[Federal Register Volume 60, Number 238 (Tuesday, December 12, 1995)]
[Notices]
[Pages 63766-63863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28678]




[[Page 63765]]

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Part III





Department of Justice





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Antitrust Division



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American Bar Association; Response of the United States to Public 
Comments; Notice

  Federal Register / Vol. 60, No. 238 / Tuesday, December 12, 1995 / 
Notices  

[[Page 63766]]


DEPARTMENT OF JUSTICE

Antitrust Division


United States v. American Bar Association Civ. No. 95-1211 (CRR) 
(D.D.C.,); Response of the United States to Public Comments

    Pursuant to Section 2(d) of the Antitrust Procedures and Penalties 
Act, 15 U.S.C. Sec. 16(d), the United States publishes below the 
written comments received on the proposed Final Judgment in United 
States v. American Bar Association, Civil Action No. 95-1211 (CRR), 
United States District Court for the District of Columbia, together 
with the response of the United States to the comments.
    Copies of the written comments and the responses are available for 
inspection and copying in Room 207 of the U.S. Department of Justice, 
Antitrust Division, 325 7th Street, NW., Washington, DC 20530 
(telephone: (202) 514-2481) and for inspection at the Office of the 
Clerk of the United States District Court for the District of Columbia, 
Room 1825A, United States Courthouse, Third Street and Constitution 
Avenue, NW., Washington, DC 20001.
Rebecca P. Dick,
Deputy Director of Operations.

In the United States District Court for the District of Columbia

    United States of America, Plaintiff, v. American Bar 
Association, Defendant. Civil Action No. 95-1211 (CRR).

United States' Response to Public Comments

    Pursuant to the Antitrust Procedures and Penalties Act (``APPA'' or 
``Tunney Act''), 15 U.S.C. 16 (b)-(h), the United States is filing this 
Response to public comments it has received relating to the proposed 
Final Judgment in this civil antitrust proceeding. The United States 
has carefully reviewed the public comments on the proposed Final 
Judgment. Entry of the proposed Final Judgment, with some limited 
modifications, will be in the public interest. After the comments and 
this Response have been published in the Federal Register, under 15 
U.S.C. 16(d), the United States will move the Court to enter the 
proposed Final Judgment.
    This action began on June 27, 1995 when the United States filed a 
Complaint charging that the American Bar Association (``ABA'') violated 
Section 1 of the Sherman Act, 15 U.S.C. 1, in its accreditation of law 
schools. The Complaint alleges that the ABA restrained competition 
among professional personnel at ABA-approved law schools by fixing 
their compensation levels and working conditions, and by limiting 
competition from non-ABA-approved schools. The Complaint also alleges 
that the ABA allowed its law school accreditation process to be 
captured by those with a direct interest in its outcome. Consequently, 
rather than setting minimum standards for law school quality and 
providing valuable information to consumers, the legitimate purposes of 
accreditation, the ABA acted as a guild that protected the interests of 
professional law school personnel.
    Simultaneously with filing the Complaint, the United States filed a 
proposed Final Judgment and a Stipulation signed by the defendant 
consenting to the entry of the proposed Final Judgment, after 
compliance with the requirements of the APPA.
    Pursuant to the APPA, the United States filed a Competitive Impact 
Statement (``CIS'') on July 14, 1995. The defendant filed a Statement 
Of Certain Communications on its behalf, as required by Section 16(g) 
of the APPA, on July 12, 1995, and amended its statement on October 16, 
1995. A summary of the terms of the proposed Final Judgment and CIS, 
and directions for the submission of written comments relating to the 
proposal, were published in the The Washington Post for seven days from 
July 23, 1995 through July 29, 1995. The proposed Final Judgment and 
the CIS were published in the Federal Register on August 2, 1995. 60 
Fed. Reg. 39421-39427 (1995). The 60-day period for public comments 
began on August 3, 1995 and expired on October 2, 1995.\1\ The United 
States has received 41 comments, which are attached as Exhibits 1-41.

    \1\ The United States has treated as timely all comments that it 
received up to the time of the filing of this Response.
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I. Background

    The proposed Final Judgment is the culmination of a year-long 
investigation of the ABA. The Justice Department interviewed numerous 
law school deans, university and college presidents, and others 
affected by the ABA's accreditation process. Twenty-seven depositions 
were conducted pursuant to Civil Investigative Demands (``CIDs'') the 
Department issued. In addition, the Department reviewed over 500,000 
pages of documents in connection with this investigation.
    At the conclusion of its investigation, the Department determined 
that the ABA accreditation process and four specific rules arising from 
that process violated the Sherman Act. The Department challenged the 
four rules and, more importantly, the accreditation process itself, and 
it negotiated a proposed Final Judgment with the defendant that 
adequately resolves its competitive concerns. The ABA indicated its 
willingness to reform its accreditation process before the Complaint 
was filed. After preliminary discussions with the Department, the ABA 
began to implement the reforms. The Department, however, insisted that 
the elimination of anticompetitive behavior should be subject to the 
terms of a court-supervised consent decree.
    The focus of this case was the capture of the ABA's law school 
accreditation process by those who used it to advance their self-
interest by limiting competition among themselves and from others. The 
case was not based on any determination by the Department of Justice as 
to what, specifically, most individual accreditation rules should 
provide. The Department is not particularly qualified to make such an 
assessment and has not attempted to do so. The Department concluded 
that the process that had produced the present rules was tainted. The 
appropriate solution--and the relief imposed by the proposed decree--
was to reform the process, removing the opportunity for taint, and then 
to have the cleansed process establish new rules.

II. The Legal Standard Governing the Court's Public Interest 
Determination

A. General Standard

    When the United States proposes an antitrust consent decree, the 
Tunney Act requires the court to determine whether ``the entry of such 
judgment is in the public interest.'' 15 U.S.C. Sec. 16(e) (1988). As 
the D.C. Circuit explained, the purpose of a Tunney Act proceeding ``is 
not to determine whether the resulting array of rights and liabilities 
`is one that will best serve society,' but only to confirm that the 
resulting settlement is `within the reachs of the public interest,' '' 
U.S. v. Microsoft Corp., 56 F.3d 1448, 1460 (D.C. Cir. 1995) (emphasis 
in original); accord, United States v. Western Elec. Co., 993 F.2d 
1572, 1576 (D.C. Cir.), cert. denied, 114 S. Ct. 487 (1993); see also 
United States v. Bechtel, 648 F.2d 660, 666 (9th Cir.), cert. denied, 
454 U.S. 1083 (1981); United States v. Gillette Co., 406 F. Supp. 713, 
716 (D. Mass. 1975.\2\ Hence, a court should not reject a decree 
``unless `it has exceptional confidence 

[[Page 63767]]
that adverse antitrust consequences will result--perhaps akin to the 
confidence that would justify a court in overturning the predictive 
judgments of an administrative agency.' '' Microsoft, 56 F.3d at 1460 
(quoting Western Elec., 993 F.2d at 1577). Congress did not intend the 
Tunney Act to lead to protracted hearings on the merits, and thereby 
undermine the incentives for defendants and the Government to enter 
into consent judgments. S. Rep. No. 298, 93d Cong. 1st Sess. 3 (1973).

    \2\ The Western Elec. decision involved a consensual 
modification of an antitrust decree. The Court of Appeals assumed 
that the Tunney Act standards were applicable in that context.
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    Tunney Act review is confined to the terms of the proposed decree 
and their adequacy as remedies for the violations alleged in the 
Complaint. Microsoft, 56 F.3d at 1459. The Tunney Act does not 
contemplate evaluating evaluating the wisdom or adequacy of the 
Government's Complaint or considering what relief might be appropriate 
for violations that the United States has not alleged. Id. Nor does it 
contemplate inquiring into the Government's exercise of prosecutorial 
discretion in deciding whether to make certain allegations. 
Consequently, a district court exceeds its authority if it requires 
production of information concerning ``the conclusions reached by the 
Government'' with respect to the particular practices investigated but 
not charged in the Complaint, and the areas addressed in settlement 
discussions, including ``what, if any areas were bargained away and the 
reasons for their non-inclusion in the decree.'' Id. at 1455, 1459. To 
the extent that comments raise issues not charged in the Complaint, 
those comments are irrelevant to the Court's review. Id. at 1460. The 
Court's inquiry here is simply whether the accreditation process set in 
place by the proposed decree will cure the taint of self-interest that, 
the Complaint alleges, had infected the process.
    In addition, no third party has a right to demand that the 
Government's proposed decree be rejected or modified simply because a 
different decree would better serve its private interests in obtaining 
accreditation or being awarded damages. For, as this Circuit has 
emphasized, unless the ``decree will result in positive injury to third 
parties,'' a district court ``should not reject an otherwise adequate 
remedy simply because a third party claims it could be better 
treated.'' Microsoft, 56 F.3d at 1461 n.9.\3\ The United States--not a 
third party--represents the public interest in Government antitrust 
cases. See, e.g., Bechtel Corp., 648 F.2d at 660, 666; United States v. 
Associated Milk Producers 534 F.2d 113, 117 (8th Cir.), cert. denied, 
429 U.S. 940 (1976). The decree is intended to set in place a fair 
process that will produce fair results for those seeking accreditation. 
It is not designed to transfer to the Department the process of 
accreditation itself and require the Department to determine who should 
or should not be accredited.

    \3\ Cf. United States v. Associated Milk Producers, Inc., 534 
F.2d 113, 116 n.3 (8th Cir.) (``The cases unanimously hold that a 
private litigant's desire for [the] prima facie effect [of a 
litigated government judgment] is not an interest entitling a 
private litigant to intervene in a government antitrust case.''), 
cert. denied, 429 U.S. 940 (1976).
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    Moreover, comments that challenge the validity of the Government's 
case and assert that it should not have been brought are beyond the 
scope of this Tunney Act proceeding. It is not the function of the 
Tunney proceeding ``to make [a] de novo determination of facts and 
issues'' but rather ``to determine whether the Department of Justice's 
explanations were reasonable under the circumstances'' for ``[t]he 
balancing of competing social and political interests affected by a 
proposed antitrust decree must be left, in the first instance, to the 
discretion of the Attorney General.'' Western Elec., 993 F.2d at 1577 
(internal quotations omitted). Courts have consistently refused to 
consider ``contentions going to the merits of the underlying claims and 
defenses.'' Bechtel, 648 F.2d at 666.

B. Special Commission

    Finally, the fact that the consent decree includes a condition that 
will occur after its entry is not a bar to its entry now. Many courts 
have approved consent decrees requiring defendants, after entry of the 
decree, to take actions that must be approved by the Government or the 
court. For example, courts have entered consent decrees with provisions 
requiring defendants to divest assets within a certain time period 
after entry of the decree to a company approved by the Government and 
requiring the court to oversee divestiture by a trustee if the 
defendant did not meet the divestiture deadline. In United States v. 
Browning-Ferris Industries, 1995-2 Trade Cas. (CCH) para. 71,079 
(D.D.C. 1995) (Richey, J.), this Court entered a decree requiring the 
defendant to divest assets within 90 days after entry, unless the 
Government agreed to a partial divestiture. The decree gave the 
Government authority to determine whether the buyer was a viable 
competitor. Moreover, if Browning-Ferris did not meet the 90-day 
deadline, the Court would appoint a trustee whose activities the Court 
would oversee. Id. at pp. 75,166-67. Several courts have entered very 
similar decrees. E.g., United States v. Baroid Corp., 1994-1 Trade Cas. 
(CCH) para. 70,752 (D.D.C. 1994); United States v. Outdoor Systems, 
Inc., 1994-2 Trade Cas. (CCH) para. 70,807 (N.D. Ga. 1994); United 
States v. Society Corp., 1992-2 Trade Cas. (CCH) para. 68,239 (N.D. 
Ohio 1992) (similar decree provisions); United States v. General 
Adjustment Bureau, Inc., 1971 Trade Cas. (CCH) para. 73,509 (S.D.N.Y. 
1971); United States v. Mid-America Dairymen, 1977-1 Trade Cas. (CCH) 
para. 61,509 (W.D. Mo. 1977) (mandating divestiture within two years 
after entry and allowing Government to object to proposed sale in 
court).
    Other decrees have included conditions that must be implemented 
after their entry. In United States v. Baker Commodities, Inc., 1974-1 
Trade Cas. (CCH) para. 74,929 (C.D. Cal. 1974), the district court 
entered a decree requiring each consenting defendant, within 90 days 
after entry, to independently re-establish its prices and to file with 
the court and the United States an affidavit stating that they have 
complied. Moreover, within two years after entry, defendant Baker was 
required to divest certain interests to a person approved by the 
Government or the Court upon a proper showing by Baker. Id. at pp. 
96,160-61. Finally, if the Government objected to certain future 
acquisitions, then the court would decide the matter, with Baker having 
to show that the acquisition would not substantially lessen 
competition. Id. This is akin to the hearing that could ensue here if 
the Government challenged the Special Commission's revisions as 
antitrust violations.\4\

    \4\ See also United States v. Primestar Partners, L.P., 1994-1 
Trade Cas. (CCH) para. 70,562 (S.D.N.Y. 1994) (decree prohibited 
defendant, after entry, from taking programming actions without 
prior Government approval); United States v. Pilkington PLC, 1994-2 
Trade Cas. (CCH) para. 70,842 (D. Ariz. 1994) (defendants forbidden 
after entry to assert certain patent claims except upon proper 
showing to Government); United States v. Industrial Electronic 
Engineers, 1977-2 Trade Cas. (CCH) para. 61,734 (C.D. Cal. 1977) 
(decree required defendant, within 90 days after entry, to write a 
policy statement approved by Government).
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    In other cases, decrees have required defendants, after entry of 
the decree, to eliminate from their bylaws or codes any sections that 
are inconsistent with the decree. E.g., United States v. American Inst. 
of Architects, 1990-2 Trade Cas. (CCH) para. 69,256 (D.D.C. 1990) 
(Richey, J.); United States v. Hawaii Island Contractors' Ass'n, 1988-1 
Trade Cas. (CCH) para. 68,021 (D. Hawaii 1988); United States v. 
Society of Authors' Reps., 1982-83 Trade Cas. (CCH) para. 65,210 
(S.D.N.Y. 1982). In addition, defendants have been ordered to 
independently re-establish their prices after the decree is entered and 
to file statements with the Government 

[[Page 63768]]
explaining their basis. E.g., United States v. Brownell & Co., Inc., 
1974-1 Trade Cas. (CCH) para. 74,945 (W.D. Tenn. 1974); United States 
v. First Washington Net Factory, Inc., 1974-1 Trade Cas. (CCH) para. 
74,941 (N.D. Ala. 1974); United States v. Capital Glass & Trim Co., 
1973-1 Trade Cas. (CCH) para. 74,388 (M.D. Ala. 1973).

III. Entry of the Decree is in the Public Interest

    Entry of the proposed decree is clearly well within the reaches of 
the public interest under the standards articulated in Microsoft and 
other decided cases. It prevents the ABA from fixing faculty 
compensation and from enforcing its boycott barring ABA-approved law 
schools from offering transfer credit for courses completed at state-
accredited laws schools and enrolling in their LL.M. programs graduates 
of state-accredited law schools and members of the bar. Most important, 
the proposed consent decree ends the capture of the accreditation 
process.
    Much as in most cases, the decree here requires subsequent action 
that does not necessitate delay in its entry. The problem identified in 
the Complaint--the capture of the ABA's accreditation process--has been 
eliminated. Absent that capture problem, the ABA should be allowed to 
set standards in areas principally involving educational policy. This 
Court retains jurisdiction to ensure that the ABA's Special Commission 
does not produce standards that are the product of capture. Nothing 
more is legally required.
    We received over 40 comments, which we have divided into seven 
categories: other accrediting agencies; faculty; university 
administrators; law schools not approved by the ABA; graduates and 
students at non-ABA approved law schools; practicing attorneys; and the 
general public.
    A substantial number of the comments raise educational policy 
questions and are directed to issues outside the allegations in the 
Complaint. For example, they propose the ABA require additional 
clinical education, modify the rules about required seating in the 
library, or use bar passage rates to assess law school quality. Such 
comments, while relevant to educational policy, go beyond the 
allegations in the Complaint. Hence, they are not relevant to the 
Tunney Act proceeding. Other comments criticize the Government for 
bringing suit or argue that the Complaint is not justified. For 
example, the former ABA Consultant on Legal Education contends that the 
ABA has not conspired to fix faculty salaries. But comments about the 
underlying merits and defenses are irrelevant in a Tunney Act 
proceeding, as explained above. In addition, some commentators 
complained about state rules requiring approval from an ABA-accredited 
law school prior to taking the bar examination. Others complain about 
other state government activities. Under Parker v. Brown, 317 U.S. 341 
(1943), such state actions are exempt from antitrust prosecution. Some 
state-accredited law school students and graduates complained about 
ABA-approved law schools denying them transfer credit or refusing to 
admit them to LL.M. programs. The decree stops the ABA from forbidding 
law schools from offering such credit or enrolling these students. But 
the individual decision of whether to do so remains up to the 
individual school.
    Furthermore, some commentators worried that the decree prevents 
accrediting agencies from assessing the quality of educational 
institutions engaging in legitimate accreditation activities. The 
decree is directed only at the activities of the ABA. By preventing the 
ABA from violating the antitrust laws, the decree ensures that the ABA 
will engage in the legitimate accreditation activity of assessing the 
quality of legal education programs. Four accrediting agencies argued 
that the proposed decree is inconsistent with the Marjorie Webster 
decision and that there may be an implied repeal of antitrust 
enforcement because accreditation is regulated by the Department of 
Education. Marjorie Webster Junior College Inc. v. Middle States Ass'n 
of Colleges & Secondary Schools, Inc., 432 F.2d 650 (D.D. Cir.), cert. 
denied, 400 U.S. 965 (1970). But Marjorie Webster itself held that 
antitrust laws would apply to restrictions with a commercial motive and 
practices that fix compensation and enforce a boycott have. In 
addition, the agencies' Marjorie Webster argument goes directly to the 
merits of the underlying claims and defenses, an inquiry that is 
irrelevant in a Tunney Act proceeding, as noted above. Furthermore, 
under the case law, there is no implied repeal and the Department of 
Education has specifically deferred to the Justice Department on the 
antitrust issues.
    The Massachusetts School of Law (``MSL''), a private plaintiff in 
antitrust actions in Pennsylvania and Massachusetts, recommends 
altering the decree, delaying its entry, and requests the production of 
documents from the Government's files. The Government opposes the 
modifications and recommends no delay in entering the decree. Some of 
MSL's comments go beyond the allegations in the Complaint. While MSL 
may believe that its recommended changes are the ones that will ``best 
serve society,'' the issue in a Tunney Act proceeding is only whether 
the settlement is ``within the reaches of the public interest.'' 
Microsoft, 56 F.3d at 1460. No third party may demand that the proposed 
decree be rejected or modified just because a different decree would 
better serve its private interests. We further oppose MSL's discovery 
request, as we believe it is improper to grant discovery collaterally 
in a Tunney Act proceeding to a party whose discovery requests have 
been denied in its own case.
    The parties' agreement that the Special Commission should have the 
first opportunity to report on issues that involve education and 
antitrust policies is a reasonable accommodation. That the Special 
Commission's report, ABA Board approval, and a possible Justice 
Department challenge will occur after entry of the decree is no bar to 
entry of the decree now. The decree prohibits a number of practices for 
which there were no apparent educational policy justifications. The 
accreditation standards on which the Special Commission will report do 
not on their face constitute naked antitrust restraints, but the 
Government seriously questioned the process by which these standards 
were administered. The defendant had taken measures to reform its 
accreditation process before agreeing to the consent decree and 
affording it the first opportunity to address the remaining issues is a 
reasonable compromise. The public has had the opportunity to comment on 
the process and on the subject matter of these issues, although only a 
few chose to do so. The Special Commission's report will be made public 
and third parties will have the opportunity to provide the Justice 
Department with possible objections.\5\

    \5\ Additionally, as part of its supervisory powers, the Court 
could, after entry of the decree, require the parties to report on 
the Special Commission's report.
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    Because the proposed decree is within the scope of the public 
interest, the Court should enter it after the Government's responses to 
the public comments are published in the Federal Register and the 
Government certifies compliance with the APPA and moves for entry of 
judgment.

IV. Response to Public Comments

    This case has generated a large number of comments, despite the 
absence of any apparent organized effort 

[[Page 63769]]
to solicit comments. Because of the number of comments, the Government 
has organized its Response based on the categories of those who 
submitted comments.

A. Other Accreditation Agencies

    The Department received five comments from other accrediting 
agencies and one from an individual who has headed an accrediting 
agency since 1973. These comments are generally critical of the 
severity of the proposed Final Judgment and are concerned with its 
possible effect on the practices of other accrediting agencies.
1-2. The Association of Specialized and Professional Accreditors 
(``ASPA'') (Exhibit 1), and National Office for Arts Accreditation in 
Higher Education (Exhibit 2)
    ASPA is an umbrella organization with a membership of 40 
specialized accrediting agencies (one of which is itself an umbrella 
agency for 17 allied organizations). The National Office for Arts 
Accreditation in Higher Education consists of four separate accrediting 
agencies for schools of art and design, music, theater, and dance. ASPA 
believes that the consent decree could produce ``unintended 
consequences'' for other accrediting agencies by equating the presence 
of expertise in an accreditation area with its automatic capture by a 
vested interest and criticizes the data collection and other 
limitations imposed by the consent decree as unnecessarily restrictive 
or unnecessarily prescriptive. ASPA fears that the requirements of the 
consent decree will create a climate in which fraudulent institutions 
may use ``antitrust terrorism'' against accrediting agencies.
    We share ASPA's concern that this action should not be used to 
diminish accreditation's legitimate role as a guarantee of quality and 
a source of information to the public. The requirements of the proposed 
Final Judgment apply only to the defendant and only for the duration of 
the decree. The terms of the decree are designed to remedy the 
defendant's anticompetitive practices. They are not meant to be a 
generalized prescription for other accrediting agencies.
    The limitations in the decree on the collection and use of certain 
data are directed only to remedy the defendant's conduct. The ABA 
required by law schools to respond to detailed annual and site 
inspection questionnaires that included providing extensive salary 
data. The defendant used the data to raise the salaries of law school 
deans, full-time faculty, and professional librarians during the 
accreditation process. Because of this abuse, the proposed consent 
decree prohibits the defendant from conditioning accreditation on the 
compensation paid professional personnel or collecting salary data that 
could be used to determine individual salaries.
    Nor does the Government seek to discourage the participation of 
individuals with ``professional expertise'' in the accreditation 
process and the consent decree will not have that effect. The defendant 
permitted its accreditation activities, however, to be captured by 
legal educators who used it to advance their own personal interests. 
The proposed consent decree remedies the defendant's abuses. The 
Government is not suggesting it apply to other accrediting agencies 
whose accreditation processes promote quality rather than the self-
interest of a group that controls the process.\6\

    \6\ ASPA questions other specific consent decree provisions, not 
because they are unwarranted in this proceeding, but because their 
application to other accrediting agencies would produce bad results. 
The provisions of the proposed Final Judgment, of course, apply to 
the ABA.
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    ASPA's concern that the proposed consent decree may promote 
``antitrust terrorism'' against accrediting agencies by institutions 
seeking accreditation is unwarranted. This is the first Justice 
Department antitrust case brought against an accrediting agency in the 
105-year history of the Sherman Act. The Government cannot prevent the 
filing of meritless or harassing actions by private institutions, but 
does note that such actions are costly to the plaintiff, and meritless 
actions are subject to court sanctions.
    Finally, ASPA points out that some of the requirements of the 
proposed Final Judgment may conflict with the requirements of the 
Higher Education Act. The Justice Department consulted with the 
Department of Education concerning this objection. Sections VI (C)(1), 
(D)(1) and E(1) of the decree require that elections and appointments 
to the Council, the Accreditation Committee, and the Standards Review 
Committee of the Section of Legal Education and Admission to the Bar 
(``Section of Legal Education'') must be subject to the approval of the 
ABA's Board of Governors (``Board'') for a period of five years. This 
provision appears to conflict with 20 U.S.C. 1099b, requiring agencies 
to be ``separate and independent'' of related trade associations. The 
Department of Education recognizes the Section of Legal Education as a 
specialized accrediting agency for law schools and has determined that 
the ABA is a related trade association from which the Section must be 
``separate and independent.'' Giving the ABA's Board power to 
``approve'' elections and appointments to the Section's Council and 
Committees thus may breach the ``separate and independent'' requirement 
of Sec. 1099b. Consequently, the United States and the ABA have 
proposed to modify the decree by substituting a notification 
requirement in Section VI for the approval requirement.\7\ The parties 
intended that these and other requirements in the proposed consent 
decree would assist in the ABA's oversight of the Section of Legal 
Education's accreditation activities. Changing the approval 
requirements should not impair the ABA's oversight while simultaneously 
ensuring that the requirement of 20 U.S.C. 1099b is not offended.

    \7\ The proposed modification is attached as Exhibit 42.
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    The National Office for Arts Accreditation joins in ABA's comments. 
The National Office is particularly concerned that the Justice 
Department may be setting an inappropriate precedent or providing 
loopholes that may prevent accrediting bodies from working effectively 
with problem institutions. While we are sympathetic to the National 
Office's concern, the Justice Department believes that the remedies in 
the proposed consent decree are directed just to the facts in this 
case, not to the activities of other accrediting agencies. The 
Department does not believe that effective antitrust enforcement--which 
requires entry of the relief in this case--is at all incompatible with 
quality accreditation.
3. Association of Collegiate Business Schools and Programs (``ACBSP'') 
(Exhibit 3)
    ACBSP has 500 business school members and is one of two accrediting 
agencies in the business school area. ACBSP commented that a number of 
States require that their state business schools must obtain 
accreditation from the other business school accrediting agency, 
thereby locking out ACBSP. The actions of States are exempt from the 
antitrust laws under the ``state action'' doctrine announced in Parker 
v. Brown, 317 U.S. 341 (1943), and its progeny. Consequently, the 
activities ACBSP complains of are beyond the reach of antitrust 
enforcement and outside of the matters in the Complaint.
4. American Library Association (``ALA'') (Exhibit 4)
    The ALA commented on two points: the size and composition of 

[[Page 63770]]
    accreditation site inspection teams; and the proposed consent decree's 
effect on accreditation agencies' functions. Without citing specific 
examples, the ALA believes that the remedies in the consent decree are 
overly prescriptive and may promote a bureaucratic and regulatory 
environment antithetical to the analysis and accreditation of higher 
education. The consent decree should not affect the composition of ALA 
accreditation teams or its accreditation practices. The decree is 
designed to ensure that the accreditation process proceeds on the basis 
of legitimate academic concerns; the decree does not confine or 
constrain the process in any other way.
5. Bernard Fryshman (Exhibit 5)
    Dr. Fryshman has headed a nationally-recognized accrediting body 
since 1973 and has been very active in the accreditation field.\8\ Dr. 
Fryshman's principal point is that the cooperative nature of higher 
education is intended to produce different bottom-line results than 
commercial enterprises. Accordingly, Dr. Fryshman believes that higher 
education should not be judged under antitrust standards. In his wide-
ranging comment, Dr. Fryshman appears to question the applicability of 
the antitrust laws to any of the defendant's practices challenged in 
this action, including the imposition of higher salaries. Dr. Fryshman 
suggests a review of the corrective actions in the proposed consent 
decree.

    \8\ We believe that Dr. Fryshman's agency accredited rabbinical 
and Talmudic schools.
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    Admittedly, higher education differs in some important respects 
from commercial enterprises; but it is a significant and growing part 
of the national economy. While this Circuit has held that the antitrust 
laws do not apply to the ``non-commercial'' aspects of post-secondary 
accreditation, Marjorie Webster, 432 F.2d at 650, the efforts of an 
accrediting agency to fix the salaries and perquisites of professional 
staff and engage in other guild activities unrelated to quality 
assurance are clearly commercial activities that restrain trade. We 
agree with Dr. Fryshman that it is ``inappropriate for government to 
determine how lectures are to be delivered, what books are to be read 
and what facilities are appropriate,'' but disagree that antitrust 
enforcement has no role in eliminating anticompetitive distortions of 
the process.
6. Accrediting Bureau of Health Schools, Accrediting Council of 
Continuing Education and Training Accrediting Council for Independent 
Colleges and Schools, and National Accrediting Commission of 
Cosmetology Arts and Sciences (``Four Agencies'') (Exhibit 6)
    These Four Agencies have filed a joint comment and request a 
hearing concerning possible modification and entry of the proposed 
Final Judgment. The Four Agencies suggest that the proposed consent 
decree is inconsistent with the Marjorie Webster decision and that 
there may be an ``implied repeal'' of antitrust enforcement in this 
area because accreditation is regulated by the Department of Education. 
The Four Agencies request that Section XI(C) of the proposed Final 
Judgment be amended by adding: ``Nothing in this judgment shall be 
construed to modify any of the provisions of the Higher Education Act 
of 1965, as amended, or any of the regulations adopted pursuant 
thereto, or any existing law concerning the recognition of private 
accrediting agencies, or the activities of such agencies relating 
thereto.''
    This Circuit's decision in Marjorie Webster does not prevent the 
Court from finding entry of this proposed consent decree is in the 
public interest. In Marjorie Webster, the Court held that an 
accrediting agency's refusal to accredit a junior college solely 
because it was organized as a for-profit corporation did not violate 
the antitrust laws because the Sherman Act does not apply to the 
noncommercial aspects of the liberal arts.\9\ The Court noted that 
antitrust policy would be applicable to restrictions that had a 
commercial motive. 432 F.2d at 654-55.\10\

    \9\ In reaching its decision, the Court doubted that Marjorie 
Webster ``will be unable to operate successfully * * * unless 
considered for accreditation,'' 432 F.2d at 657; Marjorie Webster 
has since passed from existence. The Court also noted that the 
defendant did not possess monopoly power over accreditation, 
something the ABA clearly possesses in the 42 States where 
graduation from an ABA school is a prerequisite to taking the bar 
examination.
    \10\ In fact, in a civil antitrust action, liability may be 
shown by proof of either an unlawful motive or an anticompetitive 
effect. United States v. United States Gypsum Co., 438 U.S. 422, 436 
n.13 (1978).
---------------------------------------------------------------------------

    An institution's form of organization should not be the basis for 
totally excluding it from an industry,including the provision of a 
legal education. Significantly, the ABA eliminated its Accreditation 
Standard 202, which denied the accreditation of for-profit law schools, 
during the Justice Department's investigation. In its enforcement 
activities in industries in which some competitors are organized as 
not-for-profits and some as for-profits (e.g., hospitals), the 
Antitrust Division does not find that an entrant's particular form of 
organization is of decisive significance in antitrust analysis. Nor do 
courts. See United States v. Rockford Mem. Corp., 898 F.2d 1278 (7th 
Cir. 1990), cert. denied, 498 U.S. 920 (1990); FTC v. University 
Health, Inc., 938 F.2d 1206, 1214-16 (11th Cir. 1991). Since the ABA 
has already abandoned Standard 202, since its ``market power'' is 
signficantly greater than that of the defendant in Marjorie Webster, 
and since entry into the law school field should not be unreasonably 
restricted, the Four Agencies' comment that the relief of the proposed 
Final Judgment is inconsistent with Marjorie Webster is incorrect and, 
therefore, no bar to the Court's finding that entry is in the public 
interest.
    Subsequent to Marjorie Webster, the Supreme Court held that the 
Sherman Act applies to all anticompetitive restraints, regardless of 
the non-profit status of the defendant. Goldfarb v. Virginia State Bar, 
421 U.S. 773, 787-89 (1975). To the extent Marjorie Webster suggests a 
``liberal arts'' exemption from the antitrust laws, that suggestion has 
been rejected. As one district court observed, ``Marjorie Webster is of 
questionable vitality after Goldfarb, to the extent that it draws 
bright lines between education and business or accreditation policy and 
commerce.'' Welch v. American Psychoanalytic Ass'n, 1986-1 Trade Cas. 
(CCH) para. 67,037 (S.D.N.Y. 1986).
    The Four Agencies also contend that there is an ``implied 
immunity'' from the antitrust laws for the activities of accrediting 
agencies because they are subject to Department of Education oversight. 
The implied immunity doctrine is not nearly so broad as the Four 
Agencies would suggest. The leading case on this point is the Supreme 
Court's decision in National Gerimedical Hospital versus Blue Cross, 
452 U.S. 378 (1981). Prior to Gerimedical, the Supreme Court had held 
that antitrust repeal was implied only if necessary to make the 
regulatory statute work, and even then only to the minimum extent 
necessary. Silver v. New York Stock Exchange, 373 U.S. 341 (1963). In 
Gerimedical, the Supreme Court clarified this standard, holding that: 
``Implied antitrust immunity is not favored and can be justified only 
by a convincing showing of clear repugnancy between the antitrust laws 
and the regulatory system.'' 452 U.S. at 390-91 (emphasis added). The 
Four Agencies have not, and cannot, make this clear 

[[Page 63771]]
showing.\11\ Indeed, in the Department of Education's ``Staff Analysis 
of the ABA's Section of Legal Education's Interim Report on its 
Standards to DOE and Massachusetts School of Law's Compliant,'' the 
staff noted:

    \11\ In an advisory opinion, the Federal Trade Commission 
informed another accrediting agency, the Accrediting Commission on 
Career Schools and Colleges of Technology, that the 1992 Higher 
Education Act Amendments, specifically, 20 U.S.C. Sec. 1099b(a)(5), 
relied upon by the Four Agencies, conveyed no implied repeal of the 
antitrust laws, finding no broad or inherent conflict between the 
antitrust laws and the Department of Education's regulatory regime. 
January 19, 1995 FTC Advisory Opinion, File No. P94 4015; see 5 
Trade Reg. Rep. (CCH) para. 23,755.
---------------------------------------------------------------------------

    One aspect of MSL's complaint against the Council that is 
totally outside of the Department's purview is the charge that the 
Council has violated federal antitrust laws for the economic benefit 
of law professors, law deans, and law librarians but to the 
detriment of students. That matter is currently before the Justice 
Department.\12\

    \12\ December 5-6, 1994 Staff Analysis appended as Exhibit 43.

    Amending the proposed consent decree in the manner requested by the 
Four Agencies is unnecessary. While the comment claims that the 
Government and the ABA are asking the Court to approve ``a broad, in-
depth intrustion of the Sherman Act * * * that will have a chilling 
effect on the entire accreditation process * * *'' (comment, p. 5), the 
proposed Final Judgment addresses three specific practices (it prevents 
the ABA from fixing salaries and engaging in a boycott). The decree 
does not interfere with the day-to-day accreditation process that 
determines whether law schools offer quality educations. The decree 
simply ensures that the process rests on legitimate educational 
principles. Nor does it conflict with controlling precedent in this 
Circuit or the doctrine of ``implied immunity.'' The decree binds only 
the parties to it. The Four Agencies fail to show how it will prevent 
the defendant from carrying out its accrediting obligations under the 
Higher Education Act or how it will prevent other accrediting agencies 
from doing so.

B. Law School Faculty

    The Justice Department received nine comments from administrators 
and faculty at ABA-approved law schools.\13\ The substance of these 
comments vary enormously, but all recommend some modification of the 
proposed Final Judgment.

    \13\ One of these comments is from the Clinical Legal Education 
Association, an organization of more than 400 clinical teachers who 
``have a dual identity as law teachers and practicing lawyers.'' 
Comment, p. 1. Four of the nine faculty comments were from clinical 
instructors.
---------------------------------------------------------------------------

1, Clinical Legal Education Association (``CLEA'') (Exhibit 7)
    CLEA maintains that, because the accreditation process has been 
dominated by legal academics (i.e., research scholars) and deans, it 
has not served the function of insuring that law school graduates are 
adequately prepared to practice law. CLEA claims that the proposed 
consent decree will further entrench the power of legal academics and 
will interfere with the ability of accreditation to improve the quality 
of lawyers. CLEA further believes that requiring a university 
administrator not affiliated with a law school on each site inspection 
team will entrench legal academics since university administrators are 
concerned that law schools are not sufficiently ``academic,'' i.e., 
research-oriented. Additionally, according to CLEA, the proposed 
consent decree will not change the ABA standards that favor legal 
academics over clinicians with respect to tenure and law school 
governance. CLEA also believes that the proposed Final Judgment is not 
``final'' because of the pendency of the report of the Special 
Commission and because the Government retains authority to review 
changes in the accreditation process.
    Whether legal education is better served by emphasizing legal 
scholarship or practical clinical instruction is neither an antitrust 
issue nor an issue addressed in the Complaint. CLEA raiss an issue of 
educational policy, not antitrust policy, that should not be governed 
by the consent decree. Furthermore, to the extent that these comments 
raise issues not alleged in the Complaint, they are outside the scope 
of a Tunney Act review. Mircosoft, 56 F.3d at 1448, 1459. The inclusion 
of non-law school university administrators on site inspection teams is 
intended to reduce the likelihood that accreditation will be used to 
advance the narrow economic interests of law school faculty and 
administrators.
    CLEA supports the provision in the proposed consent decree 
requiring the ABA to reconsider its standards regarding student-faculty 
ratios, but is concerned that the Special Commission is scheduled to 
make its report after entry of the consent decree. The Special 
Commission's August 3, 1995 preliminary report noted the wide-spread 
dissatisfaction with the past manner in which student-faculty ratios 
were computed for accreditation purposes and will report on this issue. 
CLEA also claims that the proposed consent decree gives the Government 
authority to review all changes in the ABA's accreditation process. 
This seems to be an unduly expansive reading of the Government's rights 
under Section VIII(D) and Section X of the proposed Final Judgment.
2. Howard B. Eisenberg (Exhibit 8)
    Mr. Eisenberg is dean of Marquette Law School and a former dean at 
the Arkansas-Little Rock Law school. Dean Eisenberg expresses concern 
that the Government's law suit was ``commenced and settled without 
input from legal educators or consumers of legal education.'' He is 
also dissatisfied that Section VII of the proposed consent decree 
``leaves open for future determination five issues of extraordinary 
importance to legal education.'' Dean Eisenberg believes that leaving 
these matters to the Special Commission strikes him ``as a guarantee 
that the Court will be involved in protracted and difficult litigation 
in the future over these matters.'' Consequently, Dean Eisenberg urges 
that entry of the proposed consent decree now is premature and not in 
the public interest, or that Section VII should be deleted entirely.
    We believe that Dean Eisenberg has vastly overstated the likelihood 
of protracted and difficult litigation, or the possibility of any 
litigation at all, and also has exaggerated the breadth of the 
Government's involvement in the remaining five issues. The decree 
simply sets in place procedures to ensure that the accreditation 
requirement of paid sabbaticals, the computation of student-faculty 
ratios, and other standards should not be manipulated by a control 
group to further its own interests. The Special Commission may make 
recommendations that, as difficult questions of educational policy, cna 
be fairly disputed, but the Government does not anticipate that the 
Special Commission and the Board will fail to resolve our antitrust 
policy concerns or that the Special Commission's analysis will spark 
litigation.
3. John S. Elson (Exhibit 9)
    Mr. Elson is a professor at Northwestern Law School. He has been on 
the Section of Legal Education Accreditation Committee, is a former 
chair of the Section's Skills Training Committee, and has served on 
about 15 site inspection teams since 1986. Professor Elson sees the 
proposed Final Judgment as offering a ``unique opportunity'' to return 
ABA accreditation to its only proper purpose, ``the adequate 
preparation of law students for competent and ethical legal practice.''

[[Page 63772]]

    Professor Elson, therefore, proposes adding the following 
injunctive provision to Section IV of the proposed consent decree:

    The ABA is enjoined and restrained from: * * *
    (E) adopting or enforcing any standard, interpretation, rule or 
policy that is not needed in order to prepare law students to 
participate effectively in the legal profession.

    Professor Elson is also concerned that the proposed consent decree 
will leave law school academics in control of the process. They will 
continue to emphasize the production of scholarship as a priority and 
relegate clinical training to a lesser role. Professor Elson also 
expresses his dissatisfaction with the Special Commission's initial 
report, which he believes affirms the priority given to legal 
scholarships and its explicit rejection of proposals emphasizing 
practical training. Professor Elson believes that his proposed 
modification will fairly and effectively protect the public interest in 
having adequately prepared law graduates without denying market entry 
to those who can satisfy that public interest.
    While criticizing the provision of the proposed Final Judgment that 
seeks to open participation in the accreditation process, Professor 
Elson does not specifically address what procedures he would prefer. We 
agree that, in law school accreditation, just as in accreditation in 
other areas, participation in the process is more apt to come from 
people within the discipline and who have a stake in the effect of 
accreditation. The proposed consent decree makes reasonable efforts to 
include more outsiders. For example, no more than 50% of the membership 
of the Council, Accreditation Committee or Standards Review Committee 
may be law school deans or faculty. The term limitation will also 
produce greater turnover among those participating in the process.
    Professor Elson plainly thinks that legal education should give a 
higher priority to practical training. This is a matter of educational, 
not antitrust, policy and it is outside the limits of the Complaint and 
proposed consent decree.
4. Jeffrey L. Harrison (Exhibit 10)
    Mr. Harrison is the Chesterfield Smith Professor of Law at the 
University of Florida College of Law. His principal hope is that the 
Antitrust Division will devote further study to the issues of the 
proposed market definition, competitive harm, and the appropriate 
remedy. Other than the prohibition against price fixing in Section 
IV(A) of the proposed consent decree, Professor Harrison recommends 
abandoning all of the other prohibitions in the decree, at least until 
there is data showing that the ABA's accreditation process has 
unreasonably restricted entry. In the alternative, Professor Harrison 
believes the decree should be modified to permit the collection and 
dissemination of ``past'' compensation data because it ``can be 
critical'' in diagnosing the problems of a law school. Professor 
Harrison also recommends dropping the 50% membership limitation of 
legal academics on the Council, its Accreditition Committee, and the 
Standards Review Committee, describing them as ``counter-productive.''
    While perhaps useful as an academic exercise, Professor Harrison's 
objections to the alleged theoretical weaknesses of the Government's 
case are not appropriate for a review of whether entry of the proposed 
Final Judgment is within the reaches of the public interest. The Court 
should assume that there is some basis to the allegations in the 
Complaint and determine whether the proposed consent decree 
sufficiently remedies the alleged violations. A value of the consent 
decree process is that it releases the Court and the parties from the 
time and expense of a Rule of Reason inquiry into all of the issues 
raised in the Complaint.\14\

    \14\ We do not wish to ``try'' the issue of output restriction 
but do question the manner in which Professor Harrison uses 
statistics. Rather than the 30-year comparison in his comment (p. 
3), a more appropriate period would be from when the current 
Standards were made applicable (1975) and when the Consultant's 
office regularized the ABA's current accreditation regulatory regime 
(late 1970s). Roughly halving the 30-year period used by Dr. 
Harrison, comparing 1980-81 statistics with those of 1994-95, the 
number of ABA-approved law schools increased only from 171 to 177 
(+3.4%) and total J.D. enrollment in ABA-approved schools increased 
only from 119,501 to 128,989 (+7.9%).
---------------------------------------------------------------------------

    The Government strongly disagrees with Professor Harrison's 
suggestion that ``past'' compensation data can be used as a surrogate 
for measuring quality. Observations of outputs are a more reliable 
measure of quality.
5. Gary H. Palm (Exhibit 11)
    Mr. Palm is Clinical Professor of Law at the University of Chicago 
Law School. Professor Palm currently serves on the Council of the 
Section of Legal Education, was a member of the Accreditation Committee 
from 1987 to 1994, is a past member of the Clinical Education and 
Skills Training Committee, and served on 14 ABA site inspections from 
1984 to 1994, nine of which were in Europe. Professor Palm believes 
that the proposed consent decree does not recognize that ``the real 
conspiracy'' involved just law school deans and academics, not other 
faculty, and that the proposed consent decree ``will likely result in a 
lessening of vigorous enforcement of accreditation standards.'' 
Professor Palm makes a number of proposals in his comprehensive 
comment. He recommends that another section of the ABA or some other 
entity should perform law school accrediting, claiming that the ABA has 
been a ``paper tiger'' with respect to ensuring adequate training in 
legal skills and values.
    Finding a substitute for the Section of Legal Education would not 
be easy since a new agency will have to obtain Department of Education 
and state certifications. Additionally, the ABA initiated accreditation 
reforms before the consent decree discussions started. The Justice 
Department seldom, if ever, seeks to eliminate an entrant as antitrust 
relief and, unlike monopoly or merger cases, partial divestiture here 
is not a realistic remedy.
    Professor Palm's comment, and those of other clinicians, are 
critical of the ABA accreditation requirement with respect to skills 
training. This is essentially a question of education, not antitrust, 
policy. Professor Palm believes that there is a need for substantial, 
additional diversification in the accreditation process, particularly 
the continued or greater involvement of clinicians on site inspection 
teams or as part of the law faculty representation on the Council and 
committees. Again, whether clinicians should be included among faculty 
appointments to site inspection teams and governing committees is not 
an antitrust issue.
    Professor Palm also criticizes procedural difficulties with respect 
to the report of the Special Commission. He urges either that the 
public be given a chance to comment on the report or that the consent 
decree not be entered until after the Special Commission makes its 
report.
    Professor Palm also makes specific comments with respect to several 
of the subjects on which the Special Commission will report. He 
criticizes the current computation of student-faculty ratios for 
excluding as ``faculty,'' adjuncts and part- and full-time skills 
teachers who have short-term employment contracts.
    He defends the current application of the facilities standards. The 
precise contours of the facilities standard are not challenged by the 
Department nor are they before the Court. The Department does not 
intend to constrain the setting of legitimate educational 

[[Page 63773]]
standards. Because the facilities standards raise issues of legitimate 
educational policy that are within the Special Commission's expertise, 
the Department believes the Commission should have the first 
opportunity to reconcile the issues of antitrust and educational 
policy. Professor Palm also argues that the ``adequate resources'' 
standard should be applied to reallocate greater resources for skills 
instruction. This is neither an antitrust issue nor one raised in the 
Complaint. Professor Palm has suggested an appointment, as an amicus 
curiae, of a representative for the public interest. The Justice 
Department represents the public interest in this proceeding and 
Professor Palm has shown no breach of that representation. Most of 
Professor Palm's suggestions seem intended to advance clinical training 
at law schools. This is an educational policy issue that is irrelevant 
here and certainly one that does not call for a court-appointed 
representative.
6. Millard H. Ruud (Exhibit 12)
    Former ABA Consultant on Legal Education Millard Ruud submitted an 
extensive comment criticizing the proposed consent decree.\15\ He 
doubts that the ABA violated the antitrust laws. He believes that the 
ABA accreditation process is not a guild and that it has not been 
captured by legal educators. He also doubts that there was an agreement 
to ratchet up law teachers' salaries. Professor Ruud does not believe 
that deans want the ABA to impose unreasonably high salary requirements 
for full-time faculty and argues that deans only want to meet the 
competition set by market forces. He contends that leading law schools 
must compete with major law firms for highly-qualified faculty, and 
must offer competitive salaries to retain and recruit these faculty.

    \15\ Professor Ruud was the ABA's first Consultant on Legal 
Education, serving from 1968 to 1973; was the Executive Director of 
the American Association of Law Schools which conducts joint law 
school accreditation inspections with the ABA; has participated in 
numerous law school site inspections; and has extensive experience 
in ABA and AALS law school accreditation. Professor Ruud was 
involved in drafting the Standards under which the ABA operated for 
many years. These include the Standards fixing faculty compensation. 
Professor Ruud has conducted over 40 site inspections, although all 
but three of these were before 1979. He is currently a professor at 
the University of Texas.
    University of Texas Provost and its former law dean Mark Yudof 
has a somewhat different view of the consent decree than Professor 
Ruud. ``Yahoo!'' was the first response from Mark Yudof'' after he 
was told of the consent decree, the Texas Lawyer reported. Provost 
Yudot called the ABA's process an ``accreditation hammer'' that did 
not recognize diverse models of legal education. Texas Lawyer, July 
3, 1995 at 7 (Lexis, News Library).
---------------------------------------------------------------------------

    Professor Ruud also comments that the ABA has not ``monopolized'' 
accreditation through its own actions because state supreme courts and 
bar admission authorities gave the ABA the power to approve law 
schools. He notes that there are competitive disadvantages for 
unapproved law schools because these schools are considered to be lower 
in quality. ABA-approved schools have an advantage in recruiting 
quality students and faculty. Professor Ruud also questions the meaning 
of the phrase ``state-accredited'' law schools in the decree and 
correctly points out the decree only prohibits the ABA from requiring 
ABA-approved law schools not to accept credit for work at state-
accredited schools.
    Professor Ruud questions the decree's requirement that a university 
administrator who is not affiliated with a law school be included on 
site evaluation teams. He claims that it is present ABA practice to 
include university administrators when the law school is affiliated 
with a university. He asks why university administrators should be 
included in evaluating law schools that are not part of a university.
    Professor Ruud further believes that the consent decree is an 
excessive intrusion into ABA governance and questions some specific 
decree provisions. He assets that the issues the Special Commission is 
to examine go beyond antitrust. He further believes that the decree 
should not set term limits for membership on the Council, Accreditation 
Committee, or Standards Review Committee. Finally, Professor Ruud 
describes the basic purpose of accreditation: ensuring that the school 
meets the basic requirements of quality and informing other schools 
that a degree from an accredited school should be recognized by them.
    The purpose of this proceeding is not to evaluate the merits of the 
Government's case. To the extent comments challenge the Department's 
decision to bring this case, they are beyond the scope of this 
decision.
7. Roy T. Stuckey (Exhibit 13)
    Mr. Stuckey is a professor in the Department of Clinical Studies at 
University of South Carolina Law School. Professor Stuckey served on 
the Council of the Section of Legal Education from 1988 to 1994 and the 
Standards Review Committee from 1990 to 1995. He has been a member of 
about 11 site inspection teams since 1982.
    Professor Stuckey objects to entry of the proposed Final Judgment 
unless it is modified:

    (1) to allow the ABA to continue gathering data about faculty 
compensation; (2) to allow the ABA to continue considering 
compensation as one factor in determining the quality of a law 
school's program of education; and (3) to allow the ABA to permit 
some people to serve at least six years on the Standards Review 
Committee.

    Professor Stuckey believes that compensation is related to quality, 
knows of no data showing that law school faculty are compensated 
disproportionately to similarly qualified judges and lawyers, and 
points out that the ABA's data collection was reliable but will now 
have to be done by someone else.
    The an on salary data collection is for only the 10-year term of 
the decree and is intended as a prophylactic. The defendant's practice, 
compiling a ``peer group'' salary comparison prior to a site inspection 
and pressuring the law school (or, more frequently, university 
administrators) to raise salaries without a finding that the law school 
was unable to attract and retain competent faculty, was an 
anticompetitive practice that artificially inflated law school 
personnel salaries. The consent decree prevents the defendant from 
collecting salary information to reduce the likelihood that the 
behavior alleged in the Complaint will recur. During the time that the 
consent decree limitations apply, site inspectors will be able to use 
such direct measurement of faculty quality like classroom instruction, 
scholarly production, and bar and practical skills preparation. The ABA 
is not enjoined from continuing to collect and disseminate other law 
school data.
    The Standards Review Committee has in the past been totally 
dominated by law faculty. In addition to proposing new Standards, the 
Committee also adopted Interpretations that were not fully subject to 
public and Board review and were, at times, protective of law school 
professional personnel in an anticompetitive manner. The Standards 
Review Committee has staggered terms so that it will have varying 
levels of experience. The one-term limitation on service on the 
Standards Review Committee is a reasonable prophylactic provision 
designed to get more individuals involved in law school accreditation.
8. Lawrence A. Sullivan and Warren S. Grimes (Exhibit 14)
    Mr. Sullivan and Mr. Grimes are professors at Southwestern 
University School of Law. Professors Sullivan and Grimes fear that the 
proposed consent decree may lead to a relaxation of accreditation 
standards that will be particularly harmful in California. They 

[[Page 63774]]
also oppose the prohibition against the defendant's collecting and 
disseminating salary data.
    California has 16 ABA-approved law schools, 19 state-accredited law 
schools, and 37 uncertified law schools, according to the comment. 
Professors Sullivan and Grimes note that, while, admittedly, the ABA-
approved schools are able to attract better qualified students, the 
August, 1994 California bar results for first-time takers show that the 
average pass rate for each of the ABA-approved schools was higher than 
those for any law school in each of the other two categories. The 
comment suggests that this raises consumer protection issues since 
students at non-ABA-approved schools are investing much time and money 
with a diminished likelihood of passing the bar or finding legal 
employment.\16\ This case is not intended to inhibit in any way the 
setting of legitimate educational standards and the proposed Final 
Judgment does not do so. Accreditation is a consumer protection 
service. It informs students that an accredited school meets 
appropriate educational standards. The proposed Final Judgment leaves 
in place a process to provide this service.

    \16\ We have the 1992 and 1993 California bar results, but not 
for 1994. The results do not show what percentage of graduates of 
each law school ultimately passed the California bar. We agree with 
the comment's observation that better qualified applicants generally 
will choose to attend an ABA-approved school because, among other 
reasons, gradation from an ABA-approved school is a bar prerequisite 
in most States. The range of pass rate in 1992 and 1993 for July 
first-time takers and all takers in February is:

------------------------------------------------------------------------
                                                      ABA-      State-  
                                                    approved  accredited
                                                   (percent)   (percent)
------------------------------------------------------------------------
July 1993........................................     69-92        0-89 
February 1993 *..................................     40-87        0-75 
July 1992........................................     63-90       25-75 
February 1992 *..................................     54-85        5-61 
------------------------------------------------------------------------
* Most takers in February are repeaters and the results are for all     
  takers.                                                               

    The comment also fears that the consent decree will relax standards 
in two areas--student-faculty ratios and library facilities--permitting 
new schools to be accredited, thereby injuring the 12 ``second-level'' 
ABA-approved schools in California. The consent decree, however, does 
not address library facilities, and simply requires that student-
faculty ratio standards be reassessed by an unbiased group.
    Professors Sullivan and Grimes also believe that the collection of 
salary data serves a number of legitimate and important functions. We 
agree, but believe it should be kept separate from ABA accreditation 
because of past abuses.\17\ A school that attracts a higher-quality 
faculty at a lower cost should be rewarded in the marketplace and not 
punished in an accreditation inspection. Consequently, the proposed 
consent decree restricts the ABA from this activity for its 10-year 
duration. The comment properly points out that other organizations, 
without the incentives of this one, should be able to collect this 
information.

    \17\ The dean of one very high salary law school criticized the 
ABA's persistence in obtaining his school's salary data, stating 
that obviously his law school's salaries were adequate and the ABA 
was using the salary data to ``ratchet up'' salaries at lower paying 
law schools.
---------------------------------------------------------------------------

9. Bardie C. Wolfe, Jr. (Exhibit 15)
    Bardie C. Wolfe, Jr. is a professor of law and the law library 
director at St. Thomas University School of Law in Miami, Florida. 
Professor Wolfe submitted comments about the ABA annual questionnaire 
and Standards. The ABA sends out a questionnaire each year seeking law 
school operations information. Professor Wolfe believes that the annual 
questionnaire section on library resources should include computerized, 
not just paper, collections. Otherwise, the ABA, in effect, forces law 
schools to purchase expensive books and other paper publications that 
are available in electronic form. Professor Wolfe also is concerned 
about the ABA Standards for law libraries. He advocates law school 
libraries sharing electronic resources through networks and the 
Internet. This would enable libraries to share expensive but little 
used titles. He would also like to see electronic resources held by 
other parts of the university counted as part of the law schools' 
resources.
    It may be a laudable goal to decrease library expenses by sharing 
electronic information. But the issue of what resources libraries must 
have for student and faculty research implicates issues of educational 
policy, not antitrust issues and is outside the ambit of this case and 
the Tunney Act proceeding.
10. Marina Angel (Exhibit 16)
    Ms. Angel is a professor of law at Temple Law School. Her comment 
was transmitted on October 16, two weeks after the close of the comment 
period.
    Professor Angel complains that Section IV(A) of the proposed 
consent decree, prohibiting the collection of salary data, may prevent 
the enforcement of ABA Accreditation Standards 211-213 that prohibit 
discrimination. While Professor Angel does not state it, salary data 
showing apparent discrepancies between protected and other groups may 
be a basis for pursuing discrimination claims. The consent decree does 
not prevent law schools, however, from maintaining that data. 
Additionally, as Professor Angel has noted, Section V of the decree 
notes that nothing in the proposed decree prohibits the ABA from 
conducting a bona fide investigation of whether a law school is 
complying with its accreditation standards.

C. University Administrators

1. Bernard J. Coughlin, S.J. President of Gonzaga University (Exhibit 
17)
    Gonzaga University President Bernard J. Coughlin, S.J., believes 
that 40% of a site inspection team should be people who are not law 
school deans or law faculty. He further believes that the consent 
decree should mandate the Special Commission to consider whether to 
revise ABA practices regarding control of financial resources. Father 
Coughlin is concerned that the ABA gives law school deans and faculty 
too much control of financial resources contributed to or generated by 
the law school. Father Coughlin also expressed concern that the ABA's 
proposed decree notification did not identify the officer to whom 
comments should be sent.
    The ABA accreditation process was captured by legal educators. 
Section VI of the decree is designed to remedy this problem. The decree 
requires that site teams include a university administrator not 
affiliated with the law school and other public members. It also 
requires that law faculty make up no more than 50% of the Accreditation 
Committee and Council. Together, these provisions will significantly 
open up the process. Requiring site teams to include more people who 
are not law faculty may make it difficult to fill the teams. Being a 
member of a site team involves a substantial amount of work.
    Intra-university resource allocation raises issues of educational 
policy. The resources standard will be initially addressed by the 
Special Commission.
    Finally, Father Coughlin expressed concerns about notification by 
the ABA. In accord with the Antitrust Civil Process Act, the Justice 
Department published the proposed Final Judgment and CIS in the Federal 
Register and newspapers, informing members of the public that they may 
submit comments to the Antitrust Division of the Justice Department. 
The ABA, on its own, individually notified presidents of universities 
with ABA-approved law schools of the proposed Final Judgment. 

[[Page 63775]]
The legal education community is now well acquainted with this case and 
the proposed Final Judgment.

D. Law Schools Not Approved by the ABA

    The Department received three comments from law schools not 
approved by the ABA.\18\ They are generally critical of the limited 
scope of the Final Judgment.

    \18\ MSL's comment is responded to in Section IV.H.
---------------------------------------------------------------------------

1. University of La Verne (Exhibit 18)
    The University of La Verne (``LA Verne'') is a law school 
accredited by the State of California but not approved by the ABA. 
While the California state court will admit graduates of California-
accredited schools to its bar, most state bar admission rules require 
graduation from an ABA-approved school. First, La Verne believes that 
the consent decree does not restrain the ABA's support of bar admission 
or employer requirements that applicants graduate from ABA-approved law 
schools. Second, La Verne is concerned about the decree provisions 
relating to the physical facilities Standards and Interpretations. La 
Verne thinks that the ABA has required costly facilities in the past 
and is particularly worried that ABA Interpretations will continue to 
prohibit the leasing of law school facilities. Third, La Verne is 
opposed to the ABA's requirements about law library seating. Fourth, La 
Verne wants the Justice Department and Court to carefully review the 
Special Commission's proposals regarding calculating the faculty 
component of student-faculty rations. Fifth, La Verne fears that ABA 
inspection teams will use salary data available for other sources. 
Finally, La Verne believes that the ABA should ascertain the quality of 
law schools by measuring such outcomes as bar passage rates.
    Preliminarily, we note that the consent decree is tailored to 
remedy the antitrust violations alleged in the Complaint: The ABA's 
acting as a guild for legal educators, and the resulting competitive 
distortion of the accreditation process. In addition, the decree is 
designed to remedy the four ABA accreditation practices that were 
alleged in the Complaint as Sherman Act violations. This is the purpose 
of a consent decree: to provide relief appropriate for the allegations 
in the Complaint. Microsoft, 56 F.3d at 1448, 1459.
    La Verne's first concern, whether the ABA has encouraged States to 
require graduation from an ABA-approved school for bar membership, is 
outside the scope of charges in the Complaint and, consequently, is not 
addressed in the proposed Final Judgment. Moreover, in general, an 
organization's lobbying of state agencies is immune from antitrust 
liability under Eastern Railroad Presidents Conference v. Noerr Motor 
Freight, Inc., 365 U.S. 127 (1961), and its progeny. The fact that 
individual employers may require graduation from an ABA-approved law 
school is not itself an antitrust violation and is outside the scope of 
the Complaint and relief in this case.
    Second, La Verne is concerned about the ABA's rules on facilities. 
As we alleged in the Complaint, while adequate physical facilities is a 
relevant factor in assessing an educational program's quality, the 
facilities standards may have been applied inappropriately to enhance 
working conditions for law faculty. The ABA's facilities standards and 
practices, like others addressed in Section IV(D) of the Complaint, 
raise what are, in essence, educational policy issues. Hence, under the 
decree, they have been initially referred for re-evaluation to the 
Special Commission.
    Third, the issue of library seating is not raised in the Complaint 
and is, thus, not a part of this proceeding.
    Fourth, with regard to the student-faculty ration issue, the 
Department has required that this question of educational policy be 
reconsidered through a process not infected by capture. The Department 
will carefully review the Special Commission's report.
    Fifth, the consent decree expressly forbids the ABA from taking any 
actions that impose salary requirements or using law school 
compensation data in connection with the accreditation or review of any 
law school. Consequently, ABA inspection teams cannot use any such 
data, regardless of its source, without the defendant risking contempt 
sanctions.
    Finally, outcomes, like bar review passage rates, may be a useful 
measure of educational quality. This is, however, an issue of 
educational policy, not an antitrust issue and is outside the matters 
alleged in the Complaint.
2. Reynaldo G. Garza School of Law (Exhibit 19)
    Reynaldo G. Garza School of Law (``Garza'') is a Texas law school 
that is not approved by the ABA. The Texas Supreme Court mandates that 
bar applicants be graduates of ABA-approved law schools. Garza 
complains that the proposed consent decree does not deal with the 
requirement that bar applicants be graduates of ABA-approved law 
schools and the effect of this Standard on graduates of unapproved law 
schools. Second, Garza alleges that the consent decree does not address 
the ABA requirement of a core library collection. Third, the decree 
does not address the ABA's requirement that law schools have a full 
time law librarian.
    We respond by noting, first, that the decree was tailored to 
address the antitrust violations alleged in the Complaint. The 
Complaint does not challenge state requirements that bar applicants 
must graduate from ABA-approved schools. The actions of States are 
exempt from the antitrust laws under the ``state action'' doctrine 
announced in Parker v. Brown, supra.
    The ABA Standards on core library collection and full-time 
librarian administrators are not challenged in the Complaint as 
antitrust violations and appear to involve solely questions of 
educational policy.

E. Graduates of Unapproved Law Schools

    The United States received 13 comments from students and graduates 
of law schools that are not accredited by the ABA. Among the schools 
represented are Texas Wesleyan School of Law, the Commonwealth School 
of Law in Massachusetts, an unnamed state-accredited law school in 
Alabama, and five California schools: Western State University in San 
Diego; West Los Angeles School of Law; Glendale University College of 
Law; People's College of Law; and an unnamed law school. The majority 
of these comments describe the consequences of ABA accreditation for 
graduates of law schools not approved by the ABA.
    Ten graduates and students criticized the rules in various States 
that require bar applicants to graduate from ABA-approved law schools 
only. They suggested that the consent decree abolish or weaken these 
rules. These graduates were: Deborah Davy (Western State University) 
(Exhibit 20); Joel Hauser (People's College of Law) (Exhibit 21); 
Wendell Lochbiler (West Los Angeles School of Law) (Exhibit 22); Larry 
Stern (Glendale College of Law) (Exhibit 23); Julie Ann Giantassio 
(Western State University) (Exhibit 24); Robert Ted Pritchard (enrolled 
in unnamed non-ABA approved law school) (Exhibit 25); Donald H. Brandt, 
Jr. (Texas Wesleyan University) (Exhibit 26); David White (Western 
State University) (Exhibit 27); Bill Newman (an unnamed unaccredited 
California law school) (Exhibit 28); and Russell R. Mirabile (school 
not named) (Exhibit 29).

