In October 2015, Law School Transparency published an investigation into falling enrollment and admissions standards at dozens of law schools. We concluded that a minority of schools made unethical admissions decisions in response to budgetary pressure; that the ABA standards were ill-equipped to handle these exploitative choices; that the ABA should immediately enforce Standard 316 and Standard 501; and that the ABA should revise these standards to better protect students and the public.
The Council for the ABA Section of Legal Education & Admissions to the Bar admirably responded to charges of poor oversight at its December 2015 meeting, where it directed the Standards Review Committee to propose new standards. In 2016, all views were aired and discussed, often on multiple occasions, at Council meetings, at Standards Review Committee meetings, and through a public notice and comment period, where several dozen comments were received and reviewed. At the August 2016 meeting, the Council voted overwhelmingly by voice vote in favor of revisions to both Standard 316 and Standard 501. On February 6, 2017, the ABA House of Delegates will vote to ratify the revised standards or send them back to the Council for further consideration.
With the impending vote, and much angst from those the ABA regulates, we feel it's time to provide several updates for public consideration. Additional admissions and bar passage data have emerged that reaffirm our calls for law school accountability and the Council's appropriate action.
Our earlier investigation relied on incoming student LSAT scores to accuse law schools of exploitative admissions practices. Dozens of law schools instituted these practices to keep the doors open. We were not focused on protecting consumers of legal services—that's a task for state bar authorities—but on stopping law schools from setting well-meaning students up to fail. We hold law schools to an especially high standard because failure comes at quite a price to students and their communities, from astonishing debt to critical time out of the labor market. Moreover, the legal profession is central to a functioning society. Demand for law school has fallen because law schools grew too large and too pricey. Society needs law schools that produce lawyers who can flexibly respond to affronts to political norms and the rule of law, not schools mired in scandal.
The LSAT helps predict what's to come on the bar exam. While individual results vary, students with very low LSAT scores do worse on average on the bar exam than students with middling or high LSAT scores. At publication in 2015, we had limited bar pass data, but the admissions data foretold disaster. Since then, bar results across the country confirm those predictions, and we still expect the worst to come.
In 2015, we examined 197 ABA-approved law schools primarily using data from 2010 and 2014. At the time, there were 26 "extreme risk" and 19 "very high" risk schools based on 25th percentile 1L LSAT scores, up from four in each category in 2010. Students in the bottom quartile at these schools face a substantial chance of not completing school or passing the bar. Two years later, with seven additional law schools measured, there are four fewer extreme risk schools (22), but ten more very high risk schools (29). One in four law schools had gone too far in 2016, enrolling large numbers of students likely to fail.
Despite falling bar passage rates, increased attention on admissions standards, and a regulatory body poised to act, several dozen schools have refused to self-correct. Any doubt that these schools were intentionally gambling with real lives has dissipated, as ignorance is no longer an excuse, if it ever was.
At the extreme risk schools in 2016, enrollment declined, often substantially, at all but three of the schools compared to 2014. Nevertheless, admissions standards further eroded. Even the few schools that improved standards did not manage to raise standards enough. As such, it appears the vicious cycle will continue for these schools in the coming years.
The story is not much better at the very high risk schools, although their students are marginally better-positioned for bar success than their extreme risk peers. Admissions strategies at these schools, however, are a mixed bag. About a third of the very high risk schools increased their 25th and 50th percentile LSAT scores between 2014 and 2016. Only two of these schools increased enrollment (by 6 and 16 students, respectively), while the others decreased enrollment by more than 23% on average. The remaining very high risk schools were split. Half decreased 25th and 50th percentile LSAT scores; half saw no change. About half of these schools increased enrollment, with the other half decreasing enrollment.
The LSAT, again, does not foretell every student's future. But it does signal that bar passage rates, at least at these problem schools, will either fall or remain low.
The ABA Standards, in theory, have a way to protect consumers and the public from reckless admissions standards and very low bar passage rates. Unfortunately, the current bar passage standard is inadequate—too difficult to fail and riddled with loopholes. In fact, the ABA has never found a school out of compliance with Standard 316's bar passage requirements, even though there are several schools with bar pass rates below 50% for consecutive years.1 That is why the ABA Section of Legal Education acted to tighten the standard, delivering a strong message that exploitation will not be tolerated.
Proposed revisions to Standard 316 significantly simplify and strengthen the current standard, closing several of the loopholes available under the current standard and its interpretations. It is a consumer protection measure designed to ensure that law schools adequately prepare students for entry into the profession. Revisions to Standard 501 likewise strengthen the current standard by providing an objective measure by which to test whether a school has enrolled students who were not capable of completing school or passing the bar. These standards work in concert to encourage schools to manage enrollment fairly.
Given the cost of obtaining a legal education, it's reasonable to expect that 75% of a school's graduates that take the bar, pass the bar within two years. If anything this expectation is too low. Nevertheless, that there are more than a couple of law schools that would struggle to meet the standard is a new problem. Just three years ago, six domestic law schools would have been at risk of failing the new standard. Two would have almost certainly failed the new standard if it had been in effect. The remaining four would have had a reasonable chance of passing with some combination of increased attention to bar prep and slightly more aggressive academic attrition.
The story is much different today. Several dozen law schools would need to make modest to substantial changes to pass the new standard. This is precisely the point of the revised standards: change exploitative behavior. As critics of the new standards point out, the new standards would cause some low-performing schools to close. But if a school cannot survive without exploiting a large number of students, it should not survive. For the students who would have attended these schools and had a reasonable chance at passing the bar, they will find another law school to attend. For the others, they will be better served by not attending law school.
Many of the law schools we are most concerned with are placing a bet that the profession, accreditors, and government will stand idly by. As these updates show, the very high and extreme risk schools are headed in the wrong direction. Holding them accountable through smarter accreditation standards will right their path.