routinely happens every fifth year. That five years between US DoE reviews seems to go by in a flash, particularly if the result of a review requires a report back and subsequent appearance, which often happens. Just as you archive one review, it is time to get ready for the next one! For a variety of reasons, some of which are/have been related to the political environment of accreditation, the ABA been a regular target of attack in the US DoE process. Although the US DoE has always renewed the Council’s recognition, the time to respond to these challenges, many of which (in my view) were informed more by op-eds than facts, added to the burden of this process.

At the school level, the time and expense that schools spend on all of the regulation of their activities by the Council, including monitoring and participating in the Council’s work and preparing for and undergoing periodic review, are not insignificant. Disaggregating that time to figure out how much of the burden is driven by the US DoE standards and process would be difficult, but it is certainly more than zero. If a goal of the Council is to require as little of schools as it can to assure that the purposes of the Standards are fulfilled, then removing the impact of this additional process would seem to be helpful.

The recent Executive Order on accreditation provides another reason for the Council to consider resigning its US DoE recognition. A healthy accreditation system should (a) focus on the what an accreditable program must offer and require, and (b) demand considerable transparency to present/prospective students and the public about costs and outcomes. To the maximum extent possible, politics should be removed from accreditation standards and decisions.

I understand that what is an important substantive requirement to one person is a requirement based on politics to another person. So, debates about what programs can offer and what they must provide will be never-ending. But surely, at least in legal education, substance and politics should be separated, to the extent they can be, and substance, not politics, should be the focus of the conversation about what constitutes a sound program of legal education.

Withdrawing from the US DoE process will not end discussions about a number of important matters including diversity and academic freedom, but it might help calm the waters. Certainly, it seems beyond the pale for the President (or the Secretary of Education or the Attorney General) to threaten removal of the Council’s accrediting authority when the Council, having suspended the operation of a current standard about diversity, takes time to make sure that a revised standard both (a) meets the current requirements of the law and (b) recognizes and deals with the historic lack of diversity in the legal profession . Resigning its US DoE accrediting authority will not conclude the matter, of course. At the end of the day, law schools must comply with the law and the Council should not have Standards that require them to do so. Leaving the US DoE will, however, take away one front on which the Council need not fight.

I encourage the Council to start this discussion and hope that many of you will join in it.

Whether or not the Council or some other entity controls and manages the process, it is important to have a national set of standards for the law school J.D. programs. This post explains why and what would be lost without a national system; it also discusses what a more fragmented state-by-state system would likely require. Both the Supreme Court of Florida and the Supreme Court of Texas have started projects to explore this matter. Other jurisdictions may follow suit.

The national impact of the Council’s standards and processes is clear from the data on the source of the legal education of bar applicants present in each of the 56 jurisdictions that license lawyers (50 states, the District of Columbia, and 5 territories), which is released annually by the National Conference of Bar Examiners (NCBE). Each of these jurisdictions accepts the J.D. degree from a law school that the Council approves as meeting the jurisdiction’s legal education requirement, and in many jurisdictions such a degree is required.

For 2024, the most recent year for which data is available, 83 percent of all bar exam takers and 91 percent of bar passers were J.D. graduates from a law school approved by the Council. Excluding takers and passers who received their legal educations outside the United States, 95 percent of takers and 98 percent of passers had a J.D. from a law school approved by the Council. Takers and passers without an ABA-approved J.D. were concentrated in four states (Alabama, California, Massachusetts, and Tennessee), each of which has a special rule for non-ABA law schools located in that state. A few other states allow graduates of one or more of these non-ABA law schools to sit for their exam. These four states were the only jurisdictions with more than 50 bar takers whose legal education was from a law school located in the U.S.

The data show that state supreme courts and state bar admissions processes rely on the Council’s law school approval process. It is fair to say that the responsibility to review and approve law school J.D. programs has been delegated or outsourced to the Council, similar to the way in which the state courts and bar admissions community rely on the NCBE’s work on the bar examination.