[[Page 63776]]

    Ms. Davy, Mr. Pritchard, and Mr. Stern suggested that graduates of 
state-accredited law schools should be allowed to take any state's bar 
examination. Mr. Mirabile proposed waiving graduates of all unapproved 
schools into the bar. Mr. Brandt proposed eliminating the ABA's power 
to accredit law schools. Mr. Brandt alleges that his school, Texas 
Wesleyan University, was granted provisional ABA approval on the 
condition that it graduate its third-year class before receiving that 
approval. Hence, Mr. Brandt did not graduate from an ABA-approved law 
school.
    The ABA does not itself set state bar admission criteria. 
Approximately 42 States require graduation from an ABA-approved school 
as a condition for sitting for the bar. Such state requirements fall 
within the ``state action'' immunity from antitrust prosecution 
recognized by the Supreme Court in Parker v. Brown, supra, and its 
progeny. Consequently, we did not and cannot address state bar 
admission requirements in the proposed Final Judgment.
    Five comments discuss graduates of unapproved law schools being 
denied admission into advanced legal degree (``LL.M'') programs at ABA-
approved law schools. Ms. Davy contends that the ABA intrudes upon the 
discretion of the law schools and proposes amending the Final Judgment 
to make all individuals holding a Juris Doctor degree eligible for 
admission into ABA-approved LL.M. programs. Mr. Lochbiler explained 
that he was denied admission into a number of ABA-approved LL.M. and 
J.D. programs; each institution refused to accept a graduate of an 
unaccredited school. Mr. Stern said that he was denied admission into 
LL.M. programs because no ABA-approved school would consider him 
without risking its accreditation. Mr. White was recently denied 
admission to an LL.M. program at an ABA-accredited Florida law school. 
He claimed the school would not change its policy regardless of the 
consent decree. Mr. Brandt noted that has continued educational options 
have been limited, but did not describe these options.
    Under the consent decree, the ABA may not bar a law school from 
enrolling a member of the bar or a graduate of a state-accredited law 
school in an LL.M. or other post-J.D. program. Previously, the ABA 
Standards had barred law schools from doing so. The decree permits 
individual law schools the discretion to admit whom they want in their 
graduate programs.
    Five comments focus on the ABA's rules prohibiting approved schools 
from offering transfer credit for courses at unapproved law schools.
    The author of one comment, who wished to remain anonymous, 
graduated from a state-accredited, but not ABA-approved, law school and 
is a member of the bar (Exhibit 30).\19\ He wrote that the dean of an 
ABA law school in another State refused to grant credit for any of his 
courses. The dean was aware of the proposed Final Judgment. The author 
believes that the proposed Final Judgment should be modified to prevent 
approved schools from refusing to grant credit. Mr. Prichard described 
an admissions representative of an ABA-approved California law school 
who told him that the institution does not accept any credits earned at 
a non-ABA school. The admissions representative allegedly stated that 
the consent decree did not change this. Mr. Prichard advocates several 
modifications to the proposed Final Judgment, including requiring all 
law schools to sign the consent decree and mandating that all state-
accredited law schools be automatically granted provisions approval by 
the ABA.

    \19\ The author requested having his name and address withheld 
from the comment because he has an application pending with an ABA-
approved law school. We have redacted this information in the copy 
of the comment filed with the Court.
---------------------------------------------------------------------------

    In his comment, Frank DeGiacomo proposes deleting from the proposed 
Final Judgment the phrase in Section IV(D)(2) that allows the ABA to 
require that ``two-thirds of the credits required for graduation must 
be successfully completed at an ABA-approved law school.'' (Exhibit 
31). Mr. DeGiacomo contends that the provision deters competition from 
non-ABA law schools. He alleges that ABA-approved schools have few 
seats for transfer students and that transfer applicants from 
unaccredited schools are viewed less favorably than students from ABA-
approved law schools who are perceived as having achieved greater 
academic achievement.
    James B. Healy submitted to the Government a background brief by 
himself and three other students detailing the closure of the 
unaccredited Commonwealth School of Law. The closure prevented them 
from graduating (Exhibit 32). The four unsuccessfully sought to 
transfer to 15 law schools with credit for their courses at 
Commonwealth. Mr. Healy inquires whether the students have any 
recourse. Finally, Mr. Mirabile believes ABA-approved schools should 
give complete credit for all work at unapproved law schools.
    Under the consent decree, the ABA may not prevent ABA-approved 
schools from offering transfer credit for work successfully completed 
at a state-accredited law school. The decree allows the ABA to require 
that two-thirds of the credits required for graduation be successfully 
completed at an ABA-approved law school. As with the LL.M. programs, 
the decree leaves the choice of whether to offer transfer credits to 
the individual school. Some schools may choose to do so; others may 
not.
    Mr. DeGiacomo proposes eliminating the requirement that two-thirds 
of the credits be completed at an ABA-approved law school and Mr. 
Mirabile proposes granting credit for all work at unapproved law 
schools. For reasons of educational policy, an accrediting agency may 
require that the bulk of an education be completed at the degree-
granting institution. The two-thirds requirement allows the ABA to 
ensure quality control--the legitimate purpose of accreditation. The 
decree provision rests on the ABA's existing parallel rule for credit 
for courses completed at foreign law schools, a rule that did not so 
directly implicate the guild interests that distorted the rule for 
transfers from domestic schools.
    In addition to comments about bar admission and LL.M. requirements, 
Mr. Stern pointed out that the ABA's student-faculty ratio rules that 
no rational application to educational quality because they excluded 
part-time faculty from the ratio. Evidence that anticompetitive 
purposes had distorted the formulation of the present student-faculty 
ratio rule was the basis of the Department's allegation in the 
Complaint. But low student-faculty ratios may ensure smaller classes 
and more student-faculty contact, desirable educational outcomes. 
Because of this, the Special Commission will have the first opportunity 
to address this educational policy issue.

F. Other Practicing Attorneys

    The Justice Department received comments from five other practicing 
attorneys.
1. William A. Stanmeyer (Exhibit 33)
    William A. Stanmeyer is a practicing attorney and former law 
professor. He commends the Justice Department for bringing this action. 
He believes that many of the ABA's Standards are irrelevant to quality 
legal education, sometimes vague, and often applied arbitrarily. Mr. 
Stanmeyer is troubled by outgoing ABA President George Bushnell's 
denial of any wrongdoing and fears that the ABA will resist real 
change.

[[Page 63777]]

    The Justice Department agrees that some of the ABA's accreditation 
practices had little to do with quality. The decree is designed to 
remedy these problems. In terms of Mr. Bushnell's comment, a defendant 
is not required to admit to the charges in the Complaint as part of a 
settlement. This is one of the incentives to enter a decree instead of 
proceeding to trial. Finally, the Department expects that the contempt 
sanction will be sufficient to ensure that the ABA will abide by the 
decree.
2. Four Concerned Lawyers (Exhibit 34)
    The Justice Department received an anonymous comment from ``4 
Concerned Lawyers.'' They congratulate the Department on the consent 
decree. They are concerned about having the ABA's Consultant on Legal 
Education, Jim White, reporting to the ABA's Executive Director, Bob 
Stein. They fear that friendship between White and Stein will prevent 
the latter from effectively supervising the former. Second, the four 
wish that the Justice Department would investigate the relationship 
between Consultant White and Indiana University, where he teaches, and 
examine the payment arrangements between them.
    In response, we note, preliminarily, that the decree does not 
require the Consultant to report to the Executive Director. Moreover, 
there are strong incentives to ensure that the terms of the decree are 
carried out. Violations of the consent decree are punishable by 
contempt sanctions. In fact, the Consultant and Executive Director must 
sign annual certificates acknowledging this. In addition, the decree 
opens up the ABA's accreditation operations to more scrutiny. The 
Accreditation Committee, Council, and Standards Review Committee will 
have many members who are not affiliated with law schools. The payment 
antitrust concern or relate to the antitrust violations alleged in the 
Complaint.
3. Frederick L. Judd (Exhibit 35)
    Frederick L. Judd is an attorney, certified public accountant, and 
a graduate of Brigham Young University (``BYU'') law school. He fears 
that the ABA's requiring law schools to set schedules that limit the 
amount of time students can work excludes students who need to work to 
pay for law school. Mr. Judd wished to work as a C.P.A. while a full-
time BYU student, but was prevented from setting up a class schedule 
that would enable him to work during the day.
    The ABA's Standard limiting full-time students to 20 hours of work 
per week does not raise antitrust concerns or relate to the violations 
alleged in the Complaint. There may be strong educational policy 
reasons to limit students' work so they may devote more time to their 
studies.
4. Michael L. Coyne (Exhibit 36)
    Michael L. Coyne is an attorney in private practice in North 
Andover, Massachusetts, and is also associate dean of MSL. In his 
comment, Dean Coyne complains about deposition testimony of former 
Accreditation Committee Vice Chairman Claude Sowle and ABA Consultant 
on Legal Education James White, taken by MSL in its private action 
against the ABA. Dean Coyne believes that their testimony about 
salaries is at odds with Paragraphs 15 and 16 of the United States' 
Complaint, in which we allege that the ABA collected salary data for 
peer schools and found that schools which paid salaries below the 
median were non-compliant. Dean Coyne says that Mr. Sowle testified in 
the private action that the ABA has not paid attention to geographic or 
competitive salary information for some time. He asks the Department to 
clarify whether this testimony contradicts documentary evidence held by 
the Justice Department.
    Dean Coyne also seeks disclosure of materials that were obtained 
under the Antitrust Civil Process Act, 15 U.S.C. Secs. 1311-1314. The 
Act imposes strict disclosure limits on the Government (15 U.S.C. 1313 
(c) and (d), and the Government must comply with them.
    The ``Government's Opposition To MSL's Motion For Intervenor Status 
and For Determinative Documents And Materials,'' filed on October 10, 
1995, addresses MSL's request for documents in more detail. Were the 
Court to order production of the documents, there would be a 
substantial chilling effect on the Department's work. Defendants would 
be less willing to enter consent decree because they would fear it 
would lead to the production of their documents. MSL has a private 
action against the ABA and has sought discovery in that action. That is 
the proper forum for MSL's discovery requests.
    Dean Coyne also attached pages 207-08 of Mr. Sowle's testimony to 
his comment. On those pages, Mr. Sowle admitted that the Accreditation 
Committee considered how salaries paid by a school compared to those 
paid by its peers. Dean Coyne's concern as to the substance of the 
deposition testimony regarding the use of salary information does not 
seem directly relevant to the issue in this APPA proceeding. That issue 
is whether entry of the proposed consent decree is in the public 
interest. Regardless of the testimony, the relief proposed adequately 
deters the defendant from using the accreditation process to fix 
salaries.
5. Jackson Leeds (Exhibit 37)
    Mr. Leeds believes that the consent decree will allow state courts 
to violate antitrust laws in regulating admissions to the bar.\20\ Mr. 
Leeds believes that the New York Court of Appeals wrongly requires law 
schools to be approved by the ABA, American Association of Law Schools, 
or the New York State Department of Education. Moreover, Mr. Leeds 
apparently requested from the City University of New York Law School at 
Queens College (``CUNY'') a copy of the ABA's site inspection report 
for CUNY. CUNY apparently refused because distribution of the report is 
limited to those authorized to receive it by the ABA's Council of the 
Section of Legal Education. Mr. Leeds also is upset that CUNY admits 
students with low traditional indicators (test scores and GPAs), and 
claims that CUNY does not enforce class attendance policies.

    \20\ It is not entirely clear that Mr. Leeds is a practicing 
attorney. His letter indicates legal training and, hence, we have 
classified him here as such.
---------------------------------------------------------------------------

    In response, the Justice Department notes that, under Parker v. 
Brown, supra, and its progeny, the actions of the state courts in 
determining bar admissions or in approving law schools are immune from 
antitrust prosecution. CUNY's apparent refusal to give Mr. Leeds the 
inspection report, CUNY's admissions standards, and its class 
attendance policies do not raise antitrust issues and are not related 
to the subject matter of the Justice Department's Complaint in this 
action.

G. Members of the General Public

    The Justice Department received comments from three individuals 
whom we cannot identify as being in any of the preceding categories.
1. Robert Reilly (Exhibit 38)
    Robert Reilly is concerned about practicing lawyers who are 
graduates of unapproved law schools but who are unable to practice in 
many States because those States require graduation from ABA-accredited 
law schools. Mr. Reilly believes that the States impose this 
requirement to limit competition and to deny graduates of unapproved 
law schools the ability to practice law in the place they wish to live.
    State bar admission requirements restricting bar membership to 
graduates of ABA-approved schools may limit competition, but they 
cannot be 

[[Page 63778]]
challenged under the antitrust laws because of the ``state action'' 
immunity doctrine announced by the Supreme Court in Parker v. Brown, 
supra. Consequently, such requirements are beyond our enforcement 
jurisdiction.
2. Robert W. Hall (Exhibit 39)
    Robert Hall, President and Director, Hawaii Institute for Biosocial 
Research, expressed dissatisfaction with the proposed Final Judgment, 
primarily because he believes that it does not remedy the ABA's role in 
``anticompetitive admissions processes required by the ABA in the 
accreditation process.'' In particular, he criticized the control of 
the Law School Admissions Council (``LSAC'') by ABA-approved law 
schools. He does not believe that law schools should use the LSAC's 
aptitude test (the ``LSAT'') in the admissions process.
    While the ABA's Accreditation Standards require that law schools 
use the LSAT, or a comparable aptitude test, we do not know that the 
ABA requires law schools to maintain median LSAT scores. The ABA's 
requirement appears consistent with Department of Education regulations 
mandating that accrediting agencies require that accredited schools 
employ a suitable aptitude test to screen applicants. Whether the LSAT, 
or any other test, is a reliable indication of an aptitude for a field 
of study seems to involve educational, not antitrust, policy questions. 
This issue is also not raised in the Complaint.
    Mr. Hall also criticized the domination of the law school 
accreditation process by insiders and the lack of public involvement in 
the accreditation process. We recognize this problem and the consent 
decree remedies it by introducing more people outside of legal 
education into the accreditation process and by setting term limits for 
members of the committees that oversee law school accreditation. Mr. 
Hall further believes that the insider status of some members of the 
Special Commission may have the effect of putting the fox in charge of 
the chicken house. The proposed consent decree answers this, too, by 
requiring that the ABA's Board of Governors review the Special 
Commission's findings. Additionally, the Justice Department may 
challenge the Special Commission's recommendations in this case.
    Mr. Hall further believes that the ABA has boycotted any law school 
that does not have small classes for at least some part of its total 
instructional program. He believes it will be costly for a proprietary 
school to offer small classes. In response, we note that the size of 
classes usually raises issues of educational policy. An accrediting 
agency may require some small classes so students benefit from greater 
teacher contact.
    Finally, Mr. Hall criticizes the ABA Interpretation requiring law 
schools to have facilities that are owned rather than leased. He points 
out that this may be a problem in areas where land and buildings are 
extremely expensive. In response, the Justice Department notes that the 
decree is tailored to the antitrust violations alleged in the 
Complaint. The ABA is not charged with violating the antitrust laws by 
virtue of all of its facilities standards, including its rules 
regarding leased facilities or their implementation.
3. Amrit Lal (Exhibit 40)
    Amrit Lal wrote to congratulate the Justice Department on the 
consent decree. Dr. Lal believes that state bar examiners allegedly 
manipulate bar exam results to limit bar admissions. The Supreme Court, 
in Hoover v. Ronwin, 466 U.S. 558 (1984), held that the state action 
immunity doctrine protected one state supreme court's bar admissions 
restrictions from an antitrust claim that made similar allegations. Dr. 
Lal also alleges that the Pennsylvania Board of Law Examiners 
discriminate on the basis of age, ethnic identity, and national origin. 
These concerns do not relate to the matters alleged in the Complaint.

H. Massachusetts School of Law (Exhibit 41)

    MSL has filed a massive 83-page comment with an Appendix and about 
400 pages of Exhibits. MSL previously filed an Intervention Motion that 
both parties oppose. MSL was denied accreditation by the ABA in 1994 
and has filed an antitrust case against the ABA in the Eastern District 
of Pennsylvania. Last month, MSL filed a second action against the ABA 
in a Massachusetts state court, alleging unfair competition, fraud, and 
other matters. MSL's comment recommends numerous changes in the 
proposed Final Judgment, the delay of its entry, and the vast 
production of documents and materials from the Justice Department's 
investigatory files. The Government opposes the requested modifications 
and recommends no delay in the entry of the Final Judgment. We also 
oppose MSL's ``discovery'' request, believing that it is particularly 
inappropriate to grant discovery collaterally in an APPA proceeding to 
a party whose discovery requests have been denied in its own 
litigation.
1. Capture
    MSL does not believe that the proposed consent decree adequately 
remedies the ``capture'' of the ABA accreditation process by the group 
that benefited from it. MSL suggests, as more effective remedies, 
requiring the ABA to choose ``procompetitive'' nominees for the Council 
and Committee (MSL provides the names of 21 possible nominees), and 
banning any members of the ``insider'' group (MSL lists about 47 
``insiders'' and about 32 of their ``helpers'') from further 
participation in accreditation. It urges that the decree should ban 
``the ABA from violating the Sherman Act through use of its other 
accreditation criteria to achieve anticompetitive purposes.'' Comment, 
p. 11. The Government believes that it is inappropriate for it or the 
Court to micromanage the defendant's accreditation activities to 
require that certain people be designated to participate in 
accreditation and others prohibited. Such relief would be extraordinary 
and unique among consent decrees. Enjoining the ABA from violating the 
Sherman Act in its application of its remaining accreditation criteria 
is at the other extreme--so vague as to add little effective relief. 
This is because such a provision requires a Rule of Reason trial just 
to enforce a contempt action. The consent decree's limits on law school 
faculty participation on governing committees, the required involvement 
of ``outsiders'' on site inspections, and the close involvement of the 
ABA's Board, itself undoubtedly independent from accreditation 
``insider'' control, are reasonable measures to eliminate the capture 
of the accreditation process.\21\

    \21\ The ABA's Board, independent of consent decree 
requirements, has also required the Consultant of the Section of 
Legal Education to report to the ABA's Executive Director.
---------------------------------------------------------------------------

    MSL claims that the ABA has violated the consent decree by adding 
an extra academic to the Section of Legal Education's Nominating 
Committee and that the new data questionnaire circulated by the ABA to 
law schools requests data from which average and, possibly, individual 
salaries can be calculated is in violation of the decree. Our 
information, however, is that no additional academics have been added 
to the Nominating Committee since the decree was filed, and that the 
event that MSL describes took place last year. The 1995-96 Nominating 
Committee has one legal educator.\22\ As to the data 

[[Page 63779]]
questionnaire, our understanding is that average salaries cannot be 
calculated, except in the most gross fashion, and that individual 
salaries cannot be calculated in any fashion from the data being 
collected. Moreover, the aggregated salary expense data the ABA 
collects is not given to the Accreditation Committee, the Council or 
members of site teams, and is not used in connection with law school 
accreditation. The Justice Department does not object to the collection 
of this data as long as it cannot be disaggregated.

    \22\ The Nominating Committee members are a California 
practitioner, a law school librarian, a university president (who is 
a former law school dean), a Nebraska practitioner, and a non-lawyer 
public member. The term of the individual mentioned by MSL expired 
last summer.
---------------------------------------------------------------------------

2. Secrecy
    MSL points out that the ABA's accreditation Standards and 
Interpretations are often quite general. Their content has been 
supplied by the enforcement process and by the policies followed by 
enforcement officials. MSL believes that a simple cure for monitoring 
the ABA's actual accreditation practices would be to require that all 
documents created during the accreditation process be made public.
    The proposed Final Judgment does require the defendant to publish 
annually the names of those who participate in domestic and foreign 
site inspections and the schools inspected. Additionally, the Council 
must report to the Board all schools under accreditation review and the 
reason the law schools are still under review. The Council must also 
approve and the Board review all annual and site inspection data 
questionnaires sent to law schools. Our interviews indicated that some 
individuals thought that schools and site inspectors might be inhibited 
in some respects if their free exchange of views during the 
accreditation process were made public. Since this appears to be a 
matter implicating legitimate accreditation process concerns, the 
Government was reluctant to include total disclosure as required 
antitrust relief.
3. The Special Commission
    MSL attacks the composition of the Special Commission, claiming 
that they were appointed by the two immediate past Chairmen of the 
Council and that at least 8 of the 15 commissioners ``are part of the 
heart and soul * * * or are closely tied to the capturing inside 
groups.'' \23\ Comment, p. 20. While many of the members of the Special 
Commission have had close ties to the ABA and its accreditation 
activities, its membership is six legal academics (including one well-
known critic of ABA accreditation), two judges, one university 
president (a past ABA president and Council Chair), five practitioners 
(including one critic of ABA accreditation), and one public member (the 
president of the League of Women Voters). The Special Commission had 
been established by the ABA, prior to settlement negotiations with the 
Government, to make a comprehensive review of the ABA's accreditation 
of law schools. The Government will closely examine its report. The 
proposed decree leaves matters that have legal educational policy 
implications to the Special Commission. The ABA had initiated the 
Special Commission in response to criticisms prior to the filing of the 
Department's case and it is reasonable to give the first opportunity to 
address these policy interests to the Commission. The Special 
Commission's recommendations are subject to the approval of the ABA's 
Board. The Government may challenge any proposal with respect to the 
six subjects enumerated in the proposed consent decree.\24\ The 
Government expects that it and the defendant will resolve any 
differences that may develop so that court involvement in the process 
will be unnecessary.

    \23\ Only two of the Commissioners are listed in MSL's 
enumeration of the 79 ``insiders'' and ``helpers'' group. Comment, 
p. 6 n.4.
    \24\ The six subjects are a small part of the Special 
Commission's entire report.
---------------------------------------------------------------------------

    MSL claims that this process involves lengthy delays, possibly 15-
18 months, and requests that either the Court delay entry of the decree 
until the Special Commission's report is adopted and approved by the 
Board and Justice Department, or that the Court should allow third 
parties the opportunity to comment.
    While we do not expect anything so lengthy as a 15-18-month delay, 
entry of the decree should occur now.\25\ The decree has established a 
reasonable, defensible remedy to treating the allegations in the 
Complaint. Specific practices that clearly violate the antitrust laws 
and cannot be justified on educational policy ground have been 
immediately enjoined. The process that produced these and other 
accreditation rules is in the process of reformation, with the initial 
work being done by the ongoing Special Commission, subject to later 
approval by the ABA Board and Justice Department.

    \25\ The decree can be entered once the comments and the 
Response have been published in the Federal Register and the 
Government has certified to the Court compliance with the APPA.
---------------------------------------------------------------------------

    The public has had the opportunity to comment on the subject areas 
referred to the Special Commission and some, including MSL, have. 
Certainly, if third parties have comments or complaints about the 
Special Commission's report, which will be made public, the Justice 
Department welcomes and will consider those comments.\26\ We have often 
initiated judgment enforcement proceedings based on information from 
third parties. Public comments will be valuable in forming our response 
and in our discussions with the defendant after the Special 
Commission's report.

    \26\ Only a few of the 41 comments discuss the Special 
Commission.
---------------------------------------------------------------------------

    MSL claims that use of the Special Commission circumvents the 
Tunney Act. The consent decree establishes a process rectifying the 
conduct alleged in the Complaint. The public has had the opportunity to 
comment on the process as well. The Department will welcome comments 
when the Special Commission's report is public. In the unlikely event 
the two parties cannot reconcile differences on the Special 
Commission's report, the proposed consent decree provides that the 
Court will resolve the Government's challenge, applying a Rule of 
Reason analysis.
    MSL believes that such a challenge should be decided under a 
``quick look'' analysis. In a recently decided case, however, the Third 
Circuit remanded for a Rule of Reason analysis a district court 
decision that had applied a ``quick look'' analysis where elite 
Northeastern universities fixed the price charged to commonly-admitted 
students who also received financial aid. United States v. Brown 
University, et al., 5 F.3d 658 (3rd Cir. 1993). The subjects referred 
to the Special Commission do not directly restrain price and do not 
seem as appropriate for a ``quick look'' analysis.
    MSL also comments on some of the topics on which the Special 
Commission will report. It notes that the student-faculty ratio 
standard has been applied by the ABA against law schools to require the 
employment of the capturing group--full-time legal theorists--and 
discourages the use of judges and practitioners.
    The proposed consent decree left the initial recommendation 
regarding the correct use of student-faculty ratios to the Special 
Commission for several reasons. Student-faculty ratios are generally 
regarded as a useful legitimate accreditation tools, as is the 
requirement of a core full-time faculty. The Government expects that 
the Special Commission and the ABA Board will suitably assess the 
continuing utility of student-faculty ratios in a manner that 

[[Page 63780]]
does not skew the outcome to promote guild interests.
    MSL also criticizes the ABA's use of the vague facilities 
accreditation standards to micromanage law schools and to require the 
construction of what it terms ``Taj Mahal'' law school facilities. The 
use of this standard to enhance unnecessarily full-time faculty working 
conditions is an appropriate concern. Since adequate facilities can be 
clearly related to educational quality, but the construction of 
unnecessary facilities imposes costs on universities and state 
governments, the Special Commission should have the opportunity to 
recommend a standard and practice that will consist wholly of 
legitimate educational concerns.
4. ``Procedural'' Matters
    MSL believes that the proposed relief is inadequate to eliminate 
the capture problem. MSL anticipates that the ABA will claim that it 
was not ``feasible'' to include practitioners to staff 6-7 person 
inspection teams and staff them with insiders.\27\ The proposed consent 
decree does require that the composition of site teams be made public. 
This will make it easier for the public, and the Government, to see if 
the defendant is living up to its obligations under the decree. MSL 
raises the specter of other possible abuses by a Legal Consultant 
intent on evading, at a minimum, the spirit of the consent decree. The 
decree cannot address all possible outcomes but a systematic evasion of 
its mandate is cause for a contempt hearing. On balance, the decree 
makes a reasonable effort to eliminate capture of the accreditation 
process while preserving the ABA's ability to perform legitimate and 
important accreditation work. This case has also captured the attention 
of the ABA's leadership, which has personal and economic incentives to 
avoid a repetition of the conduct that caused the United States to 
bring this suit.

    \27\ There is no requirement that the size of inspection teams 
be that great. ABA inspection teams have doubled in size over the 
past 20 years.
---------------------------------------------------------------------------

5. Reliance on ABA Leadership
    MSL doubts that the ABA's leadership can be trusted to effect 
changes in the accreditation process, relying, in particular, on the 
ABA's outgoing president's statement denying antitrust liability. A 
value of the consent decree process is that it permits the Government 
to obtain effective and immediate relief that the defendant may accept 
in part because it does not require an admission that can be used 
collaterally. Whether the defendant believes it has violated the 
antitrust laws is not as important as whether it intends to comply with 
the decree. Further, unlike defendants in most antitrust cases, the 
ABA's leadership did not economically benefit from the conduct alleged 
in the Complaint, nor, perhaps, did the ABA itself. Benefit accrued to 
legal academics in the Section of Legal Education, not ABA leaders who 
have an economic incentive to avoid conduct that may be costly to their 
organization. The leadership adopted changes and entered this decree 
over the apparent opposition of the leadership of the Section of Legal 
Education.\28\ MSL's recitation of ABA antitrust ``insensitivity,'' 
involving far different subjects several decades ago, is of little 
relevance.

    \28\ Within a month of the filing of the consent decree, the 
chairpersons of the Council and Accreditation Committee had 
resigned, sharply criticizing the settlement.
---------------------------------------------------------------------------

6. ABA Antitrust Compliance Officer
    MSL also objects to the provision of Section VIII of the proposed 
Final Judgment that requires an antitrust compliance program, including 
the appointment of an antitrust compliance officer. Compliance programs 
have been a fairly standard provision in civil antitrust cases brought 
by the Government and settled by consent decrees since the Folding 
Carton case in the late 1970s.\29\ The compliance program is, if 
anything, somewhat more rigorous than in other consent decrees.

    \29\ U.S. v. Alton Box Board Co., 1979-2 Trade Cas. (CCH) 
para.62,992 (N.D. Ill. 1979). The then-Assistant Attorney General of 
the Antitrust Division described the antitrust compliance program as 
``innovative provisions that add a new dimension to . . . [a] recent 
emphasis on preventive antitrust.'' P. 1, Legal Times of Washington, 
July 9, 1979.
---------------------------------------------------------------------------

    We expect that the ABA's General Counsel will be named as the 
compliance officer. This, too, typically occurs in Government antitrust 
consent decree proceedings. We know of no case in which the ``identity, 
professional background and views of the Compliance Officer'' was an 
issue in an APPA proceeding. Clearly, since the compliance officer may 
be required to provide advice to the defendant's officials, one cannot 
expect the compliance officer to be one chosen by MSL.
    MSL claims that it is ``an incomprehensible lacuna'' for the 
proposed consent decree not to give the antitrust compliance officer 
``supervisory responsibilities'' with respect to the Special 
Commission. But, we see no there, there. The Special Commission's 
charge is to reconcile the educational policy questions in the six 
subjects it is to report on. While it may be seeking antitrust advice, 
there is no reason why its work, which also includes a comprehensive 
review of law school accreditation, must be supervised by the antitrust 
compliance officer or why that should be required by the Court.
    MSL also claims that the Department of Education's review of ABA 
accreditation ``has been wholly ineffective to date in assessing 
quality.'' It believes that Section VI(L) of the proposed consent 
decree may be related to that claimed failure by the Department of 
Education.\30\ MSL concludes that ``it is perplexing that the Antitrust 
Division would now rely on the DOE as a vehicle for assuring quality or 
for precluding self-interested conduct.'' Comment, p. 58. The Justice 
Department disagrees with MSL's statement about the Department of 
Education and has no doubt that the Department of Education has carried 
out its mandate under the Higher Education Act. MSL's claims does not 
relate to whether entry of the proposed Final Judgment is within the 
reaches of the public interest, the issue now before the Court.

    \30\ MSL's venturing into unrelated subjects and gratuitous 
attacks on a Cabinet agency is further reason why it should not have 
party or amicus curiae standing in this proceeding.
---------------------------------------------------------------------------

7. MSL Discovery Requests
    MSL's comment restates the arguments made in its September 26 
Intervention Motion for discovery of the Government's investigative 
files. As its first ground, MSL contends that it is entitled to 
discovery of a ``wide spectrum of documents, evidence, memoranda and 
other evidence that can be determinative'' under Sec. 16(b) of the 
APPA. The APPA calls for the Government to file ``materials and 
documents which the United States considered determinative in 
formulating [the proposed consent decree]'' (emphasis added). Usually, 
there are no such documents and there were none in this proceeding.\31\

    \31\ The Government attached three documents as exhibits to its 
Memorandum Opposing Intervention that, while not ``determinative,'' 
were relevant to the proposed consent decree since they showed the 
ABA was reforming its accreditation of law schools before settling 
this case.
---------------------------------------------------------------------------

    MSL again heavily relies on United States v. Central Contracting 
Co., 537 F. Supp. 571 (E.D. Va. 1982). since Central Contracting was 
decided, however, two courts in this District have rejected requests 
for documents not identified by the United States as ``determinative.'' 
United States v. LTV Corp., 1984-2 Trade Cas. (CCH) para.66,133 at 
66,335 n.3, appeal dismissed, 746 F.2d 51, 52 (D.C. Cir. 1984); United 
States v. Airline 

[[Page 63781]]
Tariff Pub. Co., 1993-1 Trade Cas. (CCH) para.70,191 at 69,894. MSL 
attacks at great length the Government's certification in most APPA 
proceedings that there were no 16(b) ``determinative'' documents. All 
of the APPA proceedings were court-supervised and the courts entered 
the consent decrees. The Government previously briefed this issue and 
incorporates that brief by reference.\32\

    \32\ At pages 11-20 of our October 10 Memorandum opposing 
intervention, we briefed the Court on the Sec. 16(b) determinative 
documents requirement.
---------------------------------------------------------------------------

    As a second prong for discovering the Government's investigative 
files, MSL claims that 16(e) of the APPA provides for such discovery in 
the public interest when there is ``. . . a need to protect the 
interests of injured parties by making available to them documents and 
information gathered by the Government that will `assist in the 
effective prosecution of their claim.''' Comment, p. 68. Of course, no 
court has ordered such discovery in the 20-year history of the Tunney 
Act and none of the other 40 comments in this proceeding requested such 
discovery. MSL's stated purpose for its request is improper--to intrude 
into the Government's deliberative process to second-guess its use of 
prosecutorial discretion. Nor should MSL be able to use the APPA 
proceeding here to obtain discovery it was denied in its pending case 
against the ABA in the Eastern District of Pennsylvania. The discovery 
sought by MSL goes far beyond the limited purpose of an APPA 
proceeding, which is the review of the decree itself, not a review of 
the actions or behavior of the Justice Department.
    MSL's attempt to obtain discovery under 16(e) should be denied for 
a number of reasons. MSL should not use this proceeding to obtain 
discovery it was unable to gain in its two pending cases against the 
ABA. If anything, the APPA was designed to protect injured parties who 
are uninformed as to the source of their injury, not disappointed 
litigants. The purpose MSL states for its discovery request goes well 
beyond the limited purpose of an APPA proceeding and no court has 
required such production under Sec. 16(e). Additionally, requiring the 
production of investigative files will harm the public interest by 
discouraging other antitrust defendants from entering into consent 
decrees, and will make more difficult compliance with CIDs during 
Antitrust Division investigations.
8. Non-Decree Matters
    In its comment, MSL requests the Government to give further 
consideration to three subjects outside the Compliant and proposed 
Final Judgment. The subjects are the accreditation requirements that 
substantially all law school first-year courses be taught by full-time 
faculty, the prohibition against full-time law students working more 
than 20 hours per week, and the library facilities and core collection 
requirement. MSL correctly recognizes that these matters are outside 
the scope of this APPA proceeding. Microsoft, 56 F.3d at 1459-60.

Conclusion

    For these reasons, the Court should enter the consent decree upon 
the Government's certification to the Court of compliance with the 
APPA.

    Dated: October 27, 1995.

    Respectfully submitted,
D. Bruce Pearson,
Jessica N. Cohen,
James J. Tierney,
Molly L. Debusschere,
Attorneys, U.S. Department of Justice, Antitrust Division, 555 4th 
Street, NW., Room 9903, Washington, DC 20001, Tel: 202/307-0809, Fax: 
202/616-5980.

Certificate of Service

    On October 27, 1995, I caused a copy of ``United States' Response 
To Public Comments'' to be served by hand-delivery upon:

David L. Roll,
Richard L. Whiting,
Roger E. Warin,
    Steptoe & Johnson, 1330 Connecticut Avenue, NW., Washington, DC 
20036

and by Federal Express upon:

Ronald S. Flagg, Sidley & Austin, 1722 Eye Street, NW., Washington, DC 
20006
David T. Pritikin, Sidley & Austin, One First National Plaza, Chicago, 
Illinois 60603
Darryl L. DePriest, 541 N. Fairbanks Court, Chicago, Illinois 60611
D. Bruce Pearson

In the United States District Court for the District of Columbia

[Civil Action No. 95-1211 (CRR)]

    United States of America v. American Bar Association.

United States' Response To Public Comments; Exhibits

Exhibits

Comment of Association of Specialized and Professional Accreditors 
(``ASPA'')
Comment of National Office for Arts Accreditation in Higher 
Education
Comment of Association of Collegiate Business Schools and Programs 
(``ACBSP''
Comment of American Library Association (``ALA'')
Comment of Bernard Fryshman
Comment of Accrediting Bureau of Health Schools, Accrediting Council 
of Continuing Education & Training, Accrediting Council for 
Independent Colleges and Schools, and National Accrediting 
Commission of Cosmetology Arts & Sciences (``Four Agencies'')
Comment of Clinical Legal Association (``CLEA'')
Comment of Howard B. Eisenberg
Comment of John S. Elson
Comment of Jeffrey L. Harrison
Comment of Gary H. Palm
Comment of Millard H. Ruud
Comment of Roy T. Stuckey
Comment of Lawrence A. Sullivan and Warren S. Grimes
Comment of Bardie C. Wolfe, Jr.
Comment of Marina Angel
Comment of Bernard J. Coughlin, S.J., Gonzaga University
Comment of University of La Verne
Comment of Reynaldo G. Garza School of Law (``Garza'')
Comment of Deborah Davy
Comment of Joel Hauser
Comment of Wendell Lochbiler
Comment of Larry Stern
Comment of Julie Anne Gianatassio
Comment of Robert Ted Pritchard
Comment of Donald H. Brandt
Comment of David White
Comment of Bill Newman
Comment of Russell R. Mirabile
Comment of an Author to remain Anonymous
Comment of Frank DeGiacomo
Comment of James B. Healy
Comment of William A. Stanmeyer
Comment of ``Four Concerned Lawyers''
Comment of Frederick L. Judd
Comment of Michael L. Coyne
Comment of Jackson Leeds
Comment of Robert Reilly
Comment of Robert W. Hall
Comment of Amrit Lal
Comment of Massachusetts School of Law (``MSL'')
Proposed modification to consent decree
December 5-6, 1994 Staff Analysis

Association of Specialized and Professional Accreditors

September 25, 1995.
John F. Greaney, Chief,
Computers and Finance Section, U.S. Department of Justice, Antitrust 
Division, 555 4th Street, NW.--Room 9903, Washington, DC 20001

    Dear Chief Greaney: The Association of Specialized and 
Professional Accreditors (ASPA) appreciates the opportunity to 
provide comment on the issues and actions proposed to settle the 
antitrust suit of the United States of America against the American 
Bar Association, filed June 27, 1995, as Civil Action No. 95-
1211(CR). A list of ASPA's 40 member specialized and professional 
accrediting agencies is enclosed.

[[Page 63782]]

    ASPA does not presume legal expertise in this case, but does see 
and wishes to comment on the potential impact of the proposed 
settlement on accreditation theory and practice as it affects the 
education of students and the improvement of institutions and 
programs. ASPA does not take issue with prohibitions against the use 
of accreditation to establish specific dollar figures for 
compensation paid to faculty, administrators or other employees. 
ASPA has no comment regarding settlement terms associated with 
transfer of credit based on the profit or not-for-profit status of 
an institution.
    ASPA supports the principle of a free and open market in the 
education arena and believes that educational quality should be 
pursued in ways that promote such a free market. After careful 
reading of the Competitive Impact Statement filed on July 27, 1995, 
ASPA concludes that the Department of Justice, in its interactions 
with the American Bar Association, has gone beyond the 
identification and remediation of specific problems and has created 
theories and potential precedents that could do serious damage to 
educational quality and to the practice of accreditation. ASPA's 
comments are intended, in part, to help reduce the unintended 
consequences that are likely to result if the proposed Final 
Judgment is not modified prior to being finalized.
    1. The document, in its tone, equates the presence of expertise 
with the automatic capture of a field against the public interest, 
long service with conflict of interest, and confidentiality with 
collusion for sinister purposes.
    We believe that in the vast majority of cases, expertise helps 
to build and maintain excellence and the kind of progress that 
creates and sustains a free market. Long service contributes to the 
development of expertise, wisdom and consistent application of 
standards and criteria in the accreditation process, as in other 
situations. Surely this is one reason that most judges are appointed 
for life. Likewise, appropriate confidentiality enables serious and 
honest reviews of institutions and programs by minimizing 
superficiality and the defensiveness that are often imposed by 
public relations considerations when deliberations are not 
confidential.
    2. In a data-based society, it is excessive and inappropriate to 
prohibit the collection or dissemination of data by an accrediting 
agency or professional association.
    The Justice Department has identified a problem with the 
particular uses of data. The identified problem does not focus on 
the existence of the data or the fact of its collection. Accrediting 
agencies and affiliated professional associations collect and 
publish data as a resource. That collection does not seem to be an 
antitrust issue, or if so, it extends beyond accreditation into 
other higher education arenas. The settlement, in our view, can 
appropriately focus on the appropriate use of data, while not 
focusing on or limiting its existence or generation.
    3. To prohibit any use of compensation and similar data could 
create a chilling effect on self-assessment and other benign 
practices.
    A truly comprehensive review of all elements involved in the 
work of a particular university or program can require the use of 
compensation and other similar data. There is a clear distinction 
between using statistics to set salary and similar requirements and 
using such statistics (along with other data) in local management 
decisions. Data facilitate comparisons of performance against a 
school or program's mission, goals and objectives. To restate, the 
focus of the Competitive Impact Statement should be to limit the 
inappropriate use of data, not any use.
    4. The proposed final judgment inappropriately imposes specific 
numerical requirements on:
    a. the composition of various decision-making bodies.
    The specific numbers outlined in the Competitive Impact 
Statement will not in-and-of-themselves ensure either a free market 
or educational quality, nor will any other set of numbers. We are 
not aware of any validity and reliability study proving that the 
presence of professionals or public members in certain proportions 
changes the values of an accrediting agency, increases fairness or 
integrity, or brings about true representation of a profession or 
the public as a whole.
    While we strongly favor the presence of professional expertise 
and public oversight in accreditation activities, we believe that 
the federal government should not dictate particular distributions, 
especially as this could be viewed as an attempt to use precedent to 
set national policies in these areas.
    b. the length of terms of office.
    When volunteers who serve on decision-making bodies or 
accrediting teams are prevented by stringent term-limits from 
developing sufficient experience or expertise, agency staff can have 
a disproportionate influence on the accreditation process. While we 
favor appropriate limits on terms, such limits are best set by the 
agencies themselves. There is no evidence that suggests that shorter 
terms promote the Department of Justice's antitrust and free-market 
objectives.
    c. the size and composition of accrediting teams.
    If extrapolated over the accreditation community as a whole, the 
effect of such stipulations on size and composition of site visit 
teams could increase the cost of accreditation site visits by as 
much as 200%-to-300% with little benefit except for the symbolic 
value of representation. An accrediting agency must have appropriate 
standards, well-trained volunteer personnel, and written policies 
and protocols that are consistent with free-market objectives. 
However, when an agency has such mechanisms in place, it is wasteful 
and unnecessary to require participation formulas that are based on 
place of work.
    5. The specified appeal and reporting requirements between the 
ABA's Accreditation Committee, Council and Board of Governors appear 
to directly conflict with the U.S. Department of Education's 
requirement for increased separation and independence of the 
accrediting arm from the professional association.
    Section 602.3(b)(1)-(3) of the USDoE's Procedures and Criteria 
for Recognition of Accrediting Agencies requires accrediting 
agencies with gatekeeping responsibilities to maintain an arm's 
length ``separate and independent'' distance from their professional 
associations (see enclosure). In addition, another section of the 
DoE Criteria requires that accrediting agencies must not report to 
their professional associations any accreditation information that 
is not also reported to the public. Thus, accreditors are faced with 
two different points of view and with conflicting requirements. It 
is our contention that oversight by a larger or parent body will 
neither automatically create nor prevent conflict of interest.
    6. Annual publication of schools visited and their site visitors 
would bring accreditation personnel decisions into a public 
relations context, damage important conditions of confidentiality 
and overemphasize the role of site visitors in the final 
accreditation decision.
    Settlement terms such as this publication requirement are likely 
to reduce volunteer participation in accreditation, especially by 
distinguished individuals from prestigious institutions. We see no 
linkage between this concept and the maintenance of a free market. 
We do see a number of harmful, probably unintended, side effects.
    7. Taken together, the issues raised in 1-6 above will produce a 
climate and create doctrine and precedents that will offer 
incentives for fraudulent institutions and programs to use a kind of 
``antitrust terrorism'' against accrediting agencies.
    Under the consent decree proposed by the Department of Justice, 
an institution engaged in unfair or even illegal hiring and 
compensation practices could not be questioned by an accreditor, 
using data, without being threatened with an antitrust action.
    In summary, ASPA believes that the Department of Justice, in its 
zeal to pursue perceived antitrust violations, has gone beyond what 
is necessary. In doing this, inappropriate indicators of compliance 
were designed. If accepted, these indicators could be extremely 
destructive to the legitimate efforts of accrediting agencies to 
consider the full range of available information and to work to 
deploy a wide range of expertise in the service of higher education 
and the public.
    Accrediting agencies are expected to identify the problems an 
institution or program has in complying with the accreditation 
standards but are not expected to dictate how those problems should 
be addresses as that is the prerogative of the specific institution 
or program. In a similar way, ASPA asks that the Justice Department 
identify the problems of concern and ask the specific agency, in 
this case the ABA, to develop and defend a solution. The Justice 
Department should not dictate the solution, especially in light of 
the potentially harmful consequences that are likely to extend 
beyond this particular case to the broader arena of accreditation 
and higher education. For this reason, ASPA asks that prior to final 
filing the Final Judgment be shortened and focused to address only 
those practices that directly produce anticompetitive conditions.
    We appreciate the opportunity to submit these comments and would 
also appreciate 

[[Page 63783]]
any opportunity to discuss these matters with you more fully.

    Sincerely,

Milton Blood,
Chair, ASPA, Director of Accreditation, American Assembly of Collegiate 
Schools of Business.

cc: Members, ASPA Board of Directors
    ASPA-member Accrediting Agencies
    Regional Accrediting Agencies
    Cynthia A. Davenport, ASPA Executive Director

Enclosures:
    ASPA-Member Accrediting Agencies
    DoE Criteria Sec. 602.3 re: Separate and Independent

MB/cd

ASPA Membership Roster

1. Acupuncture: National Accreditation Commission for Schools and 
Colleges of Acupuncture and Oriental Medicine (NACSAOM)
2. Allied Health: Commission on Accreditation of Allied Health 
Education Programs (CAAHEP)--CAAHEP serves as an umbrella agency for 
17 separate allied health Committees on Accreditation (CoAs)
3. Architecture: National Architectural Accrediting Board, Inc.
4. Art & Design: National Association of Schools of Art and Design
5. Business: American Assembly of Collegiate Schools of Business 
(AACSB)
6. Chiropractic: Commission on Accreditation for the Council on 
Chiropractic Education
7. Clinical Laboratory Science: National Accrediting Agency for 
Clinical Laboratory Sciences (NAACLS)
8. Computing Sciences: Computing Sciences Accreditation Board, Inc.
9. Construction: American Council of Construction Education
10. Counseling: Council for Accreditation of Counseling and Related 
Education Programs (CACREP)
11. Dance: National Association of Schools of Dance (NASD)
12. Dentistry: Commission on Dental Accreditation, American Dental 
Association (CDA/ADA)
13. Dietetics: Commission on Accreditation/Approval, American 
Dietetic Association (CAADE/ADA)
14. Engineering: Accreditation Board for Engineering and Technology, 
Inc. (ABET)
15. Forestry: Society of American Foresters
16. Health Education: Accrediting Bureau of Health Education Schools 
(ABHES)
17. Home Economics: American Association of Family and Consumer 
Science
18. Interior Design: Foundation for Interior Design Education 
Research (FIDER)
19. Journalism: Accrediting Council--Journalism and Mass 
Communication (ACEJMC)
20. Landscape Architecture: American Society of Landscape Architects
21. Librarianship: American Library Association (ALA)
22. Music: National Association of Schools of Music (NASM)
23. Nuclear Medicine: Joint Review Committee (JRC) in Nuclear 
Medicine Technology
24. Nurse Anesthesia: Council on Accreditation of Nurse Anesthesia
25. Nursing: National League for Nursing, Inc. (NLN)
26. Occupational Therapy: American Occupational Therapy Association 
(AOTA)
27. Optometry: Council on Optometric Education, American Optometric 
Association
28. Pharmacy: American Council of Pharmaceutical Education (ACPE)
29. Physical Therapy: American Physical Therapy Association (APTA)
30. Planning (City & Regional): Planning Accreditation Board
31. Podiatry: Council on Podiatric Medical Education, American 
Podiatric Medical Association (APMA)
32. Psychology: American Psychological Association (APA)
33. Public Health: Council of Education for Public Health
34. Public Affairs: National Association of Schools of Public 
Affairs and Administration
35. Radiology: Joint Review Committee (JRC) in Education in 
Radiologic Technology
36. Recreation & Parks: Council on Accreditation, National 
Recreation and Park Association (NRPA/AALR)
37. Rehabilitation Counseling: Council on Rehabilitation Education 
(CORE)
38. Speech-Language-Hearing: American Speech-Language-Hearing 
Association (ASHA)
39. Teacher Education: National Council for Accreditation of Teacher 
Education (NCATE)
40. Theatre: National Association of Schools of Theatre (NAST)
DEPARTMENT OF EDUCATION

34 CFR Part 602

RIN 1840-AB82

Secretary's Procedures and Criteria for Recognition of Accrediting 
Agencies

AGENCY: Department of Education.

ACTION: Final regulations.

SUMMARY: The Secretary amends the regulations governing the 
Secretary's recognition of accrediting agencies in order to 
implement provisions added to the Higher Education Act of 1965 (HEA) 
by the Higher Education Amendments of 1992, and the Higher Education 
Technical Amendments of 1993. The purpose of the Secretary's 
recognition of accrediting agencies is to assure that those agencies 
are, for HEA and other Federal purposes, reliable authorities as to 
the quality of education or training offered by the institutions of 
higher education or higher education programs they accredit.

    Note: ``Separate and Independent'' issues are addressed in 
Section 602.3 below. See the specific definition in subsection (b).

Sec. 602.3  Organization and membership.

    (a) The Secretary recognizes only the following categories of 
accrediting agencies:
    (1) A State agency that--
    (i) Has as a principal purpose the accrediting of institutions 
of higher education, higher education programs, or both; and
    (ii) Has been listed by the Secretary as a nationally recognized 
accrediting agency on or before October 1, 1991;
    (2) An accrediting agency that--
    (i) Has a voluntary membership of institutions of higher 
education;
    (ii) Has as a principal purpose the accrediting of institutions 
of higher education and that accreditation is a required element in 
enabling those institutions to participate in programs authorized 
under this Act; and
    (iii) Satisfies the ``separate and independent'' requirements 
contained in paragraph (b) of this section;
    (3) An accrediting agency that--
    (i) Has a voluntary membership; and
    (ii) Has as its principal purpose the accrediting of higher 
education programs, or higher education programs and institutions of 
higher education, and that accreditation is a required element in 
enabling those institutions or programs, or both, to participate in 
Federal programs not authorized under this Act; and
    (4) An accrediting agency that, for purposes of determining 
eligibility for Title IV, HEA programs--
    (i)(A) Has a voluntary membership of individuals participating 
in a profession; or
    (B) Has as its principal purpose the accrediting of programs 
within institutions that are accredited by another nationally 
recognized accrediting agency; and
    (ii)(A) Satisfies the ``separate and independent'' requirements 
contained in paragraph (b) of this section; or
    (B) Obtains a waiver from the Secretary under paragraph (d) of 
this section of the ``separate and independent'' requirements 
contained in paragraph (b) of this section.
    (b) For purposes of this section, ``separate and independent'' 
means that--
    (1) The members of the agency's decision-making body--who make 
its accrediting decisions, establish its accreditation policies, or 
both--are not elected or selected by the board or chief executive 
officer of any related, associated, or affiliated trade association 
or membership organization;
    (2) At least one member of the agency's decision-making body is 
a representative of the public, with no less than one-seventh of the 
body consisting of representatives of the public;
    (3) The agency has established and implemented guidelines for 
each member of the decision-making body to avoid conflicts of 
interest in making decisions;
    (4) The agency's dues are paid separately from any dues paid to 
any related, associated, or affiliated trade association or 
membership organization; and
    (5) The agency's budget is developed and determined by the 
agency without review by or consultation with any other entity or 
organization.
    (c) The Secretary considers that any joint use of personnel, 
services, equipment, or facilities by an accrediting agency and a 
related, associated, or affiliated trade association or membership 
organization does 

[[Page 63784]]
not violate the provisions of paragraph (b) of this section if--
    (1) The agency pays the fair market value for its proportionate 
share of the joint use; and
    (2) The joint use does not compromise the independence and 
confidentiality of the accreditation process.

National Office for Arts Accreditation in Higher Education

11250 Roger Bacon Drive, Suite 21, Reston, Virginia 22090, 703-437-0700

September 29, 1995.
John F. Greaney, Chief,
Computers and Finance Section, U.S. Department of Justice, Antitrust 
Division, 555 4th Street, N.W.--Room 9903, Washington, DC 20001

    Dear Mr. Greaney: I write on behalf of the National Association 
of Schools of Music, National Association of Schools of Art and 
Design, National Association of Schools of Theatre, and National 
Association of Schools of Dance. These organizations represent over 
850 programs and institutions concerned with professional education 
and training in the arts. Each is recognized by the United States 
Secretary of Education, and each has a distinguished history of 
accreditation service.
    We appreciate the opportunity to comment on the proposed 
settlement of the antitrust suit of the United States of America 
against the American Bar Association filed June 27, 1995, in Civil 
Action No. 95-1211(CR). The four associations wish to support and 
endorse positions and ideas contained in the letter about this 
action from the Association of Specialized and Professional 
Accreditors (ASPA) to you dated September 25, 1995.
    Since each of the above arts accreditors has voluntary 
membership, and since there are no connections in the arts between 
accreditation and licensure, we are traditionally supportive of free 
market principles in higher education. We appreciate the role the 
Justice Department has played in raising antitrust policy issues for 
the accreditation community. We look forward to a positive and 
productive result from the continuation of your deliberations. 
However, without presuming to enter into legal questions beyond our 
expertise, we urge you and your colleagues to heed the warnings 
contained in the ASPA letter and to be especially sure that in 
pursuing issues and concerns with a particular accrediting body, the 
Justice Department does not set inappropriate precedents or provide 
loopholes that will preclude accrediting bodies from working 
effectively in their most difficult situations with problem 
institutions. By following the recommendations of the ASPA letter, 
the Justice Department should be able to create clarity on pure 
antitrust issues without unintended counterproductive results.
    Please do not hesitate to contact us if we may provide any 
additional clarification or information.
    With best regards, I remain

        Sincerely yours,
Samuel Hope,
Executive Director.

SH:ck

cc: Cynthia Davenport, Executive Director, Association of 
Specialized and Professional Accreditors

Association of Collegiate Business Schools and Programs

July 27, 1995.
Anne K. Kingaman,
Assistant Attorney General, United States Department of Justice, 
Antitrust Division, 10th and Constitution Avenue NW., Washington, 
D.C. 20530

    Dear Ms. Bingaman: I am writing this letter in reaction to the 
recent ruling by the U.S. Justice Department on the American Bar 
Association accreditation activities.
    In the professional field of business there are two accrediting 
bodies: (1) The Association of Collegiate Business Schools and 
Programs (ACBSP) which is seven years old, and (2) The American 
Assembly of Collegiate Schools of Business (AACSB) which was 
established more than 70 years ago. For many years the AACSB 
accrediting body dominated the professional field of business in 
terms of accreditation with stringent requirements for faculty 
research and faculty release time to conduct research. Our 
association, ACBSP, was created to provide an opportunity to 
institutions with a primary mission of teaching to have an 
opportunity to become accredited without having a heavy research 
emphasis.
    ACBSP has maintained, since its inception, that it should 
complement AACSB. The association would exist to address the unmet 
needs of institutions which were not served by AACSB. Thus, ACBSP 
views its market niche as business schools and programs offered by 
the mid-sized and small institutions, as well as the community and 
junior colleges.
    There are approximately 2400 institutions that conduct business 
programs in American higher education. About \1/2\ of these are two 
year colleges and the other half are four year colleges, some of 
which have graduate programs. Business education as a professional 
field of study is four times as large as the next largest 
professional field which is teacher education. AACSB does not allow 
the two year colleges to be members of its association and of its 
657 members only 293 are accredited by AACSB. Our association, 
ACBSP, has approximately 500 members and 175 of these are 
accredited. In addition, our association allows two year colleges to 
be members as well as four year colleges. Take A and B summarize 
some of the differences between the two organizations.

                                    Table A.--Differences in AACSB and ACBSP                                    
----------------------------------------------------------------------------------------------------------------
                                                     AACSB                                  ACBSP               
----------------------------------------------------------------------------------------------------------------
Mission............................  Fosters excellence in research.......  Advances excellence in teaching;    
                                                                             stresses articulation/transfer     
                                                                             policy statements and agreements.  
Organization.......................  657 U.S. Colleges and Universities,    475 U.S. Colleges, 9 Int'l.         
                                      293 accredited. Only accredited        institutions, 175 accredited. All  
                                      schools vote on standards.             member schools vote on standards.  
Accreditation Philosophy...........  Mission-based: (new) encourages        Mission-based: encourages creativity
                                      diversity.                             and innovation.                    
Types of Accreditation.............  Bachelors, Masters, Doctorate........  Associate, Bachelors, Masters.      
Evaluation.........................  Process of review and evaluation       Outcomes assessment program with    
                                      required.                              results used for improvement       
                                                                             required.                          
Costs..............................  See Table B..........................  See Table B.                        
----------------------------------------------------------------------------------------------------------------

    Table B presents a comparison of membership and accreditation 
expenses.

     Table B.--A Comparison of Membership and Accreditation Expenses    
------------------------------------------------------------------------
                                                   AACSB         ACBSP  
------------------------------------------------------------------------
Annual Dues................................    *$2,000-$3,400       $800
Non-accredited Institutions................             **800           
Initial Accreditation:                                                  
    Application............................    ***3,000-5,000      1,350
    Continuing Analysis....................    ***3,000-5,000        100
Reaccreditation............................    ***4,000-6,500      1,350

[[Page 63785]]
                                                                        
Candidacy:                                                              
    Application............................    ***2,000-3,000        350
    Maintenance............................       1,000-1,500          0
                                            ----------------------------
      Total................................     15,000-24,400      3,600
------------------------------------------------------------------------
* The annual dues of $2,100 are for business administration             
  accreditation; the annual dues of an additional $1,300 are required   
  for Accounting accreditation for a total of $3,400. ACBSP does not    
  have a differential fee for accredited institutions.                  
** Non-accredited AACSB institutions pay an annual fee of $800.         
*** Initial accreditation fee is $3,000 for Business or Accounting;     
  $5,000 for Business and Accounting. Reaccreditation fee of $4,000 for 
  Business or Accounting and $6,500 for Business and Accounting.        
  Candidacy fee is $2,000 for Business or Accounting and $3,000 for     
  Business and Accounting.                                              


    Some states have taken the position that their public 
institutions must obtain AACSB accreditation and these schools are 
prohibited from obtaining accreditation from our association. The 
reason for this is partly because AACSB as an organization and its 
membership (which represents the large doctoral granting 
universities) have been very jealous of our existence and they try 
numerous schemes to prevent us from obtaining additional membership. 
One scheme is to form a ``lock-out'' in state systems of higher 
education which forces the public institutions to seek accreditation 
from AACSB. Where licensing is involved, such as accountants sitting 
for the CPA exam, some states have used the ``lock-out'' system to 
require individuals that sit for the CPA exam to have attended an 
AACSB accredited institution.
    We feel that the above practices represent restraint to trade 
and are in direct opposition to the antitrust laws of this country. 
To add to our dilemma, ACBSP is currently recognized by the U.S. 
Department of Education and the other association; AACSB is not. 
AACSB is recognized by a fairly new organization called the 
Commission on Recognition of Postsecondary Accreditation (CORPA).
    The accreditation process of ACBSP is very rigorous and requires 
that institutions meet 26 standards of quality and integrity. 
Despite the fact that these standards are more rigorous than those 
imposed by AACSB, some states continue to give AACSB an unfair 
advantage by granting this organization a virtual monopoly in their 
jurisdiction.
    We would like very much to have a ruling from you concerning the 
legality of states locking out our nationally recognized accrediting 
body from being used to accredit business programs in public 
institutions. With such a ruling we will be able to deal with states 
such as Louisiana, Tennessee, Maryland, Florida, etc.
    Thank you for your assistance in this matter.

        Sincerely,

Harold W. Lundy, Ph.D.,
Executive Director.

cc: ACBSP Board of Directors

American Library Association, Office for Accreditation

50 East Huron Street, Chicago, Illinois 60611-2795, U.S.A., 312-280-
2432, 800-545-2433, Ext. 2432, Fax: 312-280-2433

September 29, 1995.
John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street, NW., Room 9903, Washington, D.C. 
20001

    Dear Mr. Greaney: On behalf of the Committee on Accreditation of 
the American Library Association, I would like to comment on the 
following issues related to Civil Action No. 95-1211(CR) against the 
American Bar Association. We do so from a desire to preserve the 
values inherent in the voluntary accreditation process now in place 
in American higher education, and to ensure that the practices 
undertaken by accrediting agencies are of the highest quality and 
benefit both to the American public and to the educational 
institutions themselves.
    The integrity of accreditation rests in part on the values 
inherent in peer review; that is, each peer must take responsibility 
to ensure that others' behavior does not compromise the process. 
This is a self-regulatory process and each member must encourage the 
entire community to meet the standards and expectations for good 
practice. Thus, we welcome vigilance that results in improved 
practice.
    We strongly endorse self-regulation and express our concern that 
the proposed settlement may promote a bureaucratic and regulatory 
environment that his antithetical to achieving excellence in higher 
education.
    Specifically, we wish to comment on two points: directives 
relating to the size and composition of accrediting teams and the 
degree to which the competitive impact statement may unintentionally 
affect the ability of accrediting agencies to perform their function 
in a free and open environment.
    The American Library Association recently revised its 
accreditation standards and practices. The revisions were prompted 
not by external pressures from outside regulators, but by a real 
desire for self-improvement. As a result of these revisions, we 
believe that our current procedures reflect best practices. Our 
procedures stipulate that size and composition of the external 
review panels who evaluate the programs may vary according to the 
complexity and focus of the program. Our panels consist of both 
visiting and non-visiting members, and have historically included 
both practicing professionals and faculty. Each member of a panel 
represents a financial investment on the part of the program, and an 
investment of time, energy and expertise on the part of the 
panelist. Most of our panel members have a broad range of experience 
and a single individual may be both a practitioner and a faculty 
member (adjunct faculty, for example, represent the practitioner and 
educator perspective) or they may be veterans of careers that have 
included both practice and teaching at various times. Setting quotas 
for certain types of individuals seems to us to set a dangerous 
precedent and introduce unnecessarily regulatory practices that 
serve the best interests of no one.
    Similarly, the overall aim of accreditation as we see it is to 
produce a diagnostic accreditation report and to provide incentives 
to address the identified problems. We expect programs to comply 
with our standards, but we do not presume to dictate solutions. We 
believe the solutions must arise from the particular context of the 
program within its institution, its region, and its identified 
constituency. This is a fundamental principle and one that we 
believe applies to problems identified through the peer review of 
accrediting agencies themselves. Therefore, we cannot support 
prescriptive solutions such as the one proposed in the case of the 
American Bar Association.
    We appreciate the opportunity to comment on these issues.

        Sincerely yours,
Prudence W. Dairymple, Ph.D.,
Director, Office for Accreditation.

cc:
    Brooke Sheldon, Ph.D. Chair, ALA Committee on Accreditation
    Elizabeth Martinez, Executive Director,American Library 
Association

Bernard Fryshman, Ph.D.

1016 East Second Street. Brooklyn, N.Y. 11230, (718) 253-4857

October 2, 1995.
Re: Civil Action No. 95-1211 (CR) [United States of America vs. 
American Bar Association]

John F. Greaney,
    Chief, Computers and Finance Section, U.S. Department of 
Justice, AntiTrust Division; Room 9903, 555 4th Street, NW., 
Washington, DC 20001


[[Page 63786]]

    Dear Mr. Greaney: I have headed a nationally recognized 
accrediting body since 1973, and served for two terms on the 
National Advisory Committee on Accreditation and Institutional 
Eligibility (now the National Advisory Committee on Institutional 
Quality and Integrity). In addition, I have been teaching at the 
university level since 1962. I believe I have a perspective which 
you may find helpful in reviewing your personal Final Judgment in 
the above named case. I very much appreciate this opportunity to 
comment.

 I. The Focus of My Comments

    It would be presumptuous of me to enter into the debate between 
the Department of Justice and the ABA. Where I do address ABA 
issues, it is only to be able to react to Department of Justice 
contentions, which, by extrapolation, can be applied to other 
accrediting agencies.

II. Are Anti-Trust Considerations Relevant To Higher Education?

    Higher education is characterized by a sense of mission against 
which all considerations of commerce and competition must be 
weighed. Higher education in America traces its antecedents to a 
culture of service which pervades Academe and influences day to day 
policy. Two examples will suffice to illustrate my point.
    (I) Most colleges and universities survive on the basis of 
student tuition and research. Consider a student who is doing poorly 
in his studies and enrolls in the class of a professor who opens up 
the excitement of learning. At the end of the term, in consultation 
with this professor, the student concludes that his career would be 
better served by transferring to another institution.
    The professor does everything possible to facilitator this move, 
including contacting colleagues, writing letters of recommendation 
and helping the student search for applicable scholarships and 
fellowships. The professor knows full well that her classes will be 
the poorer for the student having transferred, and the student's 
tuition dollars will now help pay someone else's salary. Yet, 
everyone associated with the school recognizes the welfare of the 
student and his ultimate contribution to knowledge as the true goals 
of the institution.
    (II) A senior research professor at a university works with his 
graduate students in an area of current research, helps them attain 
their Ph.D.'s and then moves heaven and earth to try to place them 
in tenure track positions at other universities. Knowing full well 
that these students will now be competing with him for research 
dollars and for quality graduate students.
    In a word, postsecondary institutions have a bottom line which 
is quite different from that of commercial enterprises.

III. Accreditation is an Integral Part of the Culture of Higher 
Education

    Accreditation agencies emanate from the community of schools 
they sever, and are guided by the same sense of mission. Accrediting 
bodies have an uninterrupted record of opening their doors to ever 
increasing number of schools. Highly paid professionals give gladly 
of their time to serve on site visiting teams, on committees and 
commissions, for little or no recompense.
    Accreditation professionals spend untold hours working with 
applicant institutions to help them meet standards. Visitors are 
encouraged to make helpful suggestions to institutions which they 
visit. The fact that so few institutions are turned down in 
petitions for renewal of recognition, even in this period of service 
competition for students, is inconsistent with accusations that 
accreditors have been stifling competition.

IV. Accreditation Involves the Application of Standards

    Whenever standards are applied, there will be those who fail to 
meet those standards. Where judgement is involved, there will always 
be questions.
    Scholarly journals publish only refereed papers. If I, a 
physicist, submit a research paper to a journal, it will be reviewed 
by someone working in the same field and therefore competing with me 
for recognition and research grants. If my paper is not accepted for 
publication, the outside observer might conclude that there was a 
desire to stifle competition. Yet, no one in the world of science, 
no matter how aggrieved, would come to this conclusion.
    Accreditation, like all of higher education, is not an exact 
science. Judgement plays a large role in the decision making 
process, and disagreement is inevitable. But the honest application 
of standards is a far cry from an intent to stifle competition.

V. States Determine Eligibility for Bar Exams

    ABA standards are universally recognized as establishing the 
quality of a law school; and any seeming restrictions on competition 
are a function of those who use the ABA list of accredited schools--
not of the ABA itself! Thus, the fact that 40 states open the bar 
exams only to ABA graduates is not the fault of the ABA. Rather the 
states should be asked to open the bar exam process. Can an 
accrediting body be blamed for the misuse of its accreditation list?

