Marilyn Odendahl for www.theindianalawyer.com

After opening its doors and accepting its first class of students in August, Indiana Tech Law School has begun the process of applying for accreditation, a critical step that could determine whether the institution will be able to continue to attract and accept students.

Securing accreditation is a long and arduous process that spans several years and requires schools to prove that they meet the minimum standards as set by the American Bar Association Council of the Section of Legal Education and Admission to the Bar for providing a sound course of study that will prepare graduates to practice law.

Alexander Alexander
Indiana Tech Law School sent a letter in March notifying the ABA of its intent to seek accreditation and will submit a self-study in August which will explain what the school is about, where it wants to go and what challenges it faces. If the school does well it could have provisional approval by the end of the spring 2015 semester.                                                                                      

Peter Alexander, dean of the Indiana Tech Law School, applauds the ABA accreditation standards and believes the process should be robust.

“I’m glad for the rigor,” Alexander said. “It causes you to be your very best.”

The ABA council has been criticized for approving new law schools at a time when the legal profession is contracting and students are graduating with debt that many will struggle to repay. In addition, the accreditation standards have been accused of stifling innovation and hindering schools from experimenting.

Without a stringent accreditation system, said retired Indiana Chief Justice Randall T. Shepard, academic standards at law schools would plummet. Indiana could even see the clock turned back to a time when all kinds of proprietary schools offered legal education.

Randall Shepard Shepard
Yet, he does see reason for giving schools a little maneuvering room to implement different models of education.

Shepard has served as chair of the ABA’s Section of Legal Education and Admissions to the Bar and was a member of ABA’s Accreditation Policy Task Force.

Most recently, he chaired the ABA’s Task Force on the Future of Legal Education which took a sweeping view of how law schools prepare students to be attorneys. One of the aspects the task force reviewed was the accreditation standards.

The task force found a need to ease the uniformity among law schools. In particular, it suggested the ABA Section of Legal Education modify or eliminate standards that constrain law schools from innovating.

As an example, Shepard pointed to the requirement that full-time faculty teach the bulk of the credit hours. Revamping that standard to allow adjunct faculty to teach more classes would be worth trying, he said.

Meeting the standards

Over the last 10 years, the ABA Council has approved 11 new law schools and granted provisional approval to two.

One denial of a provisional accreditation made headlines when the institution, Lincoln Memorial University’s Duncan School of Law in Tennessee, filed a lawsuit against the ABA. The school has since dropped the legal action and reapplied for approval.

Having ABA accreditation is vital since many states, including Indiana, only allow graduates of approved law schools to sit for the bar exam. However, law school deans note an equally important factor is the prestige that comes with accreditation.

“I think being ABA accredited gives the public confidence the education they’re going to receive is high quality and subject to peer review,” Alexander said. “This is a good thing.”

University of California, Irvine School of Law is undertaking the process of getting accredited even though graduates of unaccredited law schools can take that state’s bar exam. The school opened in 2009 with a class of 60 and was granted provisional approval in 2011.

chemerinsky-ewrin.jpg Chemerinsky
The ABA endorsement is necessary, said Dean Erwin Chemerinsky, to give the school prestige and help position it as a Top 20 institution. Still, going after accreditation did pose a risk. If UC Irvine School of Law had been denied provisional approval, its graduates would have been prohibited from sitting for the bar, he said.                                                                                                         

In 2008, the ABA Council launched a comprehensive review of its “Standards for the Approval of Law Schools.” The purpose, according to a memo from the chair of the council, was to step back and look at the standards as a whole to see if they were appropriate and able to ensure a sound educational program that would prepare law school graduates for the legal profession.

The ABA Council released its proposed changes in mid-March. Many of the recommendations tweaked technical issues, but other suggestions were significant. The council could not reach a consensus on adjusting the tenure requirement but did give a push to hands-on learning by calling for an increase from one credit hour to six credit hours and allowing students to receive academic credit for paid externships.

“If we don’t have the standards right, then shame on us because we got the right people at the table,” said Barry Currier, managing director of accreditation and legal education with the ABA. “There is a need for fair and appropriate standards to protect the interests and needs of the students and the public.”

Innovating without fear

Kyle McEntee, executive director of Law School Transparency, questioned whether the accreditation standards are hampering law schools from implementing reforms that would ultimately lower the cost to students.

He confessed he did not know the answer but maintained that the ABA standards are preventing law schools from being innovative. The ABA “legislating a single model of education” may make new law schools like Indiana Tech hesitant to be too different out of fear they won’t be accredited, McEntee said.

At UC Irvine School of Law, Chemerinsky said the standards have not been limiting. The school has “created a very innovative” curriculum for first-year students along with implementing other cutting-edge programs for the second- and third-year students.

“The innovations that they prevent – a small faculty and a large number of adjuncts, education primarily through distance learning and a two-year JD – are undesirable in terms of training lawyers,” Chemerinsky told Indiana Lawyer. “I cannot identify a single innovation that we have considered where the ABA rules were a problem in any way.”

Alexander hinted at a need for rethinking the standards to meet the changing uses of law degrees. He pointed to statistics which estimate that 10 percent of law school students say they have no intention of practicing law.

The ABA standards are geared to teaching students to serve clients in the traditional manner. Alexander proposed that as people look at a law degree as a gateway to other things, the ABA should relax some of its requirements.

Curbing costs

While presenting his task force’s findings in North Carolina, Shepard was asked about a common criticism of the accreditation process – why is the ABA approving new law schools when the economy is bad for lawyers?

Shepard answered with three words: “Sherman Antitrust Act.” The ABA would violate the act if it decided not to approve a school because it believed there was already too much competition.

Currier concurred, saying the ABA Council does not police and ration openings of new law schools. Instead, the council sees if the school meets the standards that will constitute a sound legal education.

McEntee holds a different view.

“I think we need more law schools,” he said. “It would increase competition on price and force schools to serve their local communities instead of trying to compete nationally.”•

The accreditation process

The American Bar Association Council of the Section of Legal Education and Admission to the Bar sets the minimum education standards for U.S. law schools, reviews the schools’ programs for compliance and approves or denies accreditation.

To gain provisional approval, new law schools must put together an exhaustive self-study and complete a site evaluation questionnaire.

Next, a site evaluation team will visit the institution for three days to observe classes and interview faculty, students and university officials. It will submit its findings to the ABA’s accreditation committee.

The committee will then hold a hearing at which representatives of the new law school will appear. The school must show it is in substantial compliance with each of the standards and must present a plan for becoming fully compliant within three years after receiving provisional approval.

If the accreditation committee finds the school meets the requirements, it will recommend provisional approval. If the accreditation committee determines the school is deficient in meeting the standards, it will recommend against provisional approval. The school then has the option of addressing the problems and reapplying.

With provisional accreditation, the school is entitled to all the rights of fully approved schools and its graduates are entitled to the same recognition that is given to graduates of fully approved schools.

A school with provisional approval has three to five years to gain full approval. During this period, the site evaluation team will continue to visit the campus to monitor the school.

The ABA Council makes the decision for granting full approval based on the findings and conclusions of the accreditation committee. Once the council gives full approval, the decision is final and effective immediately.•