The question that is now being asked by the Texas and Florida courts is whether the national scope of the Council’s process is a good thing. For a number of reasons, it is. A national law school approval process is:

1. Better for applicants for admission to law school. Because a J.D. degree from any of the 190+ ABA-approved law schools will meet every admitting jurisdiction’s legal education requirement for admission to practice, applicants to law school can shop for the best legal education program for them (program and price) anywhere in the U.S.

2. Better for graduating law students and recent law graduates. As law students approach graduation and the start of their careers as lawyers, they can look for employment anywhere in the U.S. because the ABA-approved law school J.D. is an acceptable legal education credential for admission in every state. Students frequently are not certain where they might want to practice law or where there opportunities might be. Planning a course of study is more difficult, for sure, if the student must take a number of jurisdictions’ degree requirements into account.

3. Better for employers of graduating law students and recent law graduates. Because a J.D. degree from any of the 190+ ABA-approved law schools will meet every admitting jurisdiction’s legal education requirement for admission to practice, those who hire recent law graduates benefit by being able to draw from a larger national pool of law graduates, without concern about whether the particular person meets the local standards for admission to practice.

4. Better for law schools. But for a national law school approval process, law schools would have to monitor the admissions rules of every jurisdiction and adjust their curriculum and program requirements to satisfy all those jurisdictions where graduates might wish to be admitted.

5. Better for state courts and bar admissions processes. Whether or not each state would need or choose to adopt a comprehensive set of particular standards and establish annual reporting and periodic inspection processes similar to the Council’s process, if a national system fragments, then each jurisdiction would need to have some structure to provide this function itself. That would require at least some staff, some infrastructure, and some volunteer time. Duplicating 50+ times what the Council does is not the most effective and efficient way to do this work.

6. Better for the public. The public benefits for all of the reasons set out above. A fragmented system, as discussed below, would be more expensive, and certainly more confusing, than a national system.

The Association of American Law Schools (AALS) outlined these and other reasons why a national system for approval of the J.D. degree makes sense in a helpful statement, The Critical Importance of National Accreditation of Law Schools, released in April 2025. While it is true that Council’s process is a national one, the AALS statement may overstate the point about its entrenchment. The ABA played a central role in the evolution of modern legal education by adopting professional standards for law schools more than 100 years ago and by establishing the Committee on Legal Education and Admissions to the Bar, the first formal section of the ABA. In the early years the ABA rules stood alongside state rules that prescribed the education needed for bar admission; ABA approval was a mark of distinction, perhaps, and useful to the schools but it was not always required.

Courts’ reliance on the Council’s process grew in the post- World War II period to be as pervasive as it is today, as courts recognized that the law degree conferred by a school approved by the Council would be sufficient proof of a satisfactory legal education for a new lawyer without further inquiry by the court or the bar examiners. The Florida Supreme Court’s order, for example, reports that the Council’s approval became the exclusive method to satisfy the legal education leg of its bar admissions rule in1992. The Texas court’s order states that its delegation of authority to the ABA/Council rules and process occurred in 1983. Also important to note, the process changed from being one where the approval of schools was under the authority of the larger ABA to one under the separate and independent authority of the Council.

Criticism of the Council’s standards and process have and continue to come from several vantage points. Among the concerns expressed in recent years about the Standards are: lack of required skills/practical training; limitations on distance learning; inflexibility of the terms and conditions of employment of faculty (some wanting more and some wanting less protection); over reliance on inputs (credentials of students, books in the library, facilities) and too little focus on outcomes (bar passage rates, assessment of learning outcomes, job placements); and too much focus on diversity.