VI. ``Capture of the Accreditation Process''

    It is important to recognize that law schools educate students 
in the law, whereas the bar examination and the states create 
lawyers. The distinction is important since it is educators, not 
practitioners, who are best qualified to judge the functioning of a 
school. Whether a school creates effective attorneys is a question 
entirely distinct from its ability to educate students in the law. 
It is counterproductive for the Department of Justice to force 
accrediting bodies to include people who are not educators to judge 
an educational institution.

VII. Professional Staff Compensation

    A high salary structure, together with an emphasis on full-time 
faculty, can ensure that faculty remain fully focused on their 
teaching and research responsibilities without the pressures of an 
outside job. For some students, faculty availability outside class 
is as important as the lecture itself. High salaries will also 
ensure that schools will attract high quality faculty. In any case, 
it is not clear to me why such a clause is anti-competitive. Schools 
not accredited by the ABA, and therefore not required to pay 
exceedingly high salaries, could charge a much lower tuition, 
thereby competing effectively for students.

VIII. Facilities

    Proper facilities are integral to the educational process. It is 
inappropriate for government to determine how lectures are to be 
delivered, what books are to be read, and what facilities are 
appropriate for any given educational system.

IX. Public View

    Bringing the public eye into deliberations involving standards 
can cripple the accreditation process and discourage site visitors 
from expressing true opinions and making difficult judgements.

X. Other Schools Can Compete

    It would be extremely troubling were the Justice Department to 
force accrediting agencies to expand their scope to areas outside 
their competence. Well run non-ABA schools are able to attract 
students, and in many states their students can sit for the bar 
examination. Such schools can even organize their own (Department of 
Education Recognized) accrediting body. How is the ABA's 
unwillingness to accredit proprietary institutions a barrier to 
competition?

XI. An Alternative Approach

    Recognized agencies must satisfy federal regulations which 
require, among others, that standards be reviewed regularly for 
reliability, validity and relevance. If there is any indication that 
standards are not relevant to quality education, the Department of 
Education can be very effective in ensuring change, particularly if 
a third party comment is properly structured.

XII. Conclusion

    Higher education and accreditation have characteristics and a 
culture which may make certain anti-trust considerations irrelevant. 
Perhaps a reconsideration of the findings in this case, in light of 
the special nature of accreditation, is in order. Certainly a review 
of the proposed corrective actions should be made.
    Thank you again for this opportunity to comment.

        Respectfully,
Dr. Bernard Fryshman

Whiteford, Taylor & Preston,

1025 Connecticut Avenue, NW., Washington, D.C. 20036-5405, 202 659-
6800, Fax 202 331-0573

October 2, 1995.

Via Hand Delivery

John F. Greaney,
Chief, Computers and Finance Section, Antitrust Division, Department 
of Justice, Room 9903, 555 4th Street NW., Washington, DC 20001

Re: U.S.A. v. American Bar Association, U.S. District of Columbia, 
Civil Action No. 95-1211 (CR), WTP No. 00732/00408

    Dear Mr. Greaney: Pursuant to Section V of the Competitive 
Impact Statement filed in the above captioned action on July 14, 
1995, we 

[[Page 63787]]
submit herewith the Comments of the below listed nationally recognized 
accrediting agencies on the proposed Final Judgment against the 
American Bar Association.

Accrediting Bureau of Health Education Schools (ABHES)
Accrediting Council for Continuing Education & Training (ACCET)
Accrediting Council for Independent Colleges and Schools
National Accrediting Commission of Cosmetology Arts & Sciences

    You will note that we have asked for a hearing before the Court. 
We would appreciate a copy of any response to our Comments that you 
may file with the Court.

    Sincerely,
C. William Tayler

CWT:das
Enclosure

cc:
    U.S. Department of Education (w/encl.)
    Participating Accrediting Agencies (w/encl.)
    William C. Clohan, Jr., Esq. (w/encl.)
    David T. Pritken, Esq. (w/encl.)

United States District Court for the District of Columbia

    United States of America, Plaintiff, v. American Bar 
Association, Defendant. Civil Action No.: 95-1211(CR), Judge Charles 
R. Richey, Deck Type: Antitrust.

Comments and Suggested Modification of Proposed Final Judgment and 
Request for Hearing

    The undersigned recognized accrediting agencies (``the 
agencies''), by counsel, hereby submit the following Comments and 
Suggested Modification to the proposed final judgment in this 
manner. The agencies also respectfully request a hearing concerning 
modification and entry of the proposed final judgment in this 
matter.

Introduction

    The agencies are all formally recognized by the United States 
Department of Education. They submit that the proposed final 
judgment is inconsistent with current antitrust law in this circuit 
with respect to the applicability of the antitrust laws in the field 
of accreditation and in those areas subject to oversight by Congress 
and other federal government agencies. In this connection, the 
proposed final judgment fails to recognize the significant role of 
the United States Department of Education in accreditation as 
mandated by the Congress in the Higher Education Act of 1965, as 
amended. 20 U.S.C. Sec. 1099b. The agencies submit that this Court 
should ensure that the proposed final judgment not undermine or 
otherwise limit the important purposes of the Higher Education 
Act.\1\

    \1\ By submitting these comments, the agencies are not taking a 
position on the merits of the current litigation.
---------------------------------------------------------------------------

    Thus, the agencies respectfully submit that the proposed final 
judgment be modified by adding an additional sentence to Part XI(C) 
as follows: ``Nothing in this judgment shall be construed to modify 
any of the provisions of the Higher Education Act of 1965, as 
amended, or any of the regulations adopted pursuant thereto, or any 
existing law concerning the recognition of private accrediting 
agencies, or the activities of such agencies relating thereto.''

The Framework of Recognition of Private Accrediting Agencies

    Private accrediting agencies are recognized by the Department of 
Education under the provisions of the Higher Education Act of 1965 
(HEA), Pub. L. 89-329, 20 U.S.C. 1001, et seq. as amended, and are 
subject to a significant oversight by the Secretary of Education. 
Recognition is a process by which the Secretary of Education 
determines that an accrediting agency is a ``reliable authority as 
to the quality of education or training offered'' at the 
institutions accredited by the agency. 20 U.S.C. 1099b(a). 
Accreditation by a recognized accrediting agency is a prerequisite 
to the ability of students to obtain federal financial assistance. 
See 20 U.S.C. Sec. 1085(c).
    For an accrediting agency to be ``recognized,'' the Secretary 
must conduct a comprehensive review and evaluation of the 
accrediting agency to determine whether the agency meets the 
standards established by the law. 20 U.S.C. 1099b(n). An accrediting 
agency may be recognized for a period of no more than five years and 
must apply to be re-recognized by the Secretary. 20 U.S.C. 1099b(d).
    An accrediting agency seeking recognition from the Department of 
Education must have accrediting standards which assess the following 
areas of activity of educational institutions:

1. Curricula
2. Faculty
3. Facilities, equipment and supplies
4. Fiscal and administrative capability
5. Student support services
6. Recruiting and admissions policies
7. Academic calendars, catalogues, publications, grading and 
advertising
8. Program length
9. Tuition and fees
10. Measures of program length
11. Course completion, State licensing examination and job placement 
rates
12. Default rates
13. Student complaints
14. Compliance with program responsibilities

20 U.S.C. 1099b(a). The Secretary of Education is required by the 
Congress to conduct oversight activities even during periods of 
recognition. 20 U.S.C. 1099b(n). Thus, it is clear that the 
oversight role of the Department of Education is, as required by 
Congress, extensive. In this connection, the Secretary has further 
authority to promulgate regulations concerning the recognition 
process. 20 U.S.C. 1099b(o).

Application of the Antitrust Laws to Accrediting Agencies

    Since at least 1970, the courts have shown substantial deference 
to accrediting agencies in recognition of their expertise in the 
area of educational accreditation.\2\ In the case of Marjorie 
Webster Junior College, Inc. v. Middle States Association of 
Colleges and Secondary Schools, 432 F.2d 650 (D.C. Cir. 1970), the 
United States Court of Appeals for the District of Columbia Circuit 
specifically rejected an antitrust challenge to the actions of 
private accrediting agencies: ``We do not believe that Congress 
intended this concept [accreditation] to be molded by the policies 
underlying the Sherman Act.'' Id. at 655. As recently as 1993, 
federal courts have recognized the continuing viability of Marjorie 
Webster,\3\ and it remains the law in this Circuit. The continued 
applicability of Marjorie Webster in the field of accreditation has 
never been questioned in court decisions.

    \2\ See Marjorie Webster Junior College, Inc. v. Middle States 
Association of Colleges and Secondary Schools, 432 F.2d 650 (D.C. 
Cir. 1970); Wilfred Academy of Hair and Beauty Culture v. Southern 
Ass'n of Colleges and Schools, 957 F.2d 210 (5th Cir. 1992); Medical 
Inst. of Minnesota v. National Ass'n of Trade and Technical Schools, 
817 F.2d 1310 (8th Cir. 1987); Peoria School of Business, Inc. v. 
ACCET, 805 F. Supp. 579 (N.D. Ill. 1992); Transport Careers, Inc. v. 
National Home Study Council, 646 F. Supp. 1474 (N.D. Ind. 1986): 
Parsons College v. North Central Ass'n of Colleges and Secondary 
Schools, 271 F. Supp. 65 (N.D. Ill. 1967).
    \3\ See U.S. v. Brown University, et al., 5 F.3d 658 (3rd. Cir. 
1993).
---------------------------------------------------------------------------

    Five years after Marjorie Webster was decided, the Supreme Court 
was called upon to address the applicability of the antitrust laws 
in circumstances where there is an inconsistency with federal agency 
activity. In U.S. v. National Ass'n of Sec. Dealers, 422, U.S. 694 
(1975) and Gordon v. New York Stock Exchange, 422 U.S. 659 (1975), 
the Supreme Court held that when there is an inconsistency between a 
federal regulatory scheme and the antitrust laws, there is an 
implied immunity from the antitrust laws for the conduct subject to 
the agency's scheme. This rule has been recognized and applied in 
the context of several federal statutory frameworks, including the 
Federal Communications Commission,\4\ the Securities and Exchange 
Commission,\5\ and the Interstate Commerce Commission.\6\

    \4\ See Phonetelle, Inc. v. American Telephone and Telegraph 
Co., 664 F.2d 716 (1981).
    \5\ See Finnegan v. Campeau Corp., 915 F.2d 824 (2nd. Cir 1990); 
Shumate & Co., Inc. v. NYSE, Inc., 486 F. Supp. 1333 (N.D. Tex. 
1980).
    \6\ See Waldo v. North American Van Lines, 669 F. Supp 722 
(W.D.Pa. 1987).
---------------------------------------------------------------------------

Ramifications of the Proposed Final Judgment

    The Department of Justice is asking this Court to approve a 
broad, in-depth intrusion of the Sherman Act into the field of 
educational accreditation that will have a chilling effect on the 
entire accreditation process and conflict with the Higher Education 
Act of 1965, as amended. Nowhere in the proposed final judgment does 
the Department of Justice attempt to reconcile this intrusion in 
light of the existing precedent in this Circuit and the implied 
immunity doctrine relating to activities subject to federal agency 
oversight.
    Arguably, many accrediting agency standards adopted in 
connection with 20 U.S.C. Sec. 1099b(a)(5) could be the basis for 
claims of anticompetitive activity. Yet the Congress has clearly 
legislated that these 

[[Page 63788]]
standards, the purpose of which is to ensure a level of quality 
assurance in the area of educational accreditation, should be the 
subject of oversight by the Department of Education. It would be 
unfortunate if this Court's endorsement of the proposed final 
judgment were construed as a blank check to pursue antitrust claims 
against nonprofit, recognized accrediting agencies already subject 
to significant oversight by the Secretary of Education.
    Accordingly, the agencies submit that the suggested modification 
to the proposed final judgment will protect the integrity of private 
accreditation and the important oversight activity of the Department 
of Education mandated by Congress in 20 U.S.C. Sec. 1099b. The 
proposed modification is consistent with the precedent in this 
Circuit and the limited immunity doctrine set forth in United States 
v. National Association of Securities Dealers, 422 U.S. 694 (1975) 
and Gordon v. New York Stock Exchange, 422 U.S. 659 (1975).

Conclusion

    For all the reasons set forth herein, the agencies respectfully 
request this Court modify the proposed final judgment in this matter 
to be consistent with existing law and the Higher Education Act of 
1965, as amended.

        Respectifully submitted,

Whiteford, Taylor & Preston, L.L.P.

C. William Tayler (Bar No. 012930)
Kenneth J. Ingram (Bar No. 145698)
1024 Connecticut Avenue, N.W., Suite 400, Washington, D.C. 20036, (202) 
659-6800.

Counsel for Accrediting Bureau of Health Education Schools (ABHES), 
Accrediting Council for Continuing Education & Training (ACCET), 
Accrediting Council for Independent Colleges and Schools (ACICS), 
National Accrediting Commission of Cosmetology Arts & Sciences 
(NACCAS)

    Dated: October 2, 1995.

Exhibit A--The Organizations Filing Comments

    ABHES. The Accrediting Bureau for Health Education Schools 
(ABHES) is a non-profit organization that accredits both 
institutions and programs. The institutions are private 
postsecondary institutions that primarily provide allied health 
programs. The programs are either medical assisting or medical 
laboratory assisting and can be provided by private institutions or 
public institutions. Its accredited membership consists of:
     78 institutions providing allied health programs.
     93 medical assisting and medical laboratory technician 
programs.
    ABHES is located in Arlington, Virginia and has filed under the 
Virginia Nonstock Corporation Act to have its Indiana corporation 
merged with a new corporation in Virginia.
    ABHES is currently recognized (approved) by both the U.S. 
Secretary of Education and the Commission on Recognition of 
Postsecondary Accreditation (CORPA), a nonprofit, nongovernmental 
organization that evaluates accrediting agencies for their ability 
to determine the quality of educational offerings and administrative 
capability at postsecondary institutions. Institutional 
accreditation by ABHES, under the Secretarial recognition, is often 
one of the prerequisites for students attending those institutions 
to be eligible for federal student assistance from programs 
authorized by the Higher Education Act of 1965, as amended.
    ACICS. The Accrediting Council for Independent Colleges and 
Schools (ACICS) is an independent and autonomous body which 
accredits private, postsecondary career colleges and schools through 
a peer review evaluation process. Located in Washington, D.C. and 
incorporated under the Virginia Nonstock Corporation Act, ACICS is a 
nonprofit corporation organized and operated exclusively for 
education purposes, holding 501 (c)(3) Federal tax exempt status. 
The Council is composed of a Board of Directors and two 
commissions--the Commission on Postsecondary School Accreditation 
(COPSA) and the Commission on College Accreditation (COCA). Council 
members include representatives from institutions, education-related 
government agencies or other sectors of higher education, and the 
general public. Public members come from business, industry, or 
other professions. COPSA accredits noncollegiate, postsecondary 
institutions that offer programs of two years or less. COCA 
accredits collegiate institutions (i.e., junior and senior 
colleges). Its accredited membership consists of:
     338 noncollegiate, postsecondary institutions at 338 
main campuses with 129 branch campuses and 59 learning sites.
     81 collegiate institutions at 81 main campuses with 55 
branch campuses and 14 learning sites.
    Since 1956, the U.S. Secretary of Education and his predecessor, 
the Commissioner of Education, have officially recognized ACICS as a 
nationally recognized accrediting body of postsecondary institutions 
offering primarily business and business-related programs of study. 
ACICS is also recognized by the Commission on Recognition of 
Postsecondary Accreditation (CORPA), a non-governmental organization 
dedicated to promoting and insuring the quality and diversity of 
American postsecondary education.
    ACCET. The Accrediting Council for Continuing Education & 
Training (ACCET) was established in 1974 as a private, non-profit 
corporation for the purpose of establishing standards for 
accreditation and a peer-review-based evaluation process by which 
institutions providing continuing education and training programs 
could seek accredited status. Since 1978, ACCET has been officially 
recognized by the United States Department of Education under the 
criteria and procedures established by the U.S. Secretary of 
Education to identify accrediting agencies determined to be reliable 
authorities as to the quality of education or training provided by 
the institutions they accredit. Under the Higher Education Act of 
1965, Pub. L. 89-329, 20 U.S.C. Section 1001 et seq., as amended, 
ACCET accreditation serves as one element of eligibility for its 
members to participate in HEA Title IV programs of federal financial 
assistance for their students.
    Under the ACCET Bylaws, an Accrediting Commission, consisting of 
not more than 15 nor fewer than 11 Commissioners, 5 of which must be 
public members, are empowered to promulgate policies and procedures 
required to operationalize the standards for accreditation, and to 
determine whether institutions seeking accreditation meet those 
standards. With offices in Arlington, Virginia, an Executive 
Director, with a full-time staff of 10, administers the day-to-day 
operation subject to the policies, procedures and directives of the 
Commission. Currently, ACCET member institutions consist of both 
for-profit and non-profit institutions totaling 245 main campus 
operations with a combined total of approximately 800 training sites 
across the United States.
    NACCAS. The National Accrediting Commission of Cosmetology Arts 
and Sciences (NACCAS) is an autonomous, independent accrediting 
commission constituted as a non-profit [501(c)(3)] Delaware 
corporation, with its main offices located in Arlington, Virginia. 
The Commission's origins date back to 1969, when two accrediting 
agencies in the field merged to form the Cosmetology Accrediting 
Commission (CAC), which became NACCAS in 1981.
    NACCAS is directed by a Board of Commissioners. Between 1996 and 
1998 the size of the Commission shall be reduced from 17 to 13 
members. Seven will represent accredited schools; three will 
represent the salon industry, and three will be educators who 
represent the public interest. Currently it is 9, 4 and 4 
respectively. The Commission comes together twice a year to review 
school files and holds two conference call meetings for school file 
review. It holds one meeting a year dedicated to reviewing quality 
standards, policies and operations.
    Committees carry out preliminary policy review and make 
recommendations to the full Commission. Several interim committees 
have the authority to take action on complaints, applications for 
changes such as changes of ownership, and to review interim visit 
reports and annual reports.
    Since 1969, NACCAS has become recognized by the U.S. Department 
of Education as a national agency for the institutional 
accreditation of postsecondary schools and departments of 
cosmetology arts and sciences, including specialized schools.
    NACCAS currently accredits 1,300 private postsecondary 
institutions which educate and train cosmetologists, barbers, 
estheticians, manicurists and other professionals in the cosmetology 
field.

Clinical Legal Education Association

6020 South University Avenue, Chicago, Illinois 60637-2786, Phone 312/
702-9611, Fax 312/702-2063

October 1, 1995.
John F. Greaney
Chief, Computers and Finance Section, U.S. Department of Justice--
Antitrust Division, 555 4th Street, N.W., Washington, D.C. 20001

Re: U.S.A. v. American Bar Association, No. 95-1211.


[[Page 63789]]

    Dear Mr. Greaney: Enclosed please find the comments of the 
Clinical Legal Education Association on the proposed Consent Decree 
to be entered in the above case. CLEA is very concerned that the 
proposed decree will exacerbate the very problems it identifies by 
further entrenching the power of legal academics, and, more 
importantly, may not fully serve the public interest by interfering 
with the ability of accreditation to improve the quality of lawyers.
    There are two ways in which this ``final'' judgment will not 
really be final. First, many of its most important terms await the 
outcome of recommendations to be made by the ``special commission'' 
and reviewed by the United States. Second, the United States retains 
the authority to review all changes in accreditation standards, 
interpretations and rules. CLEA would greatly appreciate the 
opportunity to participate in these ongoing processes. We believe 
that we can be a useful voice in insuring that accreditation serves 
the needs of students to learn how to practice law and the needs of 
their future clients for competent lawyers. Additionally, we would 
be happy to meet with you at any time to discuss the concerns 
expressed in the attached comments.

        Sincerely,
Mark J. Heyrman,
Secretary-Treasurer.
Enclosure.

Comments of the Clinical Legal Education Association on the Proposed 
Consent Decree Between the United States of America and the American 
Bar Association

    The Clinical Legal Education Association (CLEA) is an 
organization of more than 400 clinical teachers affiliated with more 
than 125 law schools. It is the only independent organization of 
clinical teachers. Because clinical teachers have a dual identity as 
law teachers and practicing lawyers, we believe that we are in a 
unique position to address issues concerning the relationship 
between law schools and the bar and to evaluate the competing 
demands upon law schools which make the accreditation process so 
difficult.
    1. Law schools have two major purposes: (1) to prepare students 
for the competent, ethical and effective practice of law; and (2) to 
conduct research designed to increase our understanding of law and 
legal institutions with the ultimate aim of improving our system of 
justice. Any system of accreditation must be designed to increase 
the likelihood of achieving these purposes. It must also recognize 
that law is a diverse and complex field and that a sound legal 
education system will include law schools that are diverse in their 
methods and practices and in the balance they chose to strike 
between these sometimes competing goals.
    2. Because of law's complexity, few non-lawyers are able 
adequately to assess the ability of lawyers to perform on their 
behalf. Additionally, few prospective law students are able to 
assess the skills and qualities of mind that they will need to 
practice law effectively. Thus, the ordinary market mechanisms are 
insufficient to insure either that law students demand an 
appropriate legal education or that clients, the ultimate consumers 
of legal education, can with confidence locate lawyers who are 
capable of competently assisting them. On the other hand, most law 
faculty derive the largest share of their prestige within the legal 
education community from their scholarly output. Consequently, while 
the accreditation process should enhance the ability of law schools 
to produce scholarship, there is far less need for outside pressure 
to insure that this important goal will be met. Thus, the consent 
decree must be designed to insure that its efforts to eliminate 
anti-competitive practices do not interfere with the most important 
goal of accreditation: the need to improve the quality of lawyers. 
(See para.33 of the Complaint, describing the legitimate goals of 
accreditation.)
    3. Because, as alleged in the Complaint (Paras. 9-14), the 
accreditation process has been dominated by academics and deans, it 
has not been able to serve the function of insuring that students 
are adequately prepared to practice law. The failure of law schools 
to prepare students to practice law competently and ethically has 
been documented repeatedly, most recently in Legal Education and 
Professional Development: An Educational Continuum, the 1992 Report 
of the ABA Task Force on Law Schools and the Profession: Closing the 
Gap (this Report is commonly referred to as the MacCrate Report 
after the Task Force's chairman, Robert MacCrate). Thus, CLEA 
supports those aspects of the proposed decree which will improve the 
likelihood that accreditation serves students and clients, not deans 
and academics.
    4. Unfortunately, the proposed consent decree will not 
necessarily further that goal. Indeed, it may weaken an 
accreditation process which is already quite weak. One of the ways 
in which the decree may weaken the accreditation process is its 
insistence that each site visit team include ``one university 
administrator who is not a law school dean or faculty member'' 
(Decree, p. 4). This requirement is apt to increase the likelihood 
that law school resources are expended on research rather than on 
education. University administrators have neither an ethical 
obligation to, nor a highly developed interest in, insuring that the 
quality of lawyering be improved. Indeed, the principle tension 
between law schools and the universities with which they are 
affiliated is the concern the law schools are not sufficiently 
academic. Since the prestige of most universities is most commonly 
measured by the scholarly output of its faculty, these 
administrators are apt to pursue the goal of improving scholarly 
output as their highest priority. Finally, if the Complaint is 
correct in alleging that accreditation has been taken over by a 
``guild'' of academics, then it seems odd to add to the 
accreditation process persons so completely identified as running 
the guild.
    5. The requirement that site visit teams include a university 
administrator, when coupled with the new requirement that the 
majority of each team not be full-time faculty members, is also apt 
to reduce the likelihood that these teams contain clinical teachers. 
Since clinical teachers are the only full-time members of most 
faculties who practice law, this result may exacerbate the imbalance 
between research and the education of lawyers which already exists.
    6. More importantly, the Proposed Consent Decree does little to 
change or challenge existing standards and practices which enhance 
the power of academics at the expense of the needs of students and 
their future clients. For example, the existing standards mandate 
that legal academics be granted tenure, but do not provide this 
protection to many clinical teachers who are involved in preparing 
students to practice law. Standard 405(d), (e). The standards also 
require law schools to permit legal academics to participate in the 
governance of the law school, but have not been interpreted to 
mandate that clinical teachers be allowed to partake in governance. 
Standard 304. This differential treatment serves to preserve the 
status quo in which the research and other needs of academics are 
given priority over the needs of students and their future clients. 
That is because clinical teachers and adjuncts, who often are the 
only members of law faculties with substantial interest in how law 
is practiced, are often denied a voice in governance.
    7. As set forth in the Complaint (para. 21), the current 
accreditation standards specify student-faculty ratios. Standard 
402. However, under this standard, many clinical teachers and 
adjunct faculty primarily engaged in preparing students for the 
competent and ethical practice of law are not included in the 
faculty component of the ratios. (Complaint, para. 21). This 
omission discourages law schools from employing many persons whose 
primary role in the law school is to prepare students to practice 
law. CLEA supports the provision in the proposed consent decree 
which requires the ABA to reconsider its standards concerning 
faculty-student ratios. (Decree, p. 8)
    8. The proposed Consent Decree also does nothing to change the 
fact that the current accreditation standards do not even require 
law schools to provide students with any experience in the practice 
of the law. Indeed, the self-interested nature of the standards is 
demonstrated by the fact that they are virtually silent concerning 
curriculum. This silence permits academics to pursue their own 
teaching interests without concern for the effect on students or 
their future clients. Thus, while the superiority of clinical 
methodology for preparing professionals is well documented (see, for 
example, D. Schon, The Reflective Practitioner (1983)), the 
accreditation standards do not require law schools to provide any 
clinical experience for students and many law schools do not so 
provide. The Consent Decree should prohibit the ABA accreditation 
process from being used to protest the interests of academics by 
mandating standards that, at a minimum, treat the obligation of law 
schools to prepare students to practice law as being of equal 
importance to their obligation to conduct research.
    9. CLEA supports the continued role of the American Bar 
Association in accreditation. However, the current process has 
failed, not because the standards are too vigorously enforced, but 
because they are misdirected. Given the interests of legal academics 
and 

[[Page 63790]]
law school administrations, accreditation standards can serve to 
heighten competition and serve consumers only if they are focussed 
primarily on curriculum and are designed to insure that curricula 
reflect the needs of consumers in addition to those of the academy.
    10. In order to improve consumer choice, the accreditation 
process should require law schools to provide information to 
applicants to improve their ability to make informed choices among 
schools. (Complaint, para. 33.) This information should reveal the 
actual availability of courses and programs and the extent to which 
each school is able to prepare students for the practice of law. The 
Consent Decree should require the special commission provided for in 
Section VII of the proposed decree (pp. 7-8) to review the standards 
relating to disclosures to prospective students.

Marquette University Law School, Office of the Dean

September 20, 1995.
Mr. John F. Greaney, Chief,
Computer and Finance Sections, Antitrust Division, United States 
Dept. of Justice, Room 9903, 555 Fourth Street, N.W., Washington, 
D.C. 20001

Re: United States v. American Bar Association, Case No. 95-1211 
(D.C.D.C.)

    Dear Mr. Greaney: I am writing to express my substantial concern 
with the terms of the Consent Decree proposed by the American Bar 
Association and the Government in the above entitled matter.
    I am troubled that this litigation was commenced and settled 
without input from legal educators or consumers of legal education 
and legal services. Still, I could live with most of the provisions 
of the settlement, but I cannot live with the provisions of Section 
VII.
    Section VII leaves open for future determination five issues of 
extraordinary importance to legal educators, including, faculty 
teaching hours; leaves of absence for faculty; calculation of 
faculty component of the student/faculty ratio; physical facilities; 
and the allocation of resources of the law school by the law school 
or its parent university. Frankly, these five issues are of much 
greater importance to me and to most legal educators than anything 
actually resolved in the settlement. These issues strike at the 
heart of the fiscal integrity of law schools, as well as the basic 
structure of law school faculties. I cannot conceive of a reason why 
the Government and the ABA would want to leave these five matters on 
the table for further resolution. I strongly oppose such action. 
Allowing these matters to officially remain open and unresolved 
strikes me as a guarantee that the Court will be involved in 
protracted and difficult litigation in the future over these 
matters. Until and unless these matters are definitively resolved, I 
think any settlement is premature, unwarranted, and not in the 
public interest or in the interest of this Court.
    Thus, while I generally oppose the settlement before the Court, 
I particularly urge the Court to reject the provisions of Section 
VII of the proposed judgment and direct the parties to either delete 
entirely these six issues or to propose a settlement of the issue 
before the matter is approved by the Court.
    The Court's consideration of my views on this matter is greatly 
appreciated.

        Yours respectfully,
Howard B. Eisenberg,
Dean and Professor of Law.

Northwestern University School of Law

357 East Chicago Avenue, Chicago, Illinois 60611-3069, (312) 503-8573, 
(312) 503-8977 Fax

September 13, 1995.
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street, N.W., Room 9903, Washington, 
D.C. 20001

Re: Comments on modifications of proposed Final Judgment in U.S.A. 
v. American Bar Assoc., (D.Ct. D.C.; C.A. No. 95-1211).

    The proposed Final Judgment offers a unique opportunity to 
restore ABA accreditation to its original and only proper purpose of 
safeguarding the public interest in the adequate preparation of law 
students for competent and ethical law practice. Unless, however, 
the proposed Judgment is modified to make the accomplishment of this 
purpose an explicit requirement of the planned reconstruction of the 
accreditation process, the Judgment will become an instrument for 
the degradation of both legal education and the practice of law.
    I, therefore, propose that the Judgment be modified to add the 
following language to Section IV, which defines prohibited ABA 
conduct:
    The ABA is enjoined and restrained from:
    (E) adopting or enforcing any standard, interpretation, rule or 
policy that is not needed in order to prepare law students to 
participate effectively in the legal profession.
    As the case law interpreting the Sherman Act makes clear, a 
professional society's regulations that raise cost barriers to 
market entry must be justified by their role in protecting the 
public interest in competent professional services. See e.g., 
National Society of Professional Engineers v. U.S., 435 U.S. 679, 
696 (1978); Wilk v AMA, 719 F.2d 207, 226 (7th Cir. 1983). The ABA 
House of Delegates recently recognized the importance of this public 
protection role of accreditation when it amended Standard 301 to 
require that law schools maintain educational programs designed to 
prepare students for effective participation in the legal profession 
as well as for admission to the bar.
    Nevertheless, the proposed Judgment's plan for reforming law 
school accreditation leaves the ABA free to establish an 
accreditation process that has little regard for law schools' duty 
to prepare students for their professional roles. As a result of the 
Judgment's laissez-faire approach toward the substantive ends of the 
accreditation process, the legal academics, who will inevitably 
continue to control that process, will naturally seek to maintain a 
system of accreditation that reinforces their notions of ``quality'' 
legal education. Those are the notions that have elevated the 
production of scholarship as the highest law school priority and 
relegated students' professional preparation as an obligatory burden 
that should not interfere with academics' higher intellectual 
calling. Under the proposed Judgment, therefore, the conduct of 
accreditation will be the conduct of business as usual.
    The very fact of the ABA's consent to the Judgment, however, 
guarantees that a credible accreditation process cannot be carried 
on as business as usual. The significance of the ABA's now well-
publicized willingness to settle over the fervent opposition of 
those who administer the accreditation process will not be lost on 
university and law school administrators, who will appreciate that 
lawsuits, or the threat thereof, can be more economical than 
compliance with unwanted accreditation requirements. Unless the 
reformed accreditation process can be justified by its manifest 
promotion of the public interest in adequately prepared law 
graduates, it will remain as vulnerable to attack as the present 
system has been. A toothless or timid accreditation process would 
obviously undermine the public's reliance on law degrees as an 
assurance of minimal competence.
    The proposed Judgment does seek to avoid legal academics' 
conduct of accreditation business as usual and, thereby, assure both 
anti-trust compliance and an effective accreditation process by 
changing the composition of the groups that will make accreditation 
decisions. Concluding that legal academics have ``captured'' the 
accreditation process for their own and their cohort's economic 
self-interest, the Judgment would dissipate academicians' influence 
by increasing the representation of practitioners and non-law school 
university administrators on the Section of Legal Education's 
Council and Accreditation and Standard Review Committees. The 
Judgment would also involve the ABA Board of Governors more actively 
in the current reformation and ongoing administration of 
accreditation.
    For the reasons discussed below, this strategy will neither 
avoid the continuing ``capture'' of the accreditation process by the 
legal academics nor rationalize the often conflicting goals of open 
market competition and professionally adequate legal education. I 
base this conclusion primarily on my experience as a member during 
the last year on the ABA Accreditation Committee, on my 
participation on 15 ABA or AALS (American Association of Law 
Schools) site inspection teams, on my 23 years of laws school 
teaching primarily in a clinical setting and my years of graduate 
school training in education.
    First, with rare exception, practitioners both on site 
inspection teams and at accreditation committee meetings defer on 
questions of educational policy to the legal academics, whose 
expertise on such matters they quite understandably respect. 
Although nonacademics' outside perspective on accreditation issues 
is important to the process, they generally do not have sufficient 
time, interest, confidence in their own educational expertise and, 
most important, the will to become an effective counter-force 

[[Page 63791]]
to the academic administrators' dominance of the accreditation process.
    Second, non-law school university administrators will also 
likely defer to their law school colleagues' educational judgments, 
except in one area of special concern to central university 
administrations. University administrators will undoubtedly 
challenge legal academics' use of accreditation to limit the percent 
of law school revenues a central administration can divert for its 
own discretionary use. There is a serious public policy question as 
to whether the important cause of general higher education justifies 
a university's confiscation of the high law school revenues that are 
made possible by legal education's current relatively low cost and 
high tuitions. Although the public ultimately pays for such high 
tuitions through higher legal costs, universities' appropriation of 
much of that tuition deprives the public of the benefit such tuition 
would otherwise derive through improved legal education. However 
these conflicting interests can be best accommodated, there is no 
question that elevating the role of university administrators in the 
accreditation process is likely to decrease the quality of legal 
education without any corresponding increase in competitiveness.
    The personnel changes contemplated by the proposed Judgment 
will, thus, not significantly diminish legal educators' dominance of 
the accreditation process. There is, in sum, nothing in the Judgment 
that would cause the law school deans who have dominated, and will 
continue to dominate, ABA accreditation, to change their priorities 
so that the preparation of law students for competent, ethical 
practice would become accreditations' primary mission. As indicated 
by the ABA's much heralded Wahl Commission Report's affirmation of 
the basic elements of the present accreditation process and its 
explicit rejection of proposals that would make preparation for 
practice a far more significant goal of accreditation, the ABA 
appears incapable of generating by itself any systemic alteration of 
the existing priorities of law school accreditation.
    The Wahl Commission Report did make some largely hortatory 
concessions to the recent concerns expressed in the MacCrate Task 
Force Report and in the ABA House of Delegates for greater attention 
to the preparation of students for practice. Far more significant, 
however, was the Commission's ringing endorsement of an 
accreditation process that has reinforced a system of legal 
education in which scholarship production is the most rewarded 
faculty activity and teaching for practice competence the least 
rewarded. Concrete curricular reforms that would make available to 
all students the opportunity to become professionally competent 
through supervised practical learning experiences taught by skilled 
teachers would impose unacceptable economic burdens on law schools, 
according to the Wahl Commission. The Commission would, thus, do 
virtually nothing to change the priorities of an educational system 
in which students' limited opportunities for experiential learning 
would continue to be relegated to a so-called special interest group 
of second-class citizens--mainly non-faculty adjuncts, legal writing 
instructors and, very often, clinical teachers.
    The language I propose for addition to the Final Judgment would 
not run afoul of the Wahl Commission's strictures against imposing 
on law schools either uniform programs or prohibitive expenditures. 
What such a mandate would do, however, would be to assure that 
whatever cost barriers to entry into the legal education market the 
ABA decides to impose would have a clear relation to promoting the 
public interest in the adequate preparation of law graduates for 
practice.
    Such a mandate will, of course, not be a panacea and will 
undoubtedly be vigorously opposed by most legal academics who will 
see it as an intrusion on their prerogative to determine ``quality'' 
legal education. This objection should be rejected. As noted above, 
most legal academics presume that the highest quality legal 
education takes place in law schools with the most prestigious legal 
scholars, regardless of those scholars' interest in or aptitude for 
preparing students for practice. It is legal academia's inverse 
correlation between ``quality'' education and the attention a 
faculty pays to preparing students for practice that has resulted in 
the Government's present accusations of antitrust conspiracy. ABA 
accreditation will not be reformed if the proposed Judgment allows 
this mentality to continue to hold sway.
    Furthermore, the academics' warning against using ABA 
accreditation to suppress educational diversity sounds a false 
alarm. An accreditation process narrowly tailored to achieve its 
public protection purposes will not prevent legal academics from 
implementing their own visions of a ``quality'' or scholarly legal 
education in their own schools and through their own membership 
organizations. It will, however, prevent them from using the quasi-
governmental power of ABA accreditation to deny market entry to 
those who do not share or cannot afford the more prestigious 
academics' vision of whatever they think a ``quality'' legal 
education should be.
    In sum, enforceable restrictions on entry to the legal education 
market are necessary, but they can be justified only to the extent 
they protect the public interest in assuring that law students are 
receiving the education necessary for initial readiness to practice 
law both competently and ethically. Failure to incorporate this 
insight as an explicit mandate in the Final Judgment would forfeit a 
unique opportunity to develop an accreditation process that will 
fairly and effectively protect the public interest in adequately 
prepared law graduates without denying market entry to those who can 
satisfy that public interest.

    Sincerely,
John S. Elson,
Professor of Law.

University of Florida, College of Law, Offices of the Faculty

PO Box 117625, Gainesville, FL 32611-7625, (904) 392-2211, Fax (904) 
392-3005

August 29, 1995.
    Dear Mr. Greaney: Please excuse all the confusion. The comment I 
mailed on the 24th had many typographical errors. Yesterday, the 
28th, I mailed a corrected copy by first class mail. After sleeping 
on it, though, I realized I would feel more comfortable sending the 
corrected copy by express mail so that you will have it tomorrow. 
Please regard the enclosed comment as my ``official'' comment.

        Thank You,
Jeffrey L. Harrison

University of Florida, College of Law, Offices of the Faculty

PO Box 117625, Gainesville, FL 32611-7625, (904) 392-2211, Fax (904) 
392-3005

August 29, 1995.
Mr. John Greaney,
Chief, Computers and Finance Section, Antitrust Division, Department 
of Justice, Room 9901, JCB Building, 555 4th St. N.W., Washington 
D.C. 20001

Re: United States of America v. American Bar Association

    Dear Mr. Greaney: I am writing to comment on the pending consent 
degree with respect to the above referenced case. Although I oppose 
certain elements of the proposed consent decree, my more pressing 
hope is that the Antitrust Division will devote further study to the 
issue of the proper market definition, competitive harms and the 
appropriate remedy. This is all in the context of whether the 
changes in the accreditation process will further the public 
interest in having low cost and high quality legal services 
available to all Americans.
    Let me begin by noting that there appear to be three possible 
markets involved here. One market is the market for post graduate 
study. Law schools operate as sellers in this market and concerns in 
this market would be on the buyers. Another market is for 
individuals selling services as law teachers (full time or adjuncts) 
or administrators. The antitrust concern would be that law schools 
may have market power as buyers of the services of these individuals 
(monopsony power). Please note that monopsony power is used by 
buyers to force prices below competitive levels Antitrust Law and 
Economics (1993).
    The third market is the market for legal services. Obviously, 
law schools provide the educational opportunities that are combined 
with other inputs by individuals who want to become attorneys. If 
the input is too expensive, legal services would become scarce and 
expensive. My view and, I am confident, the view of the great 
majority of Americans is that this is the only relevant market. Any 
intermediate market--like the sale of legal training by laws 
schools--is only relevant to the extent it bears on the primary 
market. In this regard it is important to note that the most costly 
aspect of attending law school is probably not tuition. Whether the 
student can afford to give up the income forgone while in law school 
is likely to be a more critical factor. My point is that one 

[[Page 63792]]
cannot fully assess the importance of the accreditation standards and 
tuition costs outside the context of a more comprehensive 
examination of the costs of legal education and the rate of return 
to that investment.
    If I understand he main thrust of the Complaint, it focuses on 
the market for selling legal training with the theory being that the 
A.B.A. Section of Legal Education has attempted to raise the cost of 
new entrants into this ``business.'' My concern about this theory is 
that the incumbent law school can only raise the costs of potential 
rivals by raising their own costs. In other words, I do not 
understand the Complaint to be saying that the costs are raised for 
new entrants only. Instead, the possible salary floor, faculty-
student teaching ratios, sabbatical requirements and the like are 
also costs the incumbent law schools must incur.
    This strikes me as a possibly illogical strategy that would if 
undertaken, ultimately backfire. Every college student makes a 
decision about a post graduate activity. A great number of them 
choose no post graduate study and this is an opportunity that 
competes heavily with a decision to study law. In addition, many 
students do choose to pursue other forms of post graduate education. 
My point is simply this: In a world in which law school applicants 
have declined from 93,800 in 1990-91 to 78,200 in 1994-1995 (or put 
more technically, in which the demand for legal education, at least 
in the short run, is falling) and in which there is competition 
among sellers of post graduate study, it may make little sense for 
law schools to embark on a strategy that would raise their own costs 
and decrease the attractiveness of a legal education generally.
    The critical matter is one of defining the relevant market. If 
the market is only ``legal education,'' such a strategy may work. If 
the market includes other post graduate opportunities including 
employment, the strategy will fail. In short, the foundation of the 
theory of the Justice Department is the market definition which can 
only be ascertained through an empirical investigation.
    As for the second market--law faulty and administrators, I think 
it would more likely that any price fixing by law schools would be 
in the hiring market with the goal of using monopsony power to keep 
salaries low with respect to entry level hiring or the hiring of 
adjunct professors. Of course, there is no suggestion of this in the 
Complaint and ultimately law schools as buyers probably have 
insufficient market power to lower faculty or administrator 
salaries. Still, law schools are both buyers and sellers and concern 
for the public interest requires attention to both sides of the 
market.
    The third market here is the market for legal services. 
Typically, one would expect a professional association to limit 
opportunities to enter the profession. In fact, as I recall, the 
American Medical Association pursued a policy of ``professional 
birth control'' for some years. The A.B.A. has generally taken a 
different course. The number of accredited law schools has increased 
from 135 to 176 over the past 30 years. Enrollment has increased 
from 46,666 to 128,989 over the same time period. Finally, bar 
admissions have increased from 10,788 to 39,710. See American Bar 
Association, A Review of Legal Education in the United States 67 
(1995).
    By involving legal educators--those whose welfare depends on 
supplying legal education--the A.B.A. has probably only encouraged 
the increased availability of legal education and legal services. 
For this reason, I find the assertion that ``Legal Educators Have 
Captured the ABA's Law School Accreditation Process'' (Complaint, p. 
4) rather odd. If there has been any ``capture'' it certainly does 
not appear to be one that has benefitted the individual A.B.A. 
member. That interest would best be served by a far more restrictive 
accreditation process--one that would effectively slow down the 
explosion in the number of law school graduates.

Summary

    1. The question of whether law schools can further their 
competitive interests by raising their own costs of operation in a 
market in which there is competition for students and a recently 
decreasing demand for legal education is a pivotal empirical 
question. The key to the answer lies on proper market definition.
    2. If there is an inconsistency between the aims of the A.B.A. 
and the Section of Legal Education, it is an inconsistency that 
works in favor of greater competition in the market for attorneys' 
services.

Proposals

    1. Other than prohibiting price fixing as described in section 
IV.A. of the proposed consent decree, the Justice Department should 
abandon all of its recommendations at least until there is data 
indicating that the accreditation process has unreasonably 
restricted entry into the legal profession. This would require 
careful attention to the relevant market.
    2. Failing this reconsideration I propose the following two 
steps:
    a. Modify item IV.(B) of the consent decree so that it reads as 
follows: ``collecting from or disseminating to any law school data 
concerning compensation paid to deans, administrators, faculty, 
librarians, or other employees.'' The purpose of this change would 
be to permit the exchange of information about past compensation. 
The exchange of past information in a market that is not 
concentrated is unlikely to result in competitive harm. On the other 
hand, this information can be critical in diagnosing the problems of 
a law school that has fallen below acceptable qualitative standards.
    b. Delete items VI.(C)(3); VI.(D)(3); VI.(E)(3); and VI.(F). 
These requirements suggest that the interest of legal educators is 
to stem the supply of legal services. This is counterintuitive and 
is not supported by available data.
    I hope these comments are of use. I am ready to consult or 
comment further if necessary.

        Respectfully,
Jeffrey L. Harrison,
Chesterfield Smith Professor of Law.

The University of Chicago--The Law School

111 East 60th Street, Chicago, Illinois 60637, Telephone (312) 702-
9611, FAX: (312) 702-2063

October 2, 1995.
Via Facsimile Number: (202) 616-5980

Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street, NW., Room 9903, Washington, D.C. 
20001

Re: Comments as to modifications of proposed Final Judgment in 
U.S.A. v. American Bar Assoc., (D. Ct. D.C. C.A. No. 95-1211)

    Dear Mr. Greaney: I have decided to file comments about the 
proposed consent decree because (i) it does not recognize that the 
real conspiracy was of academics and deans and not all faculty to 
control the accreditation process and (ii) the proposed reforms will 
likely result in a lessening of vigorous enforcement of 
accreditation standards. Both results are not in the public interest 
of providing dramatically different and better legal education so 
that lawyers of the future can redeem the reputation of the 
profession by providing better representation to their clients and 
improving our system of justice.

I. My Involvement in the ABA Section of Legal Education and its 
Accreditation Process

    After serving for many years on the American Bar Association's 
(hereinafter ``ABA'') Section of Legal Education and Admission to 
the Bar's (hereinafter ``Section of Legal Education'') Clinical 
Education and Skills Training Committees, I was appointed by the 
Chair of the Section to the Accreditation Committee in 1987 and was 
re-appointed in 1990. I served on the Accreditation Committee for a 
total of seven years (1987-1994). In 1994, the Nominating Committee 
of the Section on Legal Education nominated me to one of the twelve-
at-large positions on the Council of the Section. I was unanimously 
elected by the Section to a three-year term of office in 1994. I 
participated in all the decisions at issue in this case with the 
exception of when I recused. I spent anywhere from 30-40 hours 
preparing for each of the 2-3-day long meetings each year. I did not 
receive any compensation for the 200 hours I spent on the 
Accreditation Committee's work (I spent another 100-200 hours each 
year on domestic and foreign site visits). (Contrary to the supposed 
embarrassment of receiving one round-trip plane ticket to Europe 
each year to inspect one or two foreign programs which took 20-30 
hours each, I feel it was an earned ``perk''.) Of course, the ABA 
could have paid my customary hourly rate.
    I have also been part of a political movement of clinical 
teachers to drastically reform legal education so that issues 
relating to serving the client, instruction in lawyering skills, and 
knowledge about the legal rights and needs of the poor would begin 
to be covered in law schools. I have seen meritorious proposals 
submitted by clinical teachers and recommended by the Skills 
Training Committee repeatedly rejected by the Council of the Section 
of Legal Education. I believe that the Council, the 

[[Page 63793]]
officers and the Section itself have been controlled by academic 
faculty and Deans and lawyers and judges who had been deans and 
academics. Many on the Council and the Accreditation Committee have 
served previously in leadership positions in the Association of 
American Law Schools, (``AALS'') the trade association of law 
schools. Indeed the AALS has been routinely allocated one position 
on each site evaluation team.
    I believe that persons representing other aspects of legal 
education have been excluded from leadership in the Section or are 
grudgingly accepted into the Section's Committees and the Council 
only after making major political demands and efforts. For example, 
in the early 1980's clinical and professional skills teachers sought 
to be involved in the Section of Legal Education but were repeatedly 
rebuffed. Finally, out of desperation, a group of these teachers ran 
an alternative slate for election to the Council and for the officer 
positions. Only then were these groups invited to participate.
    Even then, only a handful of accreditation site visit teams 
included a skills teacher or a clinical teacher. After many efforts 
to urge the increased use of persons knowledgeable in these areas 
and several resolutions from the Skills Training Committee did the 
Section of Legal Education begin to send out skills and clinical 
teachers on a regular basis. Recently the Section has assigned a 
clinical teacher to nearly every team. The Section's Wahl Commission 
has also recognized the importance of including skills and teachers 
on the teams. I urge the Justice Department to strengthen the 
consent decree by assuring that there is truly outside regulation 
apart from the academic faculty and deans. Maybe a different Section 
of the ABA or a new entity should conduct the accreditation of legal 
education.
    But whoever does accreditation should be much more vigorous than 
the ABA has been. Yet the Justice Department seems to take the 
position that there has been over-enforcement. The reality is that 
the ABA has been a ``paper tiger'' and has not sufficiently pushed 
to improve legal education to train our students to be prepared to 
practice. The ABA has been a ``paper tiger'' by not adopting and 
enforcing Accreditation Standards which relate to providing adequate 
education in skills and values needed by lawyers. Indeed only after 
a concerted initiative by certain members of the House of Delegates 
did the Section agree to amend the Accreditation Standards to 
require that each Law School ``shall maintain an educational program 
that is designed to * * * prepare them [students] to participate 
effectively in the legal profession.'' Before this change, the ABA 
only required that schools have a program designed ``to qualify its 
graduates for admission to the bar.'' Many aspects of law schools 
that do not directly relate to teaching such as scholarly, 
theoretical research have been the basis for strong action, but the 
quality and type of teaching has not been as carefully and 
thoroughly addressed in the accreditation process.
    In my areas of concern and interest, the official action taken 
by the Council and the Accreditation Committee has been grossly 
inadequate to improve the legal education of American law students. 
Although clinical education has been the most significant change in 
law school teaching methods in the last 30 years, it is not even 
mentioned once in the Accreditation Standards. The Justice 
Department seems satisfied with the current state of legal 
education. Apparently it has not examined the many reports and 
studies which show a widespread dissatisfaction about the lack of 
training for practice. Such reports include the Cranton Report and 
the Report on the Future of the In-House Clinic. If an evidentiary 
hearing were held, the Justice Department would find that legal 
education is still mired in the past with large lecture classes, a 
bar examination orientation or esoteric theoretical courses of 
interest only to the faculty. The schools have been slow to change. 
The ABA has been responsible for what little progress toward 
teaching more about lawyering skills, using live client 
representation, preparing students to do pro bono to serve the poor 
and offering well-supervised externships have come through the ABA's 
House of Delegates and grudgingly from the Section of Legal 
Education.
    Years ago, Chief Justice Burger summarized the conclusion 
earlier reached by many knowledgeable persons, that the trial bar 
was ``incompetent.'' Yet still many schools limit the number of 
courses a student can take in litigation skills, including 
interviewing, counseling, pre-trial, trial and post-trial, trial and 
post-trial skills (sometimes to as few or six credits on a quarter 
system). Some schools still do not provide a live client clinic even 
though educational literature shows that this method of close 
supervision and collaboration with a law professor in serving a real 
client is the best way to teach students in a service profession and 
to teach adult learners. Yet many schools still do not provide 
credit for clinical instruction or severely limit the amount of 
credit that can be earned for clinical work.

II. My Appeal Within the American Bar Association

    When the possibility of a consent decree was raised, I opposed 
it because I did not believe it was in the public interest. I was 
allowed to attend the Board of Governors meeting when it was 
considered, but was not given the privilege of the floor. Upon the 
advice of the legal counsel of the ABA that I could challenge the 
actions of the Board of Governors by appealing to the Secretary of 
the ABA, I filed two appeals with the Secretary. President Bushnell 
ruled that the appeals were mooted by the agreement to enter into 
the Consent Decree. I have decided not to pursue these appeals 
further, not because they are moot as indicated in president 
Bushnell's letter, but because I have sadly and regretfully 
concluded that the Board of Governors' decisions were justified in 
part.
    I challenged the Board's actions because (i) they were taken in 
violation of proper procedures required by the controlling ABA 
governing documents and due process of law and (ii) the actions 
including the consent decree were not in the public interest of 
effective accreditation of law schools--the responsibility assigned 
to the American Bar Association by the highest courts of the states; 
and (iii) were not in the best interest of the ABA. Based on the 
positions taken by the Council and officers of the Section of Legal 
Education this spring and summer, I have reluctantly concluded that 
the Board of Governors was justified in deviating from the normally 
required procedures because of the emergency nature of the matters 
under consideration.
    Recent decisions by the officers and the Council of the Section 
show that the Board of Governor's decision to enter into the consent 
decree was correct. The Council has acknowledged that the consent 
decree is justified by its failure to present a theory of the case 
or otherwise defend its accreditation practices (within the ABA or 
publicly) from the Justice Department's accusations. As far as I am 
aware, I have never been a party to any effort to raise salaries of 
faculty and Deans for any reason other than to improve the quality 
of legal education.
    I now also believe that the reforms adopted were partially 
justified but do not go nearly far enough. Through the years, the 
Council of the Section of Legal Education has failed to include 
enough ``outsiders,'' (such as adjuncts, legal writing instructors, 
clinical teachers, practicing lawyers, younger lawyers, judges and 
public members) and has unduly relied on full-time academic faculty 
and deans and those allied with them. I urge the Justice Department 
to recognize that the process needs substantial additional 
diversification to include more clinical teachers, adjunct faculty, 
externship supervisors, writing instructors, younger lawyers, law 
students and judges and practicing lawyers who have not been full-
time academics or deans previously. I agree with the conclusion in 
the competitive impact statement that the accreditation process has 
been captured by the deans and faculty of American law schools. I 
disagree though that it was captured by all types of full-time 
faculty. Rather the ``guild'' is composed of the academics and deans 
and those aligned with the academics.

III. Student/Faculty Ratio

    The Justice Department is correct that the student-faculty ratio 
did not allow adequate consideration of the importance of many at 
the institution who teach and hold lesser status than full-time 
tenured faculty. Thus, as noted in the impact statement, the groups 
excluded from the count, included many important teachers in the 
skills area:
    (1) Adjunct professors who often provide all or nearly all the 
teaching staff for skills courses;
    (2) Clinical teachers who hold short-term contracts or are not 
accorded security of position similar to tenure; and
    (3) Legal research and writing instructors who are nearly all 
employed on one-year contracts.
    The purpose of the ratio, though, has been well-intended--to 
move towards smaller classes and increased student-faculty contact. 
Other circumstances have undercut accomplishing those purposes, such 
as the imposition of very low teaching load limits on academics by 
the schools and by the ABA and the increasingly extensive outside 

[[Page 63794]]
practice of many of our most distinguished and effective full-time 
tenured faculty. Indeed what is particularly shocking is that while 
Congress provided $14 million dollars a year through the U.S. 
Department of Education for clinical education (until the recent 
election of 1994), much of that money was only used for temporary 
hires. At the same, time, the law schools used their increased 
revenues from raises in tuition to increase the size of the academic 
faculty and increase scholarly production without adding equally to 
the permanent, full-time faculty committed to clinical and skills 
instruction with security of position equivalent to tenure under 
Standard 405(e).

IV. Physical Facilities

    In the portion of the Competitive Impact Statement about 
facilities, the Justice Department makes some flaws of logic. The 
Statement indicates that one-third of all ABA approved law schools 
were ``put'' on report for inadequate facilities by the 
Accreditation Committee in 1994. It takes many years to build new 
buildings so schools are on report for inadequate buildings for 
maybe a decade or more. Schools with prior violations are in the 
process of correcting them by building additions or adding heating 
and ventilation and the like. So the one-third must have been put on 
report over a seven-year sabbatical period.
    But the more troubling aspect of the facility portion is that 
the Justice Department apparently wants one rule for ``law schools 
of recognized distinction'' and another rule for those schools that 
it would not recognize as ``law schools of recognized distinction.'' 
The problem is one of equal treatment and the public interest. Those 
who teach at ``schools of recognized distinction'' know how much 
room they have to improve in terms of the quality of legal education 
provided their students. Some of those schools have been 
particularly reluctant about entering into clinical education and 
skills instruction and have slowly, and in some cases, only recently 
increased their commitment in this regard. The need for assuring 
that even students who go to law schools of ``recognized 
distinction'' are prepared to represent individuals in major 
criminal cases and civil cases of significance after graduation upon 
passing the Bar is just as great as it is for other law schools. To 
apply one standard at schools of ``recognized distinction'' and a 
substantially higher standard to others would be wrong. Hopefully, 
the Justice Department will indicate that it did not intend this 
result and will correct the impression left on Page 8.
    If the Justice Department is concerned about improving the 
process to have more equal treatment, it should require the ABA to 
provide more funding to add staff to improve the evenness of the 
decisionmaking. The overreliance on volunteers at every stage of the 
process has resulted in some unintended differences in treatment. 
But, by and large the volunteers have done very well at implementing 
the Standards established by those in control of the process.

V. Resources

    The problem of in adequate resources is not only with the total 
resources available to the law school but also more importantly, the 
prioritization of its use. Since schools are required by ABA 
Standards to be controlled by the full-time academic faculty, they 
naturally tend to favor adding additional academic faculty over 
full-time skills and writing instructors and full-time clinical 
teachers. The public interest demands a change in priorities and an 
improvement in the methods of instruction for all students at all 
schools. The ABA has not done enough in this regard. It has not 
required that law schools provide instruction in the core 
professional skills to all students who want this instruction, let 
alone to all students. Clinical education is not even mentioned once 
in the Accreditation Standards.
    More money is needed to reduce the teaching ratios to something 
more appropriate to professional education or graduate education--
where ratios are set as low as 3 to 1. Increased sums are needed and 
if the Justice Department does not recognize the importance of 
increases in resources for legal education, then it really is not 
aware of the realities of funding for different parts of the 
university and the needs of legal education. The failure to require 
additional resources for law schools may be the result of an effort, 
which is apparent throughout the decree, to respond to the 
complaints of the regulated--the presidents of universities. Indeed, 
overall the decree seems to be more a response to individual 
constituent complaints than legitimate anti-trust concerns.

VI. Remedies

    The requirement that no more than 50 percent of the Council 
members should be law school deans or faculty, should provide that 
at least one of those should be a clinical teacher or else the 
Committee will be controlled exclusively by academics. Likewise, the 
provision that 40 percent of the members of the Nominating Committee 
shall be law school deans or faculty, should be changed to require 
that at least one of those be a full-time clinical or skills 
teacher. Again, with respect to the Accreditation Committee, one of 
the members of the Accreditation Committee should be a clinical 
teacher, or else up to 50 percent of the Accreditation Committee may 
be academics or deans. Likewise, with the Standards Review 
Committee, a clinical or skills teacher must be included. Each site 
team should include one clinical teacher. The AALS should no longer 
be allocated one position on each site team. It should be noted that 
the Justice Department is seeking to include one non-law school 
university administrator. It may be that this addition will replace 
the clinical teacher, who has been on nearly all teams recently, a 
practice of which the Wahl Commission approves. This would be a most 
disastrous result.
    I am particularly concerned that the non-law school university 
administrator, who will most likely reflect the views of the 
regulated entity that is refusing to provide the resources necessary 
to improve the quality of legal education, will be siding with the 
University in the face of demonstrable needs for legal education. 
But, if the Justice Department is intent upon putting the regulated 
entity into the process, then certainly the decree should provide 
that that person not displace the one non-academic full-time teacher 
on the team.

VI. Over-Enforcement

    With respect to the consent decree, it should be noted that the 
Justice Department has agreed that the ABA can continue to adopt 
reasonable standards, interpretations and rules and that it can 
enforce its standards and interpretations even with respect to the 
ability of a law school to attract and retain a competent faculty. 
This ratification of the accreditation process is a good sign. Yet, 
in many places in the competitive impact statement the Justice 
Department undercuts that recognition and seems to indicate that it 
believes there has been over-enforcement of the accreditation 
standards. Even though American legal education needs great 
improvement, the Justice Department does not want the accreditation 
process to play a significant role in assuring that future law 
students are actively prepared to practice law.

VII. Discrimination Against Clinical and Skills Teachers

    Some Deans and academic faculty have alleged that clinical 
teachers, including extern faculty supervisors and other skills 
teachers have ``captured'' the Section on Legal Education's 
accreditation apparatus. To my knowledge, no active clinical teacher 
has chaired a site evaluation team. No more than one clinical 
teacher has served on the Accreditation Committee at one time. 
Likewise, only one clinician serves on the Council. Only recently 
has a clinical teacher been included on nearly all site evaluation 
teams.
    The following shows the kind of discriminatory treatment 
accorded clinical and skills instructors by the ABA:

Differential Treatment Between Academics and Skills in the Standards 
and Interpretations

Skills

1. Skills Curriculum

    (a) Schools need only ``offer instruction in professional 
skills. There is no requirement that all students who want to take 
``core skills courses'' must be accommodated. For example, trial 
practice courses at many schools are overbooked and students are 
turned away. Likewise, many students who want courses in 
interviewing, counseling, negotiation, alternative dispute 
resolution, pre-trial practice, problem solving, representing 
organizations and other skills courses are turned away.
    (b) Schools are not required to offer clinics to all, nor even 
to those students who want this training. Indeed the ABA has not 
been chosen to recommend that schools offer clinics by using a 
``should offer'' standard.

2. Status

    (a) School are not required to give tenure or any job security 
to full-time faculty members whose primary responsibilities are in 
its professional skills program.
    (b) The requirements of tying faculty salaries to the prevailing 
compensation of 

[[Page 63795]]
comparably qualified private practitioners and government attorneys led 
to the anomaly where the Accreditation Committee and the Council 
would not require schools to raise the salaries for clinical and 
skills teachers if they were close to the salary levels of legal aid 
lawyers and government lawyers (prosecutors and public defenders) at 
the state and local level. This stifled any effort to diversify the 
faculty teaching in clinical programs by attracting persons in 
private practice at large and small firms and with qualifications 
more like those hired to the academic faculty. Many schools argued 
that 405(a) allowed them to keep clinical salaries very low and the 
leadership of the ABA has agreed. The Accreditation Committee has 
not required comparable salaries for skills faculty because the 
Committee has concluded time and time again, over objections by some 
Committee members, that compensation is not a ``perquisite'' of the 
position under 405(e).
    (c) Most often those on the clinical professional track are not 
allowed to vote on appointments to the academic faculty and in many 
instances are not allowed to vote at all. In some schools, 
professors holding clinical ranks are not even allowed to attend 
faculty meetings. Short-term contract clinicians are afforded no 
involvement whatsoever in governance at most schools. They cannot 
attend faculty meetings, do not serve on committees, and sometimes 
are not even listed in the catalogue. The ABA does not require that 
clinical and skills teachers be allowed to participate in 
governance.

3. Physical Facilities

    The Accreditation Committee has ruled that the absence of space 
for a clinical program or professional skills instruction does not 
violate Standard 702. The Standard 701 requires that the physical 
plant is adequate for both its current program and for such growth 
in program should be anticipated in the immediate future. Many 
schools will report in their self-studies that they would very much 
like to have a clinical program in house, but do not have the 
facilities or lack the resources.

4. Adequacy of Financial Resources

    (a) Standard 201(b) has been repeatedly applied so that schools 
do not have to provide skills instruction or clinical education if 
they plead that they lack adequate resources to do so.

Differential Treatment Between Academics and Skills in the Standards 
and Interpretations

Non-Skills

1. Academic Curriculum

    (a) ``Shall offer to all students instructions in those subjects 
generally regarded as the core curriculum.'' Standard 302(a)(i).
    (b) ``Shall offer to all students at least one rigorous writing 
experience.'' Standard 302(a)(ii).

2. Status

    (a) Schools are required to provide eligibility for tenure 
status for academic faculty under Standard 405(d).
    (b) Until recently Standard 405(a) the academic faculty were 
required to be provided conditions adequate to attract and retain a 
competent faculty. The standard included that the compensation 
should be sufficient to attract and retain persons of high ability 
and should be reasonably related to the prevailing compensation of 
comparably qualified practitioners and government attorneys and of 
the judiciary. This standard of course has been eliminated in the 
consent decree. It was applied in the past in a way to increase 
academic salaries while putting a lid on clinical and skills 
salaries.
    (c) Under Section 405, professors on the academic faculty are 
usually allowed to vote on all matters, including appointments and 
tenure on the selection on the Dean and, often, on budgetary matters 
as well.

3. Physical Facilities

    Standard 702 requires ``classrooms and seminar rooms to permit 
reasonable rescheduling of all courses.''

4. Adequacy of Financial Resources

    (a) There must be adequate resources to accomplish the 
objectives of its educational program.
    The ABA uses a ``should'' standard to recommend that schools 
``should afford to full-time faculty members whose primary 
responsibilities are in its professional skills program, a form of 
security of position reasonably similar to tenure and perquisites 
reasonably similar to those provided other full-time faculty 
members'' Standard 405(e). This standard originally was a ``shall'' 
standard that was mandatory with respect to a predominant number of 
the full-time skills faculty. However, when the deans of some 
schools (the Justice Department would call them ``schools of 
recognized distinction'') organized to defeat this standard and the 
Association of American Law Schools came out in opposition, the 
Council of the Section of Legal Education reversed its previous 
recommendation that there be a ``shall'' standard and changed it to 
a ``should'' standard. The clinical teachers then organized a 
campaign to support a resolution introduced before the House of 
Delegates by the Section on Criminal Justice, that the ``should'' 
standard be changed back to a ``shall'' standard. The Council of the 
Section on Legal Education opposed this. The proposal was then 
defeated in a close vote on the floor of the House of Delegates. 
Likewise, the efforts by the deans of the elite schools to eliminate 
even a ``should'' standard was resoundingly defeated by the House of 
Delegates with the Section opposing it. Recent practice of the 
Accreditation Committee is only to express a concern about lack of 
compliance with Standard 405(e) and not to find a violation. (The 
medical accrediting authorities would find a violation when a school 
lacks a good justification for not following a ``should'' standard). 
The short-term contract clinicians have absolutely no security of 
contract even under the ``should'' provisions of Standard 405(e).

VIII. Procedural Difficulties With the Incomplete Decree

    Another problem is that the Justice Department and the ABA did 
not resolve several matters. Six years were left for later 
determination. The result of this approach could be to deprive the 
public of a chance to comment on those actions. This approach may 
also preclude review and approval by the Court. The ABA has until 
February 29, 1996 to act. The Justice Department will either agree 
with the actions taken or it can challenge them within 90 days. But 
the public apparently will not be given an opportunity to express 
its views about the public interest. Essentially, there will either 
be a trial or a second consent decree as to these six areas.
    Since the Justice Department has made crystal clear its 
conclusion that tough standards and tough enforcement to improve 
legal education are inappropriate for the ABA, the likely result of 
this process will be to come up with watered-down new standards that 
will get by Justice Department scrutiny. It is very strange for the 
Justice Department, which is supposed to be protecting the public 
interest, to take the position that it wants less vigorous 
enforcement to improve legal education. Even worse, is its use of an 
approach that will preclude effective public involvement. Therefore, 
I request either that (i) when the Justice Department decides on its 
response to the ABA's recommendations, the public be given a new 
chance to take part and submit its response and comments or (ii) 
that the consent decree be held open and not be deemed a final 
judgment and that the court continue the matter until the completion 
of the Wahl Commission and ABA process and Justice Department's 
decision on whether to agree or oppose the ABA's recommendations.
    Indeed, given the reluctance of the Justice Department to 
support strong, vigorous, tough accreditation of American law 
schools for the improvement of legal education, the Court should go 
further and appoint an amicus curiae to represent the public 
interest in improved legal education. Surely the performance of the 
legal profession has never been held in lower regard by the public 
than it is today. The next generation of lawyers needs a different 
end better education in skills and values to improve the profession. 
The Justice Department seems too much concerned with satisfying 
different discrete constituents and not really bringing about major 
reforms in legal education. The American Bar Association on the 
other hand has been too concerned with the costs of litigation, the 
loss of its effectiveness with the Justice Department and others in 
Washington and perhaps the disclosure of embarrassing details that 
might surface. Much more is at stake and the Court should act to 
protect the public interest in improving legal education even if the 
Justice Department and the ABA will not.

    Respectfully submitted,
Gary H. Palm

The University of Texas at Austin, School of Law

727 East 26th Street, Austin, Texas 78705-3299, (512) 471-5151, 
Telecopier Number (512) 471-6988

September 28, 1995.
John F. Greaney, Esq.,

[[Page 63796]]

Chief, Computers and Finance Section, Department of Justice, 555 
Fourth Street, N.W., Room 9903, Washington, D.C. 20001

Re: United States of America v. American Bar Association Civil 
Action No. 95-1211 (CR), U.S. District Court for D.C.

    Dear Mr. Greaney: My Interest. I became involved in the national 
accreditation of law schools in September 1968 when I became the 
first Consultant on Legal Education to the American Bar Association 
(ABA). I became the Executive Director of the Association of 
American Law Schools (AALS) in September 1973 and served in that 
role for 11 years. AALS accredits law schools by admission to 
membership--the historic method. After retiring from the AALS in 
1987, in 1989 I became a member of the ABA Council's Standards 
Review Committee. While with the AALS, I was active in the Council 
on Postsecondary Accreditation Committee on Professional and 
Specialized Accreditation. In these capacities and as a law teacher, 
I have inspected many laws schools and long dealt with accreditation 
issues.
    My experience and knowledge of the history of legal education 
and accreditation compels me to help the court understand what the 
Department of Justice () has done and the court is asked to do. The 
proposed Final Judgment manifests a gross misunderstanding of legal 
education and accreditation. Its understanding is not enlightened by 
knowledge of the history of legal education.
    Legal Educators' Guild and Capture. DOJ uses the pejorative 
``guild'' to describe the law teachers and deans involved in the ABA 
accreditation process. This defames the hundreds of law teachers and 
deans who have given faithfully of their time to the process without 
compensation or other reward and in the public interest. It also 
defames the judges, practitioners, and bar examiners who served the 
process faithfully, especially those who have for years been the 
majority members of the Council. The implication of the charge is 
that these lawyers have been dupes, fools, or co-conspirators.
    Before the DOJ issued its command, the 19 officers and members 
of the 1994-1995 Council were three members of state supreme courts, 
six practitioners, one bar admission administrator, six law school 
deans, one law school librarian, and two professors, one of whom is 
retired and formerly was a college president and law school dean. If 
the purpose of the conspiracy was to ``ratchet up'' the salaries of 
law teachers, there was only one individual with a direct interest 
in the purported conspiracy.
    DOJ apparently assumes that the interest of law teachers and 
deans are identical. If it had a realistic understanding of law 
school budgeting, it would understand that they are not; while 
attracting and retaining highly qualified and valued law teachers is 
obviously an objective of the dean. There are other important 
objectives of expenditure, such as scholarships, library collection, 
adequate admissions and placement programs, and student co-
curricular activities. Deans of inspected schools certainly do not 
want unreasonable requirements imposed on them, especially 
unreasonably high salary requirements for full-time faculty. They 
want to meet the competition set by market forces but not pay 
unnecessarily high salaries. DOJ gives as evidence that legal 
educators dominate the law school accreditation process the fact 
that 90 percent of the members of the Section are legal educators. 
It neglects to note that the Section plays little or no role in the 
accreditation of law schools. The role of Section members is largely 
to elect the officers and members of the Council. Like many other 
ABA Sections and nonprofit organizations, the electoral process 
largely affirms the decisions made by the nominating committee.
    ABA ``Monopoly'' of Accreditation. The ABA did not acquire by 
its action the ``monopoly'' to accredit law schools and have its 
approval exclusively relied upon by most bar admission authorities. 
State supreme courts and bar admission authorities gave that 
authority to the ABA. These authorities have confidence in the 
Standards defining quality and in the process evaluating adequately 
the schools.
    In La Bossiere v. Florida Board of Bar Examiners, 279 So. 2d 288 
(FL 1973) the Florida Supreme Court observed: ``We were persuaded to 
follow the American Bar Association Standards relating to 
accreditation of law schools because we sought to provide an 
objective method of determining the quality of the educational 
environment of prospective attorney. * * * (W)e were unequipped to 
make such a determination ourselves because of financial limitations 
and press of judicial business. * * * (I)t is * * * patently obvious 
that judicial bodies are singularly ill-equipped to bring to bear 
the resources and expertise necessary to conduct a case-by-case 
evaluation.''
    Cognizant of the trust placed upon it by bar admission 
authorities, the ABA Council has for many years involved members of 
state supreme courts in its work--as members of the Council, site 
evaluation teams, and other committees of the Council. It also sends 
to all supreme courts and other bar admission authorities, among 
others, all proposed amendments to the Standards. Officers and the 
Consultant from time to time attended meetings of the National 
Conference of Chief Justices to discuss the Council's accreditation 
activities.
    The Department of Education (D.Ed.) now recognizes the Council 
of the ABA Section of Legal Education and Admissions to the Bar as 
the sole accreditation agency for law schools. While the AALS has 
been accrediting law schools by admission to membership since 1900, 
the Department of Education recognizes only one accrediting 
organization for law. It is the Council.
    The United States' recognition of accreditation agencies who 
admit as members or approve educational institutions assures the 
federal government that the students who attend the accredited 
institutions are receiving a quality of postsecondary education that 
justifies the government student loan and grant programs to those 
students.
    It is these two organizations that grant to the ABA Council what 
``monopoly'' the Council has with respect to legal education. It is 
not any action by the Council of the ABA that gives it activity this 
monopoly. It is their ``fault'' that the ABA Council plays the 
critical role.
    Basic Characteristics of Accreditation. Historically 
accreditation of educational institutions served two purposes. 
First, it informs prospective students and their parents that the 
education provided by an accredited institution at least meets the 
basic requirements of quality. Secondly, it informs other 
educational institutions that the credit or a degree earned by a 
student at an accredited institution is entitled to be recognized by 
other educational institutions. Later accreditation has been used to 
assure professional licensing institutions, such as legal and 
medical profession admission authorities, that the degree earned at 
an accredited institution represented an adequate professional 
education.
    Accreditation is a peer review process. Professional educators 
evaluate educational institutions' conformance to quality standards. 
It is understandable therefore that legal educators are involved in 
evaluating programs of legal education.
    In 1970 the Council decided that site evaluation teams should 
contain, in addition to legal educators, practitioners, judges, bar 
admission administrators and the like. This practice has been 
followed since then.
    In the mid-1970's the Bureau of Competition, Federal Trade 
Commission questioned the involvement of the American Medical 
Association in the accreditation of medical schools through its 
partnership with the Association of American Medical Colleges in the 
Liaison Committee on Medical Education. The concern was about any 
role for the practitioners of medicine in professional education for 
the profession. The concern was that doctors would use accreditation 
to serve the economic interests of those in the profession. In the 
mid-1990's DOJ is taking an opposite position concerning the 
accreditation of law schools. Curious?
    On the other hand, it is clear that the profession has not used 
ABA accreditation to hold down law school enrollment or the increase 
in the number of approved law schools. Responding to the great 
growth in demand for legal education and interest in establishing 
new law schools, the 1971 ABA presidential Commission on 
Professional Utilization noted the large unserved need for legal 
services and welcomed this growth.
    Relevance of Faculty Compensation. The proposed Final Judgment 
prohibits the ABA from considering compensation paid full-time 
faculty in its accreditation of law schools. Whatever is the alleged 
conduct that forms the basis for the DOJ prohibition, it is beyond 
dispute that a law school's compensation structure directly affects 
the quality of those whom it can recruit and retain. Is it mere 
coincidence that the law schools that compensate its faculty best 
are also those that have the most highly regarded programs of legal 
education?
    Law schools are not immune from market forces. Other law schools 
and law firms are a school's principal competitors. Major law firms 
and law schools compete for the same 

[[Page 63797]]
group of graduates of well regarded law schools. This group is composed 
of those who were officers or members of a law review, and graduated 
with honors, including Order of the Coif. Matters other than 
compensation are factors, but compensation remains a significant 
factor.
    The ABA understandably has chosen to reduce its large litigation 
costs by entering a consent decree and so has not contested this DOJ 
charge. But the fact remains that the charge has a weak foundation 
in fact.
    Competitive Disadvantage of Unapproved Law Schools. If 
accreditation has any meaning, it means that some law schools will 
not have the established quality standards and so not earn approval. 
The approved law schools have an obvious advantage in recruiting 
quality students and faculty. The ``market'' informs potential 
students and faculty of the quality advantages of the approved law 
schools. Is accreditation an unreasonable ``restraint of trade''? It 
would be shocking if DOJ said it was.
    The evidence is clear that law schools in their initial period 
of approval experience a very significant increase in applications 
by better qualified students. A number of law schools during my 
experience as Consultant found that one-half of the students 
admitted in the previous year would not have been admitted had they 
applied after the school received approval. Approval, in other 
words, improved the competitive position of the school.
    During my five years as Consultant, I dealt with a number of 
established unapproved law schools that wanted to become ABA 
approved. My assigned role was to help the schools to redesign their 
programs to comply with the ABA standards. The present consultant 
has the same responsibility. I never lost an applicant. Except for a 
for-profit law school unwilling to use the resources needed and a 
current applicant, this has been the current consultant's 
experience, too. If the Council's program of accreditation has been 
aimed at reducing competition for the approved law schools, it has 
done a very poor job. Many new law schools have been approved since 
the explosion of demand for legal education began in 1968.
    There are two additional badges of quality a law school may 
earn--membership in the AALS and having a chapter of the Order of 
the Coif. To some extent the schools who have one or both of these 
have a competitive advantage over the approved law schools that do 
not. A ``restraint of trade''?
    State Accredited Law Schools. The Final Judgment enjoins the ABA 
from adopting or enforcing any Standard, Interpretation, or Rule 
prohibiting an approved law school from ``enrolling a member of the 
bar or graduate of a state-accredited law school'' in a post-J.D. 
program or from offering transfer credits for any course 
successfully completed at a state-accredited law school.''
    If DOJ used the term ``accredited'' with care and precision and 
with knowledge of accreditation in the United States, this 
prohibition applies to very few unapproved law schools.
    ``Accreditation is the process by which educational institutions 
work together and with others to establish standards, evaluate and 
improve educational quality, and provide public evidence of this 
quality.'' Elaine El-Khawas, Accreditation: Self Regulation p. 555 
in UNDERSTANDING ACCREDITATION (Kenneth E. Young, ed.) Jossey-Bass 
Publishers (1993).
    ``Accreditation means the status of public recognition that an 
accrediting agency grants to an educational institution or program 
that meets the agency's established standards and requirements.'' 
Section 602.2, Department of Education, Procedures and Criteria for 
Recognition of Accrediting Agencies, 34 CFR Part 602.
    The foregoing establishes that the essential elements of 
accreditation are (i) established standards concerning quality of 
the educational institution or program, (ii) site evaluation to 
determine whether the educational institution or program complies 
with the standards, and (iii) periodic re-evaluation of the 
institution or program's conformance to the Standards.
    Some state supreme courts authorize graduates of unapproved law 
schools within their state to take their bar examination. In some 
states, such as Texas, authorization has been given on an ad hoc 
basis for graduates of unapproved law schools that failed to get ABA 
provisional approval before its first class graduates. A major 
consideration was concern for the grave situation in which the 
school's failure placed its graduates. Accordingly, this recognition 
of the unapproved law school's degrees is generally for a short 
time. It is often based on the time needed by the school to get 
provisional approval. A few states, on the other hand, accept a 
state's unapproved law school's degree as satisfying the legal 
education requirement for eligibility to take the bar examination. 
This recognition cannot accurately be called accreditation.
    The proposed Final Judgment prohibits only the ABA from 
directing approved law schools not to recognize credit or degrees 
earned at unapproved law schools. Approved law schools will make 
their own quality educational judgments. Credits or degrees earned 
at unapproved schools are unlikely to pass the individual law 
schools' quality test.
    University Administrator on Site Evaluation Team. The proposed 
Final Judgment requires that each site evaluation team include ``one 
university administrator who is not a law school dean or faculty 
member.''
    It is present practice to involve university administrators who 
do not have a law school connection on many evaluations of law 
schools that are parts of a university, especially a major 
university. The role of a university administrator in the evaluation 
of a law school that is not part of a university seems uncertain. 
Does DOJ require their appointment in those evaluations? Why?
    It is unusual for an individual to be at the same time a 
university administrator and law school dean or professor. The 
individual might be on leave from her law school position, but 
rarely from a deanship. Just what does DOJ mean? Is this another 
example of DOJ's ignorance of legal education and its 
administration?
    Excessive Intrusion Into ABA Governance and Issues of Legal 
Education. The legitimate jurisdiction of DOJ is confined to its 
allegation that the ABA has violated the Sherman Act. It is the U.S. 
Department of Education (D. Ed.) that has jurisdiction over the ABA 
Standards and accreditation process' evaluation of the quality of 
legal education offered by approved law schools.
    Many aspects of the proposed Final Judgment address matters not 
within its limited jurisdiction. The requirement of a university 
administrator on a site evaluation team is clearly only a question 
of quality and not unreasonable restraint of trade. The requirement 
of validation of the Standards and Interpretation by an outside 
consultant is clearly a matter for D. Ed. The anti-trust relevance 
of most of what the Special Commission is to study under VII(A) of 
the Proposed Final Judgment seems remote; they are concerned with 
quality of legal education.
    DOJ seems intent on reforming legal education. That is not its 
business. To a limited extent it is the business of D. Ed.
    DOJ's very doubtful conclusion that the ABA has violated the 
antitrust laws raise serious questions about its justification for 
the excessive intrusion into the ABA's operation of its 
accreditation program. For example, the proposed Final Judgment 
specifies three-year terms for members of the Council, Accreditation 
Committee, and Standards Review Committee. Those serving on the 
Council and Accreditation A committee may serve a second term but 
those on the Standards Review Committee may not.
    While three-year terms may be a good idea, it should be up to 
the Section to decide that. Who should be eligible to serve should 
also be a policy left to the Section or the ABA. It is curious that 
the Standards Review Committee is mentioned at all. It has only the 
power of recommendation to the Council. It is the Council that 
decides. Members of the Standards Review Committee must know 
institutional history. Under the DOJ mandate it is the group that 
must rely most on others.

        Sincerely yours,
Millard H. Ruud

MHR:cer

    P.S.: These comments, of course, represent my views and not 
those of The University of Texas or its School of Law or officer or 
staff member, or of any committee of the ABA Section of Legal 
Education and Admission to the Bar.

University of South Carolina, Department of Clinical Legal Studies 
School of Law

September 29, 1995.
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, Room 9903, 555 4th Street, N.W., Washington, 
D.C. 20001

Re: Comments on proposed Final Judgment in U.S.A. v. American Bar 
Association, (D.Ct. D.C., C.A. No. 95-1211).

    Dear Mr. Greaney: Two provisions of the proposed Consent Decree 
should be modified: 1) the absolute prohibition against the 
collection or use of compensation data in the accreditation process; 
and 2) the limitation of three years service on the Standards Review 
Committee. These 

[[Page 63798]]
conditions are unnecessary to accomplish the objectives on the Consent 
Decree, and they are likely to affect negatively the quality of 
legal education and the accreditation process.
    I am a professor at the University of South Carolina School of 
Law. I served two successive three year terms on the Council of the 
ABA Section of Legal Education and Admissions to the Bar (1988-
1994), and I served on the Standards Review Committee for five years 
(1990-1995).

Compensation

    My understanding is that the Justice Department had two primary 
concerns about the ABA's practices with respect to compensation:
    1. The ABA asked each law school being inspected to identify 
other law schools which it considered to be its peer institutions. 
The ABA then compared the salaries of the respective faculties and 
criticized the law school if its salary scale was below the median. 
I agree this practice was inappropriate, whether or not it violated 
any antitrust laws.
    2. ABA Accreditation Standard 405 also suggested that law 
faculty salaries should be ``reasonably related to the prevailing 
compensation of comparably qualified private practitioners and 
government attorneys and the judiciary.'' It is my understanding 
that the ABA had stopped using this as a factor related to 
accreditation well before the Justice Department began its 
investigation. The Standards Review Committee had drafted a revised 
version of the relevant provision before the investigation began, 
and it further revised the language on advice of counsel for the ABA 
after counsel had discussed the problem with attorneys for the 
Justice Department. The proposed language would have allowed the ABA 
to consider compensation only as one factor in determining whether a 
law school was maintaining conditions sufficient to attract and 
retain a competent faculty. This should have alleviated the Justice 
Department's primary concerns.
    The proposed Final Judgment has two key provisions related to 
compensation. The first condition would ``eliminate the adoption or 
enforcement of any Standard, Interpretation or Rule or the taking of 
any action that imposes requirements as to the base salary, 
stipends, fringe benefits, or other compensation paid to law school 
faculty, administrators or other law school employees.''
    It is the second condition which is unnecessary and 
inappropriate. It would ``eliminate the collection or dissemination 
of compensation data for deans, administrators, faculty, librarians, 
or other employees, and the use of compensation data in connection 
with the accreditation of any law school.''
    I cannot see any rationale for this language. Surely, the 
Justice Department cannot believe compensation is unrelated to the 
quality of a faculty or to the quality of legal education. There is 
no data showing that the ABA has driven faculty salaries to such a 
high level that members of law faculties are paid disproportionately 
to similarly qualified lawyers who are in private practice, or even 
the judiciary. At most schools they are paid significantly less.
    I am not suggesting that the ABA should be allowed to use 
information about compensation to drive salaries upward, generally. 
However, the ABA should be allowed to consider compensation of 
faculty as one factor in measuring the quality of a law school's 
educational program. It makes no sense to prohibit the ABA from 
mentioning compensation, even if the ABA discovers that inadequate 
compensation is clearly contributing to high faculty turnover and 
making it difficult for a particular school to attract and retain 
competent faculty. This restriction is unwarranted and harmful to 
legal education.
    The ABA should also be allowed to continue collecting data about 
salaries. If it visits a school at which the faculty is complaining 
that low salaries are harming the educational program, the ABA needs 
reliable data to be able to determine whether the salaries are 
really out of line or if the faculty is whining unjustifiably. 
Prohibiting the ABA from collecting salary data will not make it 
less available, just less reliable. Salary data will continue to be 
collected and shared whether or not the ABA continues doing it. 
Several other organizations already collect salary data or plan to 
do so if the ABA cannot. The ABA's data collection system has proven 
its reliability, the others' have not.
    To conclude my discussion of compensation, it is important to 
understand that the goals of legal education and the interests of 
consumers are not served by encouraging a complete free market 
economy. Many lawyers would rather teach than practice, regardless 
of the salary offered, especially those lawyers who are not finding 
success in law practice. Many of the law schools at the lower end of 
the quality scale face significant economic pressures which could 
lead them to offer salaries which are insufficient to attract 
successful lawyers and judges into the academic world. Without a 
highly qualified faculty, law schools cannot prepare law students 
adequately for the practice of law. Ultimately, public consumers, 
i.e., clients, will suffer the consequences.

Standards Review Committee

    The Consent Decree imposes a three year limit for service on the 
Standards Review Committee. This is unwarranted and will have a 
detrimental impact on the accreditation of law schools.
    The Consent Decree incorporates the preexisting six year limit 
for service on the Council and Accreditation Committee. Before the 
Consent Decree, there was no limit on the length of service on the 
Standards Review Committee. I have been unable to unearth any 
explanation for this provision of the Decree. Unlike the Council and 
the Accreditation Committee, the Standards Review Committee has no 
rule-making or decision-making power. Its function is to consider 
proposed amendments to the Standards and make recommendations for 
consideration by the Council. The Council is free to accept, reject, 
or modify such advice.
    If any limit is to be imposed, it should be a longer, not a 
shorter, term than for the Council or Accreditation Committee.
    As a former member of the Council and the Standards Review 
Committee, I can attest that it takes longer to become acclimated to 
the work of the Standards Review Committee than to that of the 
Council and that there is a greater need for longevity of service. 
It is not uncommon to take longer than three years to process a 
proposed amendment to the Standards. For example, Standard 405(e) 
took six years from initiation to fruition; and Interpretation 2 of 
Standard 306 took over three years. The recodification project, the 
first stage of which is expected to be completed in August, 1996, 
will have taken much longer than three years to process.
    It is important to the quality of the finished product that some 
people be allowed to remain on the Standards Review Committee from 
start to finish of proposed modifications to the Standards. The 
proposed three year limit will not permit this.
    For the reasons stated above, I object to the proposed Final 
Judgment unless it is modified as follows: 1) to allow the ABA to 
continue gathering data about faculty compensation; 2) to allow the 
ABA to continue considering compensation as one factor in 
determining the quality of a law school's program of education; and 
3) to allow the ABA to permit some people to serve at least six 
years on the Standards Review Committee.

    Respectfully submitted,
Roy T. Stuckey

Southwestern University School of Law

September 29, 1995.
Mr. John Greaney,
Chief, Computers and Finance Section, Antitrust Division, U.S. 
Department of Justice, JCB Building, 555 4th St., NW., Washington, 
DC 20530

United States v. American Bar Association Civil Action No. 95-1211 
(CR)

    Dear Mr. Greaney: We write to express our concerns about the 
impact of the above-captioned consent decree, with particular 
reference to legal education in the State of California (Part I), 
and to indicate our concern with a particular provision concerning 
the collection and dissemination of salary data (Part II).

Part I (The Impact of the Decree on Legal Education in California)

    The self-regulatory mechanism for American legal education is an 
unlikely target for antitrust enforcement. It is true, as Lord Acton 
warns us, that power corrupts--the greater the more absolutely. 
Reviewing the publicly available materials on this case, it is 
apparent that law schools and those who regulate them are not free 
of the venial sins common to all human endeavors. It may well be 
that some of this activity contravenes the Sherman Act (and we have 
no objection to the decree insofar as it is narrowly drawn to 
address any such violations).
    We are concerned, however, about more intrusive aspects of the 
decree which seem motivated by a deregulatory animus. Current ABA 
regulation of accreditation standards has been targeted by some 
within the law school community who see it as stifling creativity, 
innovation and, perhaps, efficiency in legal education. Some, or 
even a great deal, of this criticism may have merit. 

[[Page 63799]]
But, aside from the bureaucratic momentum that stifles change in any 
self-regulatory mechanism, there is no evidence that the traditional 
antitrust concern, market power, underlies this resistance to 
change. And, as we suggest below, there is legitimate controversy 
within the law school community about the wisdom of wholesale 
changes in accreditation standards.
    The vast majority of men and women who have chosen to teach in 
American law schools do so because they believe in, and truly enjoy, 
the teaching and writing that is the core of the profession. For the 
most part, individuals who make this choice could have opted for 
higher paying jobs in the private bar or, perhaps, in government. 
The deans and administrators of law schools come from the ranks of 
these academics. They share with their colleagues strong commitments 
to the profession that they serve, the students that they teach, and 
the institutions that they lead.
    The decisions of those who have led American legal education 
have not prevented development of a fiercely competitive market. 
Among the 178 ABA accredited law schools (there have been roughly 40 
additions to this number over the past three decades) are a great 
range of institutions in all parts of the nation. The programs, the 
teaching methods, the tuition rates, and the reputations of these 
institutions vary widely. One example of this diversity, and the 
kind of program innovation it generates, is found at our own law 
school, which offers an ABA approved 24-month program leading to a 
J.D. degree.\1\ The program discards traditional law school courses 
in favor of instructional units that stress concepts common to many 
subjects of the law. The existence of such programs tends to refute 
claims that ABA accreditation requirements stifle experimentation 
and creativity.

    \1\ Southwestern's Conceptual Approach to Legal Education, or 
``SCALE'' as it is commonly known.
---------------------------------------------------------------------------

    For reasons that we explain below, our fear is that the decree 
may result in relaxation of ABA accreditation standards, thereby 
heightening information problems for matriculating law students and 
distorting the allocation of legal educational services. Although 
the impact of the consent decree will be felt in all states, it is 
helpful to focus on the decree's potential impact in California. 
Aside from being the most populous State, California also has the 
most open system of legal education of any of the fifty states.
    There are three categories of law schools now operating in 
California:
    (1) ABA accredited law schools (16 schools);
    (2) law schools certified by the State Bar (19 schools);
    (3) law schools lacking certification from the State Bar (24 
schools and an additional 13 correspondence schools).
    Tuition demanded by these schools varies widely, as do the 
teaching methods, faculty student ratios, the percentage of full 
time instructors, library facilities, and other student support 
services. Unaccredited and uncertified schools may have no library 
facilities, few if any full time instructors, and few support 
services for students or faculty. Schools falling in the second 
category (certified by the State Bar) tend to offer some of these 
advantages but not to the extent of ABA accredited schools. Although 
accreditation standards are stiff, seven of the sixteen ABA 
accredited schools have achieved that status since 1960.\2\

    \2\ California law schools that have gained ABA accreditation 
since 1960 are: University of San Diego (1961); California Western 
(1962); University of California-Davis (1968); University of the 
Pacific (McGeorge) (1969); southwestern University (1970); 
Pepperdine University (1972); and Whittier College (1978).
---------------------------------------------------------------------------

    Students attending the various categories of schools do not 
perform equally on the State Bar examination. The chart below 
compares the 1994 passage rate for first time takers from each of 
the three categories of law schools.

   California State Bar Examination Passage Rate for First-Time Takers  
                        [Calendar Year 1994] \3\                        
------------------------------------------------------------------------
                                                                 Pass   
                                       Took         Pass      (percent) 
------------------------------------------------------------------------
California ABA Accredited Law                                           
 Schools.........................         3555         3048         85.7
State Certified Law Schools......         1090          572         52.5
Unaccredited Law Schools                                                
 (including correspondence                                              
 schools)........................          159           59         37.1
------------------------------------------------------------------------

    The figures are skewed because the most gifted students tend to 
select among the ABA accredited schools. Indeed, students do not 
treat all ABA accredited schools as equivalent, discriminating among 
these schools based upon reputation, location, and tuition. Whatever 
the reason, the low bar-passage rates for many of the schools raise 
troubling consumer protection questions. There is ongoing debate 
about whether schools should be allowed to recruit students to pay 
out thousands of dollars of tuition and dedicate three or four years 
of their lives to obtain a legal education, only to find that their 
chances of passing the bar are quite low. The California Legislature 
has seen fit to require a ``baby bar examination'' for all students 
attending unaccredited and uncertified law schools.\4\ Students are 
required to pass this examination before commencing their second 
year of studies at these unaccredited or uncertified institutions.

    \3\ This data is compiled from figures provided by the State Bar 
for the February and August 1994 administrations of the examination.
    It is also significant that there is little overlap in the 
results among the various categories. For example, in the August 
1994 administration of the bar examination, the passage rate for 
first-time-takers, calculated for individual ABA accredited schools, 
ranged from 77.9% to 94.4%. For State Certified schools, the rates 
for individual schools range from 16.7% to 76.3%.
    \4\ State Bar Act, Sec. 6060(g). We understand that a bill has 
been introduced in the legislature to repeal this requirement. Its 
changes of success are unclear.
---------------------------------------------------------------------------

    Even if students pass the bar examination, the market for jobs 
is skewed against those who attend unaccredited or state certified 
schools. The reputation of the school (and its status as an 
accredited, certified, or unaccredited institution) are considered 
by employers, making job prospects bleak indeed for those who have 
attended unaccredited schools.
    These realities about bar passage rates and job prospects are 
probably understood by most matriculating law students. Students are 
aided in their understanding by the clear distinctions among the 
three categories. It is our sense that most applicants who have a 
choice will choose among ABA accredited schools, further refining 
their choice by assessing the reputation of an individual school. 
Indeed, some students who fail to gain admission to an ABA 
accredited school may decide not to pursue a legal education. We 
doubt that anything suggested in the decree will alter these 
fundamental market realities. On the other hand, the direction in 
which the decree appears to push ABA law school--toward relaxation 
of accreditation requirements such as faculty-student ratios and 
library facilities--will blur distinctions between ABA and non-ABA 
accredited schools, and make it easier for schools that lack that 
advantages now needed for ABA accreditation to obtain it. For 
reasons that we explore below, this may create greater information 
problems for applicants and pressure second-level, currently 
accredited law schools \5\ to relax quality standards.

    \5\ We use the term ``second-level'' law schools to describe 
those ABA accredited schools that tend not to compete for the top 
five or ten percent of law school applicants, but will generally 
deny admission to those not meeting minimum objective 
qualifications. Our rough definition probably includes about twelve 
of the sixteen ABA accredited schools in California.
---------------------------------------------------------------------------

    We digress at this point to offer an overview of such second-
level law schools. At present, each of the ABA-accredited law 
schools in California operates as a non-profit, educational 
institution. Most have excellent law libraries, highly respected 
full-time 

[[Page 63800]]
professors, and a solid commitment to both teaching and scholarship. 
Our own school, for example, has one of the finest law libraries in 
the State and a reputation for being a ``teaching'' law school.\6\ 
The school also operates an academic support program for interested 
first year students. And, as is the case with most second-level law 
schools, it has for some years aggressively recruited and supported 
minority law students.

    \6\ According to a survey that the school commissioned, our 
graduates, and the graduates of one other California school 
(McGeorge), performed better on the State Bar examination than 
students with equivalent LSAT scores graduating from other 
California ABA accredited law schools. The widely held view among 
our colleagues is that the accessibility of the full-time faculty, 
the emphasis on attendance and class preparation, and the school's 
strict grading policy contribute to our students' success on the bar 
examination.
---------------------------------------------------------------------------

    Although the primary mission of the second-level law school is 
teaching, these schools serve the community in other ways. Law 
libraries are generally open to practicing attorneys and students 
from other law schools. These schools also contribute substantially 
to scholarship on cutting edge issues. And full-time faculty and 
staff contribute to the community through membership in, and pro 
bono work for, various bar groups and community organizations.
    Relaxed ABA accreditation standards probably would not affect 
second-level law schools if information flow and comprehension among 
law school applicants were optimal. Our school, for example, would 
chose to continue emphasizing its role as a teaching law school 
(maintaining its high full-time faculty to student ratio), as a 
leader in the recruitment and support of a large pool of minority 
applicants, as a promoter of legal scholarship, and as a provider of 
a first-class law library for the benefit of students, faculty and 
the surrounding legal community. Under optimal conditions, these 
features of the school would be valued by the community and the 
student applicant pool, ensuring the school's success in recruiting 
students.
    We claim no prescience as to what the future may hold. But the 
very existence of accreditation standards (and other regulatory 
steps such as California's Baby Bar Examination) suggests that 
substantial information problems are inherent in running a system of 
legal education. Further evidence of these information problems is 
the heavy emphasis most law schools place on achieving a favorable 
rating from private surveys that rank law schools. Many legal 
educators regard these ratings as superficial and perhaps even 
misleading.\7\ But because matriculating law students pay attention 
to these surveys in making their choices, law schools are very 
sensitive to the resultant rankings.

    \7\ By contrast, the ABA accreditation process, upon which 
students also rely, makes threshold judgements about whether schools 
meet relatively objective standards, but does not attempt to rank 
the various accredited schools. An ABA publication encourages 
students to ``consider a variety of factors in making their choice 
among approved schools.'' ABA, A Review of Legal Education in the 
United States, 2 (Fall 1991).
---------------------------------------------------------------------------

    Although we have conducted no cost benefit analysis of the ABA's 
current accreditation requirements (and doubt whether a reliable one 
could be conducted), we believe that standards such as those 
governing the ratio of full-time faculty to students and the library 
collection are important to a quality legal education and to 
providing other community values that law schools serve. To the 
extent that such requirements are relaxed, currently non-accredited 
schools, with relatively few sunk costs in library and physical 
facilities, and fewer full-time faculty, will be in a position to 
obtain accreditation. Their status as ``accredited schools'' will 
not affect elite schools such as Stanford, which will doubtless 
continue to attract the most gifted law students. But the newcomers 
may, because of their substantially lower costs, be in a position to 
siphon away students from second-level accredited schools.
    These consumer protection concerns are real. Schools, 
particularly those operated on a for profit basis, will have an 
incentive to avoid building libraries and hiring full-time faculty 
with teaching loads that permit non-classroom contact hours. Such 
schools certainly will be able to reduce their costs and their 
prices. If they can also present themselves to the market place with 
full accreditation credentials, currently accredited second-level 
schools will be forced to compromise important standards currently 
protected by ABA accreditation. Lower tuition costs would be a 
welcome development, but only if they can be achieved without injury 
to the important education and community values.
    To summarize, we believe that to the extent that the consent 
decree pushes the nation's law schools toward relaxation of quality 
standards that bear on the education, research, and related 
community goals served by law schools, the decree will be 
counterproductive. As the system of legal education in California 
suggests, creating well-defined categories of law schools can serve 
an important consumer-information function, making it easier for 
matriculating law students to make wise choices about whether and 
where to pursue a legal education. To the extent that these 
distinctions are blurred, information problems for incoming students 
could be exacerbated and the market allocation mechanism for legal 
education services distorted.

Part II (The Collection and Dissemination of Salary Data)

    Part IV(B) of the consent decree enjoins the ABA from 
``collecting from or disseminating to any law school data concerning 
compensation paid or to be paid to deans, administrators, faculty, 
librarians, or other employees.''
    Because we believe that the collection and dissemination of 
salary data serves a number of legitimate and important functions, 
we urge that this provision be removed from the decree.
    Information about salary and benefit levels is a useful market 
indicator. Indeed, as a general matter, and especially where as here 
the structure of the market is plainly competitive, markets function 
better when players on all sides of a transaction are knowledgeable 
about market conditions. Although the exchange of information has 
sometimes been prohibited in oligopolistic markets, as when a trade 
association uses information exchange as a step in achieving 
uniformity in prices for a standardized product, there is no history 
of ABA accredited law schools attempting or achieving such 
uniformity in salaries or benefits. Nor do applicants regard legal 
education among law schools to be a standardized product.
    Moreover, withholding market information about salary levels 
increases the possibility of exploitation of those with less 
knowledge and power. In the law school context, such salary 
information might be used by employees or faculty to gauge their 
market value based on what others in comparable positions receive. 
Those most likely to be underpaid are generally those with the most 
limited ability to obtain market information. Another way in which 
such information could be useful is in negotiations between a law 
school dean and a university president concerning the amount to be 
budgeted for law school salaries. Market information about salary 
and benefit levels would be helpful in budget discussions that 
ensure that the law school remains competitive.
    We do not object to provisions of the decree that prohibit the 
ABA from setting salary or benefit standards, or making compensation 
levels a condition of accreditation. Our concern is rather that data 
collection and dissemination, which serve an important function by 
making the market more visible and less susceptible to exploitation, 
not be hampered by the decree.
    Because there is a legitimate need for salary and benefit data, 
it is likely that other organizations (such as the American 
Association of Law Schools) would seek to collect and disseminate it 
even if the ABA cannot do so. These groups should be allowed to do 
so. But there is no reason for forcing this data collection out of 
the ABA's domain, with the attendant transactional costs involved in 
shifting this responsibility.

        Sincerely,
Lawrence A. Sullivan,
Professor.
Warren S. Grimes,
Professor.

St. Thomas University School of Law

July 7, 1995
Roger Jacobs,
Director of Library, Member of Council, Notre Dame Law School, 
Kresge Library, Notre Dame, IN 46556
    Dear Roger: I am not able to come to the AALL meeting in 
Pittsburgh to attend and to make a presentation about the proposed 
Library Standards. In addition, I have not seen the June final draft 
of the Library Standards. Thus, the following comments are subject 
to change and clarification based upon what is in the final draft of 
the proposed Library Standards.
    Although not separately stated in either the Department of 
Education's regulations or the June 27, 1995, Final Judgment of U.S. 
vs. ABA, I interpret both documents to include law libraries and 
their operations under the category, ``physical facilities''. If law 
library 

[[Page 63801]]
operations are included within the grasp and meaning of the term, I 
contend that the proposed Standards (I am referring to the January 
11, 1995, proposed revision) do not comply with the DOE regulations 
as to the required documentation to justify the changes in the 
Standards or the Final Judgment of June 27, 1995, requiring the 
proposed Standards be submitted to the Board for review, followed by 
the Board filing its report with the United States District Court 
for the District of Columbia and the Justice Department for their 
review to determine whether to challenge any of the proposals. In 
Addition, under the Final Judgment, there is an antitrust compliance 
program that may not be in place. With these restrictions, 
(especially the Final Judgment), I contend that the proposed 
Standards (the January 11, 1995, revision or either the June 1995 or 
July 1995 revision) are not ripe for Council to submit its 
recommendation for action of the ABA House of Delegates at the 
August, 1995 Meeting. Within the time frames indicated in the June 
27, 1995, Final Judgment, August 1996 would appear to me to be the 
earliest time under which the ABA House of Delegates could take any 
action relating to the proposed Library Standards. I do note that a 
Final Judgment has not been entered, but note in the Stipulation  
that the ABA agrees to be bound by the provisions of the Final 
Judgment. I view the agreement to be in force as of June 27, 1995.
    As you may be aware, I have received ABA comprehensive library 
statistics and special statistics for selected schools for over ten 
years, including statistics based on Fall 1994 information. These 
statistics have been used to assess St. Thomas' growth and 
development, its operations and the Law Library plan of action, 
which is required under the 1986 Standards. Based on my assessments 
of these statistics, I have serious and considerable concern with 
the present methods of (a) collecting statistical information, (b) 
categories used in the collection document or vehicle (annual 
questionnaire), and (c) publishing and using the statistics in this 
present form.
    As presently designed, the statistical information creates a 
very significant economic impact to the disadvantage of newer as 
well as smaller schools with less than 700 FTE students. There are 
approximately 63 schools with 700 FTE students or more and 115 
schools with less than 700 FTE students. Note, however, the ABA does 
not include graduate students and special students in identifying 
the FTE student count used for analysis of library operations only 
full time and part time JD students are used. There are over 100 
schools with graduate students, that are excluded from the analysis 
of library statistics. Important comparisons of book dollars per 
student and retrieval usage per student are overstated when graduate 
students are excluded; thus, in several instances, statistical 
information is somewhat, if not totally, skewed with misleading and 
incorrect information.
    The elimination of students from the student side of the formula 
created in several instances a higher expense of book dollars per 
FTE student and higher retrieval usage per student, resulting in a 
higher mean and median. The constant and continuing pressure through 
the accreditating process for schools to reach and exceed the mean 
or median of information for all schools is based upon an incorrect 
foundation of statistical information.
    The 1986 Standards, as part of the core collection requirements, 
specifically recognized and added online services (and probably the 
CD-ROM and other electronic resources) as a basic category of 
collection and information resources which schools have to use to 
support the academic program. Other changes were made in the 1986 
revision, which can be interpreted to reinforce this conclusion--the 
elimination of some of the Shepard's Citations requirements and 
state statutes requirements, existing in pre-1986 Standards. These 
changes and others would, I contend, lead to the conclusion that the 
Standards did eliminate the ownership/warehouse concept for all ABA 
approved libraries to support academic programs. The Accreditation 
Committee and Council have provided no written ground rules or other 
information relating to the use of electronic information as part of 
the core collection requirements, and, specifically, whether these 
electronic resources could be used in place of hard copy or 
microform resources. While the January 1995 revision of the 
Standards appears to provide some way to incorporate electronic 
sources as an integrated part of total collection resources, the 
language in the entire document is fuzzy and leads to considerable 
interpretation, resulting in little or no guidance for library 
operations or what should be in the written plan. This would lead to 
subjective fact finding through onsite inspections and written 
reports. (As earlier noted, I have not seen or reviewed the June or 
July revision of the Standards)
    Even the ABA document provided to onsite inspectors to use as 
part of the questioning for and collecting of information from 
libraries has not been updated with the 1986 ABA Standards. I 
contend that the financial form which a library is required to 
complete as part of the inspection questionnaire, is based on pre-
1986 Standards.
    The ABA through its Accreditation Committee and Council has not 
accepted electronic resources as part of the basic and only 
foundation upon which the ABA statistics are collected, developed, 
made available to directors and others as well as published 
(selective information only) in the Law Library Journal. The ABA 
uses only hard copy and microform equivalents to identify the 
grouping and the size of the collection in terms of volume count.
    Since 1986, the ABA has not provided any way to determine 
equivalent volumes of electronic resources. The formula used by the 
ABA to determine collection size specifically excludes electronic 
resources of any type, the very source of information the ABA added 
to the Standards in 1986. Thus, reliance and use of the existing ABA 
library statistics are totally off base, being unreliable and 
useless for comparative purposes for any reason.
    The ABA continues this omission through publishing only hard 
copy and microform equivalent counts in its Review of Legal 
Education; electronic resources, as best as I can determine from a 
review of the publication, are not included in any manner. The 
economic impact of the exclusion of electronic resources from 
statistical analysis of ABA information has adversely affected most, 
if not all, schools by resulting in increased costs to continue and 
maintain hard copy collections through publisher dominated lists of 
titles libraries must maintain to satisfy accreditation 
requirements.
    The attempt of the June 1994 revision of the Standards was to, 
for all practical purposes, eliminate the consideration of 
electronic resources as part of the core information resources a 
library must use--the January 1995 revision, apparently, attempted 
to weaken this dark age approach for collection support of academic 
programs for accreditation purposes. I have not seen the June 1995 
revision, which is to be discussed in Pittsburgh.
    I am not sure, but would assume that work by the Standards 
Review Committee or others has not been done on the collection 
vehicle, the annual questionnaire, or the statistical format used to 
provide statistical analysis of the information collected through 
the annual questionnaire. The statistics are used in preparing on-
site reports. The existing problems with the annual questionnaire 
and the statistical information produced there from would, I 
contend, lead to the conclusion that these have to be revised at the 
same time the Standards are revised. These, in most instances, were 
not updated and revised as a result of the revisions in the 
Standards made in 1986, resulting in subjective fact finding through 
the inspection process and procedure as well as faculty analysis by 
the Accreditation Committee and Council based upon the inspection 
reports. On this ground, I register a protest and complaint that the 
proposed Standards do not comply with the DOE regulations, 
(effective July 1994) and specifically contend that the attempt (at 
least as I presently understand the procedure) to obtain Council's 
recommendation for action by the August ABA House of Delegates 
violates the Final Judgment requirements, identified June 27, 1995.
    I have not seen any documentation by the Standards Review 
Committee or others specifically relating to the proposed Standards, 
and especially relating to collection resource requirements. Choices 
have been made in setting accreditation requirements, but written 
documentation to justify the choices is lacking. On this ground, I 
register a protest and complaint that the proposed Standards do not 
comply with the DOE regulations (effective July 1994), and 
specifically contend that the proposed Standards have not satisfied 
the requirements of the Final Judgment of June 27, 1995, for Council 
action for a final recommendation for action by the August ABA House 
of Delegates.
    The annual questionnaire and the ABA produced statistical 
information requite urgent and mandatory revision. Unless and until 
volume equivalences are determined for electronic sources and 
information, volume counts have to be eliminated from the 

[[Page 63802]]
questionnaire and statistics. The reliance and dependence on volume 
counts as the only measuring device in the statistics have to be 
eliminated. Some means have to be established to eliminate the wrong 
or incorrect information in the statistics. As an example, in the 
recently produced comprehensive tables, Column 65c-3, several 
schools provided information that they are open more hours that 
there are hours in a seven day week; for some schools, information 
is column 44 and 46 appears to be crossed and included in the wrong 
column. There are probably others errors.
    The continued use of gross information for volume added counts 
requires a revisit. A total revamp is required for the use of this 
information in statistical analysis. I have read speeches that have 
provided statistical comparison using the gross volumes added 
without indicating that the net is what produces the collection 
growth. This net information is provided to the ABA, but the 
statistics specifically exclude the information in volumes added 
columns.
    Information relating to technology-driven formats, such as on-
line, CD-ROM, INTERNET, etc., has to be developed to a greater 
extent for the annual questionnaire and statistics. As examples, 
equipment and other costs directly associated with technology-driven 
formats should be, I contend, part of the total acquisition 
expenses, just as postage and handling and insurance charges (of 8 
to 20% for many titles) are added to serials and book or other 
information expenses reported. Users can not obtain access and use 
these sources without the proper equipment. At present, expenses for 
LEXIS and WESTLAW are considered part of acquisitions and 
information expenses per student, column 14-6 of the tables. I 
further contend that costs associated with bibliographical systems 
or in-house computerized public catalogs should be a basic and 
integral part of information expenses to reflect that these 
resources are part of the information resources provided to students 
and faculty.
    With electronic resources increasing in importance in all 
libraries, the existing Standards, the proposed Standards, the 
annual and on-site questionnaire, and library statistics need to 
reflect an ``open environment'' and atmosphere'' for libraries to 
respond to their direct goal of supporting the law school education 
program, including the training of students in a number of different 
research skills. I view the proposed Standards, the annual and on-
site questionnaires and the statistics as major hurdles, which are 
preventing libraries from maximizing the use of technology for the 
benefit of faculty and students as part of the education program. I 
can not see or determine any difference in using OCLC or other 
systems to locate title information for a variety of purposes and 
using CD-ROM or WESTLAW to locate title information for ordering 
purposes, verification or ILL. In one case, expenses are part of 
information resources, and in the other case, expenses are excluded 
from information resources and treated in a totally different 
manner.
    This area must be revisited by the ABA. The Standards, the 
annual and on-site questionnaires, and library statistics must 
represent the present and future aspirations and goals of legal 
education. In several instances, at least through the January 1995 
revision of the Standards (Note, I have not seen or assessed the 
June 1995 revision), several of the Standards and Interpretations 
clearly represent the mandated requirements of hard copy holdings 
from a limited number of publishers, even though the same basic 
legal information (excluding copyright material) is available 
through electronic sources at less cost in many instances that the 
hard copy costs. The basic difference is that a different publisher 
or vendor provides the electronic sources. On this ground, I 
register a protest and complaint that the proposed Standards do not 
comply with the DOE regulations of documentation justifying the 
mandated accreditation requirements, and specifically contend that 
the proposed Standards have not satisfied the requirements of the 
Final Judgment of June 27, 1995, for Council action for a final 
recommendation for action by the 1995 August ABA House of Delegates.
    I am aware of the salary collection issues being discussed on 
INTERNET. As I read the June 27, 1995, Final Judgment in U.S. vs. 
ABA, the ABA, including the accreditation committee and Council (and 
I would also include the on-site inspectors), is prohibited from any 
consideration of salary or other compensation as a fact or factor in 
the accreditation or review of any law school program. This would 
preclude and prohibit the inclusion of this information as part of 
any accreditation or review process, even to discussions with on-
site inspectors of any comparative salary information regardless of 
source used to obtain the comparative information. At least for the 
period of time in which the Final Judgment remains in place or is 
modified, salary issues are not an issue upon which the ABA can 
report. The language of the Final Judgment is absolutely clear in 
this matter. I would further contend that libraries, groups of 
libraries, and any association not involved in accreditation, and 
private vendors could collect the salary and compensation 
statistics, assuming the school's policy would permit the 
disclosure. Since salary is not an accreditation issue under the 
Final Judgment, many schools may prohibit or limit the release of 
salary information. The salary statistics collection issue is not 
part of the Standards or proposed Standards and must not detract 
from the issues and problems with the proposed Standards, and annual 
and on-site questionnaires and statistics.
    There are several other problems and issues within the proposed 
Standards, the 2 questionnaires and statistics to be addressed. For 
one, I seriously question the process of including interpretations 
of the proposed Standards along with the Standards for Council 
action for the ABA House of Delegates action. If approved in this 
format, the interpretations will take the form of Standards that 
will require a more complex procedure to change or amend rather than 
the less cumbersome procedure for adopting interpretations. The 
Final Judgment makes changes in the procedure for this matter. I 
oppose this part of the approach by the Standards Review Committee. 
In some instances, the interpretations limit and completely restrict 
choices of libraries to do things differently, especially with the 
changes technology has brought and will bring to library operations. 
In some instances, the interpretations appear to be new statements, 
not even interpreting the existing Standards. On this ground, I 
register a protest and complaint that the proposed Standards and 
Interpretations do not comply with the DOE regulations of 
documentation justifying the mandated accreditation requirements, 
and specifically contend that the proposed Standards and 
Interpretations have not satisfied the requirements of the Final 
Judgment of June 27, 1995, for Council action for a final 
recommendation for action by the 1995 August ABA House of Delegates.
    The ``rush to judgment'' to seek approval of the proposed 
Standards and Interpretations within the next 30 days or less flies 
directly in the face of the requirements of the Final Judgment of 
the U.S. v. ABA of June 27, 1995. I contend much more has to be done 
before approval is sought. I am aware of Internet comments regarding 
the upcoming Pittsburgh meeting on the Standards and Interpretations 
to the effect that there is an appearance and perception of a 
``farce'' regarding the meeting and comments made. I sincerely hope 
this is not the case, and that the report has not yet been written 
for Council's action.
    I have attempted to provide some information on some issues I am 
concerned with as these relate to the Standards, the proposed 
Standards and Interpretations, the questionnaires and statistics. I 
regret very much not being able to attend the AALL meeting in 
Pittsburgh for the comment portion. However, I do look forward to 
receiving any information about the meeting and comments made. As 
soon as I am back to work in a couple of weeks, I hope to be able to 
address and assess the June 1995 proposed Standards and 
Interpretations.
    Roger, I would appreciate this document being added to the 
comments for the AALL Pittsburgh meeting. Thanks.

        Sincerely yours,
Prof. Bardie C. Wolfe, Jr.,
Professor of Law and Law Library Director.

cc: Anne Bingaman, Dept. of Justice
    Darryl Depriest, General Counsel--ABA
    Dean Rudolph Hasl, St. John's
    Dean Steven Smith, CSU
    Jim White, ABA--Consultant
    Dean Dan Morrissey, St. Thomas
    Prof. Roy Mersky, Texas
    Prof. Pat Kehoe, American University
    Prof. Larry Wenger, Virginia
    Florida Academic Law Library Directors

St. Thomas University School of Law

July 7, 1995.
Roger Jacobs,
Director of Library, Member of Council, Notre Dame Law School, 
Kresge Library, Notre Dame, IN 46556
    Dear Roger: I write to inform you of several concerns I have 
with the ABA Library Standards as adopted in August 1995, including 
the Interpretations. In addition, I also write about concern with 
current Fall 

[[Page 63803]]
1995 Annual Questionnaire--Part III Law Library. Among the concerns are 
the following:

A. Annual Questionnaire

    1. While I view the Annual Questionnaire as tracking the ABA 
Standards and Interpretations, the continued exclusion from 
published reports of recognizing computer--technology driven 
resources enables the ABA to publish in its Review of Legal 
Education and the AALL Law Library Journal (Statistics) misleading, 
inadequate and incomplete data about Law Library operations and 
their support of academic programs--see questions 8-14 in the Annual 
Questionnaire. I am in the process of updating my 1991 report on the 
economic impact of the reported ABA library statistics. See separate 
report attached. From the Fall 1994 statistics, total expenses in 
93/94 of 176 schools are $282,843,440 (2 schools not reporting) with 
99 or 56.3% of the schools (those over 300,000 columns) having 69.2% 
of total expenses and 61 schools (those with 200,000 to 300,000 
volumes) or 34.7% of the schools having 26.2% of the total expenses. 
This imbalance creates significant problems.
    2. There appears to be substantial activities regarding 
Internet, legal resources and law library activities--see recent 
article September 95, ABA Journal. As best as I can determine, the 
Annual Questionnaire does not include questions about Internet 
usage, but does include questions about CD-ROMS. I view the August 
1995 Standards and Interpretations as eliminating the warehouse 
concept and ownership requirements of library resources--see various 
interpretations under the August 1995 Standards. The Annual 
Questionnaire, in my view, continues and emphasizes, as the ABA 
questionnaire has included in the past, the warehouse and ownership 
requirements of resources. The Standards do not support this.
    Because of a variety of changes in how OCLC--RLIN and other 
bibliographical systems are being used to provide reference 
assistance, I urge the inclusion of these expenses as part of 
Collection Development Resources and the elimination of separate 
lines for the other categories included--Serials, online services, 
other, binding and preservation. In addition, consideration should 
be given to including in Collection Development Resources the cost 
of computers both hardware and software and microform readers and 
reader printers and cabinets as Collection Development resources. I 
do not see any difference of including postage and handling, service 
charges, etc,. as part of regular acquisition and excluding the 
above. Perhaps the inclusion of these costs as Collection 
Development resources will encourage law libraries to update 
equipment as part of Collection Development.
    Although the Questionnaire asks for LEXIS and WESTLAW usage, 
there are other usages of computer resources including library 
networks, law school networks, Internet, CD-ROMS. This usage can be 
metered and the Questionnaire should reflect this usage.
    5. In terms of comparative information, the ABA continues to 
publish comparative law library information based on JD students 
only. While there are apparently over 100 schools with graduate 
programs, graduate students are excluded by the ABA in publishing 
library statistics. Thus, the information about libraries in terms 
of usage per student and expenses per student is inaccurate and 
overstated.
    Since the Annual Questionnaire is used as part of the inspection 
and accreditation process as well as its data being published by the 
ABA and by other publishers, the questionnaire should collect the 
appropriate data as reflected by the Standards. I do not think this 
is the case with the 1995 Questionnaire.

B. Standards

    My primary concerns relate to Standards 606 and its 
Interpretations and to Interpretation of 602. Regarding 606 (a) if 
followed to its logical sequence, Interpretation 5 of Standards 
606(a) relating to sharing information resources completely inhibits 
and reduces the possibilities of sharing of electronic resources by 
several libraries thru wide area networks and Internet. At the same 
time existing resource sharing programs by a state or regional 
consortium may not be in compliance. Interpretation 5 of 606(a) read 
in conjunction with interpretation 1 of 606(b) significantly reduces 
the possibilities of libraries sharing expensive but little used 
titles. I view the Standards and Interpretations at setting minimum 
Standards for compliance. To indicate as minimum requirements that 
all schools have to have all published regulations for the federal 
government and the reported decisions of the highest appellate court 
for each state is in my opinion, a substantial addition to earlier 
ABA Library Standards. I disagree that these are minimum 
requirements for accreditation purposes. In addition, I do have 
concern about the requirement of an annotated code from each state. 
Annotated code is a descriptive word or phrase of paper products. 
This term could be constructed to include only paper editions while 
electronic resources can and do include statutory, administrative, 
and case law. Thus, this term, annotated code, could be interpreted 
by the ABA to exclude the electronic resources simply because the 
term, annotated code, is used.
    Regarding Interpretation of 602, the operational system for 
implementation of electronic resources could involve other 
University components beside the Main Library. The Interpretation is 
too restrictive and should be expanded to include the supervision of 
electronic resources as well.
    As experience is gained with the new Standards and 
Interpretations, I will write to keep you informed of my concerns. 
In the case of the Annual Questionnaire, Fall 1995, time is very 
important since libraries are presently completing it. This Fall 
1995 Data could be used for upcoming Accreditation reports. 
Regarding the concerns about the Standards and Interpretations, I 
would request a continuing review. As financial resources for legal 
education become tight, the Standards and Interpretations must 
provide great flexibility for law libraries to support their 
academic programs within the means available. The sharing of 
resources, including electronic resources, will become important in 
the near future. I simply do not view the present Standards and 
Interpretations as encouraging and supporting this flexibility. In 
regards to the Questionnaire, I would not publish the number of 
volumes until the ABA has decided the equivalent for electronic 
resources.
Sincerely yours,
Prof. Bardie C. Wolfe, Jr.,
Professor of Law and Law Library Director.

cc: Anne Bingaman, Dept. of Justice
    Darryl Depriest, General Counsel--ABA
    Dean Rudolph Hasl, St. John's
    Dean Steven Smith, CSU
    Jim White, ABA--Consultant
    Dean Dan Morrissey, St. Thomas
    Prof. Roy Mersky, Texas
    Prof. Pat Kehoe, American University
    Prof. Larry Wenger, Virginia
    Florida Academic Law Library Directors

St. Thomas University School of Law

April 1, 1991.
To: Dean Jacqueline Allee
From: Bardie C. Wolfe, Jr.

Re: Economic Impact of Large Schools on National Mean and Median--
Law Library Comparative Information Based on the ABA Law Library 
Statistics.

    The ABA collects statistics from all ABA libraries and publishes 
the data. From this data, national mean and median, such as size of 
collection, budgets, salaries, etc., are established. The national 
mean and median of various categories of law library statistics are 
used for a variety of purposes.
    The large schools, that is, schools with a FTE student body 
above 650 FTE and/or a collection of over 300,000 volumes, have a 
major and substantial economic impact on driving upward the national 
mean and median of most, if not all, measurable law library 
statistical categories. This process would, apparently, be normal 
and of little concern. However, the magnitude of the differences 
between the schools at the top and the schools at the bottom is 
great. The unbalanced differences do impact very significantly the 
establishment of the national mean and median for all schools.
    Of the 176 schools, 109 or 62 percent have a collection of less 
than 300,000 volumes; of the 109 school, 35 schools or 20 percent of 
the total 176 schools have a collection of less than 200,000 
volumes. The remaining 67 schools or 38 percent of the total have a 
collection of more than 300,000 volumes. Of the 176 schools, there 
are 96 schools or 55 percent with a student body of less than 650 
FTE, and the remaining 80 schools or 45 percent have a student body 
of more than 650 FTE.
    The duplication of materials, graduate programs and 
international and foreign law collections are basic factors in many 
schools. These factors are not measured or taken into account by the 
existing ABA statistics or identified separately when national mean 
and median in categories are developed from all the statistics from 
the 176 schools. The inclusion of the resources in, including staff, 
salaries, etc., and the economic impact of these resources on the 
establishment of national mean and median are unknown. 

[[Page 63804]]
They may be overlooked when national mean and median are used for 
statistical comparisons.
    The size of the collection, that is, the number of hard copy and 
microform volumes, has been the ABA measuring tool. All comparative 
information available from the ABA statistics is based on the size 
of collection. There are five broad categories: Collection size from 
0 to 100,000 volumes; 100,000 to 200,000 volumes; 200,000 to 300,000 
volumes; 300,000 volumes and over; and collection size 0 to all 
volumes. These categories were established many years ago when few 
libraries had over 300,000 volumes. At present, there are 67 
libraries which contain over 300,000 volumes. In fact, there are 
approximately 16 libraries with more than 500,000 volumes, and 
approximately 34 libraries with more than 400,000 volumes, including 
the 16 above.
    This report is an attempt to provide information about the 
establishment of the national mean and median of law library 
statistical categories. Please note that the new technologies, 
including on-line services, CD-ROM, video, etc., have not been built 
into the measuring tool used by the ABA, that is the size of 
collection. In addition, microform statistics for titles added or 
held are not reliable to provide this information to add to the hard 
copy title added or held categories. The number of students, 
specialized programs in some schools, or their missions also have 
not been built into the measuring tool, except in two areas, 
information resources per student and computer retrieval per student 
per year. In these two areas, the ABA mixes two years of 
information, and this use may not be a correct assessment of a 
library's program.
    Thus, for the above reasons, and with exceptions, the report is 
an analysis of traditional academic law libraries, and the measuring 
tool for the analysis is what the ABA uses, the size of collection.
    The following tables provide an overview of the economic impact 
of the inclusion of the data from large schools on the establishment 
of national means and medians for various law library statistical 
categories. The information has been taken from the Fall 1990 ABA 
Law Library Comprehensive Statistical Table Data. The law library 
has enhanced the basic information to create the tables, comparisons 
and characteristics indicated. All tables use COLLECTION SIZE RANGE 
OF VOLUMES for the comparison with the exception of two tables which 
were created by the law library and are based on FTE size of student 
body with range. Without reinputting all data from all schools, 
there is no possibility of creating the same tables for the other 
comparisons used in the report. The two tables created by the law 
library do support the conclusion that the large schools have a 
major and substantial economic impact on driving upward the national 
mean and median of all schools, simply because of size and the 
resources needed to sustain the academic program because of size.
    The tables are as follows:

                                 Table 1.--Total Law Library Budgets for 1990-91                                
----------------------------------------------------------------------------------------------------------------
                                       Mean budget for                       Total budget of                    
  Collection size range of volumes         1990-91       Number of schools     all schools      Percent of total
----------------------------------------------------------------------------------------------------------------
0 to 100,000........................                  0                  0                  0                  0
100,000 to 200,000..................           $804,634                 34        $27,357,556                 12
200,000 to 300,000..................          1,127,992                 73         82,343,416                 36
300,000 and Over....................          1,824,354                 65        118,583,010                 52
All schools reported mean...........          1,327,232                172        228,283,909  .................
----------------------------------------------------------------------------------------------------------------

    Note--Federal Work Study funds are not included. Of the 176 law 
schools only 172 reported 1990-91 budgets.

                                Table 2.--Total Law Library Expenses for 1989-90                                
----------------------------------------------------------------------------------------------------------------
                                      Mean expenses for                     Total expenses of                   
  Collection size range of volumes         1989-90       Number of schools     all schools      Percent of total
----------------------------------------------------------------------------------------------------------------
0-100,000...........................                  0                  0                  0                  0
100,000 to 200,000..................           $782,072                 34        $26,590,448                 12
200,000 to 300,000..................          1,080,107                 73         78,847,811                 36
300,000 and Over....................          1,744,301                 66        115,123,866                 52
All schools reported mean...........          1,274,925                173        220,562,025                   
----------------------------------------------------------------------------------------------------------------

    Note--Federal Work Study funds are not included. Of the 176 law 
schools only 173 reported 1989-90 expenses.

                           Table 3.--Total Information Resources Expenses for 1989-90                           
----------------------------------------------------------------------------------------------------------------
                                      Mean expenses for   Median expenses     Total expenses                    
  Collection size range of volumes         1989-90          for 1989-90        all schools       Percent total  
----------------------------------------------------------------------------------------------------------------
0-100,000...........................                  0                  0                  0                  0
100,000 to 200,000..................           $372,223           $356,105   $12,655,582 (34)                 13
200,000 to 300,000..................            502,535            484,102    36,685,055 (73)                 38
300,000 and Over....................            732,289            700,033    48,331,074 (66)                 50
All schools reported mean and median            564,576            525,415   97,671,648 (173)                   
----------------------------------------------------------------------------------------------------------------

    Note--Total information resources expenses include expenses for 
all forms of information, including serials, monographs, microforms, 
binding, computer-based services, others such as video and audio. Of 
the 176 law schools only 173 reported 1989-90 expenses for 
information resources.

                        Table 4.--Informational Resources Expenses per Student (See Note)                       
----------------------------------------------------------------------------------------------------------------
                                                         Books dollars per   Mean FTE number    Book dollars per
            Collection size range of volumes              student--mean--      of students     student--median--
----------------------------------------------------------------------------------------------------------------
0-100,000..............................................                  0                  0                  0
100,000 to 200,000.....................................            $851.89           475 (34)            $823.80
200,000 to 300,000.....................................             885.17           625 (74)             807.70

[[Page 63805]]
                                                                                                                
300,000 and Over.......................................             912.53           865 (67)             902.20
All schools reported mean and median...................             889.07          688 (175)             855.10
----------------------------------------------------------------------------------------------------------------


    Note--Book dollars per student are determined by the FTE student 
count as of October 1990 and the total information resources' 
expenses for 1989-90. ABA tables do not identify this category as 
either 1990-91 or 1989-90. The mix of the two year information may 
not be a correct assessment of this information. SEE TABLE 5, 6, and 
7 for additional analysis.