It is the last point that may have been the basis for the recent orders to study the matter issued by the courts in Florida and Texas. The current process is managed by the Council, but that does not have to be the case. Many critics of the current system are critical of the larger ABA, as much or moreso than the Council. For them, the fact that the Council is within the ABA is the problem, or at least part of the problem. That may be true in some respects (perhaps the subject for a subsequent post), but the facts are that, for its accreditation work, the Council operates separately and independently of the larger ABA. The Council, not the larger ABA, establishes the standards and controls whether a law school is or remains approved. A Council process controls election of Council members. The Council sets the fees that law schools pay for its accreditation work, and the revenue those fees generate is earmarked for the Council’s accreditation work. The ABA House of Delegates, the larger ABA’s governing body, plays only a limited role in the setting of the Standards. The House is given the opportunity to concur in the adoption of a standard approved by the Council. The House cannot propose, adopt, or amend a standard on its own motion. If the House does not concur, the matter is referred back to the Council. If that non-concurrence and reference back happens twice and the Council once more affirms its decision to adopt or amend a standard, the Council’s action stands. The House of Delegates also has zero say in the approval, removal of approval, or sanctioning of a particular law school.

There is little doubt that the public interest – national, state, and local – is well served by a national law school approval process, but only so long as the rules and procedures that the Council puts in place are appropriate and the standards and processes overall have the respect of the stakeholders in the process. A number of fundamental questions present themselves. Should the Council resign its US DoE recognition while continuing its “approver” function? Should the law school approval process move out of the ABA, seeking a new home or becoming an independent entity. Should there be a new or an additional “approver”? How, if at all, should the composition of the Council or its governance process be changed? None of these changes would be easy or quick, but given the importance of our law schools and legal education programs to the legal profession and our legal system, nothing should be off the table, including staying with the current structure and continuing to work on the standards and process, which have served us reasonably well over the decades.

In this work, it will be very important to engage the state supreme courts more deeply than has been the case in my experience. Given their responsibility to manage the bar admission process, they are, in truth, the Council’s primary stakeholder. The establishment of the Committee on Legal Education and Admissions Reform (CLEAR) by the Council of Chief Justices and the recent projects in Texas and Florida are evidence of this fact. There is a lot of work to be done by the Council, the courts, and the law schools to figure out what changes, if any, are needed to assure that this legal education piece of the making of a lawyer works well as it should.

The study of law has been part of the academy from the academy’s earliest days. But in addition to this role as part of an academic enterprise, today’s law schools need to be understood as one of the fundamental building blocks of the legal system. The matters discussed here should be considered in the broader context of what the largely self-regulating legal profession can and should expect law schools to be and to accomplish. Subsequent posts will dive into these issues.

Though the path is neither clear nor direct, legal education continues to get better. Among the positive improvements during my professional life are: (a) an increased focus on outcomes and assessment; (b) the development of clinical and skills training programs; (c) vastly improved legal writing education; (d) acceptance of new pedagogies, including distance learning; (e) internationalization of the law school environment, both the students and curriculum; (f) interdisciplinarity in the law school; (g) development of non-J.D. and specialty programs (MLS, LLM, certificates); (h) attention to professional formation and development; (i) improved transparency and the required disclosure of consumer information; (j) and, importantly, increased diversity of the student body and the faculty.

We are blessed to have many bright and committed persons among us, assuring that both constructive criticism and progress will continue. As lawyers committed to the rule of law, changes should always be informed by and based on facts and a robust understanding of those facts. So, it is important to assess how fact-based and informed President Trump’s recent Executive Order, Reforming Accreditation to Strengthen Higher Education, is as applied to the accreditor of law school J.D. programs. That accreditor is the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association (“Council”).

Three important facts:

1. The Council’s “approver” function. Admission to the practice of law is a matter for each state to determine, for the most part under the jurisdiction of the state supreme court. Generally, bar applicants must have a J.D. degree from a law school approved by the Council.

2. The Council’s “accreditor” function. The United States Department of Education (“US DoE”) recognizes the Council as an accrediting agency for “first professional degrees in law” (the J.D. degree). It is the only accreditor recognized for this purpose.

3. The approver role is more important than the accreditor role. The Council could resign or lose is US DoE accreditor status with little to zero meaningful impact on its “approver” role.

President Trump’s Executive Order accuses accreditors of both failing in their responsibilities and abusing their authority. It states that accreditors have failed their responsibility to accredit only institutions that are worthy by accrediting programs that are “low-quality by the most important measures” of institutional success. The measures cited are graduation rates and the return on investment (ROI) to the institution’s students. The abuse of authority described is the “improper [focus] on compelling adoption of discriminatory ideology, rather than on student outcomes.”