          Table 5.--Collection Size Analysis of Informational Resources Expenses Per Student (See Note)         
----------------------------------------------------------------------------------------------------------------
                                                                                       Mean FTE     Book dollars
                 Collection size range of volumes                    Mean expenses     number of   per student--
                                                                      for 1989-90    students--89       Mean    
----------------------------------------------------------------------------------------------------------------
0 to 100,000.....................................................            0            0                  0  
100,000 to 200,000...............................................    $372,223 (34)     466 (45)        $798.76  
200,000 to 300,000...............................................     502,535 (73)     636 (73)         790.15  
300,000 and Over.................................................     732,289 (66)     875 (57)         836.90  
All Schools......................................................     564,576 (173)    668 (176)        845.17  
----------------------------------------------------------------------------------------------------------------

    Note--This table developed by law library from both the 1989 and 
1990 ABA law library comprehensive statistical table data. This 
table is NOT an accurate indication of book dollars per student, 
since there were shifts in the number of students in the two 
categories for the two years. The ABA Fall data for 1989 indicates 
45 schools with a collection count of 100,000 to 200,000 and 57 
schools with a collection count of 300,000 volumes or more; this 
compares to the ABA Fall data for 1990 in which the ABA reports 34 
schools with a collection count of 100,000 to 200,000 and 66 schools 
with a collection count of 300,000 volumes or more. The number of 
schools with a collection count of between 200,000 and 300,000 
volumes stayed the same, although the data for Fall 1990 would, 
apparently, indicate that the schools at the high end of approaching 
300,000 volumes in 1988-89 moved into the 300,000 volumes or more 
category by the end of 1989-90. The same would be true of the number 
of schools in the 100,000 to 200,000 volume category in 1988-89 
moving into the next category of 200,000 to 300,000 volumes. This 
shift of 10 or more schools into the next and higher category would 
impact any assessment using the two years of information, Fall 1989 
and Fall 1990, when the collection size range of volumes category is 
used as the ABA has used them. See next two tables, developed by the 
Law Library and based on FTE students and not on collection size.

                Table 6.--FTE Analysis of Informational Resources Expenses Per Student (See Note)               
----------------------------------------------------------------------------------------------------------------
                                                                  Mean        Median    Per student  Per Student
FTE size of school--range with 1990 FTE and 1989-90 expenses    expenses     expenses       mean        median  
                                                              for 1989-90  for 1989-90    expenses     expenses 
----------------------------------------------------------------------------------------------------------------
0 to 450 students...........................................     $382,795     $373,824    $1,149.49    $1,072.20
451 and 650 students........................................      512,122      477,332       966.04       957.80
651 to 875 students.........................................      584,010      585,301       784.57       768.10
876 to 1,100 students.......................................      666,873      638,239       671.18       626.40
1,101 and Over..............................................      862,503      742,222       641.64       619.00
All Schools.................................................      564,576      525,415       889.17       855.10
----------------------------------------------------------------------------------------------------------------

    Note--In October 1990, there were 32 schools in the 0-450 
category with an average of 341 FTE (1 school did not report 
expenses). There were 64 schools in the 451-650 category with an 
average of 532 FTE (4 schools at low end included 437 FTE -443 FTE). 
There were 45 schools included in the 651-875 category with an 
average of 749 FTE. There were 18 schools in the 876-1,100 category 
with an average of 988 FTE. There were 20 schools in the 1,101 and 
over category with an average of 1,319 FTE.

                 Table 7.--FTE Analysis of Information Resources Expenses per Student (See Note)                
----------------------------------------------------------------------------------------------------------------
                                                                  Mean        Median    Per student  Per student
FTE size of school--range with 1989 FTE and 1989-90 expenses    expenses     expenses       mean        median  
                                                              for 1989-90  for 1989-90    expenses     expenses 
----------------------------------------------------------------------------------------------------------------
0 to 450 students...........................................     $384,199     $386,579    $1,184.22    $1,112.99
451 to 650 students.........................................      529,607      513,127       991.63       954.80
651 to 875 students.........................................      581,536      585,301       791.81       778.44
876 to 1,100 students.......................................      581,536      585,301       678.85       695.01
1,101 and Over..............................................      881,627      742,222       670.02       610.61
All Schools.................................................      564,576      525,415       845.17       868.45
----------------------------------------------------------------------------------------------------------------

    Note--In October 1989, there were 37 schools in the 0-450 
category with an average FTE of 338 (1 school did not report 
expenses). There were 59 schools in the 451 to 650 category with an 
average of 535 FTE. There were 43 schools in the 651 to 875 category 
with an average of 742 FTE (1 school did not report expenses). There 
were 17 schools in the 876 to 1,100 category with an average of 990 
FTE. There were 19 schools in the 1,101 and over category with an 
average of 1,301 FTE.
    This table developed by the Law Library. The ABA does not use 
FTE size as a measuring factor; the ABA uses collection size.

                                                                                                                

[[Page 63806]]
                                    Table 8.--Total Collection Size Analysis                                    
----------------------------------------------------------------------------------------------------------------
                                                                        Median size                             
           Collection size range of volumes              Mean size at   at start of   Total size at   Percent of
                                                        start of 90-91     90-91     start of 90-91     total   
----------------------------------------------------------------------------------------------------------------
0-100,000.............................................          0                 0               0            0
100,000 to 200,000....................................   165.333 (35)       167,591       5,786,665           11
200,000 to 300,000....................................   245,613 (74)       250,839      18,175,362           33
300,000 and Over......................................   455,320 (67)       395,672      30,506,440           56
All Schools...........................................   309,480 (176)      267,945      54,468,480  ...........
----------------------------------------------------------------------------------------------------------------


    Note--Volumes include hard copy and microform volume 
equivalency.

                                  Table 9.--Volumes Added Analysis for 1989-90                                  
----------------------------------------------------------------------------------------------------------------
                                                                              Median       Total                
             Collection size range of volumes               Mean volumes     volumes      volumes     Percent of
                                                             added 89/90   added 89/90  added 89/90     total   
----------------------------------------------------------------------------------------------------------------
0-100,000................................................          0                 0            0            0
100,000 to 200,000.......................................    11,588 (35)         7,378      405,580           16
200,000 to 300,000.......................................    11,555 (74)        10,442      855,070           33
300,000 and Over.........................................    19,790 (67)        16,569    1,325,930           51
All Schools..............................................    14,696 (176)       11,368    2,586,496  ...........
----------------------------------------------------------------------------------------------------------------

    Note--Volumes added included hard copy and microform volume 
equivalency.

                                  Table 10.--Titles Added Analysis for 1989-90                                  
----------------------------------------------------------------------------------------------------------------
                                                                              Median       Total                
                                                              Mean titles     titles       titles     Percent of
              Collection size range of volumes                added-- 89/  added-- 89/  added-- 89/     total   
                                                                  90            90           90                 
----------------------------------------------------------------------------------------------------------------
0-100,000..................................................        0                 0            0            0
100,000 to 200,000.........................................   1,198 (35)         1,166       41,930           11
200,000 to 300,000.........................................   1,633 (73)         1,620      119,209           32
300,000 and Over...........................................   3,100 (67)         2,665      207,700           56
All Schools................................................   2,108 (175)        1,692      368,900  ...........
----------------------------------------------------------------------------------------------------------------

    Note--Only hard copy titles are included in this table. The 
count of microform titles either added or held is not reliable to 
produce statistical comparisons.

                               Table 11.--Titles Held Analysis at Start of 1990-91                              
----------------------------------------------------------------------------------------------------------------
                                                          Mean titles      Median     Total titles    Percent of
           Collection size range of  volumes                 held       titles held       held          total   
----------------------------------------------------------------------------------------------------------------
0-100,000.............................................          0                 0               0            0
100,000 to 200,000....................................    21,328 (34)        21,341         725,152            7
200,000 to 300,000....................................    37,782 (74)        34,724       2,795,868           27
300,000 and Over......................................   102,151 (66)        76,276       6,741,966           66
All Schools...........................................    58,983 (174)       38,710      10,263,042  ...........
----------------------------------------------------------------------------------------------------------------

    Note--Only hard copy titles are included in this table. The 
count of microform titles held is not reliable to produce 
statistical comparisons.

                          Table 12.--Serial Subscriptions Analysis at Start of 1990-91                          
----------------------------------------------------------------------------------------------------------------
                                                         Mean serial   Median serial   Total serial   Percent of
           Collection size range of volumes             subscriptions  subscriptions  subscriptions     total   
----------------------------------------------------------------------------------------------------------------
0-100,000.............................................         0                  0              0             0
100,000 to 200,000....................................    2,367 (35)          2,444         82,845            12
200,000 to 300,000....................................    3,587 (73)          3,487        233,629            32
300,000 and Over......................................    5,600 (67)          5,364        375,200            52
All Schools...........................................    4,114 (175)         3,760        719,950   ...........
----------------------------------------------------------------------------------------------------------------


                                                                                                                

[[Page 63807]]
                          Table 13.--Serial Subscriptions Expenses Analysis for 1989-90                         
----------------------------------------------------------------------------------------------------------------
                                                                          Median                                
         Collection size range of volumes             Mean expenses      expenses    Total expenses   Percent of
                                                      subscriptions   subscriptions   subscriptions     total   
----------------------------------------------------------------------------------------------------------------
0-100,000.........................................            0                  0                0            0
100,000 to 200,000................................    $278,132 (34)       $268,284       $9,456,488           13
200,000 to 300,000................................     381,289 (73)        376,149       27,834,097           38
300,000 and Over..................................     544,141 (66)        514,715       35,913,306           49
All Schools.......................................     423,144 (173)       401,846       73,203,912             
----------------------------------------------------------------------------------------------------------------



                              Table 14.--Serial Titles Analysis at Start of 1990-91                             
----------------------------------------------------------------------------------------------------------------
                                                                              Median       Total                
                                                              Mean titles     titles       titles     Percent of
              Collection size range of volumes               active subs.     active       active       total   
                                                                              subs.        subs.                
----------------------------------------------------------------------------------------------------------------
0-100,000..................................................        0                 0            0            0
100,000 to 200,000.........................................   2,238 (35)         2,210       78,330           12
200,000 to 300,000.........................................   3,267 (72)         3,366      235,224           37
300,000 and Over...........................................   4,916 (67)         4,622      329,372           51
All Schools................................................   3,695 (174)        3,446      642,930             
----------------------------------------------------------------------------------------------------------------


                          Table 15.--Duplications of Subscriptions Analysis for 1990-91                         
----------------------------------------------------------------------------------------------------------------
                                                            Estimated projection of                             
                                                             duplication of serial                              
                                Mean serial   Mean serial        subscriptions                                  
 Collection range of volumes   subscriptions     titles   --------------------------       Percent of total     
                                                                         Percent of                             
                                                            Difference   mean subs                              
----------------------------------------------------------------------------------------------------------------
0 to 100,000.................             0             0            0            0  0.                         
100,000 to 200,000...........         2,367         2,238          130            5  31.                        
200,000 to 300,000...........         3,587         3,267          320            9  76.                        
300,000 and Over.............         5,600         4,916          684           12  Off sc. and above.         
All Schools..................         4,114         3,695          419           10  63.                        
----------------------------------------------------------------------------------------------------------------

    Note--This table provides an overview of the extent of 
duplication of serial subscriptions; as an example, more than 1 copy 
of the Federal Reporter 2d, the ALR series, etc. This table should 
be used in conjunction with the serial subscription expenses' table 
on this page.

                               Table 16.--Computer Retrieval Expenses for 1989-90                               
----------------------------------------------------------------------------------------------------------------
                                                                           Median                               
           Collection size range of volumes              Mean expenses    expenses   Total expenses   Percent of
                                                           retrieval     retrieval      retrieval       total   
----------------------------------------------------------------------------------------------------------------
0 to 100,000..........................................          0                 0               0            0
100,000 to 200,000....................................   $33,341 (34)       $31,067      $1,133,594           16
200,000 to 300,000....................................    39,713 (73)        36,494       2,890,049           40
300,000 and Over......................................    48,533 (66)        41,023       3,203,178           44
All Schools...........................................    41,826 (173)       36,286       7,235,898  ...........
----------------------------------------------------------------------------------------------------------------


 Table 17.--Computer Retrieval to Total Informational Resources Expenses
                               for 1939-90                              
------------------------------------------------------------------------
                                       Mean         Mean                
                                     expenses     expenses              
 Collection size range of volumes      all          only       Percent  
                                   information   retrieval              
------------------------------------------------------------------------
0 to 100,000.....................  ...........  ...........  ...........
100,000 to 200,000...............     $372,223      $33,341            9
200,000 to 300,000...............      502,535       39,713            8
300,000 and Over.................      732,289       48,533            7
All Schools......................      564,576       41,826            7
------------------------------------------------------------------------


                                       Table 18.--FTE Students for 1990-91                                      
----------------------------------------------------------------------------------------------------------------
                                                                              Median       Total                
                                                              Mean number     number       number     Percent of
              Collection size range of volumes               students FTE    students     students      total   
                                                                               FTE          FTE                 
----------------------------------------------------------------------------------------------------------------
0 to 100,000...............................................        0                 0            0            0

[[Page 63808]]
                                                                                                                
100,000 to 200,000.........................................     475 (34)           471       16,150           14
200,000 to 300,000.........................................     625 (74)           614       46,250           39
300,000 and over...........................................     865 (67)           783       57,955           49
All Schools................................................     688 (173)          629      119,024  ...........
----------------------------------------------------------------------------------------------------------------



                                     Table 19.--Retrieval Usage for 1989-90                                     
----------------------------------------------------------------------------------------------------------------
                                                                 Mean         Median       Total                
              Collection size range of volumes                 retrieval    retrieval    retrieval    Percent of
                                                              usage 89/90  usage 89/90  usage 89/90     total   
----------------------------------------------------------------------------------------------------------------
0 to 100,000...............................................        0                 0            0            0
100,000 to 200,000.........................................   2,733 (35)         2,449       95,655           11
200,000 to 300,000.........................................   4,319 (74)         3,866      319,606           38
300,000 and Over...........................................   6,342 (66)         6,097      418,572           50
All Schools................................................   4,765 (175)        4,048      833,875  ...........
----------------------------------------------------------------------------------------------------------------


  Table 20.--Retrieval Usage Per Student Per Year Comparison (See Note) 
------------------------------------------------------------------------
                                                  Mean          Mean    
                                                retrieval     retrieval 
      Collection size range of volumes          1990 FTE      1989 FTE  
                                                students      students  
------------------------------------------------------------------------
0 to 100,000................................        0             0     
100,000 to 200,000..........................     6.0 (34)      5.9 (45) 
200,000 to 300,000..........................     7.1 (74)      6.8 (73) 
300,000 and Over............................     7.7 (66)      7.3 (57) 
All Schools.................................     7.1 (174)     7.1 (176)
------------------------------------------------------------------------

    Note--The ABA uses the 1989-90 retrieval hours with the October 
Fall FTE 1990 student count to determine retrieval usage per student 
per year. The law library has, for this table, used in the first 
column the exact figures from the Fall 1990 ABA Law Library 
Comprehensive Statistical Table Data. For the second column, the law 
library used the 1989-90 retrieval hours but also used the FTE 
student count from the 1989 ABA Law Library Comprehensive 
Statistical Table Data. As noted above the number of schools in the 
categories has shifted because of the base of collection size.

                         Table 21.--Other Informational Resources' Expenses for 1989-90                         
                         [Note--Serial and Retrieval Expenses and Binding Not Included]                         
----------------------------------------------------------------------------------------------------------------
                                                                           Median                               
           Collection size range of volumes              Mean expenses    expenses   Total expenses   Percent of
                                                            1989-90       1989-90        1989-90        total   
----------------------------------------------------------------------------------------------------------------
0 to 100,000..........................................          0                 0               0            0
100,000 to 200,000....................................   $53,357 (34)       $36,030      $1,814,138           12
200,000 to 300,000....................................    72,992 (72)        57,170       5,255,424           35
300,000 and Over......................................   120,224 (66)       107,989       7,934,478           53
All Schools...........................................    87,234 (172)       65,617      15,004,248             
----------------------------------------------------------------------------------------------------------------


                               Table 22.--Staff Size Comparison--1990-91 Staff FTE                              
                                        [Note--All Staff Except Students]                                       
----------------------------------------------------------------------------------------------------------------
                                                         Mean of staff   Median of                    Percent of
           Collection size range of volumes                  size        staff size  Total of staff     total   
----------------------------------------------------------------------------------------------------------------
0 to 100,000..........................................          0                 0               0            0
100,000 to 200,000....................................      12.5 (35)          11.0           437.5           13
200,000 to 300,000....................................      15.1 (74)          15.2         1,117.4           33
300,000 and Over......................................      27.5 (67)          21.3         1,842.5           54
All Schools...........................................      19.3 (176)         16.6         3,396.8             
----------------------------------------------------------------------------------------------------------------


                                                                                                                

[[Page 63809]]
                           Table 23.--Professional Staff Size Comparison--1990-91 FTE                           
                                    [Note--includes only professional staff]                                    
----------------------------------------------------------------------------------------------------------------
                                                               Mean of     Median of     Total of     Percent of
             Collection size range of volumes                staff size    staff size      staff        total   
----------------------------------------------------------------------------------------------------------------
0 to 100,000..............................................        0                 0          0               0
100,000 to 200,000........................................     5.7 (35)           5.0        199.5            14
200,000 to 300,000........................................     6.8 (74)           6.5        503.2            34
300,000 and Over..........................................    11.3 (67)           9.8        757.10           52
All Schools...............................................     8.3 (176)          7.0      1,460.8              
----------------------------------------------------------------------------------------------------------------



    Table 24.--Professional Staff Salary Comparison--1990-91 Salaries   
------------------------------------------------------------------------
                                                                Median  
      Collection size range of volumes       Average salary   salary for
                                               for 1990-91     1990-91  
------------------------------------------------------------------------
0 to 100,000...............................          0                 0
100,000 to 200,000.........................   $29,876 (35)       $28,690
200,000 to 300,000.........................    32,669 (72)        31,525
300,000 and Over...........................    36,378 (65)        34,783
All Schools................................    33,502 (172)       32,179
------------------------------------------------------------------------


  Table 25.--Student Staff--Number of Hours and Pay--Comparison 1989-90 
------------------------------------------------------------------------
                                            Mean of number  Mean of wage
     Collection size range of volumes       hours per year    per hour  
------------------------------------------------------------------------
0 to 100,000..............................          0             0     
100,000 to 200,000........................     7,255 (35)    $4.79 (34) 
200,000 to 300,000........................    10,832 (73)     5.05 (72) 
300,000 and Over..........................    14,531 (67)     5.51 (66) 
All Schools...............................    11,364 (175)    5.18 (172)
------------------------------------------------------------------------


                        Table 26.--Salary Analysis for all FTE Staff for 1989-90 Expenses                       
            [Note--Does not include student wages, Work Study federal share, or temporary part time]            
----------------------------------------------------------------------------------------------------------------
                                                                           Median                               
                                                         Mean salary       salary     Total salary              
          Collection size range  of volumes             expenses for      expenses    expenses for    Percent of
                                                           1989-90       for  1989-      1989-90        total   
                                                                             90                                 
----------------------------------------------------------------------------------------------------------------
0-100,000...........................................            0                 0               0            0
100,000 to 200,000..................................    $257,330 (34)      $233,527      $8,749,220           11
200,000 to 300,000..................................     355,654 (73)       339,584      25,962,742           34
300,000 and Over....................................     638,385 (65)       519,361      41,495,025           54
All Schools Mean....................................     443,064 (172)      375,493      76,207,008  ...........
----------------------------------------------------------------------------------------------------------------


                            Table 27.--Fringe Benefits' Expenses Analysis for 1989-90                           
----------------------------------------------------------------------------------------------------------------
                                                                           Median                               
                                                          Mean salary      salary     Total salary    Percent of
           Collection size range  of volumes             expenses for     expenses    expenses for      total   
                                                            1989-90     for 1989-90      1989-90                
----------------------------------------------------------------------------------------------------------------
0-100,000.............................................          0                 0               0            0
100,000 to 200,000....................................   $54,623 (34)       $49,408      $1,857,182           10
200,000 to 300,000....................................    84,537 (71)        85,616       6,002,127           34
300,000 and Over......................................   155,540 (64)       130,780       9,954,560           56
All Schools Mean......................................   105,408 (169)       93,520      17,813,952  ...........
----------------------------------------------------------------------------------------------------------------


                                  Table 28.--Wage Expenses Analysis for 1989-90                                 
               [Note--Includes student wages, not federal work study portion, temporary part time]              
----------------------------------------------------------------------------------------------------------------
                                                                              Median                            
             Collection size range of volumes              Mean wages for   wages for   Total wages   Percent of
                                                               1989-90       1989-90    for 1989-90     total   
----------------------------------------------------------------------------------------------------------------
0 to 100,000.............................................          0                 0            0            0
100,000 to 200,000.......................................   $22,006 (31)       $19,679     $682,186            8

[[Page 63810]]
                                                                                                                
200,000 to 300,000.......................................    43,173 (73)        33,595    3,151,629           39
300,000 and Over.........................................    66,821 (65)        60,324    4,343,365           53
All Schools..............................................    48,386 (169)       34,459    8,177,234  ...........
----------------------------------------------------------------------------------------------------------------



              Table 29.--Grand Total--All Salaries, Wages and Fringe Benefits--Expenses for 1989-90             
                        [Note.--Does Not Include Federal Work Study Funds, Federal Share]                       
----------------------------------------------------------------------------------------------------------------
                                         Mean salary       Median salary       Total salary                     
  Collection size range of volumes   expenses for  1989-    expenses for       expenses for     Percent of total
                                             90               1989-90            1989-90                        
----------------------------------------------------------------------------------------------------------------
0 to 100,000.......................              0                       0                  0                  0
100,000 to 200,000.................      $332,017 (34)            $301,528        $11,288,578                 11
200,000 to 300,000.................       481,047 (73)             451,329         35,116,431                 34
300,000 and Over...................       858,353 (65)             696,258         55,792,945                 55
All schools........................       594,174 (172)            521,210        102,197,928                   
----------------------------------------------------------------------------------------------------------------


                    Table 30.--Federal Work Study Contribution Analysis Expenses for 1989-90                    
----------------------------------------------------------------------------------------------------------------
                                       Mean share for     Median share for   Total share for                    
  Collection size range of volumes         1989-90            1989-90            1989-90        Percent of total
----------------------------------------------------------------------------------------------------------------
0 to 100,000.......................              0                       0                  0                  0
100,000 to 200,000.................       $15,630 (29)             $11,392           $453,270                 12
200,000 to 300,000.................        13,368 (55)              10,472            735,240                 20
300,000 and Over...................        52,034 (49)              13,759          2,549,666                 68
All schools........................        28,107 (133)             11,342          3,738,231                   
----------------------------------------------------------------------------------------------------------------


                     Table 31.--Number of Hours of Professional on Duty Analysis for 1990-91                    
                          [Note.--Number of Hours per Week--Regular Semester Schedule]                          
----------------------------------------------------------------------------------------------------------------
                                                                                                  Mean hours    
                    Collection size range of volumes                      Mean hours library       reference    
                                                                              has on duty          available    
----------------------------------------------------------------------------------------------------------------
0 to 100,000............................................................              0                   0     
100,000 to 200,000......................................................            62 (35)             62 (35) 
200,000 to 300,000......................................................            69 (74)             72 (73) 
300,000 and Over........................................................            70 (67)             70 (67) 
All schools.............................................................            68 (176)            70 (175)
----------------------------------------------------------------------------------------------------------------


                               Table 32.--Special Comparison--Information Resource and Salaries to Total Expenses--1989-90                              
                                       [Note--Federal Work Study Funds are not Included In This Table Comparison]                                       
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Mean total all                                                                             
             Collection size range of volumes               library expenses  Total information       Percent         Total salaries        Percent     
                                                                1989-90        expenses 1989-90                      expenses 1989-90                   
--------------------------------------------------------------------------------------------------------------------------------------------------------
0 to 100,000.............................................                  0                  0                  0                  0                  0
100,000 to 200,000.......................................           $782,072           $372,223                 48            332,017                 42
200,000 to 300,000.......................................          1,080,107            502,535                 47            481,047                 45
300,000 and Over.........................................          1,744,301            732,289                 42            858,353                 49
All Schools..............................................          1,274,925            564,576                 44            594,174                 47
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Note: Salary expenses includes all salaries, wages and fringe 
benefits except for federal work study portion of student wages. 
Remainder of expenses not included are expenses of operaitons, such 
as supplies, computer-bibliographic systems, automation, conferences 
and travel, etc.

                                                                                                                                                        

[[Page 63811]]
Table 33.--Special Comparison--Library Budget for 1990-91 and Library Expenses for 1989-90 per Student Analysis.
----------------------------------------------------------------------------------------------------------------
                                                                                               1990-91 estimated
                                                          Mean budget for      FTE students        budget per   
            Collection size range of volumes                  1990-91           October 90        student for   
                                                                                                library program 
----------------------------------------------------------------------------------------------------------------
0 to 100,000...........................................                  0                  0                  0
100,000 to 200,000.....................................           $804,634                475          $1,693.97
200,000 to 300,000.....................................          1,127,992                625           1,804.79
300,000 and Over.......................................          1,824,354                865           2,109.08
All Schools............................................          1,327,232                688           1,929.12
----------------------------------------------------------------------------------------------------------------



----------------------------------------------------------------------------------------------------------------
                                                                                               1989-90 estimated
                                                         Mean expenses for     FTE students       expenses per  
            Collection size range of volumes                  1989-90           October 89        student for   
                                                                                                library program 
----------------------------------------------------------------------------------------------------------------
0 to 100,000...........................................                  0                  0                  0
100,000 to 200,000.....................................           $782,072                466          $1,678.27
200,000 to 300,000.....................................          1,080,107                636           1,698.28
300,000 and Over.......................................          1,744.301                875           1,993.49
All Schools............................................          1,274,925                668           1,908.57
----------------------------------------------------------------------------------------------------------------

    Note: Table 33 does not include federal work funds, either in 
1990-91 budget or 1989-90 expenses.

                              Table 34.--Special Comparison of Per Student Expenses                             
----------------------------------------------------------------------------------------------------------------
                                                                                               1989-90 Estimated
                                                         1989-90 Estimated  1989-90 Estimated     information   
            Collection size range of volumes                expenses per     salary expenses    expenses per 89 
                                                            student for      per student for    FTE student for 
                                                          library program    library program    library program 
----------------------------------------------------------------------------------------------------------------
0 to 100,000...........................................                  0                  0                  0
100,000 to 200,000.....................................          $1,678.27            $746.02            $798.76
200,000 to 300,000.....................................           1,698.28             777.38             790.15
300,000 and over.......................................           1,933.49           1,040.44             836.90
All schools............................................           1,908.57             931.56             845.17
----------------------------------------------------------------------------------------------------------------

    Note.--Information taken from TABLE 33, TABLES 29 and 30 
COMBINED, AND TABLE 5. In these tables, several schools did not 
report data and special comparison may be off. Salary information 
does include federal work study funds. However, it is believed that 
the characteristics of this table are true--that is that the 
libraries, generally, with less than 300,000 volumes spend more for 
information resources than for salaries and fringes while libraries, 
generally, with more than 300,000 volumes spend more for salaries 
and fringes than for information resources.
    These tables are an attempt to document the economic impact of 
the schools with more than 300,000 volumes on the establishment of 
the national mean and median of various law library statistical 
categories of all 176 schools. Based on the Fall 1990 ABA 
statistics, there are 67 schools or 38 percent of all schools with 
more than 300,000 volumes.
    In summary, the ABA uses SIZE OF COLLECTION as the basic 
measuring tool to determine the national mean and median of all law 
library statistical categories. The direct consequence of this use 
is that the schools with more than 300,000 volumes exert a very 
significant and substantial economic impact on driving upward the 
national mean and median in various statistical categories for all 
schools with less than 300,000 volumes. For schools with less than 
200,000 volumes, the economic impact has major consequences for them 
to comply with the national mean and median.
    In important categories of statistical analysis in comparing law 
libraries, the total resources, based on the mean of all schools 
with less than 300,000 volumes, do not equal the total resources of 
the schools with more than 300,000 volumes. From the tables, the 
information reveals.

------------------------------------------------------------------------
                                    Total resources     Total resources 
                                   all schools with    all schools with 
            Category               less than 300,000   more than 300,000
                                     volumes (109         volumes (67   
                                       schools)            schools)     
------------------------------------------------------------------------
1. Table 1--Budget for 1990-91..      $109,700,972        $118,583,010  
2. Table 2--Expenses for 89-90..      $105,438,259        $115,123,866  
3. Table 3--Information Expenses                                        
 for 1989-90....................       $48,340,637         $48,331,074  
4. Table 8--Total Collection in                                         
 Number of Volumes..............        23,962,027          30,506,440  
5. Table 9--Volumes added 89-90.         1,260,650           1,325,930  
6. Table 10--Titles added 89-90.           160,839             207,700  
7. Table 11--Titles held at                                             
 start of 1990-91 (Hard Copy                                            
 Only)..........................         3,521,020           7,741,966  
8. Table 12--Serial                                                     
 Subscriptions..................           316,474             375,200  
9. Table 13--Serial Expenses....       $37,290,585         $35,913,306  
10. Table 14--Serial Titles.....           313,554             329,371  
11. Table 15--Duplication of                                            
 Serial Subscriptions...........               450                 684  
12. Table 16--Retrieval Expenses        $4,023,643          $3,203,178  
13. Table 18--FTE students '90..            62,400              57,955  

[[Page 63812]]
                                                                        
14. Table 19--Retrieval use 89-                                         
 90.............................           415,261             418,572  
15. Table 21--Other Information                                         
 Resources (Treatises) Expenses                                         
 for 89-90......................        $7,069,562          $7,934,478  
16. Table 22--Total Number of                                           
 FTE Staff......................             1,554.9             1,842.5
17. Table 23--Total Number FTE                                          
 Librarians.....................               702.7               757.1
18. Table 26--Salaries paid 89-                                         
 90.............................       $34,711,962         $41,495,025  
19. Table 27--Fringe Benefits                                           
 paid 89-90.....................        $7,859,309          $9,954,560  
20. Table 28--Wages paid 89-90..         3,833,815          $4,343,365  
21. Table 29--All Salary, Wages,                                        
 and Fringes paid 89-90.........       $46,405,009         $55,792,945  
22. Table 30--Federal Work Study                                        
 Funds, paid 89-90..............        $1,188,510          $2,549,231  
------------------------------------------------------------------------


    As noted, the basic measuring tool is size of collection. 
However, when FTE students rather than size of collection is the 
measuring tool, the economic impact is that larger schools are 
driving downward the per student analysis of all schools. Table 6 
and 7 reveal the following:
    For libraries with less than 200,000 volumes, the economic 
impact of the use of libraries with 300,000 or more volumes to 
establish the national mean of certain categories is major. The 
tables reveal the following:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                     Percent schools                    
                                                                                                                    less than 200,000   Percent schools 
                                                          Mean of schools     Mean of schools    National mean of      vols. are to    less than 200,000
                       Category                           with less than      with more than        all schools     schools with more     vols. are to  
                                                           200,000 vols.       300,000 vols.                           than 300,000      National mean  
                                                                                                                          vols.                         
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Table 1, Budget 90-91..............................          $804,634          $1,824,354          $1,327,232                   44                 61
2. Table 2, Expenses 89-90............................          $782,072          $1,744,301          $1,274,925                   45                 61
3. Table 3, Information Expenses 89-90................          $372,223            $732,289            $564,576                   51                 66
4. Table 8, Collection Size...........................           165,333             455,320             309,480                   36                 53
5. Table 9, Volumes added 89-90.......................            11,588              19,790              14,696                   59                 75
6. Table 10, Titles added, 89-90 Hard.................             1,198               3,100               2,108                   39                 57
7. Table 11, Titles held Hard only....................            21,328             102,151              58,983                   21                 36
8. Table 12, Serial Subscriptions.....................             2,367               5,600               4,114                   36                 58
9. Table 13, Serial Expenses..........................          $278,132            $544,141            $423,144                   51                 66
10. Table l4, Serial Titles...........................             2,238               4,916               3,695                   46                 61
11. Table 15, Duplication-Serials.....................               130                 684                 419                   19                 31
12. Table l6, Retrieval Expenses......................           $33,341             $48,533             $41,826                   69                 80
13. Table 18, FTE Students 90.........................               475                 865                 688                   55                 69
14. Table 19, Retrieval use...........................             2,733               6,342               4,765                   43                 57
15. Table 21, Other information Expenses (Treatises)..           $53,357            $120,224             $87,234                   44                 61
16. Table 22, Total Staff, FTE........................                12.5                27.5                19.3                 45                 65
17. Table 23, Total Librarians--FTE...................                 5.7                11.3                 8.3                 50                 69
18. Table 26, Total Salaries Paid.....................          $257,330            $638,385             443,064                   40                 58
19. Table 27, Total Fringes Paid......................           $54,623            $155,540            $105,408                   35                 52
20. Table 28, Wages Paid..............................           $22,006             $66,821             $48,386                   33                 55
21. Table 29, All Salary, wages fringes paid..........          $332,017            $858,353            $594,174                   39                 56
22. Table 30, Federal Work Study paid.................           $15,630              52,034              28,107                   30                 56
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As noted, the basic measuring tool is size of collection. Large 
schools; that is, schools with a collection of more than 300,000 
volumes, do have a very significant economic impact on the 
establishment of the national mean (as well as median) for law 
library statistical categories. For schools with less than 200,000 
volumes, the economic impact indicates very significant problems in 
being able to meet the national mean of all schools.
    This report provides detailed information about the 
establishment of the national mean and median of 176 law schools 
based on size of collection as the measuring tool. Thirty-four 
different tables have been used and twenty-two measuring 
characteristics based on size of collection summarize the 
information.

Temple University, School of Law

1719 N. Broad Street (055-00), Philadelphia, Pennsylvania 19122, (215) 
204-7861, Fax: (215) 204-1185

October 16, 1995.
Mr. John Greaney,
Chief, Computers and Finance Section, Antitrust Division, U.S. 
Department of Justice, JCB Building, 555 4th Street NW., Washington, 
D.C. 20530, FAX 202 616-8544

    Dear Mr. Greaney: I was shocked to learn that your 
interpretation of the proposed Consent Decree between the American 
Bar Association and the U.S. Department of Justice prohibits review 
of race and/or gender discrimination in salary and/or fringe 
benefits.
    Both the ABA and the U.S. government have been on record for a 
long period of time in opposing discrimination on the basis of race 
and/or gender. Specifically, it is the job of the Department of 
Justice to fight discrimination on the basis of race and/or gender. 
I therefore do not understand your interpretation.
    Section IV, Prohibited Conduct, of the proposed consent decree 
enjoins the ABA from,
    ``(B) collecting from or disseminating to any law school data 
concerning compensation paid or to be paid to deans, administrators, 
faculty, librarians, or other employees;

[[Page 63813]]

    (C) using law school compensation data in connection with the 
accreditation or review of any law school;''
    Section V, Permitted Conduct, states,
    ``Nothing herein shall be construed to prohibit the ABA from: . 
. . (2) investigating or reporting on whether a law school is in 
compliance with such Standards, Interpretations or Rules, or the 
cause of non-compliance; or (3) requiring that a law school take 
remedial action to comply with such Standards, Interpretations or 
Rules as a condition of obtaining or maintaining ABA approval.''
    Since ABA Accreditation Standards 211 to 213 prohibit 
discrimination, Section V of the proposed Consent Decree clearly 
allows review and use of salary and fringe data for the purpose of 
determining whether the school is discriminating when a colorable 
claim of discrimination has been raised.
    It is an outrage that the Clinton Administration has taken a 
position against the enforcement of anti-discrimination provisions. 
I suggest strongly that you change your interpretation of the 
proposed Consent Decree.

        Sincerely,
Marina Angel,
Professor of Law.

Gonzaga University

Office of the President

September 5, 1995.
    Dear Mr. Greaney: On August 11, 1995, I received the enclosed 
memorandum from the General Counsel of the ABA advising that the 
proposed final Judgment in the ABA anti-trust matter is subject to 
public comment through the end of September. The notice did not 
indicate to whom comments should be sent but through other sources I 
was advised that you were the proper person to receive those 
comments.
    Enclosed are my comments which hopefully will be given 
consideration. If I have forwarded these to the wrong office, please 
advise.

        Sincerely,
Bernard J. Coughlin, S.J.,
President.

Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, Anti-
Trust Division, 555 Fourth St., NW., Room 9903, Washington, DC 20001.

Enclosures
c: John E. Clute, Dean of the School of Law

Darryl L. DePriest

General Counsel

American Bar Association, 541 North Fairbanks Court, Chicago, Illinois 
60611-3314, (312) 988-5215

Memorandum

To: Presidents of Universities with ABA Approved Law Schools
From: Darryl L. DePriest
Date: August 3, 1995
Re: Law School Accreditation Process

    As you may have read or heard, the American Bar Association and 
the Department of Justice have entered into a settlement agreement 
concerning the Department's investigation of the ABA's law school 
accreditation process.
    Enclosed is a copy of the proposed Final Judgment. This proposal 
will be subject to public comment through the end of September, 
after which we anticipate the Court's approval.
    Allow me to suggest that you review the proposed Final Judgment 
in concert with the letter, dated June 14, 1995, from President 
Bushnell and President-Elect Ramo. I believe you will find that the 
ABA either had done or had already decided to do everything that 
will be required pursuant to the proposed Final Judgment. For your 
further information, I am including a copy of President Bushnell's 
statement explaining why the American Bar Association decided to 
enter into the settlement agreement.
    If you have any questions about this matter, please do not 
hesitate to contact me.

DLD:md

Enclosures

Comments as to Proposed Final Judgment in United States of America v. 
American Bar Association, U.S. District Court, District of Columbia, 
Civil Action No. 95 1211

    1. Site Evaluation Team: Paragraph VI, subparagraph (G) of the 
proposed Final Judgment should be amended to provide that at least 
forty (40%) percent of the members of the evaluation team be other 
than law school deans or faculty members. The proposal as written is 
satisfactory for a five (5) person team; however, if the site 
evaluation team includes more than five members, the proposal 
provides inadequate assurances as to representation.
    2. Control of Resources: The proposed Final Judgment should be 
amended to state that the responsibility of the Special Commission 
referenced in Sec. 7(A) of the proposed Final Judgment also includes 
the subject of ``Control of resources.''
    Control of financial resources gives effective control of 
salaries, compensation, fringe benefits, stipends, and working 
conditions of law school faculty and personnel. The proposed Final 
Judgment does not directly address the matter of ``control of 
resources'' in Sec. IV--Prohibited Conduct or in Sec. VII--Special 
Commission.
    Control and domination by legal educators of the ABA's ``law 
school accreditation standard-setting and enforcement process'' is a 
principal theme of the Complaint (see Complaint at Sec. 9). 
Complaint Secs. 28-33 allege that that control has been used for 
inappropriate purposes. For example, see Complaint Sec. 28: ``* * * 
site inspection teams * * * have at times been unduly concerned with 
the salaries, perquisites and working conditions of their 
colleagues, among other things. Site inspection teams on occasion 
have incorporated law faculty demands and complaints into their site 
inspection reports.'' By imposing requirements going beyond the 
matter of compliance with the Standards, ``the ABA Accreditation 
Committee demands that the school exceed the Standard's minimum 
requirements or meet the law school's stated aspirational goals'' 
(Complaint Sec. 29) which aspirational goals typically are set by 
law school faculty and personnel.
    The ABA Standards and Interpretations are designed and enforced 
to give the law school dean and faculty effective control over 
resources contributed to or generated by the law school. For 
example, see the ABA's Interpretation of Standards 201, 209, and 210 
(coupled with 105). Additionally, Standard 702 requires physical 
facilities to be under the ``exclusive control'' of the law school.
    Unlike the Law School deans and faculty, the governing board of 
the University (of which the Law School is a part) is safely-distant 
and removed from the accreditation process. Control over resources 
should be the ultimate responsibility of the University and its 
governing board. However, the present ABA Standards, Interpretations 
and enforcement serve to remove control of law school resources from 
the University's governing board.
    3. Adequacy of Notice: The notification from the ABA of the 
opportunity to comment on proposed Final Judgment did not include 
identification of the office to whom such comments should be sent. 
Though possibly not intended, that omission likely will reduce the 
number of public responses.

University of La Verne

September 28, 1995.
John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street NW., Room 9903, Washington, DC 
20001
    Dear Mr. Greaney: The University of La Verne submits the 
following regarding the proposed Final Judgment in United States v. 
American Bar Association, and requests that they be given 
consideration.
    The proposed Final Judgment (the ``Judgment'') does not 
adequately address the findings of the Department of Justice, nor 
does it deal with certain other anti-competitive aspects of the 
American Bar Association accreditation process. In the Competitive 
Impact Statement, the DOJ discussed the ABA's policies with regard 
to Student-Faculty ratios, teaching loads, resources and facilities, 
among other things. Despite the ABA's record in these matters, the 
Judgment fails to deal strongly enough with many of them.
    1. RESTRICTION ON NON-ABA GRADUATES: Although the Judgment deals 
with the question of ABA schools accepting students and graduates 
from state-accredited institutions, it fails to address the full 
consequences of the ABA's ``capture of the accreditation process.''
    Specifically, the Judgment does not restrain the ABA's support 
of ABA-only graduation requirements for admission or employment. The 
ABA states in its Standard 102 ``that every candidate for admission 
to the bar should have graduated from a law school approved by the 
American Bar Association.'' It has on at least one occasion filed an 
amicus brief in a suit by a graduate of a state-accredited school 
seeking admission in Nevada, a state with no ABA law school of its 
own. In recent years several states have abandoned admission rules 
which permitted non-ABA graduates to sit 

[[Page 63814]]
for the Bar, and the Judge Advocate General branches of the armed 
forces have enforced an ABA-only rule. Given the DOJ findings, these 
states and agencies in effect require adherence to standards which 
are the product of anti-competitive actions by the ABA.
    The Law School Admission Council, which is responsible for 
producing and administering the LSAT, restricts membership to ABA 
schools, despite the use of the LSAT by non-ABA institutions. As a 
result, non-ABA schools are denied access to important seminars and 
information about the LSAT.
    The DOJ should examine the ABA's possible role in seeking ABA-
accreditation exclusivity, and deal with it by enjoining such 
activities or by requiring remedial action.
    2. FACILITIES: The ABA standards on physical facilities, and the 
interpretation thereof, raise serious concerns. The Competitive 
Impact Statement implies that the standard on physical facilities 
has been improperly applied, pointing out that a substantial 
percentage of schools have been criticized by Site Visitation Teams 
despite new or renovated facilities. The Judgment leaves this and 
other topics to a Special Commission previously formed by the ABA. 
That Commission (the Wahl Commission) has generated a lengthy report 
which rewords the physical facility standards but leaves the 
mechanism of interpretive abuses unchecked.
    It is through the Interpretations that the Standards become 
reality for an institution seeking accreditation. For instance, the 
Interpretation to Standard 701 states that leased facilities are not 
in compliance. There may be a number of reasons a developing school 
may wish to occupy leased facilities in either the short or long 
term, including the economy, regional growth patterns and 
institutional needs. The only rational basis for the ABA's blanket 
restriction would seem to be the promotion of locational stability, 
which may itself have anti-competition ramifications. Ownership 
offers no guarantee that a school will not change locations. Indeed, 
selling a building in order to relocate may well be less difficult 
than early termination of a lease. In any event, the decision of 
whether to lease or own should be left to the institution. Students 
are well-taught in either kind of facility. If non-owned facilities 
meet the reasonable needs of the educational program, and taken 
together with the school's history promise reasonable locational 
stability, they should not be the subject of a blanket prohibition.
    The cost of facilities meeting the ABA's ever-evolving and ever 
more expensive demands is one of the factors putting ABA 
accreditation out of the reach of institutions willing and able to 
meet reasonable educational standards but unable to afford the 
millions needed for state-of-the-art buildings.
    3. LIBRARY: Another Interpretation, dealing with library 
facilities, requires seating capacity for half the school's largest 
division. In an era when computers allow students to access WESTLAW, 
LEXIS and the informational world of on-line services and the 
Internet from their homes, the ABA requires the allocation of 
precious fiscal and physical resources for empty seating. In fact, 
most students are provided with WESTLAW access from their personal 
computers as part of the school's subscription with West. Although 
the library provides a study hub for a law school, the facts of life 
for today's adult student, particularly a working adult attending 
school part-time, increase the likelihood of more home study than 
when the Interpretation was written, and decrease the need for added 
seats in the library.
    The facts of modern electronic research also impact the ABA 
standards on library holdings, which generally increase the need for 
larger library staffs and hardcover holdings, and thereby the cost 
of education to students.
    4. FACULTY: The Judgment leaves the calculation of the faculty 
component of student-faculty ratios to the Special Commission. The 
Wahl Commission Report acknowledges the role of teachers with 
administrative posts and adjunct faculty in the academic program of 
a law school, and this is an important development. It remains to be 
seen what effect this, and the DOJ action, will have on the 
resulting Standards and particularly on the Interpretations. The DOJ 
and the court should carefully review the final form and application 
of new standards and interpretations to assure compliance with the 
spirit of the Judgment.
    A further concern is raised by the Judgment's language 
concerning the use of salary and benefits data as part of the 
accreditation process. Such data is gathered by organizations and 
subject to the Judgment, such as SALT and AALL, and is therefore 
available to inspection teams. The Judgment should more clearly and 
forcefully forbid the use of such data whatever the source.
    5. OUTCOME MEASUREMENT: Ultimately, the quality of a law 
school's program is measured by the results it obtains with its 
students. The ABA Standards and the Judgment do not address outcome 
measurement. Although it may be difficult to measure academic 
outcomes, law schools have the Bar passage rate as one indicator. A 
high passage rate may perhaps be obtained by ``teaching to the 
Bar,'' and such a practice would be rightly criticized. But some 
state-accredited institutions in California, clearly not engaging in 
such a practice, have on occasion attained higher Bar passage rates 
than some ABA-accredited schools. At least with regard to that one 
measurement, the lack of relationship between the Standards and 
educational outcomes is apparent. The alumni of state-accredited 
schools who daily demonstrate the quality of their education on the 
bench, in their work in Bar Associations and in law practice, 
further prove the point.
    The success of a law school in producing competent practitioners 
should be a critical component of the accreditation process. New 
measurement methods need to be developed and utilized as part of the 
accreditation process.
    We are thankful for the opportunity to present these points.

        Sincerely,
Kenneth Held,
Dean.

Normal Daniel Frank II

Attorney and Counselor at Law

1605 East Expressway 83, Mission, Texas 78572, 210 585-2764
September 11, 1995.
John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street NW., Room 9903, Washington, DC 
20001

RE: United States of America, Plaintiff v. American Bar Association, 
Defendant, Civil Action No. 95-1211 (CR), Filed: June 27, 1995

    Dear Mr. Greaney: Enclosed are the comments of the Reynaldo G. 
Garza School of Law concerning the above referenced antitrust suit. 
I understand that you are the proper person to send these comments 
to in order for them to be filed with the U.S. District Court and 
published in the Federal Register.
    Should you wish to contact me please do so at my above address 
or phone number.
    We are very grateful that the Department of Justice has taken 
this course of action. This was something that was sorely needed.

        Sincerely,
Norman Daniel Frank, II,
President, Reynaldo G. Garza School of Law.

Reynaldo G. Garza School of Law

905 North Shore Drive, San Benito, Texas 78586, (210) 399-1800
September 11, 1995
John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street NW., Room 9903, Washington, DC 
20001

RE: United States of America, Plaintiff v. American Bar Association, 
Defendant, Civil Action No. 95-1211 (CR), Filed: June 27, 1995

    The Reynaldo G. Garza School of Law, hereinafter also called 
Garza Law School, is a Texas non profit corporation incorporated 
under the laws of the State of Texas. The Garza Law School would 
like to submit the following comments believing that the above 
referenced civil action final judgment should be modified to more 
satisfactorily cover the following issues:
    (1) The proposed final judgment does not go far enough to 
rectify the great injustice that the American Bar Association (ABA) 
has perpetrated on victims of its illegal policies. The victims are 
not only the law Schools, including the Garza Law School, who have 
had to deal with the ABA abuse of the accreditation process they are 
the students who have been denied access to take bar exams and 
become licensed as attorneys. These students have been denied 
student loans, have had to make unfair sacrifices, and are to this 
day denied an opportunity to earn a living practicing law.
    (2) The proposed final judgment does not specifically address 
the issue of Library collections. This is an important issue due to 
ABA Standard 602 which requires an ABA approved core collection. The 
interpretation of this requirement in the past has meant that law 
schools must have physical possession of paper books printed and 
published by a 

[[Page 63815]]
select few printers and publishers and waste valuable financial 
resources warehousing these books and materials. The interpretation 
of ABA Standard 602 also meant that a law school could not fully 
take advantage of the latest technology in CD ROM and computer modem 
access to large data bases.
    (3) The proposed final judgment does not specifically address 
the issue of ABA Standard 605 which requires a full time librarian 
to administer a law library. Just as the United States recognized 
the ABA's abuses in setting standards that require only full time 
faculty to teach students so too the court should consider that a 
law library can be equally well managed by part time librarians.
    (4) The final judgment does nothing to correct any of the 
additional injustices done as exhibited by the Texas Supreme Court 
in their letter, signed by Justice John Cornyn, and attached hereto 
as exhibit ``A''. The Texas Supreme Court zealously supports and 
punitively enforces all the illegal standards created by the ABA. 
The letter from the Texas Supreme Court documents the following:
    (a) the Texas Supreme Court, the Deans of all eight Texas ABA 
accredited law schools, and the chairman of the Board of Law 
Examiners stood in opposition to bills that would have allowed Garza 
Law School Students to sit for the Texas Bar Exam. Their stalwart 
opposition to the bills was to force the Garza Law School to comply 
with the illegal ABA standards. This action caused damage to the 
Garza Law School and its students and students who would have liked 
to attend the Garza Law School.
    (b) the Texas Supreme Court does not want the Garza Law School 
and unaccredited law schools to ``get rich from the tuition dollars 
of their students to the damage of accredited law schools and 
educational standards generally.'' This statement of the Texas 
Supreme Court is obviously in support of the illegal guild standards 
as created by the ABA and unfairly gives preference to Law Schools 
accredited by the ABA.
    I hope the United States District Court will consider the 
actions of the Texas Supreme Court as documented in their letter to 
the Texas Senate dated April 7, 1993 and enclosed herein as exhibit 
``A''. It was in the hands of the Texas Supreme Court that the Garza 
Law School had to place itself for justice and relief from the 
illegal guild standards created by the ABA. The Texas Supreme Court 
ignored its duty and responsibilities to the people of Texas and 
instead zealously supported the illegal guild standards enacted by 
the ABA. Because of the above reasons the U.S. District Court should 
be able to understand that adequate relief is not in the proposed 
final judgment. Stronger measures and procedures that include State 
level enforcement are necessary in order to insure proper 
compliance. These measures and procedures need to be included in the 
final order. Please see that justice is done and that proper and 
adequate relief is granted.

        Respectfully submitted,
Norman Daniel Frank II,
President, Reynaldo G. Garza School of Law.

The Supreme Court of Texas

Post Office Box 12248

Austin, Texas 78711, Tel: (512) 463-1312, FAX: (512) 463-1365

April 7, 1993.
The Honorable Eddie Lucio,
    Texas Senate, 402 One Capitol Square, Austin, TX 78701

Re: H.B. 850 (Rep. Rodriguez), S.B. 296 (Sen. Lucio)
    Dear Senator Lucio: I am writing to ask for your support in 
defeating H.B. 850 by Representative Rodriguez, which has passed the 
House with amendments, and its companion, S.B. 296 by Senator Lucio. 
Both of these bills would allow the graduates of the Reynaldo Garza 
Law School to take the bar examination even though the Rules 
Governing Admission to the Texas Bar promulgated by the Supreme 
Court require graduation from a law school accredited by the 
American Bar Association.
    Although the court previously granted to that school's graduates 
a limited waiver from its rules, that waiver expired and was not 
renewed because of the court's waning expectation that the Garza Law 
School would ever become accredited by the ABA. The school then 
directed its attention to the legislature, which granted another 
limited waiver of this requirement. But instead of trying to improve 
the school to meet the ABA standards, even after the court granted a 
waiver, the school withdrew its application for ABA accreditation.
    House Bill 850 has now passed out of the House and will be 
referred to the Senate Jurisprudence Committee, where it may be 
substituted for S.B. 296. As the Supreme Court liaison to the Board 
of Law Examiners I have already expressed concern about these bills 
to Senator Henderson, chairman of the Senate Jurisprudence 
Committee. Numerous witnesses, including myself, the chairman of the 
Board of Law Examiners, and the deans of all eight Texas ABA 
accredited law schools stand ready to testify about our opposition 
to these bills, but the following summarizes our concerns.
    Our concerns are twofold: (1) the future of the requirement of 
graduation from an ABA accredited law school in Texas and what its 
demise may mean to the public and the legal profession on our state; 
and (2) the patently inadequate educational preparation being given 
to Garza's graduates.
    None of the five Garza graduates who took the most recent bar 
exam passed on the first try. Compare this result with an average 
passage rate of 88.5% for graduates of Texas' eight ABA accredited 
schools. Since July 1988, the cumulative bar passage rate was 22% 
for Garza graduates and 82.9% for graduates of ABA accredited Texas 
law schools. I am personally concerned that the state of Texas would 
officially encourage or even condone this situation: Garza students 
pay tuition and work their way through the rigors and difficulties 
of law school, only to be thoroughly unprepared to take the bar 
exam. These statistics raise serious concerns about the quality of 
legal education afforded these students in spite of their best 
efforts. There can be little doubt that law students are better 
prepared for the bar examination and the practice of law when they 
graduate from a law school required to meet or exceed ABA 
accreditation standards.
    There is also the issue of whether special treatment for 
graduates of Garza can be defended when graduates of out-of-state 
unaccredited law schools seek the same privilege. Questions of 
fundamental fairness, not to mention equal protection, are 
presented. The exemptions contained in H.B. 850 and S.B. 296 are 
limited to an unapproved law school within the boundaries of Texas; 
however, there is a serious legal question whether a state can 
discriminate in the bar admission process in favor of residents of 
its state. The Board has already been informed by graduates of out-
of-state non-ABA-approved law schools that if the exemption for 
Garza is renewed, we can expect a court challenge of the Supreme 
Court rules on the basis that they discriminate against individuals 
who are not residents of Texas.
    We must also consider whether Texas will eventually become like 
California, where unaccredited law schools get rich from the tuition 
dollars of their students to the damage of accredited schools and 
educational standards generally. Will Texas eventually open its bar 
exam to everyone, whether they graduate from an unaccredited law 
school--or even receive degrees for correspondence courses--or if 
they do not graduate from a law school at all?
    The main reason for this lengthy letter is to provide you with 
accurate information regarding the context in which I hope you will 
consider these bills. At my request, representatives of the Board of 
Law Examiners attended the public hearing before the House Committee 
on Judicial Affairs and were present in the gallery during floor 
debate when H.B. 850 was considered on second reading; I fear that 
many members of the Legislature have been misled about the facts and 
so I offer the following background information.
    Some of the proponents of the Garza bill have suggested that the 
issue is accreditation by the Coordinating Board; however, the real 
issue is accreditation by the American Bar Association. The first 
deals with the right granted by the State for a school to grant a 
degree; the second deals with a law school's certification as 
meeting a set of standards and criteria set by the American Bar 
Association's Section on Legal Education and Admission to the Bar.
    The exemption from the law study requirment for Garza law 
students which is the backbone of H.B. 850 is an exemption from the 
Supreme Court's rule requiring that an applicant for the Texas Bar 
hold a Doctor of Jurisprudence degree from a ABA-approved law 
school. In other words, the Supreme Court has determined both under 
its rulemaking authority and by its inherent power under the Texas 
Constitution to regulate the practice of law that to be eligible to 
take the Texas Bar Examination, an individual must have a J.D. 
degree awarded by a law school which is approved or accredited by 
the American Bar Association. The Supreme Court does not have a rule 
requiring that an applicant hold a degree from a school accredited 
by the Coordinating Board.

[[Page 63816]]

    However, most of the floor debate and, indeed, most of the 
comments made by the proponents of the bill at the public hearing in 
the Judicial Affairs Committee centered on Garza's inability to 
become accredited by the Coordinating Board, allegedly due to the 
Coordinating board's discriminatory policies. The rules of the 
Supreme Court which H.B. 850 will override have nothing to do with 
the Coordinating Board's accreditation or certification.
    In both the committee hearing and the House floor debate on 
April 6th, statements were made that Garza had an application for 
accreditation on file, and that additional years were needed to 
process that application. I do not know whether Garza has an 
application on file with the Coordinating Board. However, I can 
assure you that Garza School of Law does not have an application on 
file for approval by the American Bar Association.
    I offer the following background information:
    1. Reynaldo G. Garza School of Law was incorporated in October 
1983, and began conducting classes in August 1984.
    2. In December 1984, Garza asked the Supreme Court of Texas to 
exempt its graduates from the ABA-approval requirement; the request 
was denied in January 1985.
    3. In January 1987, Garza filed an application with the American 
Bar Association seeking provisional approval.
    4. An ABA site inspection was scheduled for March 7-10, 1987, 
but was cancelled by Garza, resulting in its application fee being 
returned, leaving no application for approval pending.
    5. In June 1987k Garza again requested exemption from the 
ABA=approval requirement; the Supreme Court denied the request in 
July 1987.
    6. In November 1987, Garza filed a formal petition with the 
Supreme Court requesting exemption from the ABA-approval 
requirement. In this petition Garza stated that it has ``filed its 
application for initial inspection by the American Bar Association 
in March, 1986, and is currently pending.'' This statement was not 
true.
    7. On January 8, 1988, after filing the petition containing the 
statement in item 6 above, Garza filed a second application with the 
ABA seeking provisional approval.
    8. Based on Garza's representation that it was actively seeking 
ABA-approval, the Supreme Court signed an order on January 14, 1988, 
granting an exemption of the ABA-approval requirement to those Garza 
students awarded a J.D. degree from Garza between May 1988 and June 
1989, allowing them to take the Texas Bar Examination in July 1988, 
and February and July 1989. The order specifically stated that no 
extension of the order would be granted.
    9. On April 5, 1988, Garza School of Law withdraw its second 
application for ABA approval.
    10. In December 1989, after the expiration of the exemption 
granted the school in the January 1988 order, Garza filed another 
petition with the Supreme Court, requesting an exemption from the 
ABA-approval requirement. This petition stated that Garza ``has no 
plans for continu[ing its existence] beyond December 31, 1989.'' The 
petition states that Garza students who have not completed their 
degree requirements upon the school's closing would do so through 
another institution.
    11. In February 1989, the Supreme Court denied Garza's request 
for an extension of the exemption from the ABA-approval requirement.
    12. In June 1991, the 72nd Legislature enacted a temporary 
legislative exemption for Garza graduates by amending Sec. 82.0241, 
Texas Government Code, thereby allowing Garza students who has 
enrolled before June 1, 1989, and wh9o received a J.D. degree by 
June 1, 1993, to take the Texas Bar Examination. The exemption 
specially expired on June 1, 1993, and thereafter, according to the 
1991 legislation, all matters relating to eligibility of students at 
unaccredited law schools would remain in the sole jurisdiction of 
the Supreme Count of Texas.
    13. The Raynaldo G. Garza School of Law does not have a pending 
application for approval by the American Bar Association. The ABA 
informed the Board of Law Examiners on April 7, 1993, that Garza has 
not filed any application for approval since the school's voluntary 
withdrawal of its 1988 application.
    14. Representatives of the Raynoldo G. Garza School of Law 
visited with James P. White, the ABA Consultant on Legal Education 
(the executive officer of the ABA's section in charge of law school 
accreditation) on November 24, 1992, and told Mr. White that they 
would not be seeking ABA approval for at least three years from that 
date.
    15. The accreditation process takes approximately nine months, 
rather than four years as represented by some Garza proponents.
    Both the Board of Law Examiners and this Court believe that 
these facts demonstrate that the Reynaldo G. Garza School of Law has 
been given every reasonable opportunity to obtain the required 
approval by the American Bar Association for its graduates to sit 
for the bar exam. I am especially concerned that representatives of 
the school have, inadvertently or otherwise, misrepresented their 
efforts to seek ABA-approval. I am equally concerned that the 
Legislature is being misled by the repeated references to the 
Coordinating Board accreditation dispute which is not an issue in 
this controversy.
    I urge you to vote against H.B. 850 or S.B. 296. I believe it 
would be a grave mistake to weaken the educational standards that 
must be met before an individual is entitled to be licensed to 
practice law in Texas. Thank you for your consideration.

        Sincerely,
John Cornyn,
Justice.

cc: Warlick Carr, Chairman, Board of Law Examiners, Deans of ABA-
Accredited Texas Law Schools
September 27, 1995.
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street NW., Room 9903, Washington, D.C. 
20001
    Dear Mr. Greaney: This comment is written in support of the 
United States civil antitrust suit alleging that the American Bar 
Association (hereinafter ``ABA'') violated Section 1 of the Sherman 
Act in the accreditation of law schools. The complaint alleges that 
the ABA restrained competition among personnel at ABA-approved law 
schools by fixing their compensation levels and working conditions, 
and by limiting competition from non-ABA-approved schools. In order 
to comply with the Antitrust Procedures and Penalties Act (15 U.S.C. 
Section 16) this comment proposes two essential modifications before 
the approval of the Final Judgment.
    First, all individuals holding a Juris Doctor degree from a 
state-accredited law school should be allowed to take the bar 
examination in any state of their choice. Currently, bar admission 
rules in over forty states require graduation from an ABA-approved 
law school in order to satisfy the legal education requirement for 
taking the bar examination. Allowing state-accredited law school 
graduates to take the bar examination is consistent with the ABA's 
high standards requiring law schools to maintain an educational 
program designed to qualify its students for admission to the bar.
    This proposal suggests treating state-accredited non-ABA-
approved law school graduates similarly to ABA-approved law school 
graduates. A state-accredited law school graduate must comply with 
rigorous state requirements and procedures, passing the bar 
examination demonstrates that individual's qualifications to 
practice law in the applicable state.
    Additionally, the ABA is the only agency recognized by the 
United States Department of Education as a law school accrediting 
agency. The ABA Standard which requires an individual graduate from 
an ABA-approved law school before admission to the bar gives the ABA 
power to influence where an individual can or cannot practice his or 
her livelihood. This flies in the face of the United States 
Constitution's commerce clause and is an unreasonable restraint on 
interstate commerce for prohibiting graduates from a non-ABA-
approved school to freely move from one state to another.
    This total ban on non-ABA-approved schools by the ABA has 
prevented my taking the Massachusetts Bar Examination. I attended 
Western State University College of Law, in San Diego, California, a 
state-accredited law school but a non-ABA-approved school. I was 
awarded the position of Editor-in-Chief of Law Review, participated 
in the regional for the Phillip C. Jessup International Moot Court 
Competition, and attained a certificate in the International 
Certificate Process. I am currently awaiting the results of the July 
California Bar Examination. Lifting this prohibition will allow me 
to take the bar examination in an additional state of my choice.
    Second, all individuals holding a Juris Doctor degree should be 
eligible for admission in LL.M or post-Juris Doctorate programs 
based on the student's academic achievements and according to the 
admission standards of the law school. While the ABA prohibits an 
ABA-approved law school from 

[[Page 63817]]
matriculating graduates of state-accredited or unaccredited law 
schools, it permits, under certain circumstances, the matriculation 
of graduates of foreign law schools (Interpretation 3 of Standard 
307). The ABA only allows a law school to apply for a waiver of 
Interpretation 3 of Standard 307 and does not allow the affected 
individual to apply for a waiver on their own behalf. This rule 
extends too much authority to the ABA over decisions best suited to 
the academic institution. Additionally, allowing foreign student 
enrollment in advance law programs but not allowing state-accredited 
law students the opportunity to enroll is clearly discriminatory.
    I graduated from Wells College in 1978 and continually have 
taken graduate classes at the Harvard Extension School and also 
attended the College for Financial Planning. The pursuit of higher 
education has always been a personal and professional goal for self 
improvement and one which I hope to continue in the future. The 
interpretation of this Standard prevents graduates from state-
accredited law schools such as myself and members of the bar who 
have practiced with distinction from furthering their professional 
careers by obtaining advanced law degrees. Once again, this is 
fundamentally unjust and substantially affects the flow of 
interstate commerce.
    The proposed Final Judgment should include modifications made in 
this comment. Such modifications will prohibit the recurrence of 
conduct that is plainly anticompetitive and which bars the free flow 
of graduates from moving interstate.
    Based on the foregoing, the United States request for a 
permanent injunctive relief should be granted, enjoining the ABA 
from engaging in further violations of Section 1 of the Sherman Act.

      Respectfully submitted,
Deborah B. Davy,
3814 Arnold Ave., Apt. 6, San Diego, CA 92104.

Joel Hauser

Attorney at Law, 234 Kenwood Ave., Delmar, NY 12054, 518 475-0446

September 21, 1995
John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Anti Trust Division, 555 4th Street NW., Room 9903, Washington, D.C. 
20001

RE: Proposed Final Judgment, U.S. v. ABA

    Dear Mr. Greaney: Pursuant to the Antitrust Procedures and 
Penalties Act, I would like to submit these comments regarding the 
Proposed Final Judgment and Consent Decree in the above referenced 
case.
    While I am generally satisfied with the settlement your office 
has proposed, I am disappointed that you have not gone farther 
towards breaking the stranglehold the ABA has maintained over our 
profession. Unfortunately, even if the ABA fully complies with the 
terms and conditions described in the Settlement, enough of the old 
practices are maintained to thwart any chance for real change and 
progress. In particular, the Settlement fails to resolve the issues 
of part time faculty and student/faculty ratios, both of which were 
prominent and central to Justice's Complaint against the ABA. Nor 
does the settlement recognize the value and contribution of non-ABA 
accredited schools. I believe that the settlement should go on 
record as acknowledging that these schools may be a viable and 
practical alternative to the ABA schools.
    As noted in Justice's Complaint, while the ABA has insisted on a 
high student/faculty ratio, it has never considered actual student/
faculty contact or actual class size when considering accreditation. 
Consequently, the high ratio policy has had no significant impact on 
the quality of a law school education. It has, however, had a 
significant impact on the cost of a law school education. The high 
ratio does not come cheap. Similarly, denying a law school the 
opportunity to count part time faculty towards this ratio does 
little towards achieving academic excellence. It merely serves to 
maintain an artificially high operating cost by requiring schools to 
continue to hire a large number of full time faculty who devote 
remarkably little time to actual teaching. This high cost makes it 
all but impossible for new law schools to gain accreditation. And 
without accreditation, these new schools can't compete.
    People's College of Law, which I attended, had few full time 
faculty members. Our instructors were, for the most part, full time 
attorneys actively engaged in the practice of law. They taught those 
subjects which they specialized in as attorneys. Our Criminal Law 
professors were often lawyers from the Public Defender Service. Our 
Constitutional Law Professors came from the ACLU. Because our 
professors were experts in the practice of their respective fields, 
they were able to teach not only the history and theory of the law, 
they were also able to illustrate the application of the law through 
their personal experience and practice. Students at PCL didn't just 
learn the law, we learned how to practice law. That is something 
which only a part time faculty can convey. It is something which all 
law schools should strive for. It is something which serves the 
profession and the public at large. Yet the ABA has, and will 
continue to resist such an academic goal. Your settlement should 
insist that the ABA abandon it's full-time faculty Standards and 
Interpretations. Furthermore, law schools must be permitted to count 
part-time faculty members when considering student/faculty ratios.
    I should note that I have personally suffered great hardship as 
a result of the ABA's tight control over the profession. I am a 
graduate of People's College of Law, a California law school which 
is not accredited by the ABA. I was admitted to practice law in 
California in 1981, after taking and passing the California Bar 
Exam. In 1989 I waived into the Washington, D.C. Bar by motion to 
the Court. In 1995, I was admitted to practice in New York State, 
after taking and passing the New York Bar exam.
    I have been admitted to practice law for more than fourteen 
years, devoting my career to public interest work. As a counselor 
and attorney with the Center for Veterans' Rights and G.I. Forum, I 
represented hundreds of military veterans' in discharge upgrade 
hearings, Veteran's Administration reviews, and Social Security 
proceedings. As a lawyer with California Rural Legal Assistance, I 
represented countless poor farm workers in a wide variety of legal 
matters including housing, working conditions, and public benefits. 
As a lawyer with Neighborhood Legal Services Program in Washington, 
D.C. I represented poor people faced with eviction, termination or 
denial of crucially needed public benefits and services, and general 
consumer complaints. I am extremely proud of my work as a lawyer and 
the good that I have done for so many people. I am equally proud of 
the education and training which I received at People's College of 
Law.
    Yet, despite my accomplishments as a lawyer, I was for three 
years denied the opportunity to take the New York Bar Exam simply 
because PCL was not accredited by the ABA. Up until last year, New 
York State's Rules for Admission provided that only graduates of ABA 
approved schools could be admitted to practice. On three occasions I 
Petitioned the New York State Court of Appeals for a waiver of the 
ABA accreditation rule. Each petition was denied, without any 
consideration given to my practice experience or my law school 
education, due to the Court of Appeals' blind adherence to the ABA 
accreditation rule.
    Fortunately for me, in 1994 an Act of the New York State 
Legislature modified the laws governing the admission of attorneys. 
Effective the winter of 1994, lawyers who had graduated from a non-
ABA law school, and who subsequently practiced law for at least five 
years after gaining admission in their home state, could sit for the 
New York Bar Exam. With the passage of this legislation, I was able 
to take the February 1995 bar exam. I passed the exam and was 
admitted to practice in New York in June, 1995.
    However, as a graduate of a non-ABA approved law school my right 
to practice in most states remains in doubt. Only a handful of 
States are willing to look beyond ABA accreditation. I would urge 
Justice to include in this settlement an acknowledgment by the ABA 
that its ``seal of approval'' is only one factor which the States 
may consider when evaluating a particular lawyer or law school 
graduate's application for admission. As an alternative to an 
education at an ABA-approved school, States should be encouraged to 
consider a candidate's overall work and life experiences, in 
conjunction with his or her training and education at a non-ABA 
accredited school. Only then will the stranglehold which the ABA has 
maintained over our profession begin to be loosened. And only then 
will law school tuition start to come down.
    Thank you for the opportunity to comment on your settlement. If 
you have any questions please give me a call.

        Sincerely,
Joel Hauser

Wendell A. Lochbiler III

704 Wolverine Drive, Wolverine Lake, MI 48390

September 28, 1995.
Mr. John F. Greaney,

[[Page 63818]]

Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street NW., Room 9903, Washington, DC 
20001

RE: United States of America v. American Bar Association, Civil 
Action 95-1211

    Dear Mr. Greaney, I am writing to comment on the proposed Final 
Judgment in the above captioned case and to relate the devastating 
effect the discriminatory practices of the American Bar Association 
(ABA) has had upon my life. I will keep my comments brief since I 
only recently learned about the Competitive Impact Statement and I 
want to meet the October 1, 1995, deadline. However, I would be 
happy to provide you with more details upon request.
    I attended the University of West Los Angeles School of Law 
(UWLA), located in California, from 1985 through 1988. The 
University of West Los Angeles is a state accredited school, but it 
is not accredited by the ABA. At the time I decided to attend UWLA, 
I planned to practice law and remain in California for I strongly 
believe that I received an excellent legal education at UWLA. I 
worked very hard, did well in school, and graduated in the top third 
of my class.
    I passed the California Bar Examination, on my first attempt. 
(The California Bar Exam is widely recognized as being one of the 
most difficult in the country). I was admitted to the California Bar 
on December 7, 1988. In addition I was admitted to the United States 
District Court for the Central District of California on May 7, 
1990. I practiced law for five (5) years in California. I have an 
impeccable record and excellent references from all my employers.
    In October, 1993, I returned to Michigan for personal reasons, 
my father and my wife's father each underwent two heart operations. 
I applied for admission to the Michigan Bar. My application was 
summarily denied, and the only reason given was the fact that I did 
not graduate from an ABA accredited law school. The people I 
contacted at the Michigan Bar indicated my application was not even 
considered because I could not meet that threshold requirement.
    I subsequently wrote to the Michigan Bar with three alternative 
requests: (1) I requested a waiver of the rule which requires 
applicants to have a degree from an ABA accredited institution; (2) 
In the alternative, I asked for an opportunity to take the Michigan 
Bar Examination; (3) I requested a hearing on the matter before the 
Board of Examiners. Again, the Board denied my request, and again 
the only reason given was my failure to attend an ABA accredited law 
school. Furthermore, they would not even hold a hearing on the 
matter, as per their guidelines. I have attached a copy of my letter 
to the Board and their response.
    Having no other alternative, I contacted a local ABA accredited 
law school and inquired about admission to their LLM program. I was 
informed by the program director that I would not be considered for 
admission, even though I may be a qualified candidate, because I did 
not have a degree from an ABA accredited law school. He further 
indicated that the school's LLM program could lose its accreditation 
by accepting graduates of non-ABA accredited law schools.
    I then contacted virtually every other ABA accredited law school 
in the state of Michigan regarding admission as a transfer student. 
I was uniformly informed that I would not be accepted as a transfer 
student since I did not have a degree from an ABA accredited law 
school. Moreover, I was told that I would have to retake the LSAT, 
since my previous LSAT score was over five (5) years old.
    The above events transpired over the course of approximately two 
years. During this time I remained unemployed. I could not work in 
the field of my chosen profession since I was not admitted to the 
Michigan Bar. In addition, I was overlooked for several non-legal 
positions because potential employers considered me overqualified, 
or were concerned by the fact that I could not practice law. I have 
recently found employment in a position that pays far less (nearly 
50% less) than I earned as an attorney. I know for a fact at least 
two firms would have been interested in hiring me, if I had been 
admitted to the Michigan Bar.
    In conclusion, I am concerned that even though, I passed the 
California Bar examination on my first attempt, and I am qualified 
to practice in California and Federal Courts, and I would be 
considered a worthy candidate for employment by the FBI, or the 
Justice Department, which accept graduates of State accredited law 
schools; that I am not eligible for admission to the Michigan Bar, 
or allowed to take the Bar Examination, or even to be admitted to 
another law school. I believe the proposed Final Judgment is an 
admirable first step toward correcting the egregious conduct of the 
ABA. However, I would like to see some action taken to lessen the 
ABA's control over the admission of attorneys in the vast majority 
of States. In fact, I believe that eliminating the States 
requirement that candidates graduate from only ABA accredited 
schools, would be the singe most effective measure toward preventing 
control over the legal profession by the ABA. I also am afraid that 
enforcement of the Final Judgment will be lax because it appears it 
will be left in the hands of people who are somehow connected to the 
ABA. Thank you for your diligent work.

        Respectfully Submitted,
Wendell A. Lochbiler III

Wendell A. Lochbiler III

704 Wolverine Drive, Wolverine Lake, Michigan 48390, (810) 624-4286

September 21, 1994.
Mr. Dennis Donohue,
State Board of Law Examiners, 200 Washington Square North, P.O. Box 
30104, Lansing, Michigan 48909
    Dear Mr. Donohue: I am writing in response to your letter of 
August 23, 1994 and our subsequent telephone conversation concerning 
my request for admission to practice in Michigan without 
examination.
    You returned my application indicating that I was ineligible 
since I did not graduate from a law school approved by the American 
Bar Association (hereinafter ABA). During our telephone conversation 
I requested a hearing before the board under Rule 5(C) which states:
    ``An applicant not satisfying Rule 5(A) will be notified and 
given an opportunity to appear before the Board. The applicant may 
use the Boards subpoena power.''
    The reason I have requested such a hearing is to seek a waiver 
from the Board under Rule 7 which states:
    ``An applicant may ask the board to waive any requirement except 
the payment of fees. The applicant must demonstrate why the request 
should be granted.''
    You suggested that I submit my request in writing which I am now 
doing. In addition, I have outlined a number of factors which I 
believe warrant consideration by the Board with regard to my request 
for a waiver. In the alternative, I would like to discuss the 
possibility of being allowed to take the Bar Exam.

Factors in Favor of Waiving Rule 5(A) in the Case of Wendell A. 
Lochbiler III

1. Professional Experience

    I have five years of professional experience as an attorney. I 
was admitted to the California Bar on December 7, 1988. I passed the 
California bar exam on my first attempt. The California Bar exam is 
recognized as being one of the most difficult of all 50 states.
    I have experience in managing hundreds of cases from their 
initial inception to their final conclusion. I have also made 
hundreds of court appearances in the majority of the courts located 
in Southern California. I have been involved in a large variety of 
cases ranging from: complex construction defect, professional 
liability, and real estate errors and omissions cases, to typical 
personal injury lawsuits.
    I have experience as a partner of my own law firm. I have also 
served as the acting managing attorney of an 11 member law firm, 
during absences of the managing attorney.
    I have excellent references. My last employers, Paul Coony and 
Bernhard Bihr of Coony and Bihr in Beverly Hills, California, will 
attest to my professionalism and qualifications to practice law. I 
have also listed numerous other references in my application ranging 
from former partners to law school professors. I am confident they 
will provide excellent references.
    Prior to my admission to the California Bar, I was employed as a 
law clerk in several different positions including one of the Los 
Angeles County Superior Courts.
    I have been a member of several different Bar Associations, 
including the American Bar Association.
    I was admitted and qualified to practice law in the United 
States District Court for the Central District of California 
(Federal Court) on May 7, 1990.

2. Educational Background

    I graduated from the University of West Los Angeles School of 
Law (hereinafter UWLA) in 1988. UWLA was chartered in February 1966, 
under the laws of the state of California as a non-profit 
institution. The law school was fully accredited by the State Bar of 
California in April 1978. The University was also accredited by the 
Western Association of Schools and Colleges in June 1983.

[[Page 63819]]

    I completed 84 Semester Units prior to graduation. I ranked 
number 16 out of a class of 48. I was on the Dean's list during the 
1985-86 term. I received an award for my law review article on 
Tender Offer Regulations: printed in UWLA Review Volume 19. While in 
law school I participated in the legal aid clinic, which provided 
free legal services to indigent people.
    Although UWLA is not accredited by the ABA, it has a solid 
reputation within the legal community of the State of California. A 
large number of respected Judges and attorneys have graduated from 
our law school. In addition, our law school has established a good 
track record in preparing candidates for the bar exam. UWLA 
generally ranks near the top when its bar passing rate is compared 
to other institutions of its type. I believe UWLA's bar passing rate 
has occasionally exceeded the rate of some ABA accredited schools. 
Personally, I felt I was well prepared as evidenced by the fact that 
I passed the Bar exam on my first attempt and I would point out that 
many graduates of ABA accredited schools do not.
    I received my Bachelor of Arts Degree from Wayne State 
University in 1984.

3. Other Factors

    I am a native of Michigan, born in Detroit in 1961. My wife 
Susan is also a Michigan native. Susan is an engineer, employed by 
Hughes Information Technology Company, a subsidiary of General 
Motors. We both have large families long established in southeastern 
Michigan. One of the primary considerations influencing our decision 
to move back to Michigan was our desire to be close to our families 
and help provide care for our parents. The opportunity to return to 
Michigan arose when Susan was offered a transfer to the Hughes 
facility located in Troy, Michigan.
    Susan and I are hard working, productive people. We have a two 
year old child named Thomas. We have purchased a home in Michigan 
and would like to remain here. We both feel that with our 
professional experience and educational background we have a lot to 
offer our local community and the state of Michigan.

Addressing the ABA Accreditation Requirement

    Rule 5(A) requires that an applicant for admission to the 
Michigan Bar obtain a law degree from a law school which is approved 
by the ABA. However, Rule 7 allows the applicant to request a waiver 
of any requirement except the payment of fees.
    In order to determine whether to waive the requirement that an 
applicant graduate from an ABA accredited School, the board must 
take into consideration the purpose of the rule. Obviously the 
purpose of the rule is to ensure that the applicant is qualified and 
competent to practice law. I agree that the rule works in a limited 
manner to fulfill its purpose. However, it appears that the rule is 
one of a number of factors used to establish a persons 
qualifications to practice law.
    As practicing attorneys, we know that there are a number of 
qualities which make a person qualified to practice law. These 
include intelligence, honesty, knowledge of the law, strong 
communication skills, and professionalism to name a few. I believe 
that I have all of these qualities as demonstrated by my five years 
of professional experience and which can be confirmed by contacting 
my references. Furthermore, I find it ironic that even though I was 
allowed to become a member of the ABA after I was admitted to the 
California Bar, I am not eligible for the Michigan Bar because I did 
not attend an ABA approved law school.
    As for the argument that my admission would be unfair to those 
who have met this requirement, I say that each application should be 
judged on its individual merits. Obviously, the legal profession can 
only be enhanced, not diminished by the admission of another well 
qualified candidate. If no exceptions were to be allowed under these 
circumstances, the drafters of the rules would have stated so 
explicitly in Rule 7, as they did regarding the fee requirements.

A Brief Comparison of the Arguments

    By way of demonstration, I have prepared a chart comparing the 
factors in favor of granting admission to the Michigan Bar versus 
the factors against granting admission. As you can see, the factors 
in favor far out weigh those against.

Factors in Favor of Admission of Applicant

1. Five years of professional experience.
2. Passed California Bar Exam on first attempt.
3. Admitted and qualified to practice in Federal Court.
4. Member California Bar since 1988.
5. Member American Bar Association 1989-1992.
6. Member Los Angeles County Bar Association 1989-1991.
7. Member South Bay Bar Association 1989, 1992-1993.
8. UWLA is approved by the State of California and has an excellent 
reputation.
UWLA is accredited by the Western Association of Schools and 
Colleges.
10. Excellent References.
11. Future employment prospects are excellent.
12. Native of Michigan with strong family ties.
13. Both spouses are professional, productive members of community.
14. Applicant has excellent character.

Factors Against Granting Admission

1. Law school not accredited by ABA.

Conclusion

    Based upon the foregoing, I believe I have established a solid 
basis for the Board to grant my admission to the Michigan Bar. Rule 
7 provides an exception to the general requirement that an applicant 
must graduate from an ABA approved law school. My years of 
professional experience coupled with my demonstrated intellectual 
ability and numerous other factors in my favor outweigh the ABA 
requirement.
    I am resubmitting my original application and fees of $600.00, 
to avoid any further delay. I am also willing to submit any addition 
information or references requested by the Board. I look forward to 
hearing from you soon regarding a hearing date.

        Respectfully Submitted,
Wendel A. Lochbiler III

Larry Stern

Phone (301) 320-2693 Fax (301) 320-2694

John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Anti Trust Division, 555 4th St., NW., Room 9903, Washington, DC 
20001

Re: Proposed Final Judgment, Civil Action #95-1211, U.S. v. ABA, 6/
27/95.
09/26/95.
    Dear Mr. Greaney: Pursuant to section 2.b. of the Antitrust 
Procedures and Penalties Act, I would like to object to entering the 
above referenced Proposed Final Judgment and Consent decree in its 
present form.
    While the settlement your office has proposed considerably 
improves on the current rules, it does not go nearly far enough in 
breaking the stranglehold the ABA has so arbitrarily exercised over 
the legal profession.
    First, the settlement does not right the discrimination and 
injury visited upon graduates of State accredited law schools. For 
the past two decades they were discriminated against and restricted 
through the efforts of the ABA. To permit this to remain unchanged 
is to invite the ABA to find more subtle forms of abuse. The only 
conscionable remedy is to grandfather in similar Bar examination 
rights for State accredited law school graduates, as ABA graduates 
enjoyed to date. Any settlement terms and Wahl Commission issues 
should apply from the settlement date forward.
    Full compliance of the ABA with the terms and conditions of your 
proposed Settlement maintains enough of the old practices to thwart 
any incentive for real change and progress. In particular the 
settlement even at this late date does not acknowledge the value and 
contribution of non-ABA accredited schools. The ABA cannot, must not 
remain the sole accreditation authority to the denigration of the 
rights of the States.
    As noted in Justice's complaint, the ABA's insistence on low 
student/faculty ratios was applied so as to be divorced from 
rational connection to the quality of education. In particular 
denying the schools the opportunity to count part time faculty 
toward these ratios eliminated the benefits of a faculty with 
practical experience, while at the same time raising the cost of a 
legal education. The results are of dubious if not outright negative 
effect on the quality of the graduates.
    The Glendale University College of Law (GUCL) which I attended 
had, in addition to full time staff, a number of part time faculty. 
The part time faculty belonged to a number of firms specializing in 
the legal fields their attorneys taught at the school. We learned 
Intellectual Property from the head of that department for 20th 
Century Fox. Criminal law was taught in part by members of the 
District Attorney's staff. These professors were able to bring to 
life dry legal theory by relating to us their personal experiences 
in actual practice. Students at GUCL did not just learn the law, 
they learned how to practice law.
    I have personally suffered hardship as a result of the ABA's 
tight control over the 

[[Page 63820]]
profession. After graduation from Law School I chose, for a variety of 
reasons, to continue my former profession as an engineer. After a 
number of years and significant accomplishments I was awarded, on a 
competitive basis, a national Fellowship to Congress. I performed my 
duties as a legislative aide with distinction and renewed my 
interest in certain technology related legal fields, such as FCC and 
Patent law. Despite high accomplishment, despite the fact that laws 
I helped create and place on the books will be interpreted by 
attorneys without a technology background, despite the scarcity of 
knowledgeable attorneys in these specialized fields, I found the 
door to further legal education -LLM- as well as to practice 
effectively blocked. No ABA approved school can consider my 
application without putting its own accreditation at risk. I no 
longer reside in California, the state which would allow me the 
privilege of sitting for the Bar Examination. The ABA would have me 
start all over again, except that most law schools would be 
foreclosed from admitting me because of my prior--State accredited--
legal education. I submit the nation is not best served by such a 
policy. The least Justice can do is level the playing ground for 
everyone.
    I would urge Justice to include in this settlement an 
acknowledgment by the ABA that it's ``seal of approval'' is but one 
measure which the States may consider in prescribing the basic 
qualifications for admission to each State's Bar Examination. Full 
faith and credit to the rules governing admission to the Bar in the 
state where the candidate studied law should be a mandatory 
alternative to an education at an ABA approved school. Also a State 
should be allowed the latitude to consider the candidate's overall 
work and life experience, in conjunction with his or her training 
and education at a non-ABA accredited school. Only if these 
alternatives are mandated and implemented will the stranglehold of 
the ABA over the profession begin to be loosened.
    Thank you for the opportunity to comment on your settlement. I'd 
be glad to answer any questions you may have.

        Sincerely,
Larry Stern
Julie Anne Gianatassio, Esq.,
7008 Stafford Avenue, Huntington Park, CA 90255
August 30, 1995
Mr. John F. Greaney,
Chief, Computers and Finance Section, United States Department of 
Justice, Antitrust Division, 555 4th Street NW., Room 9903, 
Washington, DC 20001

    Dear Mr. Greaney: After reading the proposed Final Judgment 
between the United States of America and the American Bar 
Association [ABA], I decided to write this letter to you because I 
have been personally affected by the ABA accreditation process. In 
my opinion, for the reasons which I will state herein, the 
accreditation process followed by the ABA is unreasonable and 
discriminatory. Further, I believe it is important for you, as a 
representative of the United States Department of Justice, to know 
that the practices of the ABA have had an impact on ordinary 
citizens like myself.
    Last year I graduated from Western State University College of 
Law in Fullerton, California. Although I lived in Massachusetts all 
of my life, attended public school there, and received my 
undergraduate degree from Boston University, I decided to attend 
Western State for my juris doctor.
    Western State is a fine institution and has produced thousands 
of successful and competent California attorneys since its 
foundation thirty years ago. The law school is accredited by the 
state of California and by the Western Association of Schools and 
Colleges. However, several years before I enrolled, the ABA denied 
accreditation to Western State University College of Law primarily 
because Western State is a proprietary institution.
    The ABA's accreditation process is unreasonable because it 
emphasizes factors beyond academics when judging a law school's 
ability to produce competent graduates. The accreditation process 
should deal solely with the quality of education. Emphasis in other 
`business' areas, such as how much money the faculty is paid or 
whether the school makes a profit, have nothing to do with basic 
educational standards. Unquestionably, Western State has produced 
many prominent California attorneys. The quality of the education I 
received there was outstanding and my education more than prepared 
me to take any bar exam. Proof that I was competently prepared by 
Western State is the fact that I passed the California Bar Exam [one 
of the most difficult bar exams in the nation].
    Since the ABA has sole discretion to accredit law schools in the 
United States, any misuse of its discretion results in 
discrimination to thousands of individuals. Most states equate ABA 
accreditation with competency of law school graduates and permit 
only graduates from ABA approved schools to take the bar exam. In 
fact, the overwhelming majority of states, forty-two out of fifty, 
prohibit non-ABA law school graduates from sitting for the bar exam. 
No other profession faces such discrimination for thousands of its 
members. I have experienced this discrimination personally.
    My greatest desire is to return home to Massachusetts to be with 
my family and establish a law practice there. However, graduating 
from a non-ABA accredited law school, I am prohibited from taking 
the bar exam in Massachusetts. Despite the fact that I have proven 
my competency by passing the California Bar Exam and have skillfully 
represented my own clients, I have been denied the opportunity to 
take the Massachusetts Bar Exam. Thus, I have been discriminated 
upon by the Massachusetts Board of Bar Examiners solely because I 
attended a non-ABA approved law school.
    In my opinion, the Antitrust Division of the Department of 
Justice should step in to closely scrutinize the accreditation 
process of the ABA and, in the best interest of the public, should 
critically evaluate whether the ABA be allowed to continue 
accrediting law schools. Since there are many competent attorneys 
like myself from non-ABA approved law schools, the ABA's 
accreditation process fails to serve its intended purpose--to judge 
the quality of legal education. Because of the ABA's unfair 
practices, my professional opportunities as well as those of many 
thousands of attorneys from non-ABA accredited schools have been 
severely limited. Most important, however, is that the ABA 
accreditation process has greatly disadvantaged the public in 
general because it deprives the public of zealous representation by 
thousands of competent, concerned attorneys.
    Before agreeing to the proposed Final Judgment, I urge you to 
closely examine the adverse effects that will be suffered by the 
American people if the ABA is permitted to continue misusing its 
discretion to accredit law schools. Evidence of the ABA's prior 
misuse of discretion justifies immediate government intervention and 
infliction of harsh penalties.
    If you have any questions about my comments or if I can be of 
further assistance to you regarding this matter, please feel free to 
contact me.

        Sincerely,
Julie Anne Gianatassio, Esq.
Robert Ted Pritchard
10116 Firmona Ave., Inglewood, California 90304, Ph 310-673-7007
September 2, 1995.
John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street NW., Room 9903, Washington, DC 
20001

In reference: United States of America vs. American Bar Association
    Dear Mr. Greaney: I have been made aware of the antitrust suit 
brought against the A.B.A. for reasons ranging from salary fixing to 
admissions of students transferring from non-A.B.A school to A.B.A. 
accredited with the credits earned at the non-A.B.A. school be 
transferable. One comment on the Justice Department's consent decree 
with the A.B.A.
    On Friday, September 1, 1995, I visited the Law School Director 
of Admission office at the University of Southern California, 
University Park Campus at Los Angeles, California 90089 and had a 
conversation with an admission representative by the name of Melanie 
Macleod. I inquired if the law school will accept the credit 
students earn from non-A.B.A. accredited law schools. Her remark 
was, ``certainly no.'' Then I asked if she was speaking for the 
admissions committee including the director; her response was, ``Yes 
certainly I am.'' I then advised her of the consent decree along 
with its content which did not change her response nor did it appear 
that the conversation had an impact. I then left bewildered thinking 
this situation through where I then came to one conclusion that the 
consent decree by the A.B.A. relating to transferable credit from 
non-accredited law schools will not materialize or will be a sham.
    The law schools are the A.B.A's co-conspirators as mentioned in 
the content of the government's complaint against the A.B.A. In 
order to ensure the consent decree will materialize is to require 
every A.B.A. accredited law school to sign the consent decree.
    Unless the A.B.A. will require by newly established standards 
that all A.B.A. 

[[Page 63821]]
accredited schools will accept transfer course credit from non-A.B.A. 
accredited law schools.
    Thus in making the initial application for admission to law 
school by those who desire to pursue the profession of law, it would 
be justified for all law schools that are accredited by their state 
Bar of Law Examiners be automatically provisionally A.B.A. 
accredited, therefore, a requirement to continually meet their 
state's requirements for ongoing A.B.A. accreditation be the rule.
    The A.B.A. requires all its law schools to maintain a quality 
student body meaning a declining L.S.A.T. and G.P.A. is grounds for 
dismissal from being an accredited law school or a denial for 
expansion. Therefore, open admissions policy by A.B.A. law schools 
is frowned upon when a declining L.S.A.T. and G.P.A. is present.
    The Justice Department acknowledges in their complaint that most 
state's requirement to practice law that one be a graduate of an 
A.B.A. accredited school. The statistics are that four out of five 
applicants for admission to an A.B.A. accredited law school are 
denied. Therefore, in order to further pursue the profession of law 
by the applicant is forced to enter a non-A.B.A. law school. In 
return, after graduation be restricted to a territorial location to 
practice the profession of law. The A.B.A. has systematically 
boycotted non-A.B.A. accredited schools and its graduates. Although, 
I can reasonably see where employers are allowed as a perquisite for 
employment one to be an A.B.A. graduate. But not a state to require 
the same when the passing of a rigorous bar exam is required. After 
all, the bar exam is to ensure competency. Therefore, I see no need 
for graduates of state accredited schools be excluded in the states 
that allow only A.B.A. accredited graduates take the bar.
    For your information I am presently enrolled in a non-A.B.A. 
accredited law school where the attorney that represented Rosa Lopez 
in the O.J. Simpson trial is a graduate, included in the school's 
list of graduates, a member of the State Supreme Court and several 
members of the Superior court. I applied to twenty A.B.A. accredited 
law schools and was denied.
    I believe it is a necessity for the court or you to visit an 
A.B.A. accredited law school and a non-A.B.A. accredited law school, 
then contrast and compare. Please let me make some recommendations 
for the schools.
    First the District of Columbia school of law and Duquesne school 
of law for the A.B.A then LaVerne school of law, Western University 
School of law, University of West Los Angles school of law all 
California state accredited schools and more important visit the 
Massachusetts School of Law.
    I recently read a case on loss of consortium where I found a 
quote on reason to change law or rule and that is the following:
    ``The nature of the common law requires that each time a rule of 
law is applied, it be carefully scrutinized to make sure that the 
conditions and needs of the times have not so changed as to make 
further application of it ``the instrument of injustice.'' Whenever 
an old rule is found unsuited to prevent conditions or unsound, it 
should be set aside and a rule declared which is in harmony with 
those conditions and meets ``the demands of justice.'' (15 Am Jur 
3rd Common Law, Section 2 page 797)
    In the Fall of 1994 I attended an open house at Duquesne School 
of Law where Dean Ricci made the following announcement: ``We are 
not rejecting students because they are not capable of successfully 
pursuing the career of law. But, we look to your L.S.A.T and 
G.P.A.'' I also attended an open house at the District of Columbia 
School of law in the fall of 1994 and I was stunned by the filthy 
appearance of the school. I filed a Discrimination compliant with 
the A.B.A. of the office of Mr. William Powers assistant consultant 
on legal education to the American Bar Association in the Spring of 
1995 and have yet received any results of response. Although, I have 
had conversations recently with Mr. Powers that produced endless 
results. It is to say that I doubt that if the District of Columbia 
school of law were to be located in California it would fail to be 
state accredited.
    Therefore, I submit to you that the A.B.A.'s ``Standards of 
Rules'' have become an ``instrument of injustice'' thus ``the 
demands of justice'' is calling for a change.
    The question I want you to ponder is how many Abraham Lincoln's, 
Clearance Darrells or Thurgood Marshalls been denied admission to 
A.B.A law schools?

        Sincerely,
Robert Ted Pritchard

Donald H. Brandt, Jr.

Attorney and Counselor at Law, Donald H. Brandt, Jr., P.C., 9550 
Skillman road; Suite 300; Lock Box 110, Dallas, Texas 75243
September 28, 1995.
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street NW., Room 9903, Washington, D.C. 
20001

Subject: comment--Proposed Final Judgment, 95-1211 (CR): United 
States of America v. American Bar Association

    Dear Sir: My comment on the proposed Final Judgment in United 
States of America v. American Bar Association follows:
    In 1990, I began my legal education at the then Dallas/Forth 
Worth School of Law. In 1992, Texas Wesleyan University (``TWU'') 
acquired the Dallas/Fort Worth School of Law. In August 1994, the 
American Bar Association (``ABA'') granted provisional accreditation 
of TWU's law school. As a condition precedent to that provisional 
accreditation, TWU was required to graduate the three hundred (300) 
students who were responsible for the creation and existence of the 
TWU's law school before that accreditation. I was one of the 
students affected.
    Because of the arbitrary and capricious acts of TWU and the ABA, 
I have been personally harmed. I am denied the opportunity to be 
licensed to practice law in both Colorado and Florida. My employment 
opportunities have been limited. My continued educational options 
have, also, been limited. Considering the actions of TWU, its 
administration, and the ABA, I brought suit against those involved.
    According to the Competitive Impact Statement, the proposed 
Final Judgment prohibits the recurrence of conduct that is plainly 
anticompetitive. Based upon its past conduct, the ABA should be 
precluded from accrediting any law school. While they is a need to 
accredit law schools, the ABA has shown that it has abused that 
responsibility. Consequently, the ABA should be denied the ability 
to accredit any law school. While each State has the responsibility 
for accrediting law schools, it appears that a vast number 
(including Texas) have delegated that responsibility to the ABA. By 
denying the ABA the ability to accredit any law school, each State 
will be required to re-establish its accrediting standards and 
procedures. This will foster an environment for improved competition 
and innovation.
    In summary, the proposed Final Judgment merely changes faces. A 
fundamental change in the method and manner in which law schools are 
accredited is required to cure the past anticompetitive practices of 
the ABA.

      Very truly yours,
Donald H. Brandt, Jr.,
Donald H. Brandt, Jr., P.C.

David White

3547 N.W. 35th St., Coconut Creek, FLA 33066

September 13, 1995.
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 4th Street NW., Room 9903, Washington D.C. 
20001
    Dear Mr. Greaney, I am writing to you to give you my opinion of 
the Consent Decree entered into between the American Bar Association 
and the Department of Justice, which arose from the case against the 
ABA brought by the Massachusetts School of Law.
    In May of 1995, I graduated from Western State University 
College of Law in San Diego. Western State (WSU) is a state 
accredited law school that has been in existence for over twenty 
five years. In addition, WSU has three campuses in Southern 
California, that fact makes it the largest law school in the United 
States.
    At the current time I am living in Florida and because of the 
ABA's discriminatory practices which have prevented my school from 
not becoming accredited I will not be granted permission to sit for 
the Florida Bar exam, even though I have taken the California Bar 
exam and I am waiting for those results.
    I will enclose a copy of a petition that I had sent to the 
Florida Board of Bar Examiners asking for a waiver of the ABA school 
graduation requirement which will fill you in more on my situation. 
Also enclosed will be their denial of that petition.
    My primary reason for this letter is the following, 
approximately two weeks ago I contacted the law school at the 
University of Miami regarding their LL.M. program. The usual 
practice is to require that candidates for the program be graduates 
of an ABA accredited law school.
    During a discussion with Tina Portuando, who to my understanding 
is either the director of admissions or holds a similar 

[[Page 63822]]
position, I had mentioned the Consent Decree and the section dealing 
with allowing state accredited graduates into an ABA LL.M. program. 
Even after mentioning the Consent Decree, I was under the impression 
that she had no idea what she was talking about. Finally she told me 
that I would not be admitted to the LL.M. program regardless of any 
other credentials or qualifications that I may have. Her reason was 
that I did not graduate from an ABA school, and I was then told that 
was the policy at Miami and there was not now, nor would there be 
any intention or attempt to change that policy, Consent Decree or 
not. I believe that this is in direct contrast with the Decree that 
your department (DOJ) has worked so hard to achieve. I believe that 
this merits further investigation.
    One final point; the reason I had to return to Florida from 
California is that as a graduate of a Non-ABA school there were no 
government or private lending programs available to me from the time 
of my graduation in May to the Bar Exam in late July. However 
several friends of mine at ABA schools were offered and had accepted 
this type of loan. Without this added financial support, my credit 
and ability to pay my bills was ruined and I had to return to 
Florida to live with my in-laws.
    Now a resident of Florida, I will never be eligible to practice 
law (because of my being declared not eligible to sit for the Bar 
exam) and my three years in law school and the eighty-thousand 
dollars of debt to pay for it have been wasted. This is the greatest 
hardship of all, that is, not letting the Bar exam determine my 
competence to practice law, but letting that be determined by a 
group of individuals in the ABA who were not acting in the best 
interests of the legal profession, but rather for their own self-
interests.

    Respectfully submitted,
David White

David William White

3547 N.W. 35th Street, Coconut Creek, Florida 33066

August 18, 1995.
Executive Director,
Florida Board of Bar Examiners, 1300 East Park Avenue, Tallahassee, 
FL 32301-8051
    Dear Board of Bar Examiners: I hereby petition for a waiver of 
the application of the Florida rule denying graduates from a non-ABA 
law school eligibility to sit for the Florida Bar Examination unless 
they have practiced law in another jurisdiction for ten years. I 
respectfully request permission to sit for the February 1996 Florida 
Bar examination.
    After doing research on this rule and its application to 
graduates from non-ABA law schools, I am aware of its effect and its 
interpretation. In this letter I will present only the non-legal 
issues involved, saving the legal aspects of the application of the 
rule for judicial proceedings if necessary.
    As you are well aware, the recent litigation and resulting 
consent decree arising from the Sherman Act/Anti-Trust action 
against the American Bar Association brought by the Massachusetts 
School of Law, has shed light on a problem that directly affects 
myself, and my ability to practice law in Florida.
    I graduated from Western State University, College of Law in San 
Diego in May of this year, with a grade point average placing me in 
the top twenty-five percent of my graduating class. I have taken the 
California Bar Examination in July of this year and I am waiting for 
the results which are due in late November.
    Some important facts about the school are as follows:
    Western State University is not an ABA accredited law school.
    Western State University (WSU) has been in existence since 1969.
    WSU has been approved by the State of California since 1973.
    WSU is a for-profit institution, one of the reasons that its 
application was recommended it be withdrawn when it applied for ABA 
approval in 1986. As part of the consent decree, this factor, a 
school's non-profit or for-profit status is now considered not 
proper in determining a schools' approval by the ABA.
    A majority of the faculty of WSU are adjunct professors. Prior 
to the consent decree, this factor negatively affected the student 
teacher ratio as far as the ABA was concerned. As part of the 
consent decree, this factor, the full time or part time status of 
professors is no longer relevant for the basic computation of a 
student to faculty ratio.
    WSU's three campuses in Southern California make it the largest 
law school in the United States. The fact that WSU has more than one 
campus also led to the belief that it would not receive ABA 
accreditation.
    Results regarding the passage rate of the February 1994 
California Bar Examination showed that graduates of WSU as first 
time bar examination takers had passage rate higher than that of 
every other California accredited school and a higher pass rate than 
several ABA accredited schools in California.
    During the time that I was enrolled at WSU, the ABA did not 
allow ABA accredited schools to accept credits from a student who 
wanted to transfer from a non-ABA school to an ABA accredited 
school. As a result of the consent decree, this bar against transfer 
of credits is no longer permitted. Had this option been available to 
me at the time of my attendance at WSU, I would have, or at least 
could have had the opportunity to transfer to an ABA approved school 
in Florida.
    Both the Dean and assistant Dean of WSU are Harvard Law school 
graduates and many of the full time faculty are nationally known 
scholars in their area of practice and teaching.
    Based on the factors that the American Bar Association must now 
use, Western State University would now be in compliance for the 
guidelines regarding accreditation.
    I understand that if I had practiced law in any jurisdiction for 
ten years I would be able to apply for permission to sit for the 
Florida Bar examination.
    Unfortunately, after graduating law school, there were no 
lending institutions that would lend me money during my studies for 
the California Bar Examination, due to the non-ABA status of WSU. 
Given the high cost of living, stagnant economy of California, and 
facing bankruptcy, my wife and I had to return to Florida and live 
with her parents, where we now presently reside. Returning to 
California to practice law for ten years is not an option. Applying 
to an AB approved law school in Florida, transferring credits and 
incurring both more loans and spending more time in law school, in 
light of the fact that I have already graduated, is not an option.
    Application of this rule will render my successful three years 
of quality legal education, eighty thousand dollars indebtedness to 
pay for it and my choice to be a lawyer absolutely null and void. As 
a tax paying American citizen and current resident of Florida, I 
stand firm in not allowing this outdated and arbitrary method of 
discrimination to ruin my life, professionally or financially.
    With the ABA's settlement of the case against them and the 
involvement of the Department of Justice in their accreditation 
procedures and requirements, it is obvious to me that the time has 
come where a student of a non-ABA school that was directly and 
adversely affected by the ABA's discriminatory practices to have the 
opportunity to prove that the education they received was similar to 
that of an ABA school. This I can and will do at your request.
    What I request is to be allowed to prove myself eligible and/or 
be declared eligible to take the Florida Bar Examination, it is the 
examination itself that determines an individuals' competency to 
practice law.
    That is exactly what a bar examination is designed to test; an 
individuals' knowledge of the law, legal theory and their ability to 
apply it. What is most offensive, is the irrebuttable presumption 
that I am not competent to practice law. I request the same 
opportunity as an ABA student, being allowed to sit for the exam.
    I also fully understand the states' interest in regulating who 
is allowed to practice law, but that interest can not be perceived 
as legitimate when a state chooses to continue to follow the ABA's 
past actions that were not in compliance with Federal law. As you 
can see, WSU is not the ``Fly-by-night'' operation that the ABA is 
so concerned about.
    Notwithstanding the fact that twelve years have passed since the 
Florida Supreme Court issued their opinion in the Hale case, recent 
developments may or may not influence the court in re-examining 
their grant of authority to the ABA.
    However, the Board of Bar examiners does have the authority to 
grant a waiver to the rule. In this letter I have attempted to show 
that the ABA's consent decree eliminated all of the irrelevant and 
irrational requirements of accreditation. It was those very 
requirements which prevented my school from ``achieving'' ABA 
status, which in turn rendered me a non-ABA graduate, giving rise to 
the need for this letter. I hope that the Board will be sympathetic 
to my cause, because they do have the power to rectify this 
unfortunate situation.
    The purpose of this letter is not to advocate the repeal of the 
rule, or to challenge its' 

[[Page 63823]]
constitutionally. I intended to show that due to the facts and 
circumstances beyond my control that my situation is unique, and I 
hope that the Board will consider the issues that it raises.
    My sole ambition is to become a respected and contributing 
member of the Florida legal community.
    To you this is a petition, to me, this represents the future of 
myself and my family.
    Enclosed please find a letter from the Dean of Western State 
University regarding the school.
    If you would kindly respond to this request as soon as possible 
so arrangements might be made for the formal application for the 
exam, or petition for review by the Florida Supreme Court.

    Respectfully submitted,
David William White

Western State University College of Law

2121 San Diego Avenue, San Diego, CA 92110, (619) 297-9700

January 27, 1995.
    To Whom It May Concern: I have been asked to provide information 
concerning the quality of the academic program at Western State 
University--San Diego and, in particular, to compare the program 
with that at ABA accredited law schools.
    Western State University College of Law at San Diego boasts a 
young and dynamic faculty. The full-time faculty includes 21 men and 
women, two-thirds of whom have joined the faculty within the last 
four years. All are graduates of ABA approved law schools, including 
Harvard, Columbia, Michigan, Boalt Hall, New York University, 
Pennsylvania, Virginia, UCLA and Duke. The full-time faculty is 
supplemented by a pool of adjunct faculty, which includes a number 
of sitting state and federal judges, local federal and state 
prosecutors, and practitioners drawn from San Diego's leading law 
firms.
    The curriculum is rigorous and diverse. So that students are 
actively involved, class sizes are limited to 60 students in 
required courses, 40 students in electives and about 20 students in 
skills courses. The average class has 27 students. In the fall 1994 
semester, course offerings included 28 electives, such as 
comparative law, jurisprudence, international business transactions, 
federal income tax, civil rights law, mediation theory, negotiation 
skills, advanced criminal procedure and advanced trial advocacy.
    To ensure that the faculty has adequate time to prepare for 
class, counsel students and engage in research, teaching loads are 
set at 6-9 hours per semester. Faculty promotion and pay are based 
on teaching effectiveness and scholarly productivity. Although most 
members of the faculty are relatively new to teaching, they have 
produced in the last four years a casebook on civil procedure and 
another on international law (both published by West Publishing 
Company, the nation's largest law publisher), a treatise on 
international investment law published by a major Dutch 
international law publisher, and a book on the nature of legal 
reasoning, published as part of a series on the relationship between 
law and modern thought edited by two Stanford law professors. They 
also have produced more than 40 law review articles on a variety of 
topics, many of which have been cited in leading casebooks or in 
judicial opinions.
    Although the school does not currently have an application for 
ABA accreditation pending, it easily satisfies the few quantifiable 
indicators of academic quality used by the ABA. Our library has more 
than 90,000 volumes, which is about equal to the number held by the 
most recent law school to receive ABA provisional accreditation. Our 
student-faculty ratio of about 26-1 is well within ABA guidelines. 
The median LSAT of our entering class is equal to or higher than 
that of several ABA approved law schools around the nation.
    The quality of education is demonstrated by the success of the 
school's alumni. The alumni have included judges on the superior and 
municipal courts, members of the state legislature and city council, 
and, currently, a member of the U.S. House of Representatives. On 
the February 1994 bar exam, about 60% of WSU's graduates passed the 
California bar exam on the first attempt. This was the highest bar 
pass rate of any of the California accredited law schools and was 
higher than that of several ABA approved law schools in California, 
including UCLA.
    On the July 1994 bar exam, the pass rate was approximately 64%.
    I hope this information is helpful. If you have any questions, 
please do not hesitate to contact me.

        Sincerely,
Kenneth J. Vandevelde,
Acting Dean.

Florida Board of Bar Examiners

Administrative Board of The Supreme Court of Florida

September 8, 1995.
Mr. David William White,
3547 N.W. 35th Street, Coconut Creek, FL 33066
    Dear Mr. White: This will acknowledge the receipt of your letter 
dated August 18, 1995, with enclosures.
    As you know, a 1983 ruling of the Supreme Court of Florida 
styled: In Re Kevin Charles Hale (433 So. 2d 969) states in part, 
``This court will no longer favorably consider petitions for waiver 
of Section 1.b.  currently 1.a.  of the Rule. We voice our opinion 
that the Rule, while conceivably a hardship to some, is in the best 
interest of the legal profession in our state.''
    As the Supreme Court of Florida has ruled not to consider 
petitions to waive the legal educational requirements, the Board 
will not accept petitions for waiver of Article III, Section 1 of 
the Rules of the Supreme Court of Florida Relating to Admissions to 
the Bar. Until such time as the Supreme Court of Florida modifies 
its position, the Board will continue to adhere to that policy.
    Thank you for your cooperation.

        Sincerely yours,
Kathryn E. Ressel,
Executive Director.
June 29, 1995.
Ms. Anne K. Bingaman,
Assistant Attorney General, Antitrust Division, Room 3109, Tenth & 
Constitution Avenue NW., Washington, D.C. 20530

    Dear Madame Assistant Attorney General Bingaman: I read the June 
28, 1995 article that appeared in the New York Times and just want 
to take a moment of your time to applaud your efforts for 
investigating the American Bar Association.
    I am a former resident of the State of Nevada and the only way 
in which to be licensed as an attorney in that state is to have 
graduated from an ABA accredited school.
    In 1988, I was admitted to an ABA law school and after two years 
was academically disqualified by .5 of a point. With this 
disqualification, I would no longer be able to receive a J.D. degree 
from an ABA school. I did finish my studies at an unaccredited 
school here in California and am taking the General Bar Examination.
    Because I graduated from a law school not approved by the ABA, I 
will never get the chance to take the Nevada Bar Examination. Last 
year I petitioned the Nevada Supreme Court for a waiver of the ABA 
requirement and it was denied. I think that this is so unfair. In 
effect, I have been banished to California, which even with all of 
our problems, is not too bad of a place.
    The State of Nevada has precluded me from pursuing my chosen 
career within its borders. A life long resident of the state, 
graduated from local schools and degrees from three out of the four 
colleges within the state and I won't even be allowed to take their 
bar examination because of the powerful ABA cartel.
    I tried to stay in school, like all of the government sponsored 
advertisements suggest, but I was disqualified and am now forever 
banned from returning home. It just doesn't make sense to me.
    Thank you for your time. Keep after the ABA. If you ever need an 
antitrust lawyer out here in California, please look me up.

        Sincerely,
Bill Newman,
3756 Cardiff Ave. #315, Los Angeles, CA. 90034-7201.
7932 Oakdale Avenue, Baltimore, Maryland 21237.
September 29, 1995.
D. Bruce Pearson, Esquire,
U.S. Department of Justice, Antitrust Division, 555 Fourth Street, 
NW., Room 9901, Washington, D.C. 20001, Fax: 202-616-5980

Re: Case number 1:95CV01211
    Dear Mr. Pearson: Please be advised that the first response 
faxed to you on Thursday evening was my rough draft. The attached 
response should replace the previously faxed copy.
    I express my apologies as I become more skilled in working with 
this computer.


[[Page 63824]]

        Very truly yours,
Russell R. Mirabile
7932 Oakdale Avenue, Baltimore, Maryland 21237.
September 23, 1995.
D. Bruce Pearson, Esquire
U.S. Department of Justice, Antitrust Division, 555 Fourth Street, 
N.W., Room 9901, Washington, D.C. 20001, Fax: 202-616-5980, Revised 
Response

Re: Case number 1:95CV01211

    Dear Mr. Pearson: In response to and as input to MSL vs. ABA 
Anti Trust Action, and corresponding as a victim of this over 
twenty-year scheming by the ABA to prevent people from education and 
practicing law, I hope the following would be implemented.
    No person, no group, no government or agency can give back a 
life, a livelihood as a result of the calculated law school genocide 
by the ABA. However, to make amends and prepare a preventive program 
will be a beginning against future open-handed injustices.
    These vicious actions taken by the ABA to minimize one's 
liberties and freedom should be dealt with in a very severe manner. 
The ABA has produced a million dollar business by making a selective 
discrimination process.
    First: The time limit for responses to this action should be 
extended. Notice to all offended person(s) has not been accomplished 
nor been effective.
    Most graduates of non-ABA schools that were discriminated 
against or victims of this monopolistic scheme are in other walks of 
life and may not be associated with the practice of law to receive 
the Law Journal. Thus, these victims have no way of becoming aware 
of a welcomed response by the State Department.
    Non-ABA schools that fell victim to those monopolistic schemes 
should present student enrollment lists to the ABA and the ABA 
should send notices to all affected students so that responses are 
possible. There should be a full scale effort upon the ABA; they 
have made millions of dollars from these victims. The price of a 
letter and stamp is minimal in comparison.
    Second: Remuneration should be awarded to those non-ABA schools, 
students, etc. who were injured due to the intentional starvation of 
these victims.
    Third: Those persons, either directly or indirectly involved 
with these ABA monopoly practices, should be disbarred and never 
allowed to practice again in any state or territory. Their licenses 
to practice law should be suspended until proper hearings are held, 
then forever be banished from practicing law.
    Fourth: The ABA should be monitored for years to come for their 
intrusive, intentional improprieties. The group should be 
independent with severe sanctions and penalties attached to those 
millions of dollars that have been gathered from the victims' backs. 
Or, the ABA should be disbanded
    Fifth: The ABA should be completely severed form any 
administering of education or testing of LSAT and all testing for 
multi-state examinations. The multi-state courses that have made 
millions of dollars for the ABA should be independent with no 
leadership or influencing input from the ABA. The ABA should not be 
involved in any testing or correcting of Multi-State Test scores or 
examinations. If contamination has not be declared or thought of, 
then there is plenty of room for irresponsibility and mistrust. 
There should be complete removal from testing by the ABA.
    Sixth: Students who have graduated from non-ABA Law Schools 
should be waived into states or territories affected by these over 
twenty-year practices of the ABA.
    Seventh: The non-ABA graduates that were affected by this law 
school genocide of the ABA should be allowed to take undergraduate 
courses at ABA law schools for credit for any reason.
    There should be a complete acknowledgment and credit for past 
work, accomplishments and performances at non-ABA schools.
    Eighth: Liability should be broadened and a time table should be 
prepared for punishment for these ABA leaders who had the intent to 
deprive people from the liberty and right to achieve an education 
and practice law as a livelihood, or for any reason.
    In conclusion, if the defendants, members of the ABA and 
defendants that were engaged in these violations of the Sherman Act, 
graduate from ABA schools, then these violators are a product of an 
ABA education. But, the ultimate question is, ``Were they educated 
in Anti Trust Law, or is the ABA above the law?'' I would hope this 
government will protect the citizens and punish severely those 
involved in this ABA scandal and correct a twenty-year wrong.
    The bottom line is what is the difference which law school, 
place and manner that one learns the laws as long as a person passes 
the bar exam in reference the knowledge of the law. I would hope 
that this government will protect the citizens.

    Very truly yours,
Russell R. Mirabile
September 21, 1995.
Mr. John F. Greaney,
Chief Computers and Finance Section, U.S. Department of Justice, 
Antitrust Division, 555 Fourth Street NW., Room 9903, Washington, 
D.C. 20001

    Dear Mr. Greaney: I am writing in response to United States vs. 
American Bar Association, No. 951211. I have a profound concern that 
this order will be futile unless needed changes are made.
    I graduated from a state-accredited law school in Alabama that 
lacks ABA accreditation, and I am fully licensed to practice law in 
both federal and state court in Alabama. I recently applied to an 
ABA accredited law school in another state in order to obtain a law 
license in that state. The dean of the law school was aware of the 
United States vs. ABA case and even had a copy of the final order on 
his desk. However, when I inquired about which classes would receive 
transfer credit, he responded that the law school was not in a 
position to accept any of my credits.
    It appears as if either collusion exists between the ABA and the 
accredited law schools not to accept any credits pursuant to Section 
four, Part two of the order or that the law school was reluctant to 
act due to potential repercussions from the ABA. Furthermore, I have 
been advised by fellow attorneys that this same scenario has 
occurred at other ABA accredited law schools in different states.
    I strongly believe that modifications or changes need to be 
considered before a final order is entered. The rule as it stands 
lacks any meaning because ABA accredited law schools remain free to 
ignore the order and continue the exact restraints on trade and 
competition as alleged in the lawsuit.
    Due to the fact that I have an application pending with a law 
school in this state, I would please request that my name and 
address be withheld from this comment. Thank you.
    Justice Department: I am writing to propose that the Final 
Judgement regarding US v. ABA (Civil Action No. 95-1211 (CR), filed 
7/14/95) be modified.
    Under Section IV, subsection D(2), I propose that the phrase, 
``except that the ABA may require that two-thirds of the credits 
required for graduation must be successfully completed at an ABA-
approved law school'', be dropped entirely from the Final Judgement.
    The restrictions on offering transfer credits for coursework 
completed at non-ABA-approved schools is still an unreasonable 
restraint of grade aimed at deterring effective competition from law 
schools that are likely to pay less in salaries and benefits to 
their professional staffs.
    The number of seats available to transfer students is very low 
compared to the number of applicants for those seats (see Barron's 
Guide to Law Schools), and even lower in comparison with the untold 
numbers who would apply if seats were more copious in number.
    On top of the great statistical challenge already at hand for 
the transfer applicant, the difficulty of transferring becomes 
compounded when the applicants are from non-ABA-approved schools. 
They are competing against applicants from ABA-approved schools who 
will be looked at in a more favorable light because of the 
perception that they gained greater academic achievement. In fact, I 
suspect that many of the ABA-schools will take it upon themselves 
not to consider non-ABA applicants, or consider their credits 
transferable, thereby lessening the total number of available 
transfer seats. The number of potential seats for non-ABA-applicants 
will dwindle further when potential mid-second year and third year 
seats are made unavailable due to the daunting prospect of spending 
an additional ten to twenty thousand dollars on one's legal 
education because their second or third year courses won't transfer. 
This rings especially true to the socio-economically deprived 
students who benefit most from the lower costs of non-ABA-approved 
schools.
    The bottom line will be that very few, if any, transfers will 
occur because the non-ABA-applicants will face a monumental 
statistical probability that they will not be able to successfully 
transfer; and a monumental financial hurdle for many who won't be 
able to afford to transfer. Section IV, 

[[Page 63825]]
subsection D(2) starts to ring hollow in reality unless no limits are 
set on the number of credits that can transfer from non-ABA approved 
schools, or better yet the ABA is actually required to take 
affirmative action to insist schools accept all non-ABA-transfer 
credits (and accept non-ABA applicants).
    Another argument for allowing unlimited transfer credits from 
non-ABA approved schools is that ABA approved law schools' trade is 
restrained unfairly when they can accept all of the credits from an 
applicant transferring from a foreign law school, but can't accept 
all the credits from a non-ABA-applicant. Furthermore, that still 
constitutes the remnants of a boycott of non-ABA-schools applicants.
    Lastly, learning disabled applicants from non-ABA-approved 
schools who were forced into attending non-ABA-approved schools, and 
who did not properly diagnose their learning disability until late 
their first year of law school or later, will be unfairly 
discriminated against, and unlawfully discriminated against under 
the ADA (American's With Disabilities Act) because they will not be 
able to transfer their credits. This also holds true for those with 
other types of disabilities.
Frank DeGiacomo,
P.O. Box 79170, North Darmouth, MA 02747.

James B. Healy

519 Bloomfield Avenue, Caldwell, New Jersey 07006, (201) 228-0860

July 3, 1995
Honorable Joel I. Klein,
Deputy Assistant Attorney General, Antitrust Division, Department of 
Justice, Constitution Avenue & 10th Street NW., Washington, DC 20530
    Dear Mr. Klein: I read with interest in The Chronicle of Higher 
Education about your role in reforming the A.B.A. accreditation 
process and laud your success in settling the controversy.
    As one of four adult students victimized by the unyielding 
A.B.A. standards, I draw your attention to the enclosed Background 
Brief as it relates to our dilemma.
    We applied to approximately 15 law schools requesting admission 
as advanced students. Five responded negatively and the remained 
ignored our petitions.
    Given the background and circumstances, is there recourse for us 
to complete our law school degree program as advanced standing 
students?
    On behalf of my colleagues, whatever you may be in a position to 
do on our behalf will be greatly appreciated.
    Thank you.

        Sincerely,
James B. Healy

Enclosure

Background Brief: The Dilemma of Minority Students of Commonwealth 
School of Law Massachusetts

January 15, 1990.

Table of Contents

Statement of Facts
Questions Presented
Applicable Statutes
Discussion
Remedies
Appendices

Statement of Facts

    On December 14, 1987, the undersigned (Hereinafter referred to 
as the students) were accepted by the then unaccredited Commonwealth 
School of Law, Lowell, Massachusetts, as part time students. All 
transferred from St. Matthew School of Law in Philadelphia, an 
institution established primarily for the needs of minority 
students, and each received various transfer credits from 
Commonwealth School of Law for law courses taken at St. Matthew, in 
which two completed approximately sixty-eight (68) credits and two 
completed forty-five (45) credits.
    Each week, for two years the students journeyed over two hundred 
and fifty miles each way, at times twice a week, from New Jersey and 
New York to attend classes in Lowell. Because of family 
responsibilities, employment and other exigencies, the students were 
unable to attend conventional law school programs. Further, these 
students for the most part are minority students attempting to 
improve their station in life and sought a program which allowed 
them to continue full time employment during their period of 
studies.
    While Commonwealth School of Law was not accredited at the time 
the students began classes in January, 1988, the administration 
appeared to be making favorable progress towards State accreditation 
and ABA approval of the School. A full time dean was appointed, full 
time faculty brought on board and a distinguished roster of part 
time faculty were hired, (See Appendix A). The instruction 
throughout was qualitatively excellent.
    The Students became aware of internal political problems during 
the first semester. A splinter group, including the dean, faculty 
and students, severed relationships with Commonwealth School of Law 
and formed the Massachusetts School of Law at Andover during the 
spring semester, 1988. Commonwealth School of Law was left with 
approximately ninety students, including the minority students 
petitioning herein, a new dean appointed and full time faculty hired 
in September, 1988.
    A preliminary state accreditation inspection visit was made in 
December of 1986 to Commonwealth School of Law by a Board of 
Regent's Visiting Team. A number of recommendations were made by the 
team, which were apparently corrected before the official 
evaluation. The second and official Visiting Committee completed the 
accreditation inspection in November, 1988. On December 5, 1988, the 
president of Commonwealth School of Law, Michael Boland, made the 
following memorandum announcement:
    We have received the report from the Board of Regents Visiting 
Team and the news is good! The conclusion of the report was that 
``Commonwealth School of Law has worked hard to address deficiencies 
of concern to the prior visiting committee * * *'' and the visiting 
committee recommends that the Board of Regents approve the school's 
application * * *''

(See Appendix B & C)

    It appears that extensive hierarchal political power plays were 
taking place between April, 1988 and into the spring of 1989. The 
former Dean of Seton Hall Law School, John F. X. Irving, was seated 
with Donald H. Berman and three other candidates on the Board of 
Trustees, announced by memorandum to law students, on March 25, 
1988, (See Appendix D). Students were advised by memorandum on June 
16, 1988 that the former Law Professor Irving was elected Chairman 
of the Accreditation Committee and that he was also named Chairman 
of the Board of Trustees, effective June 1, 1988, (See Appendix E).
    On April 8, 1988, by way of a memorandum to students from 
President Boland, an announcement issued advising that an agreement 
was entered into to lease a new law school facility in downtown 
Lowell, with an expected occupancy scheduled for June, 1989, (See 
Appendix F).
    A memorandum to the law students, dated October 21, 1988, 
announced that former Senator Paul E. Tsongas was seated on the 
Accreditation Advisory Board ``* * * to help guide the School in its 
mission to serve the community as well as the legal community.'' In 
the same memorandum, Ms. Regina Faticanti was appointed as Student 
Representative to the Board of Trustees, (See Appendix G).
    During this organizational juxtapositioning, the Commonwealth 
SBA (Student Bar Association) students began lobbying the merits of 
Commonwealth School of Law with the Board of Regents. Students met 
with Dr. Weston, Vice Chancellor of the Commonwealth of 
Massachusetts Board of Regents on March 10, 1988. The dialog of the 
meeting seems to indicate that Dr. Weston could find no reason to 
deny accreditation to the Commonwealth School of Law as long as the 
December, 1986 inspection recommendations were remediated, (See 
Appendix H).
    Following the favorable recommendations of the Visiting 
Committee on Accreditation, which was conducted in November, 1988, 
it appeared that the administration was committed to resolving the 
perceived minor deficiencies, in-house turmoil notwithstanding. 
There was a move afoot to oust the founding president, Michael 
Boland, by some members of the Board of Trustees, some faculty and 
some students. Persisting local newspaper articles appeared 
questioning the moral conduct of Mr. Boland. In early spring, 1989, 
the Chairman of the Board of Trustees, John F. X. Irving 
suspiciously resigned. It was announced that former Senator Paul E. 
Tsongas became the Chairman. President Michael Boland was apparently 
discharged or resigned, and Ms. Margaret Talkington, Vice President, 
became President of the School, (See Appendix I).
    The bases for these changes were not made clear nor were the 
changes documented for distribution to the students. The general 
consensus was that it was likely initiated by a number of issues: 
the newspaper articles; conflict between Boland and the Lowell 
Planning and Economic Development 

[[Page 63826]]
entities; bad blood arising from the unfavorable comments made by the 
dean, some faculty and some students providing wrongful and 
distorted information and impressions to the Visiting Team, evident 
from the analysis of their report, (See Appendix J). At this 
juncture, it appears that the Commonwealth School of Law was divided 
by power factions. In order to quell the apprehensions of the 
students, Senator Paul E. Tsongas, (as Chairman of the Board), 
appeared before the student body sometime during the early part of 
the spring, 1989 semester. Mr. Tsongas informed the students that 
the School would be accredited and personally assured the graduating 
seniors that they would receive their Juris Doctor degrees and 
qualify to take the Massachusetts Bar examination. Twelve members of 
the senior class (Two of the four here) were to complete their 
studies by the end of May, 1989.
    It seems that with the unseating of President Boland went the 
financial resources to sustain the cost of required remediation 
necessary for accreditation. Students became aware that Mr. Tsongas 
and the Board of Trustees were negotiating with Emerson College, who 
expressed an interest in absorbing the Commonwealth School of Law, 
driven by the Lowell financial package earlier negotiated by Boland 
and continued by the new executives. According to information 
transmitted by Regina Faticanti, student member of the Board of 
Trustees, to the students in the months following, the new Board of 
Trustees was concluding the negotiations of the financial plan with 
both developers and officials of the City of Lowell and Emerson 
College.
    While this process was proceeding, former Senator Tsongas was 
appointed by Governor Michael Dukakis as President/Chairman of the 
Board of Regents. Nothing was documented relative to the resignation 
of Mr. Tsongas from the Board of Trustees of Commonwealth School of 
Law. Shortly thereafter a memorandum to Commonwealth students, dated 
May 16, 1989, was received from Allen E. Koenig, President of 
Emerson College, announcing the opening of Emerson School of Law, 
(See Appendix K).
    The senior class did not receive the appropriate Juris Doctor 
degree in May of 1989 as Mr. Tsongas earlier promised so 
encouragingly. Whether the Senator's intentions may have been 
sublimated to the negotiations with Emerson College is unknown.
    Emerson Law School published a catalog, which was provided to 
all Commonwealth School of Law students, together with an 
admission's application. All four of the students applied, remitting 
the prescribed $40 application fee and subsequently an acceptance 
fee of $400. Emerson acknowledged acceptance of each, both by letter 
and through endorsing and cashing the respective checks, (See 
Appendix L for specimen letter, receipts and refunds).
    While the transition from Commonwealth School of Law to Emerson 
was in progress, announcements were made appointing Donald Berman, 
ex Commonwealth School of Law Trustee, as Dean of Emerson Law 
School, Regina Faticanti as an administrative executive, the former 
Commonwealth Dean Judy Jackson as Associate Dean and all full-time 
and numerous part-time faculty were absorbed by Emerson, (See 
catalog exerpt Appendix M).
    On August 31, 1989, the Dean of Emerson Law School, Donald 
Berman, sent a letter to each of the students advising that Emerson 
Law School would not open. While there was an expectation among the 
students that some form of intervention might evolve to place the 
students at another law school, the letter from Dean Berman was the 
last official statement, (See Appendix N).
    The students wrote to Mr. Tsongas as Chairman/President of the 
Board of Regents on September 8, 1989 and again on November 21, 
1989. Mr. Tsongas did not respond, (See Appendix O for specimen 
letters).