The facts do not support the conclusion that the Council is failing in its responsibilities as an accreditor of J.D. programs if important measures of its work are the graduation rates of J.D. students and their ROI on the cost of the degree. Regarding graduation rates, the Council tracks and reports attrition and bar passage. Attrition is low. For 2024, the latest data reported, aggregate academic attrition for 1L students (where most academic attrition occurs) enrolled in ABA-approved law schools was in the range of three percent (3%) for all ABA-approved law schools. Just 14 of 195 schools had a rate higher than 10 percent. A high percentage of J.D. graduates subsequently sit for a bar exam. Bar passage data is one good way to measure the quality and success of J.D. programs. The 2024 bar pass data reported by law schools and published by the Council showed that the aggregate first-time bar pass rate for ABA-approved law schools was 83 percent and the “ultimate” (two-year) pass rate was over 90 percent. ABA Standard 306 (Bar Passage) requires a school to maintain an ultimate pass rate of at least 75 percent. In this most recent report. Only six of 195 schools did not meet that standard for 2024 (two in Puerto Rico, two in California, and two others). Given the data, there is no basis for the suggestion that the Council is failing its responsibilities monitoring whether J.D. students successfully complete their education programs.

Assessing the ROI for a J.D. education is a murkier and more difficult undertaking. The ROI obviously depends on the measuring period. The shorter the period, the lower the ROI will be. This is particularly relevant in the law space where graduates’ incomes and salaries tend to rise significantly over the course of a career. That said, the J.D. is an expensive degree, which many students finance with a federal student loan. The public discussion on this topic often highlights and compares law school debt at graduation and starting salaries. The longer-term data is much harder to collect and meaningfully analyze. That said, there is little, if any, evidence that anything approaching 40 percent of J.D. graduates are “financially worse off and in enormous debt” because they were “charged … exorbitant sums for a degree with very modest earnings potential,” as the Executive Order suggests is true for master’s degree programs generally. The attack on accreditors, however off the mark it might be generally, is certainly not a fair way to characterize the Council’s standards or the application of those Standards to the schools it accredits.

It is also incorrect to suggest that the Council is “abusing [its] enormous authority” by improperly “compelling adoption of discriminatory ideology, rather than [focusing on] … student outcomes.” The facts do not support a conclusion that the Council is not focused on student outcomes. The Council has long required reporting on attrition, bar passage, and employment outcomes, and publishes this information. The Council has taken significant steps in recent years to require schools to identify and publicize learning outcomes for its curriculum and requires schools to use the data generated to assess the success of the curriculum and needed improvements.

The Council does have standards relating to diversity and equal opportunity, including Standards 205 and 206, versions of which have been in the ABA Standards for many years. Data about the legal profession shows that it is not very diverse by race, gender or ethnicity, whether measured by the population generally, college graduates (because a college degree is a law school admission requirement), or the learned professions and others that require advanced study generally. Most would agree that more diversity in legal profession and our justice system would be beneficial to society and would add to the respect all of us should have for the rule of law and the system that undergirds it. Further, all law students’ educations are better for having classmates and instructors with diverse backgrounds and experiences. My own experience confirms this. At its core, these considerations have been and remain the focus of the Council’s approach to diversity. To understand how law schools, as the gateway to the profession, are doing in helping us achieve the goal of having a legal profession and a justice system that the community accepts and supports, the Council collects and reports data about diversity. As the saying goes, how do you know how well you are doing if you don’t measure it?

The Executive Order goes beyond these basic and seemingly non-controversial facts by asserting that the commitment to having a diverse environment and the collection of data constitute a “discriminatory requirement [that] blatantly violates” the Supreme Court’s recent Students for Fair Housing, Inc. v. President and Fellow of Harvard College decision. This Executive Order comes on the heels of a letter to the Council from Attorney General Biondi that threatens “every action necessary to prevent further abuse” if the Council does not “[repeal] immediately” provisions in the Standards that are “deeply problematic” and that “put law schools to a choice between compliance with the law and compliance with the …. standards….” “Deeply problematic” is not the same thing as unlawful or unconstitutional. Nor should it matter that Ms. Bondi or President Trump would have made different choices were they voting members of the Council. The question is whether the Standard as written or as it may be revised violates the Constitution and applicable case law.