Questions Presented

    1. Is the Commonwealth of Massachusetts a party to the harm and 
injurious consequences suffered by the students?
    It would seem that in legislating an educational policy, the 
Commonwealth of Massachusetts designated and empowered a Board of 
Regents to ``* * * develop, foster, and advocate a comprehensive 
system of public higher education of high quality, flexibility, 
responsiveness, and accountability,'' (Title II, Chapter 15A, 
Annotated Laws of Massachusetts), clearly assumed a responsibility 
to be accountable for the educational welfare of students attending 
institutions, whether public or private, within the Commonwealth of 
Massachusetts. That the Board of Regents, as a group and, through 
its members, individually, provided encouragement to Commonwealth 
School of Law students (upon which they relied), sanctioned visiting 
Commonwealth School of Law accreditation teams' evaluations, 
approved of the merger of Commonwealth School of Law into Emerson 
College and the creation of Emerson Law School (a Commonwealth of 
Massachusetts accredited school of higher education over which the 
Board of Regents exercised jurisdiction), and permitted the closure 
of Emerson Law School by its oversight, negligence, malfeasance, 
misrepresentation, concealment, and denial of due process inflicted 
grave and irrevocable harm to the students herein.
    Beyond the Board's negligence and suspected mala in se by its 
failure to protect the welfare of Commonwealth School of Law 
students transferred and accepted by the State-approved Emerson 
College, it seems the Board was negligent in its statutory 
responsibility under Title II, Chapter 15A, Section 5, Annotated 
Laws of Massachusetts.
    Emerson College, as an accredited state educational institution, 
as seen by its action to absorb/merge Commonwealth School of Law 
into its educational institution, was acting with the approval and 
full knowledge of the Commonwealth of Massachusetts Board of Regents 
of Higher Education, through its members and its agent Paul E. 
Tsongas, who knowingly permitted and encouraged Emerson College to 
expand its educational offerings through the Commonwealth School of 
Law takeover, placing the students welfare under the Board's 
jurisdiction.
    The students are presumed to be protected by the Laws of 
Massachusetts as promulgated to the Board of Regents of Higher 
Education under Chapter 15A, Annotated Laws of Massachusetts, in 
that, Emerson College was under the jurisdiction of the Board of 
Regents at the time Emerson accepted the students and acquired the 
resources of the Commonwealth School of Law.
    The negligence and inaction of the Board of Regents to protect 
the interests of the students suggests discrimination against them, 
wherein, the Board of Regents, by its mandate, ordinarily does act 
to protect the interests of students within the Commonwealth of 
Massachusetts. It is untenable that minority students should not be 
protected as other students in the Commonwealth of Massachusetts.
    2. Did the Emerson College Board of Trustees have a statutory or 
other responsibility to the students harmed by its failure to act an 
in a responsible manner and was there a duty to protect the academic 
credentials and make provisions to insure that the Juris Doctor 
degree be made available for which the students contracted and made 
good faith reliances thereon?
    The individual members of and the Board of Trustees of Emerson 
College are seen as subject to the provisions of Sections 9 & 10, 
Chapters 15A, Annotated Laws of Massachusetts. By the decision of 
the Board of Trustees of Emerson College, (Including Emerson Law 
School Division), to close Emerson Law School, thus abandoning the 
students and depriving them of educational opportunity, rights of 
appeal and due process, it would seem that the statute was violated. 
The Board of Regents, for its failure to oversee and protect the 
rights of the students, would appear similarly in violation of the 
statute for its failure to exercise regulatory fiduciary 
responsibility to the students harmed by the actions of the Emerson 
College Board of Trustees.
    3. The students relied on the promise of former Senator Paul E. 
Tsongas, by which he assured the graduating class that each would 
receive the Juris Doctor degree and that those other Commonwealth 
School of Law students would be continued in a law program, does Mr. 
Tsongas, in his role as an agent, and as President/Chairman of the 
Massachusetts Board of Regents, became liable?
    It seems clear that Mr. Tsongas, individually and as an agent 
for the Board of Regents for the Commonwealth of Massachusetts, is 
liable for breach of contract, for failing to provide Juris Doctor 
degrees promised and continuing legal education, misrepresentation 
and conflict of interest in his function with Lowell economic 
development, concealment, negligence, and in circumventing the 
rightful due process to the students.
    The evidence seems to support the notion that the reason Mr. 
Tsongas became involved was due essentially to his wish to enhance 
economic development in Lowell, (See Appendix P). That bodies were 
scattered as a consequence of this venture is not seen as part of 
the plan. That many students, administrators, and faculty were 
harmed 

[[Page 63827]]
seems to have evolved from likely poor judgment, and self-serving 
motivations. The telltale trail grew out of an economic development 
plan, to control of the Commonwealth School of Law Board of 
Trustees, to the Board of Regents of the Commonwealth of 
Massachusetts. The welfare of the individual students appeared 
incidental and did not seem to place high on the roster of 
priorities, thus the students' rights were neglected and abandoned.
    It would appear that Mr. Tsongas has a statutory and fiduciary 
obligation and responsibility to the students as a member of the 
Board of Regents and a civil professional responsibility in contract 
due to gross negligence in which the students were harmed by 
reliance on his promises, resulting in loss of their property 
interests.
    4. Are there other responsible persons who may have interfered 
with contract performance, been contributorily negligent, and caused 
the denial of due process rights to the detriment of the students 
and against whom action may be taken?
    Yes, the following played a role for which they may have 
liability:

Honorable Michael Dukakis--In appointing Paul Tsongas to the Board 
of Regents, was undoubtedly aware of the Commonwealth School of Law 
accreditation agenda and Mr. Tsongas' role therein.
Dr. Allen E. Koenig, former president of Emerson College, for gross 
negligence, breach of contract, and denying due process rights to 
the students because of his representations that led to the 
absorption of Commonwealth School of Law, the closing of Emerson Law 
School, and denial of educational opportunity earlier guaranteed and 
Juris Doctor degree conferral expected by the students.
Mr. Michael Boland, former president of Commonwealth School of Law, 
for innocent misrepresentation, nondisclosure, and breach of 
contract for abandoning his contractual responsibility to provide 
the legal education promised.
Ms. Margaret Talkington, former president of Commonwealth School of 
Law, for innocent misrepresentation, nondisclosure, and breach of 
contract for abandoning her contractual responsibility to provide 
the legal education promised.
Mr. Donald Berman, Acting Dean, Emerson Law School and member of the 
Board of Trustees of Commonwealth School of Law, for negligent 
misrepresentation, conflict of interest, concealment, breach of 
contract, contract performance interference and denial of due 
process rights to the students because of the events and his 
positions previously stated.
Ms. Judy Jackson, Commonwealth School of Law Dean and Associate Dean 
of Emerson Law School, for misrepresentation, conflict of interest, 
concealment, contract performance interference and denial of due 
process rights to the students because of opportunism and likely 
self-serving motivations.
Ms. Regina Faticanti, student representative to the Board of 
Trustees, Commonwealth School of Law, and agent for Emerson Law 
School, for negligent misrepresentation, conflict of interest, 
concealment, and contract performance interference. Ms. Faticanti, 
because of perceived self-interest and personal ambitions, is seen 
as not having fulfilled her responsibilities in adequately 
representing the students.
Mr. Roland Hughes, president of the Student Bar Association of 
Commonwealth School of Law for innocent misrepresentation, 
concealment and contract performance interference for failing to 
properly apprise the students of important information and events 
affecting Commonwealth School of Law and abandoning responsibility 
as an elected student representative.
Mr. Stephen Moses, president of the Senior Graduating Class of 
Commonwealth School of Law for innocent misrepresentation, 
concealment and contract performance interference for failing to 
properly apprise the students of important events and information 
affecting their status and abandoning responsibility as an elected 
student representative.

Applicable Statutes

U.S. Const. amend. 1
U.S. Const. amend. 14 Section 1
42 U.S.C. Section 1983 (1976)

Annotated Laws of Massachusetts

Chapter 15A, ``Board of Regents of Higher Education.''
    Section 1. Board of Regents; Purpose and Responsibility.
    Section 3. Institutions under Board of Regents.
    Section 4. Officers and Employees.
    Section 5. Powers and Duties.
    Section 9. Boards of Trustees of Individual Institutions.
    Section 10. Powers and Duties of Boards of Trustees.
Chapter 93A, ``Consumer Law.''
Chapter 151A, ``Fair Educational Practices.''
    Section 3. Petition Alleging Unfair Practice.

Discussion

    Students at institutions of higher education were not afforded 
meaningful legal protection until Frank v. Marquette University, 245 
N.W. 125, (1932), (one of the first cases to hold that a private 
university could not act arbitrarily or unreasonably with regard to 
its students). Two leading cases removing immunity and allowing 
students to take action against schools are Dixon v. Alabama, 294 
F.2d 150, (1961) Healy v. James, 408 U.S. 169, (1972). In the latter 
Healy case, the Supreme Court, in a commentary by Justice Powell 
proffered ``At the outset we note that state colleges and 
universities are not enclaves immune from the sweep of the First 
Amendment.'' Justice Douglas, in support of the same opinion, 
advocated the students' need for first amendment protection. Both 
decisions, Dixon and Healy, indicate that school authorities no 
longer have unilateral authority to take arbitrary actions against 
students, especially when these actions violate the constitutional 
or legal rights of the students. In Baldwin v. Zoradi, 123 Cal. 
App.3d 175, (1981), a California court removed the perceived legal 
assumption that colleges and universities exercises power over 
student's rights.
    1. Mandatory legal precedents have been established recognizing 
that students are protected by contract theory as consumers of 
educational services.
    Courts have held that because of their expenditure of time and 
money, students are entitled to the same protection afforded in 
other consumer situations, such as consumers of commercial products. 
See Cahn, ``Law in the Consumer Perspective,'' 122 U.L. Rev. 1 
(1963), and Chapter 93A, Massachusetts General Laws Annotated. 
Students expect to be treated reasonably: when these expectations 
are not met, they seek protection from the judicial and legislative 
systems. See ``Consumer Protection and Higher Education--Student 
Suits Against Schools,'' 37 Ohio St. L.J. 608, (1976). Students 
bringing actions are seen as relying upon contract theory, which the 
courts seem to favor when finding for students. This contract theory 
suggests an express or implied contract exists between the students 
and the school. In Anderson v. Regents of Univ. of Cal., 22 Cal. 
App. 3d 1, (1972), the court ruled that by the act of matriculation 
and payment of fees, a contract between the student and the state is 
created. While Anderson may have limited the ruling for state 
schools, Zumbrin v. Univ. of So. Cal., 25 Cal. App. 3d 1, (1972), 
held that a private university was contractually liable to students. 
Oral representations of school agents become terms of the contract 
and were held binding on the school in Healy and Blank v. Board of 
Higher Education, 273 N.Y.S.2d 796, (1966) and see generally 
Calamari & Perillo, ``Law of Contracts,`` 16-1 to -6, at 581-88 
showing specific enforcement of the contract will be permitted where 
a student can show that damages resulting from the breach are 
inadequate to compensate for the loss and what was bargained for was 
unique. [Where this is shown] courts have required that degrees be 
awarded to students.
    In Zumbrun, supra, and Lowenthal v. Vanderbilt Univ., 7 J. Coll. 
& U.L. 191, (1981), the obligations of a higher educational 
institution is seen as contractual to provide the curriculum 
promised and that the essence of the implied contract is good faith 
and reasonableness, see also Olsson v. Board of Higher Education, 
402 N.E.2d 1150, (1980).
    Students, in some cases and in order to prevent a school from 
withholding degrees, have used the estoppel theory, see Olsson, 

[[Page 63828]]
Healy, and Blank, supra. The basis for applying the estoppel theory is 
that the promise [contract] is a representation from the school 
that, if the student follows a prescribed course of conduct, he will 
be given a degree evidencing his academic accomplishments. If the 
student receives such representation from a qualified school 
official, the student will rely upon it. Lastly, a student's 
reliance upon such representation from a school, is clear by his 
expenditure of money for fees, the pursuit of a prescribed 
curriculum, the foregoing of other opportunities, and the commitment 
to complete that school's program. See Calamari & Perillo, Section 
6-1, at 202.
    Financial exigency of a school is not a wholly viable defense of 
impossibility to perform as may likely be evoked. In Peretti v. 
Montana, 464 F.Supp. 786, (1979), the court held that financial 
exigency alleged was not sufficient to show impossibility of 
performance and increased costs of performance are not sufficient to 
excuse performance.
    Where unsconscionability may surface, particularly seen in 
education cases, a contract of adhesion exists where there is gross 
overall one-sidedness of gross one-sidedness of a term disclaiming a 
warranty, limiting damages or granting procedural advantages. If the 
clause places a great hardship or risk upon the party in the weaker 
bargaining position, it must be shown the provision was explained to 
the weaker party and came to his knowledge. A real and voluntary 
``meeting of the minds,'' not merely an objective meeting, must be 
proved. See Calamari, Section 9-40, at 325 and Weaver v. American 
Oil Co., 276 N.E.2d 144, (1971).
    In Peretti, supra., the court prohibited a public school from 
terminating a program due to insufficient funding from the state, 
ruling that the program was unique and to terminate would interfere 
with the completion of an ongoing . . . program. In Eden v. Board of 
Trustees, 374 N.Y.S.2d 686, (1975), SUNY terminated a program 
because of financial problems. The court held that the state could 
not show sufficient immediate monetary savings to justify abrogating 
its existing contracts with potential students. A private college 
was denied the right to terminate a program in Galton v. College of 
Pharmaceutical Science, 322 N.Y.S.2d 909, (1972), where the court 
held that students in the program had a contractual right to 
continue their studies until graduation.
    Any defenses if impossibility to perform would likely turn on 
the educational institution. Many court decisions hold that a party 
may not, by this own conduct, create the event causing impossibility 
or impracticability of performance. Rather, the promisor must make 
all reasonable efforts to avoid the ``impossibility.'' See Johnson, 
``The Problems of Contraction: Legal Considerations in University 
Retrenchment,'' 10 J.L. & Educ. 269, (1980). In Behrend v. State, 
379 N.E.2d 617, (1977), the court put schools on notice by its 
decision requiring performance that, where it is difficult if not 
impossible for students to transfer to another college or university 
with credit for work completed elsewhere, the court would view close 
scrutiny the obligation of schools to provide students with an 
opportunity to complete their education, and to provide the 
education at the level which was reasonably expected.
    2. Negligence and misrepresentation are two tort actions which 
students may use against higher educational institutions to seek 
recovery.
    The tort doctrine of negligence has been used by students to 
hold a school, through its agents, negligent for failing to act 
reasonably in accord with its duty do adequately provide services 
associated with such institution. See Zumbrun and Behrend, supra. W. 
Prosser, in ``Handbook of the Law of Torts,'' Section 92, at 613-22, 
notes that the duties imposed in tort are those imposed by the law, 
based primarily on social policy, and not necessary upon the will or 
intention of the parties; they are owed to all those within the 
range of harm. The damages in tort require that the damages be 
proximately caused by the defendant's act and damages are available. 
Prosser, Section 31, at 145, also indicates that a school has a duty 
to protect its students from unreasonable risks.
    Massachusetts Educational Statutes require private schools to 
meet certain minimum requirements to operate. Consumer protection in 
higher education services is covered by Massachusetts Consumer 
Statutes for the purpose of avoiding abusive practices.
    3. Violation of students' civil rights and property interest may 
be the bases for actions used against a public or private 
educational institution.
    Rights guaranteed by the first and fourteenth amendments to the 
U.S. Constitution which are denied by institutions of higher 
education may be challenged at law where civil liberties regarding 
free speech and procedural due process are concerned. See Olswang, 
Cole & Wilson, ``Program Elimination, Financial Emergency and 
Student Rights,'' 9 J. Coll. & U.L. 170, (1982).
    In Peretti, supra., the court found that an implied contract 
existed within the fourteenth amendment's protection if there was a 
violation of a right protected by the Constitution. The court held 
that where an administrative body's act making the exercise of a 
legal right impossible, a federal question existed. Olswang notes 
that property interest cannot be denied without due process.
    Again, in Peretti, supra., and Hall v. University of Minnesota, 
530 F. Supp. 104, (1982), the courts held that students must be 
provided with process commensurate with the rights affected. 
Students have a private interest at stake in their continuing 
education. The education is necessary for careers they plan to 
pursue upon graduation. The student is deprived of that interest * * 
* if programs are terminated, * * * Robert R. DeKoven, ``Challenging 
Educational Fee Increases, Program Termination and Deterioration, 
and Misrepresentation of Program Quality: The Legal Rights and 
Remedies of Students,'' 19 Cal. Western L. Rev., 467-506, (Summer, 
1983).
    4. Boards of trustees of Institutions of higher education within 
the Commonwealth of Massachusetts are delegated fiduciary 
responsibility by the Massachusetts Board of Regents and, by virtue 
of their charter, have power to delegate to the chief executive 
officer of the institution.
    The courts in Behrend and Peretti supra., on termination cases, 
etc., found that state educational requirements to qualify the 
student to take a state examination established a duty on the part 
of the schools to provide that level of education. As here, the 
students in cases examined showed that the schools acted 
unreasonably, and, as a result of misconduct, caused undue risk of 
harm to the student and the injury was proximately caused by the 
acts of the schools. Thus, with the powers of authority vested in 
schools by a state indult, so also the responsibility issues to 
those officials to protect the rights of students.
    Institutional responsibility for educational policy is 
statutorily derived from the authority given the Massachusetts Board 
of Regents under the provisions of Sections 1 & 5, Chapter 15A, 
``Board of Regents of Higher Education,'' Annotated Laws of 
Massachusetts. The power to delegate policy and fiduciary 
responsibility to Boards of Trustees of individual institutions is 
mandated by Section 9, of Chapter 15A, and Section 10 promulgates 
the powers and duties of individual Board of Trustees. Section 1 
reads in part:
    * * * to advocate a comprehensive system of * * * education of 
high quality, flexibility, responsiveness, and accountability. * * * 
To achieve these goals it shall be the responsibility of the board 
of regents to preserve and promote * * * the highest level of 
academic quality to community services activity.
    5. The Board of Regents of the Commonwealth of Massachusetts 
exercises regulatory powers over colleges and universities within 
Massachusetts.
    Section 3, Chapter 15A, ``Board of Regents of Higher 
Education,'' Annotated Laws of Massachusetts, specifically states, 
``The board of regents of higher education shall be the governing 
authority of the system.''
    Court decisions supporting this governing power may be found in 
Hamilton v. Regents of the University of Cal., 293 U.S. 245, (1934), 
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967), and Blank, 
Galton, and Zumbrun supra., which establish standing, authority to 
regulate state educational statutes, and provides a source of remedy 
for students seeking relief from state (private and public) 
institutions of higher education.
    6. The Board of Regents of the Commonwealth of Massachusetts has 
the authority and duty to grant degrees and transfer students to 
other institutions where a controversy exists.
    Among the ``Powers and Duties'' of the Board of Regents of the 
Commonwealth of Massachusetts, (Section 5, Chapter 15A, ``Board of 
Regents of Higher Education,'' Annotated Laws of Massachusetts), 
are:
    5.(a). to confer upon the boards of trustees the power to award 
certain degrees to persons who have satisfactorily completed degree 
requirements.
    5.(b). in addition to the degrees authorized to be awarded under 
clause (a), the board of regents may approve the awarding of certain 
other degrees and may define and authorize 

[[Page 63829]]
new functions or new programs; or consolidate, discontinue or transfer 
existing functions, educational activities and programs; and may, 
after public hearing and submission of a written report to the 
clerks of the house of representatives and the senate, by a two-
thirds vote of the full membership of the board, consolidate, 
discontinue, or transfer divisions, schools, stations, colleges, 
branches or institutions as it deems advisable.
    5.(t). develop and implement a transfer compact for the purpose 
of facilitating and fostering the transfer of students without the 
loss of academic credit or standing from one * * * institution to 
another.
    5.(u). shall establish an affirmative action policy and 
implement a program necessary to assure conformance with such policy 
throughout the system.

Remedies

First Option for Remediation

    1. A Commonwealth of Massachusetts Legislative Act designed to: 
(Following St. George's Medical School (Grenada) model).
    a. Award Juris Doctor degrees to the eligible Commonwealth 
School of Law seniors who completed the eighty-four (84) credit hour 
requirements for graduation and certify the class to take the 
Massachusetts Bar examination.
    b. Arrange to place all other students in a Commonwealth of 
Massachusetts accredited law school, such as Southern New England 
School of Law, allowing credits earned to be protected, transferred, 
and remain intact.
    2. Legislative action authorizing the judiciary to allow bona 
fide graduates of Commonwealth School of Law and/or Southern New 
England School of Law to apply for admission to the Massachusetts 
Bar.

Second Option for Remediation

    1. Enroll all Commonwealth School of Law students in a 
Commonwealth of Massachusetts accredited law school, such as 
Southern New England School of Law:
    a. Require those Commonwealth School of Law students who 
completed in excess of eighty-four (84) credits to complete no more 
than six (6) additional credits at a cost not to exceed $3,000 and 
be awarded the Juris Doctor degree at the end of the study semester.
    b. Enroll all other Commonwealth School of Law students in the 
same institution without loss of credits earned.
    2. Legislative action authorizing the judiciary to allow bona 
fide graduates of Commonwealth School of Law and/or Southern New 
England School of Law to apply for admission to the Massachusetts 
Bar.

Cora Anderson
James B. Healy
Melvin Clark
Keith Wilson

William A. Stanmeyer, Attorney at Law, (703) 759-3432, 759-5227 VMail

P.O. Box 15, Great Falls VA 22066

July 10, 1995.
Hon. Joel Klein, Esq.,
Deputy Assistant Attorney General, Antitrust Division, U.S. 
Department of Justice, Washington, D.C.

    Dear Mr. Klein: This letter is prompted by the article, ``ABA 
Settles Antitrust Case Over Certifying Law Schools,'' THE WASHINGTON 
POST (June 28, 1995), page A2.
    I wish to commend you and the Department for your action in this 
matter. As a former law professor (Georgetown, Indiana; see enclosed 
resume) who, during the period 1974-1984, was actively engaged in an 
attempt to start a new law school, I was very familiar with the 
American Bar Association's ``standards'' of accreditation and the 
persons they used to enforce them.
    Based on personal experience, as well as conversations with 
other legal educators who dealt with the ABA during those years, I 
can confidently state that the Justice Department's position is 
entirely correct. In my opinion, many of the ``standards'' were 
irrelevant to quality legal education; they were in some cases 
vague; and often they were applied arbitrarily.
    Had resources been available, others would have brought the 
antitrust suit before Dean Lawrence Velvel finally did. What 
concerns me, however, is the quote from George Bushnell not 
admitting even a molehill of fault when the record, if properly 
built, should be a mountain of evidence that Dean Velvel is entirely 
correct. My hunch is that ABA being dragged ``kicking and 
screaming'' into admitting the abuse, will resist real change.
    I could provide some additional insight, if you wish it, into 
the mentality of the ABA accreditation people during the period 
mentioned. If you would like to have a short meeting, just give me a 
call.
        Very truly yours,
William A. Stanmeyer
Curriculum Vitae: WILLIAM A. STANMEYER, ESQ.
Education:
    A.B., 1956, magna cum laude; M.A., Philosophy, 1962; Graduate 
Study, Northwestern University, 1962; J.D., DePaul University 
College of Law, 1966.
Legal Activities and Associations:
    Admitted, Illinois Bar, 1966; Virginia Bar, 1980
    Private Practice of Law, Illinois, 1966-68
    Associate Professor of Law, Georgetown University Law Center, 
1968-72
    Arbitrator, American Arbitration Association, 1972-1995
    Associate Professor of Law [tenured], Indiana University School 
of Law, 1974-80
    President, Lincoln Center for Legal Studies, 1980-85
    Private Practice of Law, Virginia, 1985 to present, Wills, 
Trusts, Family Partnerships
Civic and Other Professional Activities:
    American Bar Association: Member, Special Committee on Youth 
Education for Citizenship, 1970-73; Consultant, Criminal Law 
Section, 1970-72
    Public Lectures: at major universities, including Harvard, Univ. 
of Cincinnati, Notre Dame
    Virginia Bar Association: Member since 1980
    Consultant, fields of Business Development, Financial Analysis, 
Income Diversification
Administrative, Fund-Raising Experience:
    Managed numerous Institutes and educational projects raised over 
$1,000,000 for various education programs
Publications:
    Two Books
    Over twenty scholarly articles, in the Law Reviews of such law 
schools as: George Washington, Indiana University, and Hastings 
College of Law
    Numerous serious ``op ed'' pieces, in such newspapers as: the 
Miami Herald, the Chicago Tribune
Family and Personal:
    Married to the former Judith Ann Heitzmann of Chicago
    Five children, ages 15 to 26
    Residence: 325 Club View Drive, Great Falls VA 22066
    Office: P.O. Box 15, Great Falls VA 22066
    Phone: Office (703) 790-5400; direct line (703) 759-3432; voice 
mail (703) 759-5227
August 26.
    Mr. Klein: Congratulations on the ABA Consent Degree! It has 
been long overdue. Two points, however, need to be made: (1)--The 
reporting requirement for Jim White to Bob Stein is ineffective * * 
* simply because Stein & White are close friends and there will, 
thus, be little real supervision of White * * *  he will do what he 
wants to. (2). You should take a special look at White's 
relationship with Indiana University. Here is a real conflict of 
interest * * * he is listed as a Professor of Law--supposedly with 
half of his salary coming from the Law School * * * but he has not 
taught in over 20 years and, his whole salary, came from the Law 
School budget until the then-Dean, William Harvey, put his foot down 
and stopped this. It is speculated that the Law school now pays for 
White's University salary totally. Doesn't is seem odd that an 
educational unit that profits from the accrediting agency is running 
the show? Why not let the ABA, itself, pay for all of White's 
salary?? Jerry Bepko, the IU-Indianapolis Chancellor, has had a 
sweet-heart arrangement with White for years! Please investigate 
these two points and maybe amend the Consent Degree * * * 

        Thanks
4 Concerned Lawyers

Frederick L. Judd, Attorney at Law, (714) 852-1000 X257, (714) 261-5481 
(fax)

2181 Dupont Drive, Irvine, CA 92715

September 5, 1995.
Mr. John Greaney,
Computers and Finance Section, U.S. Department of Justice, Antitrust 
Division, 555 4th Street N.W., Room 9903, Washington, DC 20001

Response to proposed Final Judgment in United States of America v. 
American Bar Association


[[Page 63830]]

    Dear Mr. Greaney: The purpose of this letter is to provide the 
Department of Justice with written comments with respect to the 
proposed final judgment in the USA v. American Bar Association, 
Civil Action No. 95-1211 (CR).
    While the final judgment appears to deal with some issues, I 
strongly believe that the Final Judgment does not adequately resolve 
certain other practices that result in very anticompetitive and 
discriminatory consequences. I do not know if these issues have been 
reviewed by the Department, but the final judgment should take them 
into account.
    I refer primarily to the accreditation standards of the ABA 
which appear to require that law schools set schedules in such a way 
as to minimize the amount of time that all students can work while 
attending law school, and even more, nearly make impossible outside 
work during a student's first year. I do not understand any rational 
basis for this practice, and believe its primary effect is to 
minimize the entrance into the profession of those who would have to 
or choose to ``work their way through'' their legal education.
    While testimonial evidence is not necessarily as relevant as 
would be statistical verification of my claims, I will tell you that 
in 1982, BYU Law School refused to allow me to work into a schedule 
that would allow me, a CPA, a reasonable (i.e. three hour or 
greater) block of time during every school day in which I could 
complete outside work for clients. I remember discussing the 
situation with the Assistant Dean, who admitted that such a schedule 
could have been completed, but that the American Bar Association 
would consider it a negative factor in BYU's accreditation process 
if they were to accommodate my schedule.
    I understood the reason for the scheduling difficulty was an ABA 
proclamation that first-year students needed to concentrate on 
studies, and not on outside work, and that scheduling classes at 
8:00 am, 11:00 am, 2:00 pm and a study group at 6:00 pm would cause 
students to focus on the law, avoiding the certain distractions 
inherent in earning a living. However, the groups that congregated 
around study carrels seldom (until ``finals'' weeks) discussed the 
recent contracts, torts or property law concepts, but instead, their 
conversations inevitably rotated toward movies, television, sports, 
BYU policies, and the national championship football team.
    The effect of the ABA policy was obvious: I could not learn 
because carrel conversations were usually not about the law, and I 
could not earn because I could not find appreciable blocks of time 
in which to make money. Ironically, my grades probably suffered 
because I would miss a class when I felt it financially necessary to 
service a client, or when I would work late at night, which some 
expert at the ABA would probably admit was not helpful for my class 
attentiveness during the daytime sessions.
    I was able to make it through law school, but I believe the 
effect of the baseless ABA regulation is to exclude others without 
the right combination of sufficient means, earning capacity or 
desire to get through law school, and I am sure that the practice 
arbitrarily reduces entrance into the profession, of students 
generally (anticompetitive) and especially economically 
disadvantaged classes (discriminatory).
    I believe the number of hours of outside work had little to do 
with my ability to study or learn. Law schools should be able to 
determine compliance with assignments and deadlines, and to 
appropriately measure class learning if they administer fair and 
comprehensive examinations. In my case, I worked more than the 
allowed number of hours, but still graduated in the top 10% of my 
class, while presumably those who knew the names and achievements of 
the football players did not. I did not lose the opportunity for the 
quality education BYU Law School offered.
    The Department of Justice's lawsuit discusses the effects of the 
``capture'' of the accreditation process by the accredited. In my 
situation, I thought it very unfair that by following the ABA 
accreditation standards, BYU actually reduced my ability to pay my 
own way through law school, and I was required to borrow, and the 
primary source of those funds was the BYU Student Loan Program. This 
appears to me to be a highly anticompetitive process, and those who 
are not selected by that process (although admittedly I was) find 
themselves at another distinct disadvantage where the opportunity 
for unfair discrimination can arise, especially where a law school 
may have additional criteria for the availability of those loans 
(i.e. compliance with church regulations or other goals).
    I hope that the Justice Department will not simply stop its 
review of the accreditation policies of the ABA with the final 
judgment, and will not enter into the final judgment prior to 
examining this practice. The rules relating to barring students from 
working more than 20 hours a week or scheduling classes to prohibit 
outside work during the first year and minimized work in years two 
and three need to be examined and then discarded as what they are: 
Rationally baseless policies designed to prevent entrance into the 
profession which operate to discriminate against those who need the 
protections of antitrust and antidiscrimination laws the most.
    I hope this material is helpful. If you wish more information 
about the matters in this letter, please feel free to call me.

        Sincerely,
Frederick Judd.

Coyne and Condurelli, Attorneys at Law,

Professional Center, 198 Massachusetts Avenue, North Andover, 
Massachusetts 01845 (508) 794-1906

October 2, 1995.
Mr. John F. Greaney, Esq.,
Computers and Finance Section, U.S. Department of Justice, Antitrust 
Division, 555 4th Street N.W., Room 9903, Washington, DC 20001
    Dear Mr. Greaney: I am writing this letter of public comments 
not on behalf of the Massachusetts School of Law but as an attorney 
and officer of the court. For some time, I have been very concerned 
about the American Bar Association and its agents confusing 
effective advocacy with a reckless disregard for the truth in their 
efforts to continue to control law school accreditation at all 
costs.
    Various pages from the depositions of the ABA Consultant, James 
P. White, and ABA Section of Legal Education officer, Claude Sowle, 
conducted during the preliminary discovery phase of Massachusetts 
School of Law's antitrust suit are enclosed. As you can see, Mr. 
Sowle's deposition (page 206, lines 22-25 and page 207, lines 1-2) 
and Mr. White's deposition (page 58, lines 23-25 and Page 59, lines 
1-24) are at odds with paragraphs 15 and 16 of the Government's 
complaint. They are likewise at odds with the enclosed April, 1995 
exchange of correspondence between counsel for the ABA and its 
Consultant.
    In view of statements in the government's complaint, Mr. Sowle's 
testimony that the salary standard was not applied to MSL in June, 
1993 because the ABA's ``actual practice for some time was not to 
pay attention to the geographical or competitive comparability of 
salary levels in its evaluation,'' is necessarily contrary to the 
information that the Justice Department must have in its possession. 
If Sowle's testimony is contrary to documentary information 
possessed by the Division, the testimony is plainly false and as 
officers of the Court must be exposed as such.
    Additional pages from these two depositions are enclosed which 
show that when MSL attempted to impeach this testimony with contrary 
evidence from various schools, its efforts were blocked by the ABA. 
It is incumbent on the Government to clarify this matter since 
counsel for the ABA has yet to bring this false testimony to the 
Court's attention. Canon 7 of the Canons of Ethics and the relevant 
Disciplinary rules, specifically DR 7-102(B)(2), and District of 
Columbia Model Rule 3.3 require the Government's action at this 
time. I appreciate your efforts to improve American legal education 
and concomitantly the American justice system.

        Sincerely,
Michael L. Coyne
MLC:cm

cc:
    D. Bruce Pearson, Esq.

Darryl L. DePriest, General Counsel

Privileged and Confidential

April 27, 1995.
Dean James P. White,
Consultant on Legal Education, American Bar Association, 550 W. 
North St., Indianapolis, IN 46202
    Dear Jim: Reflecting upon our conversation yesterday, I though 
that it might be useful to you and the Accreditation Committee if I 
put in writing my recommendations concerning the Committee's meeting 
this weekend.
    As we discussed, there are a number of schools that are 
scheduled to appear on Friday and Saturday. I understand that some 
of the schools that are appearing are responding to concerns raised 
about faculty and staff compensation. In that respect, I propose 
that the Committee Chair make the 

[[Page 63831]]
following statement prior to hearing from the law school:
    As you may know, Standard 405(a) was amended by the House of 
Delegates in February. As a result, we will no longer be considering 
compensation as a part of the accreditation process. Therefore, you 
need not address that issue as part of your presentation as we will 
not be making any findings on that issue.
    Committee members should not, of course, ask questions 
concerning compensation during the appearance.
    In addition, findings implicating compensation should be deleted 
from any Action Letters that are forthcoming as a result of the 
meeting. I also suggest that we continue the practice of having the 
Action Letters reviewed by counsel prior to their issuance.
    Finally, I advise the Committee to be cautious about raising 
compensation issues in conjunction with Standards 201, 209 or 210, 
which deal with adequacy of resources. Also, the Committee should 
examine whether, given the amendment to Standard 405(a), it should 
discontinue its practice of examining library staff compensation 
under the library Standards.
    I hope this letter is helpful to you and the Accreditation 
Committee. As I may have mentioned, I am planning to be in 
Washington, D.C. this weekend attending the Diversity Summit 
sponsored by the Commission on Minorities. I will change those 
plans, however, if you feel it would be useful for me to attend all 
or part of the meeting in Indianapolis.

        Very truly yours,
Darryl L. DePriest
DLD:mc

cc:
    David T. Pritikin
    David R. Stewart
    Allison Breslauer
    Donna C. Willard-Jones

American Bar Association, Section of Legal Education and Admissions to 
the Bar, Office of the Consultant on Legal Education to the American 
Bar Association

Indiana University, 550 West North Street Suite 350, Indianapolis, 
Indiana 46202-3162, (317) 264-8340, FAX (317) 264-8355, ABA/net:ABA411

Transmitted Via Facsimile and U.S. Mail

April 28, 1995.
Darryl DePriest, Esq.,
American Bar Association, 750 North Lake Shore Drive, Chicago, IL 
60611
    Dear Darryl: I am responding to your letter of April 27, 1995. 
As you have requested, I have given a copy of your letter to the 
Chairperson and Vice-Chairperson of the Accreditation Committee. I 
will also include your letter with materials on this subject to be 
considered by the Council of the Section at its meeting on June 2-3, 
1995.
    In your letter you ``suggest that we continue the practice of 
having the action letters reviewed by counsel prior to their 
issuance,'' Ms. Schneider and Professor Sowle have asked me to 
convey to you that the Committee has not observed such a practice in 
the past. To the extent that you are prepared to recommend such a 
change of procedure, perhaps you should direct a communication on 
the subject to the Council for its consideration in June. The 
Committee has made a determination not to depart from its 
established procedures prior to receiving advice and direction from 
the Section Council on this matter.

        Sincerely,
James P. White,
Consultant on Legal Education to the American Bar Association.
cc:
    David T. Pritikin, Esq.
    David R. Stewart, Esq.
    Alison Breslauer, Esq.
    Donna C. Willard-Jones, Esq.

United States District Court for the Eastern District of Pennsylvania

    Massachusetts School of Law at Andover, Inc., Plaintiff, vs. 
American Bar Association, et al., Defendants. Civil Action No. 93-
CV-6206.

Volume I--Deposition of Dean James P. White, September 27, 1994, 9:30 
a.m.

    Reported by: James M. Trapskin, RPR, CM, Calif. CSR No. 8407.
    Joseph Albanese & Associates, Certified Shorthand Reporters, 218 
Main Street, Toms River, N.J. 08753, (908) 244-6100.

    By Mr. Hart.
    Q. I will ask you to turn to Page 43 of White Deposition Exhibit 
Number 1, the part in there that refers to ``Proposed Amendment of 
Standard 405 and Interpretations Thereto.''
    A. Yes.
    Q. And it refers to a proposed revision----
    A. Yes.
    Q----to 405? Could you tell us, sir, the, the reason for 
undertaking such a revision?
    A. This suggestion came from the Standards Review Committee 
that, looking at current practices of, and, and from the 
Accreditation Committee looking at current practices of the 
Accreditation Committee, the procedure that is followed is whether a 
law school has conditions adequate to attract and retain a competent 
faculty.
    And the suggestion was that the standard should be amended to 
conform with current practice.
    Q. Is it your testimony that the second sentence of Standard 
405(a) has not been literally applied on evaluations of law schools?
    Mr. Pritikin. Which sentence are you referring to?
    Mr. Hart. The one that says, quote, ``The compensation paid 
faculty members at a school seeking approval should be comparable 
with the paid faculty members at similar approved law schools in the 
same general geographical area.''
    By Mr. Hart.
    Q. Do you see that, sir?
    A. I see that. My view would be why information might be 
reported by a team. The Accreditation Committee, itself, is 
concerned, does not consider the, whether the compensation is 
comparable to that at similar approved schools in the same 
geographic area.
    Q. And that is a, quote, current practice----
    A. That is correct.
    Q. of the Accreditation Committee?
    A. Yes.
    Q. How long has that been the practice of the Accreditation 
Committee?
    Mr. Pritikin. Again, we've allowed you some latitude here, but I 
don't see what relevance this has to this lawsuit, and I'm going to 
instruct him not to answer.

United States District Court for the Eastern District of Pennsylvania

    Massachusetts School of Law at Andover, Inc., Plaintiff, vs. 
American Bar Association, et al., Defendants. Civil Action No. 93-
CV-6206.

Volume II--Deposition of Dean James P. White, September 28, 1994, 9:00 
a.m.

    Reported By: James M. Trapskin, RPR, CM, Calif. CSR No. 8407.
    Joseph Albanese & Associates, Certified Shorthand Reporters, 218 
Main Street, Toms River, N.J. 08753, (908) 244-6100.
    Mr. Hart. I would ask the reporter to mark as White Deposition 
Exhibit Number 37, a July 26th, 1984 document from James P. White to 
Dr. William Birenbaum, president of Antioch University and Dean 
Issac Hunt of Antioch School of Law.
    (Whereupon, White Deposition Exhibit 37 was marked for 
identification.)
    By Mr. Hart.
    Q. Are you familiar with that action letter that you sent to Dr. 
Birenbaum and Dean Hunt?
    Mr. Pritikin. I note, Mr. Hart, that this document does not bear 
production numbers.
    Do you know where it came from?
    Mr. Hart. I recall we had a conversation along these lines in 
another deposition, and you wrote me a letter that you didn't have 
to disclose such things, Mr. Pritikin.
    Mr. Pritikin. We produced documents to you that were used in 
deposition in advance of using them.
    Mr. Hart. Yes.
    Mr. Pritikin. Has this document previously been produced by the 
Massachusetts School of Law in this litigation?
    Mr. Hart. Well, I, I don't know. You can look it up.
    Mr. Pritikin. It is highly improper for you to use documents in 
a deposition that have not been produced. I object strenuously to 
that practice.
    By Mr. Hart.
    Q. Well, can you identify this?
    Mr. Pritikin. Do you have other documents that you're going to 
use this morning that have not been produced in the litigation?
    Mr. Hart. I do not know, Mr. Pritikin. I have not sat down and 
gone through all these exhibits. And as I understand, you know, 40 
or 50,000 documents produced, and I have not checked them, no I have 
not.
    Mr. Pritikin. Well, the documents, my understanding is the 
documents that have been produced by the school have Bates numbers 
on them.
    Mr. Hart. Well, a, a good number of the documents I used today 
don't have Bates numbers on them.
    Let's get on with the deposition, Mr. Pritikin. If you have some 
quarrel with, to 

[[Page 63832]]
find with the production of documents by the Massachusetts School of 
Law, we can take that up at an appropriate time.
    Mr. Pritikin. No, I have a problem with your pulling out 
documents that haven't been produced; I do have a problem with that.
    Mr. Hart. All right, well, let's proceed.
    Mr. Pritikin. If you want the witness to identify the document, 
he can do that. But if you're going to ask substantive questions on 
a document that has not previously been produced----
    Mr. Hart. I know of no such rule in litigation.
    Mr. Pritikin. What's the pending question?
    (Whereupon, the record was read by the court reporter.)
    Mr. Pritikin. Can you answer that question?
    The Witness. This appears to be an action letter went by me to, 
in 1984 to the president and dean of Antioch University and its 
School of Law.
    By Mr. Hart.
    Q. And it sets forth, does it not, conclusions by the 
Accreditation Committee with respect to the Antioch School of Law?
    Mr. Pritikin. I'm going to instruct the witness not to answer 
any further questions about the document.
    It does not pertain to the Massachusetts School of Law. 
Apparently it pertains to Antioch University. It says--I don't know 
where you got the document, it says ``Strictly Confidential'' on it, 
and the witness is not going to answer questions about this.
    Mr. Hart. Let, will you please cite me some provision of the 
Federal Rules or some order or whatever that forecloses me to ask 
this witness questions about some document.
    Mr. Pritikin. Judge Ditter has already ruled that matters 
pertaining to other law schools are not relevant to these 
proceedings. This has nothing to do with this case.
    Mr. Hart. Well, this witness has already testified that the act, 
the actions and practices by the Accreditation Committee with 
respect to salaries are, are not in accordance with the literal 
letters of the second sentence of 405(a) of the Standards and they 
have followed a different practice over the years. And I need, bases 
that as far as a decision with respect to the Massachusetts School 
of Law, and think I'm entitled to get into what, in fact, the 
practice of the American Bar Association's Accreditation Committee 
has been with respect to faculty salaries.
    There's an old legal saying that you can't have your cake and 
eat it too.
    Mr. Pritikin. We disagree. In fact, any salaries are not part of 
this case. The Antioch University School of Law is not part of the 
case. This is not going to----
    Mr. Hart. We've made allegations in this case about a 
conspiracy. We've alleged a conspiracy relating to salaries, and I 
think that I'm entitled to get into that. I don't know of any rule 
that forecloses me from getting facts from this witness.
    And this document is chockablock full of references to the 
salary levels of the Antioch School of, of Law and how low they are, 
and is a basis for the decisions that are made with respect to that 
school.
    Mr. Pritikin. The witness----
    Mr. Hart. It's totally inconsistent with this witness's 
testimony and Claude Sowle's testimony with respect to the practice 
of the Council with respect to faculty salaries.
    Mr. Pritikin. Well, my instruction stands. You might as well 
move on.
    By Mr. Hart.
    Q. If I had asked 15 other questions with respect to this 
document, Dean White, would you have refused to answer those?
    A. I would.
    Q. If I had asked 25 questions with respect to this document, 
would you have refused to answer those questions?
    Mr. Pritikin. Based on the description of relevance that you 
have given us, the instruction will be the same, and I'll stipulate 
to that.
    The Witness. Yes.
    By Mr. Hart.
    Q. And if I had 15 other action letters with respect to 15 other 
schools that contained information with respect to the practice of 
the Council with respect to, under 405(a) concerning salaries, you 
would have refused to answer those questions too.
    A. Based upon----
    Mr. Pritikin. I would give him that instruction, and I assume he 
would follow it.
    The Witness. Based upon relevance to this case, I would not 
answer the questions.
    Mr. Hart. Well, I guess we won't use these, Mike, today.
    I have no further questions at this time.
    Mr. Pritikin. I, why don't we take a----
    Mr. Hart. Could I just say one other thing?
    Mr. Pritikin. Sure.
    Ms. Paxton. On the record?
    Mr. Pritikin. On the record?
    Mr. Hart. Yes.
    Mr. Pritikin. Sure, absolutely.
    Mr. Hart. We are going to pursue, and with bulldog tenacity, our 
efforts to obtain from the American Bar Association action reports 
relating to other schools, and we would be hopeful to obtain those. 
And we would also obtain discovery of documents relating to faculty 
salaries.
    And to the extent that that might be helpful in my examination 
of this witness or with Mr. Sowle concerning their testimony on what 
the practice of the Accreditation Committee and the Council was 
under, in applying 405(a), I surely would want to continue that with 
Dean White and other witnesses.
    Mr. Pritikin. Well, that doesn't surprise me, since you file 
another motion to reconsider that point every three or four weeks 
with some regularity.
    Mr. Hart. Never give up.
    Mr. Pritikin. Our positions have been made clear on that point 
and it will be for the Court to resolve.
    Let's go off the record.
    Mr. Cullen. Off the video record at 11:49:23.
    (Whereupon, the noon recess was taken.)

Afternoon Session, 1:00 p.m.

    Mr. Cullen. Back on the video record at 13:22:45.
    Mr. Hart. I'd like to try to respond to an inquiry that Mr. 
Pritikin went to, asked with respect to White Deposition Exhibit 
Number 37 which I tried to use to question Dean White with before 
the break, break for lunch. And I was unable to ascertain whether or 
not we had produced that document in discovery because the people 
who would handle that were not available.
    I also was unable to check on whether or not it was responsive, 
the document was responsive to any Discovery Requests. However, I'd 
be very surprised if it was because it relates to, ``A,'' another 
law school, and ``B,'' to salaries and I didn't think the ABA was 
interested in such documents.
    And furthermore, I would guess the Judge's Order with respect to 
discovery relating to other law schools and also salaries suggests 
that that was not the proper subject of discovery. However, in view 
of the witness's testimony about the practice under 405(a) and Mr. 
Sowel's testimony in the same regard, I do think, it is relevant for 
cross-examination of those purposes. That's all I can say about the 
document at this time, Mr. Pritikin.

United States District Court for the Eastern District of Pennsylvania

    Massachusetts School of Law at Andover, Inc., Plaintiff, vs. 
American Bar Association, et al., Defendants. Civil Action No. 93-
CV-6202.

Deposition Under Oral Examination of Claude R. Sowle, Volume II

    Transcript of the deposition of Claude R. Sowle, called for Oral 
Examination in the above-captioned matter, said deposition being 
taken pursuant to the Federal Rules of Civil Procedure, by and 
before Suzanne Boulos, a Certified Shorthand Reporter and Notary 
Public, at the offices of Spencer & Klein, 801 Brickell Avenue, 
Suite 1901, Miami, Florida, on Wednesday, September 15, 1994, 
commencing at 10:00 o'clock a.m.
    Joseph Albanese & Associates, Certified Shorthand Reporters, 218 
Main Street, Toms River, New Jersey 08753, Telephone (908) 244-6100.
    Mr. Stewart. Object to form.
    A. Did I personally?
    Q. That's the question, yes.
    A. That thought never entered my mind.
    Q. Prior to this time did the American Bar Association seek 
legal advice on whether Standard 405A might present problems under 
the antitrust laws?
    A. I don't know the answer to that.
    Q. Prior to this time had the American Bar Association sought 
legal advice as to whether the gathering and distribution of salary 
levels among law schools might present problems under the antitrust 
laws?
    A. If that occurred, I'm not aware of it.
    Q. Referring to some of the testimony you gave yesterday, 
Professor Sowle, you testified as I recall that in preparing the 
action letter on the Massachusetts School of Law application for 
accreditation you did not apply the letter of 405A with respect to 
the requirement that, quote, the compensation paid faculty members 
at a school seeking approval should be comparable with that paid 
faculty members at similar approved schools in the same general 
geographical area, end quote. The reason you gave for not so 
applying the letter 405A was that the American Bar Association's 
actual practice for sometime was not to pay attention to the 
geographical or competitive comparability of salary levels in its 
evaluations; is that correct?

[[Page 63833]]

    A. That's correct.
    Mr. Stewart. Object as to form. Object. Asked and answered.
    By Mr. Hart.
    Q. In the numerous evaluations in which you have been involved, 
was it the practice not to pay attention to the geographical or 
competitive comparability of the salary levels in the law schools 
being evaluated?
    Mr. Stewart. Object as to form.
    By Mr. Hart.
    Q. You may answer.
    A. You are speaking now of my role as a site evaluator, not as a 
member of the Accreditation Committee?
    Q. Of both.
    A. I'll bifurcate my answer. With respect to site evaluations in 
which I have participated, my general recollection is and it's 
certainly a correct recollection in recent years. My recollection 
going back 10 years is not as good. But certainly my recollection is 
that I would pay attention as a site evaluator to the peer schools 
selected by the school being evaluated in terms of comparing or 
looking, at least, salaries, etc., and often would include in the 
report relevant data in that respect. Similarly I would as a member 
of the Accreditation Committee or as a monitor pay attention to the 
data provided in the site evaluation report regarding how the school 
took up as against those schools that it considers its peers in 
various areas, library expenditure, salary, etc. and I think much of 
that would appear in the transcript from yesterday.
    Q. And when you, acting as a site evaluator, put together the 
information with respect to competitive or geographical comparable 
school salary levels, you did that, did you not, because you thought 
that was relevant and required by 405A?
    Mr. Stewart. Object as to form.
    A. Did I hear the word geographical in your question?
    Q. Yes, you did.
    A. Could I hear the question again, then, please.
    Q. Surely.
    (Whereupon, the following question is read back by the 
reporter):
    ``Question. And when you, acting as a site evaluator, put 
together the information with respect to competitive or geographical 
comparable school salary levels, you did that, did you not, because 
you thought that was relevant and required by 405A?''
    Mr. Stewart. Objection as to form. This does not go to the issue 
of whether 405A served as a basis for the denial of Massachusetts 
School of Law application for provisional approval, so I'll instruct 
you not to answer on grounds of relevance.
    The Witness. What is my--I need advice.
    Mr. Hart. You are not going to get it from me.
    The Witness. I understand not answering on the grounds of 
privilege but I don't understand what my status is with respect to--
--
    Mr. Hart. Would you like to take a brief recess to discuss this 
with your attorney so you are not influenced by my views?
    Let's take a five minute recess.
    (Whereupon, there is a brief recess.)
    (The deposition resumes and the following question is read back 
by the reporter:
    ``Question. And when you, acting as a site evaluator, put 
together the information with respect to competitive or geographical 
comparable school salary levels, you did that, did you not, because 
you thought that was relevant and required by 405A?''
    A. With respect to the question just repeated, on the advice of 
counsel, I respectfully decline to respond on grounds of relevancy.
    Q. When you were involved in the evaluation of the Thomas M. 
Cooley Law School in 1984 did you gather together and set forth a 
comparative salary data for the faculty at Cooley Law School?
    A. When you say I, do you mean I personally?
    Q. Or when you were on the team. You were on that team, weren't 
you?
    A. Correct.
    Mr. Stewart. I'll repeat my instruction.
    A. I'm going to be disobedient for a moment and say I don't have 
the faintest recollection for the moment what that report contained 
with respect to salary information comparative or otherwise. That 
was 10 years ago and 16 sabbatical site evaluations ago and I simply 
would have to look at the report to be able to answer that.
    Q. And you if looked at the report, do you think that would 
refresh your recollection?
    A. I'm sure it would. President Brennan has provided you with a 
copy of the report.
    Q. I have a copy of report on Thomas M. Cooley Law School 
November 7, 1984 in which you were listed on its face as one of the 
evaluators and I would ask you, sir, to turn to Page 23.
    Mr. Stewart. Are you going to mark this as an exhibit, Ken?
    Mr. Hart. I hadn't planned to.
    Mr. Stewart. How come? I'm just curious.
    Mr. Hart. Mainly I was trying to be merciful, if you will, about 
reproduction costs and burdening the record unnecessarily. I'm just 
using this for purpose of refreshing his recollection and see if it 
can refresh his recollection, which I don't think there's any 
requirement that I mark it as an exhibit or put it on the flagpole 
or do anything.
    Mr. Stewart. If you are showing it to the witness and 
questioning him, it's appropriate to mark it as an exhibit but you 
proceed as you think appropriate.
    Mr. Stewart. I will point out that it is marked as Deposition 
Exhibit Number 12 in the Brennan deposition of July 16, 1994.
    By Mr. Hart.
    Q. I will ask you, sir , to look at that and see if that 
refreshes your recollection whether the site report on Cooley Law 
School in 1984 sets forth comparative salary data?
    A. Page 23 of the report does compile comparative information on 
what I assume are the approved law schools located in the State of 
Michigan.
    Q. With respect to salaries?
    A. That's correct.
    Q. And as a member of the team at that time you consider that to 
be a relevant fact on the evaluation of the Cooley Law School?
    Mr. Stewart. I object as to relevance and further, as we have 
with other witnesses, instruct Professor Sowle not to in your 
answers divulge any of the substantive issue concerning specific 
schools and the ABA consideration of their accreditation status. 
Furthermore, this goes beyond the bounds of the principles laid down 
in the Court's July 20 order and I'll instruct you not to answer to 
those grounds.
    By Mr. Hart.
    Q. Sir, are you going to answer the question?
    A. On the advice of Counsel, I respectfully decline to answer on 
grounds of relevance.
    Q. I will ask you to turn to Page 39 of the site report on 
Cooley Law School in 1984 and ask you if it does not refer to the 
library staff salaries being competitive with the regional norms?
    Mr. Stewart. I object as lack of foundation. I'll object as to 
form and I'll object--I don't see how this leads to the potential 
discovery of admissible evidence as far as him saying what a 
document says or doesn't say.
    By Mr. Hart.
    Q. You may answer.
    A. Yes, the report states with salaries of the junior librarian 
of professional staff range from $18,000 to $29,000. Cooley 
librarian compensation appears to be competitive with regional and 
law library norms.
    Q. And at the time you as a member of the site inspection team 
for the American Bar Association understood that to be relevant 
facts to meeting the American Bar Association Standards?
    Mr. Stewart. I object. I instruct you not to answer on the 
grounds stated earlier.
    A. I respectfully decline on advice of Counsel to respond on 
grounds of relevance.
    Q. When you were involved in the inspection team for the 
American Bar Association on Oral Roberts back in 1986 did you make 
any findings with respect to competitive or comparable salaries of 
the faculty at Oral Roberts compared to other law schools in the 
area?
    Mr. Stewart. I'll object as to form and instruct you not to 
answer on the two grounds previously described relating to 
relevance, both in terms of outside the bounds the Court's July 20 
order and relevance and confidentiality concerns regarding the 
substantive issues on relating to specific identified schools other 
than Massachusetts School of Law in their accreditation.
    A. On the advice of Counsel, I respectfully decline to answer 
for the reasons stated just now by Counsel.
    Q. Which you incorporate in your refusal?
    A. Incorporate by reference.
    Q. Same question with respect to Loyola Law School.
    Mr. Stewart. Same instruction.
    A. Same answer.
    Q. Same question with respect to Seton Hall Evaluation 1987, 
which you were the Chair.
    Mr. Stewart. Same instruction.
    A. Same response.
    Q. Same question with respect to the College of Law at Christian 
Broadcasting Network School 1987.
    Mr. Stewart. Same instruction.
    A. And same response.
    Q. Same question with respect to the School of Law at the 
InterAmerican University, San Juan in 1988 in which you were the 
Chair.

[[Page 63834]]

    Mr. Stewart. Same instruction.
    A. Same response.
    Mr. Stewart. We have attained a certain level of efficiency 
here.
    Q. Same question with respect to Paul M. Hebert Law Center, 
Louisiana State University 1988 in which you were the Chair.
    Mr. Stewart. Same instruction.
    A. Same answer.
    Q. Same question with respect to the University of Puerto Rico 
Law School 1988 in which you were the Chair.
    Mr. Stewart. Same instruction.
    A. Same answer.
    Q. Same question with respect to the Boston University School of 
Law, my alma mater, in which you were the Chair in 1988
    Mr. Stewart. With all due respect to your alma mater, same 
instruction.
    A. With great respect, same response.
    Q. Same question with respect to the University of Hawaii in 
1989.
    Mr. Stewart. Same instruction.
    A. Same response.
    Q. Same question with respect to the University of Virginia Law 
School in 1989 in which you were the Chair.
    Mr. Stewart. Same instruction.
    A. And same response.
    Q. Same question with respect to Saint John's Law School in 1990 
in which you were the Chair.
    Mr. Stewart. Same instruction.
    A. Same response.
    Q. Same question with respect to the Cleveland-Marshall College 
of Law in 1992.
    Mr. Stewart. Same instruction.
    A. Same response.
    Q. Same question with respect to Southern California Law Center 
1993 which you were the Chair.
    Mr. Stewart. Same instruction.
    A. Same response.
    Q. Same question with respect to the School of Law at Regent 
University formerly the Christian Broadcasting Network University in 
1993 in which you were the Chair.
    Mr. Stewart. Same instruction.
    A. Same response.
    Q. Same question with respect to Stanford Law School in 1994 in 
which you were the Chair.
    Mr. Stewart. Same instruction.
    A. Same response.
    Q. And same question with respect to George Washington Law 
School 1994 in which you were the Chair.
    Mr. Stewart. Same instruction.
    A. And same response.
    Q. I will direct your attention now to when you were a member of 
the Accreditation Committee of the American Bar Association section 
on legal education reviewing the District of Columbia School of 
Law's evaluation. In that evaluation did you take into account 
comparable or competitive salary levels of the fact of that school 
as compared with salary levels at other comparable institutions?
    Mr. Stewart. I'll object as to form and I'll instruct the 
witness not to answer the question on the grounds that it is outside 
the discovery specifically identified as being appropriate in its 
July 20th order and furthermore instruct you not to answer on 
relevance and confidentiality grounds because it goes into the 
substantive issues that were involved in the accreditation of 
schools other than Massachusetts School of Law specifically 
identically identified school?
    A. On the advice of Counsel, I respectfully decline to answer 
the question for the reasons stated by Counsel which I hereby 
incorporate in this nonresponse.
    Q. Same question with respect to the Bridgeport School of Law at 
Quinnipiac College.
    Mr. Stewart. Same instruction.
    A. Same response.
    Q. Same question with respect to Texas Wesleyan 1994.
    Mr. Stewart. Same instruction.
    A. And same response.
    Mr. Hart. I will ask the reporter to mark as Sowle Deposition 
Exhibit Number 8 a 9-page document on the stationery of the American 
Bar Association from James P. White to the Very Reverend Donald J. 
Harrington, president of St. John's University and acting dean 
Edward T. Fagan of St. John's University with copies shown to Claude 
R. Sowle and others marked 8.
    (Sowle Deposition Exhibit 8 marked for identification by the 
reporter.)
    Mr. Stewart. Ken, is this a Bate Stamp from this litigation or 
from some other proceeding?
    Mr. Hart. I don't think I have to tell you those things.
    Mr. Stewart. Just asking.
    Mr. Hart. I asked your good colleague Mr. Pritikin similar 
information and he told me in effect that he did not have to 
disclose where he got documents or what marks were on them.
    Mr. Stewart. I was asking one of the Bate stamp or whether it's 
indicate it's been produced in this litigation. I certainly respect 
your decision not to respond.
    By Mr. Hart.
    Q. I will ask you, sir, if you can identify that document as a 
copy of a so-called action letter sent on or about November 5, 1990 
to Saint John's Law school as a result of American Bar Association 
proceedings in which you had been involved earlier as chairman of 
the site evaluation?
    Mr. Stewart. Objection to form.
    A. I did chair the Saint John's site evaluation in that 
capacity. I did receive a copy of the action letter as shown on Page 
9 of the letter and nothing would cause me to believe that this is 
anything other than the official action letter that was sent.
142-24 61st Road, Flushing, NY 13367-1202, (718) 461-1209, July 6, 
1995
U.S. Dep't of Justice, Antitrust Division, 555 Fourth Street, N.W., 
Room 9901, Washington, D.C. 20001, (202) 307-0809, (202) 616-5980 
(FAX)
David T. Pritikin, Esq., Sidley & Austin, One First National Plaza, 
Chicago, IL 60603, (312) 853-7036 (FAX)
Hon. Charles R. Richey, U.S. Dist. Ct. for the District of Columbia, 
U.S. Court house, 333 Constitution Avenue, N.W., Washington, D.C. 
20001

15 USC 16 Comment, U.S. v. ABA, 95 CV 1211 (D.D.C.) (CRR)

    The Proposed Final Judgement will allow the state judges/
justices, conspirators \1\ with the ABA,\2\ to continue to violate 
federal law. The highest court of each state regulates \3\ legal 
education and admission to the bar.\4\ New York's Court of Appeals 
is illustrative.

    \1\ Rohan v. ABA, -F.Supp.-, 93 CV 1338, 1995 WL 347035 
(E.D.N.Y.)). Rejects argument of former law school Dean that ABA 
accreditors are state agents for purpose of stating 42 USC Sec. 1983 
cause of action.
    \2\ ``5. Various others, not named as defendants, have 
participated as conspirators with the ABA in the violations alleged 
in this Complaint, and have performed acts and made statements to 
further the conspiracy.'' Complaint 95 CV 1211 (DDC).
    \3\ See Proposed Final Judgement at p.6, lines 6-7, & 10 ``(g) 
require that each site evaluation team include, to the extent 
reasonably feasible, at least: (2).* * *judge (state or federal, 
active or retired)* * *''
    \4\ See paragraph 7, Complaint 95 CV 1211 (DDC).
---------------------------------------------------------------------------

    Hon. Joseph W. Bellacosa \5\ and his colleagues discharge their 
responsibilities imposed by the Legislature pursuant to N.Y. Jud. 
Law Secs. 53, 56, 460; See Matter of Shiakh v. Appellate Div., 1976, 
39 N.Y.2d 676, 385 N.Y.S.2d 514, 350 N.E.2d 902 (1976); Matter of 
Cooper, 22 N.Y. 67 (1860); Court of Appeals Rules Part 520.

     \5\ ``Let me [Joseph W. Bellacosa] express my personal view 
that the Section's Accreditation decisions and process are and have 
been supportable, honorable, forthright, and upright.'' Initial 
Report of the Chairperson of the ABA Section on Legal Education and 
Admissions to the Bar at p. 6, lines 13-15 (Aug. 30, 1994). Page 1 
Court of Appeals Stationary is marked ``Personal and Unofficial.''
---------------------------------------------------------------------------

    The Dep't of Justice and 95 CV 1211 have not addressed the state 
prerogative, if any, to violate the antitrust laws. Despite Hoover 
v. Ronwin, 466 U.S. 558 (1984) and the antitrust immunity test set 
forth in California Retail Liquor Dealers Ass'n v. Midcal Aluminum, 
Inc., 445 U.S. 97 (1980), it is unclear whether the NY Court of 
Appeals has antitrust immunity. The quality of a law school's 
educational program and the provision of consumer information are 
not antitrust concerns.
    The Court's Rules defined ``Approved Law School'' in Rule 
520.3(b):
    (b) Approved Law School Defined. An approved law school for 
purposes of these rules is one:
    (1) whose program and course of study meets the requirements of 
this section, as shown by the law school's bulletin or catalogue, 
which shall be filed annually with the Court of Appeals; and
    (2) which is approved by the American Bar Association; or
    (3) which is a member of the American Association of Law Schools 
\6\;

    \6\ ``. . . [o]f the 1976 ABA-approved J.D. granting law 
schools. 159 are AALS members.* * *The AALS is recognized as one of 
the two national accrediting agencies for law by the Council on 
Postsecondary Accreditation the other is the Section of Legal 
Education and Admission to the Bar of the American Bar 
Association.'' at p.1, 1994 Handbook of Ass'n of American Law 
Schools.
---------------------------------------------------------------------------

    (4) which is registered and approved by the NY State Department 
of Education.
    The Court of Appeals own rules the Court of Appeals sets forth 
an explicit policy 

[[Page 63835]]
articulating a clear intent to displace unfettered competition with 
regulated market activity. The Court, its members and agents (The 
Board of Law Examiners) are actively involved in the operative 
anticompetitive decisions in restraint of trade. The history of the 
City University of New York (CUNY) School of Law at Queens College 
shows that if CUNY was not accredited by the ABA, despite Rule 
520.3(b)(4), it would cease to exist.\7\

    \7\ See Paragraph 7, Complaint 95 CV 1211 (DDC).
---------------------------------------------------------------------------

    The ABA coerces Law School Deans, state actors, into violating 
state law.
    Dean Haywood Burns based his refusal to supply Leeds with the 
requested documents upon an American Bar Association Report on ``The 
City University of New York Law School at Queens College'' regarding 
the February 10-13, 1991 visit made by a Committee of the Section of 
Legal Education. The foreward [sic] to the report stated:
    `Important:' This report was prepared by the members of the 
visitation team named therein * * * It is intended for the exclusive 
use and information of those persons authorized by the Council to 
receive it. Any copying or distribution of a part or whole of this 
report is subject to this restriction.
    What Dean Burns failed to note was that the American Bar 
Association is a private organization, and he works for a public 
agency, bound by all states law that affect public agencies in New 
York State. Leeds v. Burns, Index No. 1201/92, N.Y. State Sup. Ct. 
Queens Cty. Posner J., 208 NYLJ No. 18, p. 1, (col. 1), cont. p. 27, 
(col. 5) (Mon. July 27, 1992).
    The ABA and AALS subvert state laws (e.g. N.Y. Pub. Off. Law 
Sec. 84 et seq.) giving citizens access to government records.
    As you may know, ABA Rule 36 on confidentiality of site 
visitation reports currently permits broader release of those 
reports than AALS Executive Committee Regulation 5.6. There are also 
a number of states which have public records laws that could 
conceivably be applied to site visitation reports. Carl C. Monk AALS 
Exec. VP & Exec. Dir., Memorandum 93-9 to Deans of Member and Fee-
Paid Schools; Subject: Attached Survey on Confidentiality of Site 
Visitation Reports; Feb. 9, 1993.
    The ABA's accrediting activities have not focussed on assuring 
the quality of the educational program and providing consumers with 
information regarding the quality of the educational program.
    The ABA did not find jurisdiction pursuant to ABA Rule 34 
regarding CUNY Law School's failure to comply with the Family 
Education Rights and Privacy Act (20 USC Sec. 1232g; ``FERPA''). The 
federal court (42 USC Sec. 1983 & 20 USC Sec. 1232g) shall hear (94 
CV 2367 (EDNY)) and decide.
    As we discussed in our phone conversation last week, the federal 
financial aid program regulations require that an institution 
publish its academic standards used in determining satisfactory 
progress towards a degree. Most colleges, including CUNY campuses, 
meet this requirement by publishing their requirements in the 
college catalog. Martha Martin Program Compliance Officer to Dave 
Fields \8\ Associate Dean, April 6, 1993. Exhibit One attached 
hereto and incorporated herein.