The Council recognized the need to review and revise current Standards 205 and 206 some time ago, going back to the time when I was serving as the Council’s Managing Director. The Council has been working diligently on this project. Meanwhile, in light of the recent Supreme Court ruling, the Council suspended the operation of Standard 206 to make clear that no school is required to violate the Constitution to retain its approval by the Council. That was not enough for our Attorney General, apparently.

The Council’s belief itself that diversity matters to the quality of a student’s education and to the health of our profession and the legal system certainly does not violate the Students for Fair Admissions decision. If the question is the simple and straightforward one of whether having a diverse profession or a diverse law school is a good or a bad thing, the answer to that cannot be that it is a bad thing or that it is irrelevant. If the answer is that it would be a good thing to have diversity in the law schools and in the profession, then the question becomes how to get there. This is what the Council’s current process is aiming to map out. Section 2 of the Executive Order is premature if it means to say that the Council is failing to meet the relevant US DoE recognition criteria or violating federal law by “requiring institutions … to engage in unlawful discrimination” right now. The Council has said that no school will be required to violate the law to retain its accredited status and has backed up that statement by suspending the relevant standard until it can finish the work of revising it. It should be noted that no law school has lost its accreditation or, to the best of my recollection, been sanctioned or put on probation for being out of compliance with that Standard.

Whatever merit the Executive Order might have with respect to the work of the US DoE or other accreditors, it is off base in suggesting that the Council has behaved irresponsibly or that has abused its authority, and it was unfortunate that the Council’s process was called out by President Trump’s Executive Order when the facts show otherwise.

Finally, the Executive Order cites the fact that the Council is the only agency recognized to accredit J.D. degree programs, but that is beside the point for two reasons. First, there is nothing to prevent other accreditors – existing or new – from seeking to be recognized to accredit J.D. degree programs and no prohibition on the US DoE recognizing more than one such accreditor. There are certainly barriers to entry, including the time and expense that any new accrediting organization would need to invest to gain recognition. Secondly, unless and until another accreditor could provide the assurance that J.D. graduates of programs it accredits would be allowed to sit for bar examinations around the country, another accreditation does neither a law school nor its graduates any meaningful benefit, including the benefit. One such benefit to a law school would be the opportunity to resign its approval by the Council, which it might do because it objects to some of the standards the Council requires it to meet, or finds the Council’s process too confining, too cumbersome, or too expensive. Again, it is the “approver,” not the “accreditor” role that gives the Council the authority over legal education that it has.

The Council should continue its work on the Standards relating to diversity. The US DoE and the Attorney General should let the Council finish that work without the threat of legal action or removal of its status as an approved accrediting agency. Whether the Council should choose to continue to be a US DoE recognized accreditor, rather than continuing solely as the national “approver” of J.D. programs in the bar admissions process is a topic for another post.

Welcome to Legal Education Matters. This substack will report developments and issues in legal education taking place in law schools and the broader legal education space. I will advocate for change where needed and argue for continuity when that might be the better course of action. All of this with the aim of supporting legal education programs that work well for students, serve well their important roles in our justice system, and help advance the rule of law here and around the world.

I arrive at this undertaking having been a law student, lawyer, law teacher, law school dean, and long-time participant in the regulation of law schools and legal education. I have worked at law schools in both large public university and smaller college settings. I have worked in both the traditional and for-profit higher education sectors. I have worked at both ABA-approved and non-ABA-approved law schools. My final post was serving as the Managing Director of Legal Education and Accreditation at the American Bar Association, with responsibility for the operation of the ABA law school accreditation process. I was grateful for that opportunity, which gave me a unique perspective on the legal education and bar admissions landscape in the United States.

I welcome your comments, suggestions, and critiques.