    \8\ Fields is also Special Counsel to CUNY Chancellor W. Ann 
Reynolds and Records Access Officer for the CUNY Law School and the 
Central Administration located at 535 East 80th Street, NY, NY 
10021. Martin refers to him as Associate Dean, but his full title is 
Associate Dean for Administration and Finance.
---------------------------------------------------------------------------

    Despite numerous ABA Site Visits CUNY Law School's Catalog \9\ 
continuously fails to provide required information to students and 
prospective students.

    \9\ The Catalog which contains the application for admission 
does not refer to the Student Handbook. Applicants requesting 
information are sent the Catalog and application and not the Student 
Handbook.
---------------------------------------------------------------------------

    CYNY Law School admits students with low ``traditional 
indicators'' (undergraduate cum GPA & LSAT) based upon impermissible 
criteria. See Davis  v. Halpern, 768 F. Supp. 968 (EDNY 1991 Glasser 
J.). CUNY's active recruitment of these students and its failure to 
discharge its obligations, act in good faith,\10\ and help CUNY 
students pass the NY Bar Examination (ABA S301) constitutes the 
inculcation of false hopes and economic exploitation (ABA S304). 
Repeated ABA Site Visits have not influenced CUNY's deceptive 
practices. Potential remedies are provided for by N.Y. Gen. Bus. Law 
Sec. 349 and RICO. See Rosario v. Livaditis, 963 F.2d 1013 (7th 
Cir., 1992).

    \10\ See Branum v. Clark, 927 F.2d 68 (2d Cir. 1991).
---------------------------------------------------------------------------

    Despite ABA S305(c) the law school has not adopted and enforced 
policies relating to class attendance. Chairman of the Black and 
Puerto Rican Caucus, NY State Assemblyman Larry B. Seabrook \11\ (D-
Bronx), concurrently served as an Assemblyman and attended CUNY Law 
School. The ABA has received a complaint pursuant to ABA Rule 34 and 
Standard \12\ 305 & 305(c).

    \11\ Listed in the ``unofficial list'' May 27, 1993 CUNY Law 
School Commencement Program.
    \12\ 305(c) A full-time student, to satisfy residence study 
requirements, shall devote substantially all working hours to the 
study of law and shall not engage in remunerative employment for 
more than 20 hours per week, whether outside or inside the law 
school. Regular and punctual class attendance is necessary to 
satisfy residence and class hour requirements. The law school has 
the burden to show it has adopted and enforces policies relating to 
class attendance.'' Standards for Approval of Law Schools and 
Interpretations, October 1994.
---------------------------------------------------------------------------

    This Comment has been promulgated without my having had the 
opportunity to journey to the Washington, DC or otherwise obtain 
copies of the material \13\ available to the public \14\ in 
Washington, DC pursuant to 15 USC Sec. 16(b). I request that the 
court make said materials available in the EDNY (225 Cadman Plaza 
East, Brooklyn, NY 11201) and/or SDNY (500 Pearl Street, NY, NY).

    \13\ 15 USC Sec. 16(b) . . . Copies of such proposal and any 
other materials and documents which the United States considered 
determinative in formulating such proposal, shall also be made 
available to the public at the district court and in such other 
districts as the court may subsequently direct . . .
    \14\ CUNY Law School students and alumni may be particularly 
interested in any records pertaining to their school.
---------------------------------------------------------------------------

    The Complaint in 95 CV 1211 (DDC) publicly slaps the ABA on the 
wrist and does not assert federal power to its full and proper 
extent. State Judges may agree themselves \15\ or through their 
``state'' agents (e.g. state board of law examiners) as they have 
previously agreed through the ABA.\16\

    \15\ See U.S. Const. Art. I, Sec. 10 ``[n]o State shall without 
the Consent of Congress, . . . enter into any Agreement or Compact 
with another state . . .''
    \16\ The ABA Accreditation Committee includes at least one 
federal judge and one state judge of a state's highest court.
---------------------------------------------------------------------------

Conclusion

    The proposed Final Judgment in 95 CV 1211 (DDC) should be 
rejected.

        Respectfully submitted,
Jackson Leeds,
142-24 61st Road, Flushing, NY 11367-1202, (718) 461-1209.

July 6, 1995, Flushing, Queens NY

Attachments:
    (1) Exhibit 1 (1 page)
    Memorandum From Martha Martin Program Compliance Officer
    Re: Academic Standards, April 6, 1993.

Exhibit One

The City University of New York, Office of Student Financial Assistance

101 West 31st Street, 7th Floor, New York, N.Y. 10001-3503, (212) 947-
6000. Ext.

April 6, 1993.
To: Dave Fields, Associate Dean
From: Martha Martin, Program Compliance Officer
Subject: Academic Standards

    As we discussed in our phone conversation last week, the federal 
financial aid program regulations require that an institution 
publish it's academic standards used in determining satisfactory 
progress towards a degree. Most colleges, including CUNY campuses, 
meet this requirement by publishing their requirements in the 
college catalog. Enclosed is a copy of the satisfactory progress 
section from the Encyclopedia of Student Financial Aid complied by 
the National Association of Student Financial Aid Administrators and 
copies of the following federal regulations:
    34 CFR 668.43(c)(2)(i) and (ii) indicate that standards must be 
included in consumer information available to all enrolled students 
and to prospective students upon request;
    34 CFR 668.14(e) indicates that establishing, publishing and 
applying academic standards is part of the criteria used by the 
Department of Education to demonstrate an institution's 
administrative capability;
    34 CFR 668.23(f)(1)(iii) indicates that student recipients' 
records used to determine satisfactory progress are subject to 
audit.
    In addition, New York State regulations require that students be 
in good academic standing to receive state funds, including TAP. I 
am enclosing the applicable sections of policy and procedures 
published by this office.
    If you need any further information, please let me know.


[[Page 63836]]

cc: George Chin

Robert A. Reilly

P.O. Box 309, Phoenix, AZ 85003-0309

July 4, 1995.
Mr. Joel Klein,
Deputy Assistant Attorney General, U.S. Department of Justice, 
Washington, DC.

Re: U.S. Justice Department/American Bar Association

    Dear Mr. Klein: I wish to make a few comments on the Justice 
Department's proposed settlement with the American Bar Association 
(ABA) regarding the accreditation standards of the nation's law 
schools.
    Although many of the recommendations are excellent and long 
overdue the tentative agreement, as reported in The Wall Street 
Journal on June 28, 1995, did not go far enough.
    State Supreme Courts and State Legislatures should not be 
permitted to deny an attorney with good moral character who passed a 
bar exam in another state from taking its bar exam, a situation that 
currently exists in 42 or 43 states.
    This ABA accrediting rule requirement is Jim Crowism at its 
worst, a throwback to a time when the ABA was a racist professional 
organization. A person who passes the bar exam in a state is a 
licensed attorney and should be allowed the opportunity to take the 
bar exam in other states unless there is a compelling reason backed 
by sufficient evidence that the applicant is unfit to practice law. 
Law schools, whether they are accredited by the ABA or not, have 
basically the same curriculum. Furthermore, the practice of law is 
learned on the job, particularly since most collegiate law programs 
decry the ``trade school'' approach.
    Second, the main reason Arizona and other states with a similar 
rule prohibit non-ABA graduates from taking its bar exam is to limit 
competition. It's that simple.
    In addition, denying bar certified attorneys from taking the bar 
exam in another state may be an impeachable offense by the public 
body that enforces the rule.
    Public entities such as the various State Supreme Courts and 
State Legislatures are required to act in the public's interest. By 
limiting competition, denying qualified individuals from earning a 
living, by unjustly preventing individuals from practicing their 
profession in a place they want to live, simply defies the 
principles of freedom and justice our public officials are bound by 
office to uphold.
    Frankly, the State Supreme Courts and State Legislators do not 
understand what accreditation is all about and what it is suppose to 
accomplish. If you don't believe this have some members of your 
staff check around. I did. The responses were ludicrous. 
Accreditation is not a Good Housekeeping Seal of Approval. It 
shouldn't imply non-accredited schools are diploma mills. 
Accreditation isn't mandatory, it's voluntary, a self-evaluation 
process that's been distorted by those in authority to suit their 
own vested interests.
    Now is the appropriate time to bring this issue before the 
American people because the current status have far-reaching 
ramifications that are too many to include in this letter.
    The burden of proof is on the State Supreme Courts and the State 
Legislatures to justify the current policy. I can furnish plenty of 
information showing the policy is a sham.
    Enclosed are three news articles I've written on this issue. I'm 
not an attorney; I'm writing a book that includes the law school 
accrediting issue. I would be delighted to debate this issue in a 
public forum with anyone with the courage to do so.
    Please let me know if you need additional information. I'm 
looking forward to your response.

        Sincerely,
Robert Reilly,
(602) 252-5352.

    Exhibit 38, Robert Reilly's letter, included three news 
articles. They cannot be published in the Federal Register. A copy 
of these articles can be obtained from our Legal Procedures Office.

Hawaii Institute for Biosocial Research

Private Carrier Address: Century Center, 1750 Kalakaua Avenue, Suite 
3303, Honolulu, Hawaii 96826

Address all Mail to: P.O. Box 4124, Honolulu, Hawaii 96812-4124, Tel: 
(808) 943-7910 or 949-3200 (Messages Only), FAX: (808) 943-6912

July 30, 1995.
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice 
Antitrust Division, 555 4th Street, NW., Room 9903, Washington, DC 
20001

Re: United States of America vs. American Bar Association, Cv. No. 
95-1211, Request for modification of proposed Final Judgment.

    Dear Mr. Greaney: The enclosed letter dated July 30, 1995 amends 
and replaces my letter of July 18, 1995.

        Sincerely yours,
Robert W. Hall,
President and Director.

July 30, 1995.
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice 
Antitrust Division, 555 4th Street, N.W., Room 9903, Washington, DC 
20001

Re: United States of America vs. American Bar Association, Cv. No. 
95-1211, Request for modification of proposed Final Judgment.

    Dear Mr. Greaney: We comment and object to the following 
omissions and deficiencies in the proposed Final Judgment. The 
proposed Final Judgment is seriously flawed and will result in 
injustice to the group that matters the most in any antitrust 
action, consumers. No group needs government anti-trust assistance 
more than law school applicants who are powerless in the 
accreditation and application process.
    The issue is the American Bar Association's (ABA) involvement in 
the law school admissions process. The ABA is no disinterested, 
academic group. The ABA is a guild, a cartel with an economic ax to 
grind. The fox is in the hen house.
    With ABA knowledge, sanction and support, one of the many 
``services'' provided by Law Services includes the LSAT. LSAC 
members and many non-member law schools in the United States require 
applicants to (1) subscribe to the Law School Data Assembly Service 
(LSDAS) service and (2) take the LSAT as a part of the application 
process, self-serving disclaimers to avoid antitrust scrutiny 
notwithstanding.
    The Law School Admission Council (LSAC) is an association of 191 
law schools in the United States and Canada founded in 1947 to 
``coordinate, facilitate and enhance the admissions process.'' 
During 1992, the Law School Admission Council administered 150,000 
LSAT's, supported 477,000 law school applications, and processed 
198,000 transcripts. As owners of the LSAC, the same legal educators 
that control the accreditation office control the LSAC. All law 
schools accredited by the ABA are LSAC members. That is a classic 
definition of a cartel. In most states, the practice of law is 
controlled by this cartel. An analogy would be a teachers' union 
controlling accreditation and applicant selection requirements at 
college level teacher training programs.
    Taking the most conservative line and following Judge Bork's 
anti-trust positions, the goal of antitrust law should focus on the 
maximization of consumer welfare. The proposed Final Judgment fails 
by that measure or the more liberal measures in effect today. The 
proposed Final Judgment is deficient for all of the antitrust 
reasons listed in the initial Complaint.
    The ``settlement'' and proposed Final Judgment omits mention of 
the most egregious American Bar Association (ABA) accreditation 
requirements from the consumer antitrust point-of-view which are 
that the fact of the ABA being involved in admissions requirements 
at all is simply for the purpose of restricting law school output 
which in turn, limits competition among licensed attorneys. 
Competition is directly controlled by the ABA accreditation 
(filtration) process.
    The complaint in this action states that it is the view of the 
United States that during the past 20 years, the law school 
accreditation process has been captured by legal educators who have 
a direct interest in the outcome of the process. The government also 
noted in its Competitive Impact Statement that it has learned more 
about the ABA's practices and their competitive effects as the 
investigation proceeded.
    In the process of that investigation, the government appears to 
have missed, not fully understood, or ignored other ABA 
accreditation standards and interpretations that limit competition 
and permit competitor law schools to limit rivalry among themselves. 
The government appears to have spent so much time looking at trees 
that it did not see the forest. The government first should have 
questioned the role of the ABA in the accreditation process at all.
    The ABA walks, talks and acts like a cartel. The subject of 
cartels lies at the center of antitrust policy. ABA admissions 
standards and interpretations constitute one threat of a 

[[Page 63837]]
boycott after another. (See, United States v. Nationwide Trailer Rental 
Systems, 156 F.Supp. 800, 805, 807 (D. Kan. 1957].) In Nationwide 
the Supreme court applied the rule of per se illegality because the 
Nationwide had the power to order a boycott.
    As a group, these ABA anticompetitive issues involve a 
conspiracy to boycott law schools and consumer applicants a number 
of different ways. The ABA is also engaged in fixing prices charged 
law school applicants in a conspiracy with the Law School Admission 
Council (LSAC), particularly with the LSAT.
    Despite the government's statement in Section XI, (c), ``Entry 
of this Final Judgment is in the public interest'' the proposed 
Final Judgment is not in the public interest. The combination of ABA 
accreditation practices in a conspiracy with LSAC is a ``naked,'' 
anticompetitive restraint. The power exercised by conspirators is 
enormous, i.e., the power of entry to the law profession. The intent 
the ABA's accreditation standards and interpretations are 
anticompetitive to restrict competition for the cartel that is the 
ABA.
    The LSAT is an entry barrier to a law school education and 
subsequently, the practice of law. The issues raised in the attached 
white paper support the allegation that LSAT's are a fraud, the con 
of the century. The purpose of the LSAT is to restrict entry into 
the law profession, reduce the number of applicants, and by that 
process, enable the ABA to maintain a law monopoly in the United 
States. In that process, the ABA is able to support the legal 
profession's ability to charge high legal fees by restricting 
competition. More important, the ABA restricts entry to the 
profession so that in the maximum number of cases possible, ABA 
members in litigation are unopposed by those who cannot afford the 
services of an ABA member. The ABA is the most egregious and 
efficient monopoly in the United States.
    ABA accreditation requirements and reviews involve minimum 
median LSAT scores along with pressure to keep median scores high. 
This pressure essentially makes the LSAT a gateway requirement to 
the legal profession in this country. See, ABA Standards for 
Approval of Law Schools and Interpretations, October, 1994, 
Interpretation 209, Page 2, 501 and 304, i.e., ``declining median 
(or average) LSAT scores''. By this Interpretation, the ABA has 
announced a boycott against law schools that do not require LSAT's. 
Law schools must also stay above ``declining median LSAT scores.'' 
This Interpretation is proof of a boycott against applicant 
consumers who have ``declining median LSAT scores.'' Interpretation 
501 requires that a law school have an artificial barrier, and 
threaten to boycott those with ``declining median LSAT scores'' 
despite the fact that there is no proven or provable correlation 
between LSAT scores and success in law school.
    ABA Standards for Approval of Law Schools and Interpretations, 
October, 1994, Standard 503 is an attempt to confuse the LSAT issue, 
by requiring an ``acceptable (apparent aptitude) test.'' The ABA 
knows that no predictive or aptitude test can ever prove a 
correlation between LSAT scores and success in law school. Thus the 
ABA stands on a fraud and says that another fraud may be acceptable 
in order to avoid an ABA boycott or threat of a boycott. That is not 
likely. The entire issue of predictive or aptitude tests is an 
artificial, fraudulent barrier to entry to the ABA controlled law 
profession.
    LSAT tests are so devoid of any proven or provable ability to 
predict first year law school performance that eliminating LSAT 
requirements entirely would result in a higher correlation with 
first year law school performance than LSAT scores alone provide. A 
statistical analysis of flipping a coin will yield a better set of 
correlation coefficients than LSAT's yield. The above facts are a 
classic definition of an unlawful, artificial barrier for the 
purpose of limiting the number consumer applicants who survive 
while. That in turn keeps law profession fees high. The accompanying 
white paper expounds on this subject in considerable detail.
    The accreditation process reinforces the stranglehold the ABA 
has over law education in this country regardless of whether an 
applicant intends to use his/her law education in the licensed 
practice of law or not. Proof of that allegation lies in ABA 
Standards for Approval of Law Schools and Interpretations, October, 
1994, Standard 301, ``(a) A law school shall maintain an educational 
program that is designed to qualify its graduates for admission to 
the bar and to prepare them to participate effectively in the legal 
profession.'' Thus a person who simply wants a legal education 
without intent to petition for admission to the bar is either 
required to participate in an inappropriate ABA admissions program 
or both the applicant and the law school will be sanctioned with 
either a boycott or the threat of a boycott.
    This letter is not a challenge to any Department of Education 
regulation. The Department of Education cannot lawfully mandate a 
fraudulent test and the LSAT is not named in any DOE mandate. The 
issue of whether a particular aptitude test is ``suitable'' is well 
within the jurisdiction of this antitrust action where the issue of 
fraud is raised and as it is accompanied by the wealth of material 
found in the attached white paper. It is well known that correlation 
does not prove causation. The fraud inquiry can stop right there or 
continue if the government wants redundant proof of fraud. It is 
well within the U.S. Department of Justice's responsibilities to 
take up the issue of ``suitable'' in relation to the LSAT. The issue 
is that of a fraudulent LSAT on the antitrust issues of this action 
and the well-being of consumers. The issue is well within the United 
States District Court for the District of Columbia's jurisdiction in 
this action. Fraud is the cornerstone for much that is 
anticompetitive and subject to antitrust litigation.
    The ABA has boycotted and intends to boycott any law school, 
proprietary or non-profit, that does not have ``small classes for at 
least some portion of the total instructional program.'' See, ABA 
Standards for Approval of Law Schools and Interpretations, October, 
1994, Standard 303, (ii). That Standard makes the requirement to 
accredit proprietary schools moot. The most prestigious schools in 
the country have very large classes for economic reasons. Small 
classes are uneconomical and are an artificial barrier not 
eliminated by the proposed Final Judgment. The requirement for small 
classes is under pain of boycott if the law school does not comply. 
Only law schools that have substantial amounts of government 
financial support can meet this anticompetitive requirement. This 
anticompetitive ABA requirement directly results in law school 
education price fixing, it is an artificial barrier to competition 
and both limit entry to the law profession as an illegal boycott.
    ABA Standards for Approval of Law Schools and Interpretations, 
October, 1994, Standard and Interpretation 701 essentially means 
that the proposed Final Judgment provision concerning proprietary 
law schools is not a serious remedy. Only government supported or 
unusually well financed non-profit law schools can start-up with 
only permanent facilities, and without ``leased or rented 
facilities.'' The issue is one of business prudence, not law 
education. This particular Standard and Interpretation is an 
artificial barrier erected under pain of boycott, or threat of 
boycott to limit competition. The no lease, no rental standard is 
anticompetitive particularly in areas where land and buildings are 
extremely expensive. The requirement is anticompetitive to the 
extent that the ABA has proven by past deeds that are established in 
these proceedings, that it does not want for-profit competition. 
Standard 701 is an anticompetitive artificial barrier to 
competition.
    From the public's point-of-view, a Special Commission consisting 
of largely the same actors who created the anticompetitive guild 
described in the government's complaint does not constitute serious 
relief. The fox remains in charge of the hen house.
    The above anticompetitive practices have evolved without any 
real public participation, scrutiny or oversight. Proposed 
Interpretations of Standards, Rules, and Policies to the admissions 
process which are very much a part of the accreditation process have 
been hidden from the public view and will continue to be hidden from 
the public if they are published only in the ABA Journal and the 
Review of Legal Education in the United States. The ``public 
comment'' requirements of the proposed Final Judgment are for 
insiders, not consumers. There is no evidence of reasonable notice 
to consumers in this action. It is this absence of public oversight 
that has caused the ABA as an anticompetitive cartel, to flourish 
and prosper.
    Law school applicants have no escape from the ABA's monopoly and 
anticompetitive practices described herein. The above issues are a 
very important part of the accreditation process. Admissions 
requirements directly affecting consumers are also a part of the 
accreditation process. That process has been captured by those with 
an economic interest in limiting the practice of law in the United 
States.
    It is critical that the government not limit its ABA 
investigation to the issues listed in the proposed Final Judgment. 
The fact of this 

[[Page 63838]]
action is not widely known to the public and that has injured 
consumers. The proceedings to date are largely insider proceedings 
where once again, whenever ABA interests are at stake, the public 
interest i.e., consumers are ignored. The investigation must be 
opened to public hearings for the reasons given herein.

        Sincerely yours,
Rober W. Hall,
President and Director.

RH/bh

Enclosure: The Ethics of Educational and Employment Aptitude Testing

July 18, 1995.
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice 
Antitrust Division, 555 4th Street, N.W., Room 9903, Washington, DC 
20001

Re: United States of America vs. American Bar Association, Cv. No. 
95-1211, Request for modification of proposed final judgment.

    Dear Mr. Greaney: The complaint in this action states that it is 
the view of the United States that during the past 20 years, the law 
school accreditation process has been captured by legal educators 
who have a direct interest in the outcome of the process. The 
government also noted in its Competitive Impact Statement that it 
has learned more about the ABA's practices and their competitive 
effects as the investigation proceeded. Unfortunately, the 
government's action and order have concentrated on issues far less 
important to the public than other ABA anticompetitive practices 
that severely impact the public. The issues listed in the proposed 
Final Judgment are essentially insider issues.
    Far more serious is the ABA's role in anticompetitive admissions 
processes required by the ABA in the accreditation process. Listed 
below and attached hereto are major anticompetitive issues left out 
of the final judgment that will be impacted by the ten year term of 
the judgment if they are not reviewed, investigated and included 
now. In the alternative, the following issues must be specifically 
excluded from the settlement prescribed by the proposed Final 
Judgment.
    The public is concerned about the preclusion and res judicata 
effect of the proposed Final Judgment, Clayton Act disclaimers not 
withstanding. For the reasons given, the proposed judgment is 
deficient and potentially harmful to the public interest. Despite 
the statement in Section XI, (c), ``Entry of this Final Judgment is 
in the public interest.'' the proposed Final Judgment is not in the 
public interest.
    Major issues not dealt with include but are not limited to:
    1. The Law School Admission Council (LSAC) is an association of 
191 law schools in the United States and Canada founded in 1947 to 
coordinate, facilitate and enhance the admissions process. During 
1992, the Law School Admission Council administered 150,000 LSAT's, 
supported 477,000 law school applications, and processed 198,000 
transcripts. As owners of the LSAC, the same legal educators that 
control the accreditation office control the LSAC.
    2. All law schools accredited by the American Bar Association 
(ABA) are LSAC members.
    3. With ABA knowledge, sanction and support, one of the many 
``services'' provided by Law Services includes the LSAT.
    4. LSAC members and many non-member law schools in the United 
States require applicants to (1) subscribe to the Law School Data 
Assembly Service (LSDAS) service and (2) take the LSAT as a part of 
the application process.
    5. The LSAT is an entry barrier to a law school education and in 
addition, the practice of law.
    6. The issues raised in the attached white paper support the 
allegation that LSAT's are a fraud having no validity at all, and 
certainly less predictability than the toss of a coin.
    7. By ABA knowledge, sanction and requirement, ABA accreditation 
requirements and reviews involve minimum median LSAT scores along 
with pressure to keep median scores high. This pressure essentially 
makes the LSAT a gateway requirement to the legal profession in this 
country.
    8. By ABA knowledge, sanction and requirement, the accreditation 
process reinforces the stranglehold the ABA has over law education 
in this country regardless of whether an applicant intends to use 
his/her law education in the licensed practice of law or not. As but 
one example, the government appears to be unaware that in Hawaii and 
other states, an officer and sole owner of a closely held 
corporation cannot lawfully represent the corporation before federal 
courts including bankruptcy courts regardless of competence since 
federal courts follow state licensing rules requiring an ABA 
approved law school education. In many cases, ABA lawyers file 
actions unopposed as corporate officers who cannot afford attorneys 
are told to sit down while licensed attorneys proceed. This issue 
starts with accreditation and admissions requirements required by 
ABA accreditation.
    The above anticompetitive practices have evolved without any 
real public view, participation, scrutiny or oversight. Proposed 
Interpretations of Standards, Rules, and Policies to the admissions 
process which are very much a part of the accreditation process have 
been hidden from the public and will continue to be hidden from the 
public if they are published only in the ABA Journal and the Review 
of Legal Education in the United States. The ``public comment'' 
requirements of the proposed Final Judgment are for insiders, not 
the public. It is this absence of public oversight that has caused 
the ABA anticompetitive guild to flourish.
    ABA facilities requirements essentially rule out for-profit law 
schools in Hawaii since Hawaii is the only state where commercial 
land is largely leasehold; land and buildings are extremely 
expensive since government and large estates own most of the land. 
If current accreditation practices continue to be used and a Hawaii 
for-profit corporation leases land and buildings, mainland 
accreditation teams who are unfamiliar with Hawaii's special 
problems will continue to use that fact to deny accreditation.
    From the public's point-of-view, a Special Commission consisting 
of largely the same actors who created the anticompetitive guild 
described in the government's complaint does not constitute relief. 
The situation is one where the fox remains in charge of the chicken 
house.
    Law school applicants have no escape from the ABA's monopoly and 
anti competitive practices described herein. The above issues are a 
very important part of the accreditation process. Admissions 
requirements are also a part of the accreditation process that have 
been captured by those with a direct interest in the outcome of 
admissions requirements.
    It is critical that the government not limit its ABA 
investigation to the issues list in the proposed Final Judgment. It 
should also be understood that the entire action was not one widely 
known to the public and that has injured the interest the public has 
in this proceeding. The proceedings to date are largely insider 
proceedings where once again, whenever ABA interests are at stake, 
the public interest is ignored.

        Sincerely yours,
Robert W. Hall,
President and Director.

RH/bh

Enclosure: The Ethics of Educational and Employment Aptitude Testing

The Ethics of Educational and Employment Aptitude Testing

Robert W. Hall, Hawaii Institute for Biosocial Research, Honolulu, 
Hawaii, Revised, July 18, 1995

Abstract

    The author presents a case against the continued use of graduate 
or undergraduate educational or employment aptitude or predictive 
tests. The author argues that educational aptitude or predictive 
tests have no proven or provable validity, that there is no 
justification to continue to require educational or employment 
aptitude or predictive tests from the moral, ethical or legal points 
of view. The author raises the issues that (1) applicants required 
to take aptitude or predictive tests are forced to participate in 
psychological research without their informed consent, (2) 
applicants must pay for forced participation benefiting private, 
for-profit corporations, (3) nationwide cheating is distorting 
normative standards, (4) there is no known statistical method for 
validating aptitude or predictive tests since in actual use, random 
statistical selection is routinely ignored, and (5) validity 
correlations reported by the test makers prove the tests do not do 
what they purport to do. This paper is a call for multi-discipline 
reflection with regard to the moral, ethical and legal issues 
presented.

The Ethics of Educational and Employment Aptitude Testing

Introduction

    Secondary, undergraduate, and graduate level educational and 
employment aptitude or predictive testing has had a profound impact 
upon the educational, social and political fabric of this country. 
Entry into key professions such as medicine, law, education 

[[Page 63839]]
and the sciences is dependent upon high, predictive test scores. 
Educational and employment aptitude tests are an undisputed, major 
influence in the selection process of our intellectual elite.
    Educational institutions use aptitude or predictive tests in 
order to predict first year grade performance. Government and 
private corporations use aptitude tests in order to predict first 
year job performance. The tests purport to predict the future by 
their claimed ability to predict future performance.
    The purpose of this paper is to discuss the ethical 
considerations of aptitude testing in light of the many deficiencies 
of these tests. The most obvious deficiency of predictive or 
aptitude tests is the fact that no one can predict the future. The 
aptitude tests discussed in this paper are primarily the product of 
the Educational Testing Service (ETS) or the Law School Admission 
Council (LSAC) and their affiliated organizations.

Reliability and Validity

    Over the years, warnings have appeared in lay and professional 
literature that have added to the doubt surrounding the use of 
aptitude or predictive tests. Educational and employment aptitude 
tests must have proven statistical reliability and validity in order 
to enjoy academic and professional ethical support.
    Reliability refers to the ability to replicate the results of 
the test (Kidder, 1981). Commonly used methods for determining 
reliability are test, re-test methods or analysis of variance 
methodology. Examples of uneasiness in the literature include 
Lumsden (1976). Lumsden suggested that the study of reliability is 
largely irrelevant to predictive test. He argued that reliability 
theory is based upon assumptions that cannot be proven.
    Validity refers generally to the criteria the test measures and 
how useful that measurement is. In order for a test to have 
validity, the test must correlate with another variable of interest. 
This variable is sometimes called a criterion.
    There are two commonly used types of validity. One is face 
validity which is the apparent appropriateness of the test, a 
judgment call. The other is content validity which refers to how 
adequately the items in a test sample the area of interest (Guion, 
1978; Messich, 1980). Both measures are important in the measurement 
of aptitude. The difficulty in measuring aptitude becomes clear when 
one attempts to define aptitude. Any definition of that word is 
truly in the eye of the beholder.
    Of the two measures utilized in measuring validity, the 
important measure for our purposes is criterion-related validity. 
Criterion-related validity refers to the practical use of test 
scores in predicting performance on non-test behaviors of interest.
    Criterion-related validity may be either concurrent or 
predictive validity. Predictive validity is essentially subsequent 
academic or employment performance. With concurrent validity, both 
the test scores and the criterion measures are immediately available 
. With predictive validity, test scores are available before the 
criterion data are available. Time passes before we know whether the 
applicant performed as predicted.
    Statistics used to validate aptitude tests depend upon random 
selection. Without random selection, validation statistics are 
meaningless. Schools that admit or deny admission using test scores 
including a minimum predictive test score destroy random selection. 
Applicants who are not admitted as a result of failure to achieve an 
acceptable or a minimum test score become a control group, or the 
criterion-control group.
    Once the criterion-control group drops out of the statistical 
equation (when they are not given the opportunity to perform), the 
statistical basis for validating aptitude tests becomes nothing more 
than worthless assumptions based upon other worthless assumptions. 
An attorney would call this hearsay upon hearsay.
    Without control group first year grades or first year 
performance records, there is no way of validating the tests. We 
must know how all of those taking the test would have performed in 
order to validate the tests. Once random selection is destroyed, no 
credible data is available to validate the tests. Each test that 
eliminates applicants on the basis of minimum test scores adds to 
the destruction of the statistical data base. As a result, ethical 
considerations prevent the use of statistical data that depend upon 
random selection if random selection is destroyed in the process of 
gathering statistical data. In practice ethical considerations are 
routinely ignored in the name of expediency in the validation, sale 
and use of aptitude tests. The problem is one of the test-makers and 
the agencies requiring applicants to take the test refuse to face. 
One may either choose statistical validation, or one may choose 
expediency. The two are mutually exclusive. This example is only one 
of several serious flaws in the statistical process of validating 
aptitude tests (Tenopyr. 1977).
    The test-makers are aware that it is not wise to use educational 
tests as the sole selection criterion with regard to any of its 
tests. The producers of the LSAT for example, routinely warn law 
schools not to use the LSAT as the sole selection criterion. At the 
same time, the LSAC knows or should know, that law schools 
habitually ignore those warnings and are pressured to do so in the 
accreditation process. In practice, the LSAC leaves the decision of 
how to use test results up to individual law schools. The failure to 
control the use of the tests is but one of the ways the tests become 
statistically worthless.
    Despite their disclaimers, the candor of the test makers in 
presenting a clear, truthful statement concerning their products may 
be questioned. As an example, the validity statement in the 1984-85 
General Information Booklet for the Law School Admission Test is 
notable for its brevity and general lack of information. Part of the 
statement reads, ``while correlations between test scores and grades 
are not perfect, these studies show that LSAT scores help to predict 
which students will do well in law school.'' Correlation between 
LSAT scores and first-year law school grades for 139 schools ranged 
from .06 to .71. The 1992-93 LSAT Information Book reported 
correlations from .11 to .64 (median is .41) between LSAT scores and 
first-year law school grades and from .22 to .69 (median is .49) 
between LSAT scores combined with undergraduate grade-point averages 
and first-year law school grades.
    The concept of validity may be best understood by translating 
psychometric and statistical jargon into something everyone can 
understand. Correlations look like percentages. In fact, they are 
not. In order to obtain percentages, correlations must be squared. A 
correlation statistic of .06 becomes .0036 or about a third of one 
percent. A correlation statistic of .71 becomes .5041 or slightly 
over 50%. Such statistics cannot seriously be described as 
validations. It is also important to keep in mind that correlation 
does not prove causality. The assertion that one variable causes 
another always remains not proven.
    Correlations for the GRE exam are routinely published between 
.20 and .30 or 4% to 9%. The 1992 LSAT correlations translate into 
from 1 to 41% (median is 17%) between LSAT scores and first-year law 
school grades and from 5% to 48% (median is 24%) between LSAT scores 
combined with undergraduate grade-point averages and first-year law 
school grades. Those validation statistics are terrible regardless 
of the criteria. A flip of the coin does better. When one realizes 
that careers are determined on the basis of assumption drawn from 
these statistics, the situation is even more of a human tragedy.
    The 1984-85 LSAT statement could be characterized as one of no 
validity at all for an entirely different reason. The correlation 
data presented by the test maker in the 1984-85 LSAT statement 
describes an old, entirely different test. A new LSAT test was 
introduced in June, 1982. No correlation or validity data was 
available at the time of the 1984-85 test. In order to correlate and 
validate the new test, the test makers used the remarkable expedient 
of simply reporting correlation and validity data for the old test. 
The data presented failed to substantiate validity for the old test 
much less the new test. The ethical implications of that decision 
are that ethical standards were not observed.
    The 1992-93 LSAT ``Information Book'' published by the Law 
School Admission Council (LSAC) claims (p. 4), ``The LSAT is 
designed to measure skills that are considered essential for success 
in law school:'' ``The LSAT provides a standard measure of acquired 
verbal and reasoning skills that law schools can use in assessing 
applicants.'' The validity information found on p. 125 does not 
support either of these statements i.e., medians of 17% to 24% 
(LSAS, 1992).
    The 1984-85 GRE Information Bulletin reported validity 
correlations of from .13 to .40 (1.7% to 16%) in various categories 
(p. 27). The test maker did not even bother to publish criterion 
statistics. Despite that omission, the Educational Testing Service 
confidently states that the General Test or Subject Tests are 
appropriate for admitting students for graduate study, and for 
decisions in awarding fellowship awards.
    The test-makers also recommended their tests for predicting 
success in graduate 

[[Page 63840]]
school and for guidance in counseling students in their courses in 
graduate study (p. 28). There is considerable irony in the fact that 
most accredited graduate schools of psychology depnd upon GRE test 
scores despite the fact that such scores have no acceptable proven 
or provable validity.
    For a period of time, some test-maker bulletins omitted validity 
correlation statistics entirely. For reasons best known to the test-
makers, validation information was for a time, not published in the 
test information sent to and read by the student. In order to obtain 
validation statistics, the bulletins instruct SAT student 
applicants, for example, to order a second manual called the ATP 
guide. The reference to this second guide is not prominent in the 
bulletin.
    The 1987-88 ATP Guide admits that the SAT-verbal and 
mathematical predictive correlation is 27% for 10% of the colleges 
measured (.52 x .52=27%), between 13% and 27% for 40 percent of the 
colleges (.36-.52), between 4% and 13% for 40 percent of the 
colleges (.21-.36), and below 4% for 10 percent of the colleges. ETS 
admits, ``The validity of high school record is typically somewhat 
higher than the validity of the optimally weighted combination of 
SAT scores.'' ETS claims that the weighted combination of the highs 
chool record and SAT scores by a correlation addition of less than 
one half percent (9.07 x .07). The ETS fails to state how the data 
should be weighted. There is no indication in the ATP Guide that any 
admissions director or admissions committee weights SAT scores or 
high school grades in the admissions process. (The College Board, 
1987).
    The 1984-85 Graduate Management Admission Test Bulletin of 
Information resolved validity disclosure problems by the simple 
expediency of not publishing validity information to test 
applicants. GMAT disclaimers are in comparison, much stronger than 
those provided with the GRE. ETS admits that the test, ``cannot and 
does not measure all the qualities important for graduate study in 
management and other pursuits, whether in education, career, or 
other areas of experience; . . . (2) there are psychometric 
limitations to the test--for example, only score differences of 
certain magnitudes are reliable indicators of real differences in 
performance. Such limits should be taken into consideration as GMAT 
scores are used.''
    Employment test validity information provided by the ETS for 
tests such as the NTE teacher's test is also less than a resounding 
vote of confidence. The NTE teacher's test is sold to states and 
counties without validation. ETS simply tells prospective users to 
validate the test themselves. Incredibly, state after state has 
bought the test with that proviso.
    The test-makers have not and cannot validate these tests with 
ethically applied, generally accepted statistical methods. A more 
serious question involves whether or not the test-makers use vague, 
ambiguous or highly technical disclosure information. The average 
applicant taking a predictive test is not skilled in statistics or 
psychometrics. Why then, do the test-makers persist in using 
statistical and psychometric language in place of plain English? Why 
are correlation figures used in place of percentages? The answer may 
be that the plain English information does not look very good. The 
data provided by the test-makers constitutes prima facie proof that 
forcing students or job applicants to take predictive tests is an 
economic and human waste.
    Why don't the test-makers and their affiliates publish 
percentage statistics? Would you publish percentage statistics if 
your correlations were this bad?

Practical Considerations

    The actual field use of predictive tests is even more 
interesting than their statistical shortcomings. A large number of 
prospective law school applicants expressed concern when the 1982 
LSAT test was announced, and they rushed to take the old test. The 
same thing happened in 1991 when the test was changed once again. As 
a result, applicants for the 1983-84 and 1992-93 school years are 
believed to be heavily represented by those who took the old test 
while applicants for the 1984-85 or 1993-94 school years are a mixed 
group. There is no ethical justification to support the use of two 
entirely different tests in selecting a particular law school class 
or any other class.
    The Richardson School of Law at the University of Hawaii as but 
one example, admitted as much in a 1993 report to the Hawaii 
Legislature footnote (p. 12): ``It is impossible to compare Law 
School Admission Test (LSAT) scores for all 20 years of the law 
school because both the test and the scoring system of the LSAT exam 
have changed during that period. The three different score ranges 
used since 1973 are not comparable. When the law school first opened 
in 1973, the range of scoring was 200-800; from the early 1980s 
until 1991, the test was scored on a 10-48 range. The latest scoring 
scheme--120-180--was first effective with the 1992 entering class.'' 
Here we have an accredited, ABA approved law school admitting LSAT 
scores over the years ``are not comparable'' and yet LSAT are still 
used to deny admission to applicants. In fact, either the new test 
score or the previous test scores were accepted for a time during an 
overlap period by educational institutions whenever new tests were 
introduced. That created a situation where a particular class would 
be entered using two different test score ``schemes'' despite the 
fact that they ``are not comparable.''
    Another weakness with the practical use in the field of 
predictive test scores involves the limited psychometric background 
of those using the test scores. Most of those who make final 
selection decisions have no training whatsoever with regard to the 
limitations of predictive tests. Few decision makers understand the 
meaning of the psychometric cautions or the disclaimers found in 
testing literature. The average selection committee member may be 
reading far more into test scores than they should. To the extent 
that a situation has been created where users have too much 
confidence in the tests, the responsibility lies both with the test-
maker and the institution requiring the tests. Additional 
responsibility lies with those in the academic community who know 
better and keep quiet.
    At least one fully accredited, ABA approved law school, has a 
six person admissions committee two of whom are law students elected 
by the student body. Both are able to lobby and one has voting 
power. If any of the student admissions committee members have 
training in psychologicl testing, it would have to be by pure 
coincidence. When test makers send out test results, they routinely 
disclaim any responsibility with regard to the educational 
qualifications of those using their test results. The Standards for 
Educational and Psychological Tests and Ethical Principles of 
Psychologists of the American Psychological Association are simply 
ignored.
    Admissions committee members may also be missing other important 
cautions found in standard psychometric texts such as Graham and 
Lilly's Psychological Testing (1984). Graham and Lilly caution (p. 
42), ``If not all people can be accepted by an institution, those 
admitted should be randomly selected in the absence of any validity 
information. Only if the test scores are not used in the selection 
process can an accurate determination of the predictive validity of 
a test be made.'' Once predictive test scores are used in the 
admissions process, any hope of determining validity based upon 
generally accepted statistical models is destroyed.
    Graham and Lilly also note (p. 40), ``* * * being able to 
predict who will be successful in a given job, whether as a police 
officer or airline pilot (or we might add, a physician, psychologist 
or an attorney), saves the person involved from an embarrassing 
failure and the institution from possible economic loss.'' The 
statement fails to deal with the embarrassing failure of not being 
admitted to graduate school. The statement also fails to deal with 
the potential economic loss to the applicant and the community 
despite the equal opportunity laws and constitutional protections of 
this country.
    The uneasiness that continues to surface in the literature with 
regard to predictive tests (Fitzpatrick, 1983; Guion, 1978; Tenopyr, 
1977; Messick, 1980; Federal Trade Commission, 1978; Owen, 1985) 
comes from the knowledge that criterion information is far from 
perfect. It is well known that grades in graduate programs are a 
function of, and are influenced by, many factors other than academic 
aptitude. In the real world, criterion information represents a 
measure of convenience. There is no evidence that the criteria 
measured proves anything (Graham & Lilly, 1984).
    The most important criterion from society's point of view is not 
grade point average, but the far more important criterion of 
excellence in one's chosen profession. The criterion actually used 
in this context is a compromise between one that is ideal and one 
that is readily available.
    Substantial legal questions are involved whenever educational 
and employment tests are used in the admissions or employment 
process. Not only are careers being decided, the applicant is forced 
to pay for the privilege of taking a test that cannot be validated 
using either statistical or ethical principles. Those who make 
decisions utilizing predictive tests are vulnerable pursuant to 
federal and state privacy, due process, equal opportunity, and civil 
rights laws.

[[Page 63841]]


Coaching Courses

    Statistical assumptions validating predictive tests assume that 
the person taking the test has no previous experience with the 
content of the test. That assumption is not true for a group of 
privileged individuals.
    A new dimension of concern surfaced with the publication of the 
``Staff Memorandum of the Boston Regional Office of the Federal 
Trade Commission'' (FTC) with regard to ``The Effects of Coaching on 
Standardized Admission Examinations'' (1978). The Staff memorandum 
viewed the coaching of educational aptitude testing in light of 
equal education opportunity as mandated by federal law, and found 
educational testing wanting. The FTC memorandum presented evidence 
that well run coaching organizations can significantly increase test 
scores. The FTC memorandum found that coaching score increases (p. 
1), ``have a practical, educationally meaningful, effect in that 
coaching can be the determining factor in deciding who is admitted 
to undergraduate and graduate colleges and universities. The 
availability of coaching is positively correlated to the ability to 
pay the tuition at coaching schools, which can be as high as $500 or 
more. Therefore coachable, standardized admission examinations 
create financial barriers to educational opportunities in direct 
conflict with our Congressionally declared national education 
policy.''
    The FTC memorandum involved a 124,022 person LSAT study group of 
whom 8,660 had a total of 9,029 coaching school enrollments. The 
data showed that increases of anywhere from 30 to 100 or more test 
points on a test with a possible 800 points, could be achieved by 
the better coaching schools. That translates to an increase of from 
2 to 6 points on the LSAT test that has a possible maximum of 48 
points. The test makers represented that the 48 point test is 
reliable to within 2 plus or minus test points or roughly 4%. Thus a 
person with a 27 could raise his/her score to 29 or 33 points with 
coaching. That difference could easily be the difference between 
rejection and admission at many law schools.
    The FTC memorandum contained (p. 2), ``* * * the existence of 
only one coaching school (and there is more than one) that can 
materially increase individuals' scores on standardized admission 
examinations such as the Scholastic Aptitude Test and the Law School 
Admission Test reveals the lack of reliability and validity of these 
examinations. The test makers themselves tell us that standardized 
admission examinations should be used to help predict the academic 
performance of an individual in undergraduate or graduate school. 
Yet, since short-term preparation can increase scores, but has a 
questionable long-term effect, the true predictive value of the 
standardized examinations is suspect.''
    The most damning statement in the FTC memorandum involved 
discrimination between applicants. ``The standardized admission 
examinations are discriminatory in a number of ways. They 
discriminate against any individual who either: (1) cannot afford 
the cost of commercial preparation or (2) elects not to attend a 
commercial preparation course even if he can afford it because of 
acceptance of the dogma promulgated by the test makers, test 
administrators, and test users over the past twenty years that 
coaching is valueless.'' Two additional factors not noted in the 
report are that some applicants simply do not have an additional 250 
hours of time to spend on coaching. Those who are successfully 
coached raise the national norms used to standardize the tests. 
Those who are not successfully coached pay not one, but several 
unfair penalties.
    The FTC memorandum reported that educational aptitude 
examinations appeared to discriminate on the basis of race since 
certain sub-populations may receive a lesser benefit from coaching 
than others. The memorandum also noted that, ``The economic and 
social benefits flowing from admission to undergraduate and graduate 
colleges and universities (especially the more prestigious) are 
axiomatic.''
    The FTC staff estimated that in 1979 the total cost of 
educational coaching, much less educational testing, was in excess 
of $10,000,000. The total cost of coaching for college, graduate 
school and employment applicants is now far more than $50,000,000 a 
year. At a time when the political administration in Washington is 
cutting back college student aid, the economic discrimination 
inherent in those numbers is weighted more than ever in favor of the 
wealthy.
    The Federal Trade Commission was sorely embarrassed by the 
Boston staff memorandum. The Commission quickly watered down some of 
the credibility of the staff memorandum with a second, 1979 report 
that questioned purported methodological flaws in the data analysis. 
It should be noted that the Federal Trade Commission has not seen 
fit to subsequently commission a research study where the data 
analysis would be more acceptable to the FTC. The second report was 
not convincing. The original staff report made its point.
    Coaching courses influence ``aptitude'' test scores. Each time 
that happens, national statistics are influenced in favor of those 
who have access to the better coaching courses. Thus the disparity 
between those with the $500-$600 tuition fee and access to the 
better coaching courses, and those who do not have access affects 
those who are not coached at least two ways. First, those who are 
not coached do not get the inside information necessary to increase 
their scores. Second, national predictive test statistics become a 
fraud.
    Incredibly some school systems and universities are attempting 
to resolve the problem by offering their own coaching courses 
(Lynch, 1985). Owen (1985) compares various coaching courses and 
concludes that some courses are close to being worthless. The law 
School Admissions Services (Law Services or LSAS) has its own 
``Official LSAT Prep Test'' as well as a series of ``Official'' 
preparation materials (LSAS, 1992).
    There are some very good coaching courses, however, and those 
who have the key or the ``Trick'' to ETS examinations have an 
enormous advantage. In the real world, the Princeton Review may have 
the most salable service. The New York Times reported (Associated 
Press, 1987) a settlement of a lawsuit between the Educational 
Testing Service and the Princeton Review Inc. John Katzman, the 
founder of the Princeton Review was reported as having admitted 
``distributing test questions from the company's (ETS) tests to 
students taking his (Katzman's) course giving them an unfair edge in 
the tests.'' (Insertions added for clarity.) Katzman was reported in 
an interview as having boasted that the lawsuit, ``guadrupled'' his 
business at $595 per student. Since its founding in 1981, the 
Princeton Review alone had grown to become a multi-million dollar 
business annually. The ethics of this situation is now to the point 
where ``coaching courses'' that give an unfair advantage to a 
privileged group taking ETS tests is a national disgrace. The word 
cheating has been used and will continue to be used to describe this 
situation.
    Opting out:
    The New York Times (Fiske, 1984) reported that Bates College in 
Maine, Bowdin College in Maine, and Sarah Lawrence in Yonkers 
discontinued their policy of requiring SAT scores. The University of 
Florida now makes achievement tests optional for those who do not do 
well on the SAT. The article reported that Harvard has considered 
achievement scores as an alternative to the SAT. The Harvard 
Business School dropped the GMAT test as an admissions requirement 
shortly thereafter (Day, 1985).
    The Dean of Admissions at Bowdin was quoted as having 
``serious'' ethical questions'' about the SAT. He noted concern 
about the growth of commercial ``coaching'' courses that help 
students prepare for the standardized tests. ``There has been an 
explosion of coaching schools,'' he said, ``but enrollment (in 
coaching schools) is almost stratified along financial lines. We 
have some real problems using something that can be so biased by 
economic resources. It's just not fair to minority, blue-collar and 
rural students'' (Fiske, 1984).
    The New York Times reported (Lederman, 1985) on the findings of 
James Kulik and his associates at the University of Michigan's 
Center for Research on Learning and Teaching in an attempt to find 
an unbiased summary of the research literature on the subject to 
coaching. Kulik disagreed with previous findings of the Educational 
Testing Service (ETS.) that the average gain by coaching was small. 
Kulik found that ETS ``did not make clear that some individuals may 
make gains (through coaching) that cannot be ignored.'' Mr. Kulik 
said equality must be reached in one of two ways. ``Either no one 
gets any preparation which is more or less how it used to be; or 
everyone should have enough familiarity with the test. The former 
cannot happen now, and that latter raises the question: who's going 
to pay for it?''
    The Law School Admission Council, the developer of the LSAT 
test, has contradicted long-standing ETS coaching disclaimers by 
proposing to enter the coaching business (Adams, 1988). The 
president of LSAC, Craig W. Christensen, was quoted in the National 

[[Page 63842]]
Law Journal as admitting, ``* * * it's hard to say with a straight face 
that coaching does a student no good.'' The LSAC's own Pre-law 
Handbook statement admits, ``very few people can achieve their full 
potential by not preparing at all.''
    Science (Holden, 1985) reported that the prestigious Johns 
Hopkins University School of Medicine has dropped the Medical 
College Admissions Test (MCAT) as an admissions requirement. Johns 
Hopkins dean Richard S. Ross stated that they were dropping the MCAT 
since the process has been ``distorting the premed curriculum 
grossly.'' The Science article reported that ``many see the MCAT as 
contributing to the dehumanizing aspects of medical school by 
favoring the more narrowly focused, competitive-minded students.'' 
Norman D. Anderson of Johns Hopkins was reported as stating ``there 
are no data indicating that MCAT scores correlate with either 
clinical performance in medical school or later success in medical 
careers.'' Another article appearing in the New York Times (``Top 
Medical,'' 1985) quoted Dr. Ross as stating ``We want people who are 
not monochromatic'' and stated that the tests ``perverted the 
undergraduate experience. It tends to displace all thinking about a 
general education. A student may think about taking a course in 
astronomy or European history, but then thinks about that test. The 
whole thrust of the undergraduate experience becomes a multiple 
choice standardized test.''
    The admissions director of Harvard was quoted in the New York 
Times (S.A.T. coaching, 1988), ``Spending time on coaching takes 
time away from working on getting good high school grades, on 
extracurricular activities or community service, all of which are 
important when admissions officers are choosing a class.''
    Other ethical questions:
    Each predictive test has one section that is ``experimental''. 
That section is interposed in order to develop questions for future 
tests. Applicants are not informed which section is the experimental 
section. Applicants cannot skip the experimental section. Applicants 
have not volunteered to participate in a predictive test research 
project. Test-makers do not have the informed consent of those 
taking the test regarding psychological experimentation. The test-
makers experiment with human subjects in what amounts to 
psychological research without full disclosure or informed consent. 
Applicants are not volunteers as test subjects in what amounts to 
psychological research without full disclosure or informed consent. 
Applicants are not volunteers as test subjects in order to support 
test-maker income producing activities. Yet, test-maker position is 
clear. There are no deviations. They have a monopoly. It is amazing 
how universities across the country blithely teach that such 
experiments are professionally unethical while at the same time, 
cooperating with test-makers. The hypocrisy of the situation is 
obvious.
    As Owen (1985) reports, the experimental sections of ETS tests 
are the sections most likely to have ``miskeyed, flawed, badly 
written, and ambiguous items'' (p. 135) that are usually much more 
difficult than standard questions. A student coming across one of 
those sections without realizing it can become completely 
demoralized. The student could easily suffer a loss of confidence 
that would affect test performance. Experimental sections are moved 
around from test to test and according to Owen, have been placed as 
early as section 3 on the SAT. The final assault on the dignity of 
the hapless student is that he/she has to pay for the privilege of 
being humiliated while the subject of a hidden experiment.
    The Ethics Code of the American Psychological Association (APA) 
states ``Ethical practice requires the investigator to respect the 
individual's freedom to decline to participate in or withdraw from 
research. The obligation to protect this freedom requires special 
vigilance when the investigator is in a position of power over the 
participant, as for example, when the participant is a student, 
client, employee, or otherwise is in a dual relationship with the 
investigator'' (``APA ethics'', 1979). Despite that well defined 
ethical standard, psychology professionals throughout this country 
require the GRE and related ETS examinations complete with the 
coerced research sections. It is clear that the disparity between 
preached and practiced ethics must be addressed.
    ETS has had other problems with its tests. The release of the 
results for the 1996 National Assessment of Educational Progress 
reading test developed by the ETS were postponed until major 
problems in the exam are corrected. The first results of the $4 
million a year contract were so unbelievable that Chester E. Finn, 
Jr., the Education Department's assistant secretary for educational 
research was quoted as saying, ``I'm pretty disgusted by the whole 
situation.'' (Reading test, 1988)
    What to do?
    Another, better approach to evaluating people may be the one 
suggested by the recent research of Dr. Siegfried Streufert of 
Pennsylvania State University College of Medicine (Goleman, 1984). 
Dr. Streufert indicates that thinking style is a better indicator of 
achievement than intelligence tests. Similar criticism has been made 
by David McClelland, a psychologist at Harvard. Dr. McClelland 
argued in the American Psychologist that it makes more sense to test 
for competence than intelligence. Dr. McClelland argued ``there are 
almost no occupations or life situations that require a person to do 
word analogies or choose the most correct of four alternative 
meanings of a word.'' While some commentators caution not to throw 
the baby out with the bath water, the approach urged by Dr. Ernest 
L. Boyer, president of the Carnegie Foundation for the Advancement 
of Teaching may be the most sensible (Hechinger, 1985). ``Let's 
decide what should be the goals of education before we think of 
tests.''
    The issue of predictive and aptitude testing involves ethical 
and moral considerations, not to mention legal considerations. 
Anyone who has read H.C. Anderson's ``Emperor's Fine Clothes'' knows 
why a more conservative approach must be taken. The use of 
predictive or aptitude tests in the educational and employment 
settings cannot be defended on ethical, moral or legal grounds. They 
are a fraud (i.e., misrepresentation) foisted upon a hapless public 
by those who know the truth about their products.

References

Adams, E.A. (1988, February 8). Will admissions council counteract a 
change in composition of LSAT? The National Law Journal, p. 4.
American Psychological Association, (1979, November). APA ethics 
code, APA Monitor, Washington, DC: Author, p. 17.
Associated Press (1987, December 24). Accord ends S.A.T. copyright 
suit. New York: New York Times, p. 10.
Day, K. (1985, August 16). Harvard Business School ditches 
standardized admissions test, The Honolulu Advertiser, Los Angeles 
Times News Service, p. B-6.
Educational Testing Service. (1984). Graduate Record Examinations, 
1984-85 Information Bulletin, pp. 26-28. Princeton: Educational 
Testing Service.
Federal Trade Commission. (1978, September). Staff Memorandum of the 
Boston Regional Office of the Federal Trade Commission; The effects 
of coaching on standardized admission examinations, Washington: 
Federal Trade Commission, pp. 1-4, 8-9, 12-15, 31.
Fiske, EBB. (1984, October 9). Some colleges question usefulness of 
S.A.T.'s, N.Y. Times, p. 25.
Fitzpatrick, A.R. (1983). The meaning of content validity. Applied 
Psychological Measurement, 7, 1, 3-13.
Goleman, D. (1984, July 31). Style of thinking, not I.Q. tied to 
success, New York Times, p. 15.
Graduate Management Admission Council. (1984). GMAT, 84-85 Bulletin 
of Information, Graduate Admission Test. Princeton: Educational 
Testing Service, pp. 15, 33.
Graham, J.R., Lilly, R.S. (1984). Psychological Testing, Englewood 
Cliffs: Prentice-Hall, Inc, pp. 1-76.
Guion, R.M. (1978). ``Content validity'' in moderation. Personal 
Psychology, 31, 205-213.
Hechinger, Fred M. (1985, May 28). S.A.T.'s: True, False, none of 
the above?, New York Times, p. 20.
The Ethics of Educational and Employment Aptitude Testing, Holden, 
C. (1985, August 16). Johns Hopkins drops MCAT requirement, Science, 
Vol. 229.
Kidder, L.H. (1981). Research Methods in Social Relations, New York: 
Holt, Rinehart and Winston, pp. 7-9.
Law School Admission Services Inc. (1984). 1984-85 General 
Information Booklet. Princeton Educational Testing Service, pp. 6, 
15-16.
Law School Data Assembly Service (1992). LSAT 1992-93 Information 
Book. Law School Admission Services, Inc., p. 4.
Lederman, D.J. (1985, January 6). S.A.T. coaching, a new assessment. 
N.Y. Times, Section 12, p. 9.
Lumsden, J. (1976). Test theory. Annual Review of Psychology, 27, 
251-280.

[[Page 63843]]

Lynch, K. (1985, October 12). Kids may get school help on SATs, The 
Honolulu Advertiser, Honolulu, A-3.
Messick, S. (1980). Test validity and the ethics of assessment. 
American Psychologist, 35, 1012-1027.
Owen, D. (1985). None of the above. Boston: Houghton Mifflin 
Company.
Reading test may be re-tested. (1988, January 27). New York Times, 
p. 15.
S.A.T. coaching disparaged. (1988, February 2). New York Times, p. 
16.
Tenopyr, M.L. (1977). Content--Construct confusion. Personnel 
Psychology, 30, 47-54.
The College Board (1987). ATP Guide for High Schools and Colleges, 
SAT and achievement tests. Princeton, N.J.: Educational Testing 
Service, pp. 26-27.
Top Medical school dropping admission test. (1985, May 13). New York 
Times, p. 7.
Williams, D.A. & Anello, R. (1985, August 12). Testers vs. Cram 
courses, Newsweek, p. 62.
William S. Richardson School of Law, University of Hawaii at Manoa, 
1973-1993, A Promise Fulfilled, 1993.

338 Joy Lane, West Chester, Pa. 19380
July 15, 1995.
Joel Klein, Esquire,
Deputy Assistant Attorney General, Department of Justice, 
Washington, D.C. 20000

Re: Recent settlement with ABA

    Dear Mr. Klein: Wish to congratulate you on successful 
resolution of the ABA's anti-trust and corrupt influences in the 
accreditation process of the law schools which had the direct effect 
of Board of Law Examiners not admitting to the Bar lawyers who were 
otherwise qualified but had attended non-accredited law schools.
    The purpose of this letter is to request that the Department of 
Justice should also investigate similar corrupt influences of ABA 
and the National Conference of Bar Examiners in fixing the number of 
lawyers who will be admitted to the Bar through the unethical and 
corrupt manipulation of Bar Exam results.
    In my case, the Pa. Board of Law Examiners impounded my results 
because I was attempting to change career from teaching to law 
practice and because of my age, ethnic identity and national origin.
    You would be surprised to find how many violations of human 
rights occur within the boundary of the United States under the 
guise and pretext of one unjustifiable regulation or the other.
    See if you or your other colleagues can do something on this 
matter.

        Yours truly,
Amrit Lal, Ph.D.

Massachusetts School of Law at Andover

Woodland Park, 500 Federal Street, Andover, MA 01810, 508/681-0800, 
FAX: 508/681-6330
September 28, 1995
Mr. John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice, 
Antitrust division, 555 4th Street NW., Room 9903, Washington, D.C. 
20001

    Dear Mr. Greaney: Enclosed are MSL's Tunney Act comments on the 
Consent Decree filed in the Division's case against the ABA.

        Sincerely,
Lawrence R. Velvel,
Dean.

In the United States District Court for the District of Columbia

United States of America, Plaintiff, v. American Bar Association, 
Defendants. Docket No. CA95-1211.

Comments of the Massachusetts School of the Law on the Consent Decree 
and the Competitive Impact Statement

Massachusetts School of Law at Andover, Inc. 500 Federal Street, 
Andover, MA 01810, (508) 681-0800

Table of Contents

1. Introduction
2. The Consent Decree Does Not Contain Provisions Needed To Insure 
Against Continued Or Renewed Capture Of The Regulatory Process By 
Directly Interested Persons Who Hold Economically Self Interested, 
Anticompetitive Views
3. The Consent Decree Will Not Eliminate The Secretary Which Has Led 
To Violations Of Law, Unwritten Rules, And Capture Of The Process
4. The Consent Decree's Novel Provisions For Review Of 
Anticompetitive Practices By A Special Commission Heavily Comprised 
of Accreditation Insiders May Cause The Decree To Fail To Remedy 
Anticompetitive Practices Charged In The Complaint
5. The ``Novel'' Relief Involving Review By The Special Commission 
Raises Additional Problems (i) Because It May Bind The Court, 
Regardless of Relevant Circumstances, To Use A Full Blown Rule Of 
Reason Analysis Rather ``Quick-Look'' Rule Of Reason Analysis When 
Considering A Government Challenge To Recommendations Of The Special 
Commission, And (ii) Because It Circumvents The Tunney Act Rights Of 
Third Parties
6. There Are Important ``Procedural'' Matters Which Have Not Been 
Addressed Effectively In The Consent Decree Or Have Not Been 
Addressed At All
7. The Government's Heavy Reliance On the ABA Leadership Could 
Result In Failure To Remedy The Violations Charged In The Complaint
8. The Effectiveness Of The Decree Is Potentially Diminished By Lack 
of Knowledge Regarding The Identity Of An Antitrust Compliance 
Officer, By A Serious And Inexplicable Limitation On The Compliance 
Officer's Duties, And By Reliance On Staff Of The Department Of 
Education Who Have Been Ineffective In Regard To The ABA
9. In Order To Insure That The Purposes Of The Tunney Act Are 
Carried Out And Its Provisions Complied With, The Consent Decree 
Needs To Provide For the Filing Of Determinative Documents And 
Materials, And Approval Of The Decree Must Be Conditioned On Making 
Available The Documents That Injured Private Parties Need To 
Effectively Pursue Their Claims
10. There Are Three Areas, Involving Rules Which Stifle Competition, 
In Which MSL Urges The Division To Reconsider Its Decision Not To 
Act
11. Conclusion

In the United States District Court for the District of Columbia

    United States of America Plaintiff, v. American Bar Association, 
Defendants. Civil Action No. 95-1211 (CR).

Comments of the Massachusetts School of Law on the Consent Decree and 
Competitive Impact Statement

1. Introduction

    The Massachusetts School of Law (``MSL'') hereby submits its 
Comments on the Consent Decree filed June 27, 1995 and the Competitive 
Impact Statement (``CIS'') dated July14, 1995.
    As the Antitrust Division is aware, MSL--a gravely injured victim 
of the anticompetitive conduct challenged by the Department of Justice 
(``DOJ'') in this case--has been in the forefront of the battle against 
that illegal conduct. MSL alone challenged the conduct before the 
Department of Education (``DOE'') in 1992 and 1994. MSL challenged the 
conduct before the American Bar Association's (``ABA's'') Board of 
Governors and House of Delegates in 1993 and 1994. The School filed an 
antitrust case against the conduct in November, 1993. It subsequently 
brought the conduct to the attention of the Antitrust Division, and 
provided the Division with documents and depositions in the School's 
possession. MSL's history of being injured by the anticompetitive 
conduct at issue here, of studying that conduct, and of combating it, 
gives the School extensive insight into the anticompetitive actions 
challenged by the DOJ.
    MSL's consent views are stated in these Comments. To some extent, 
the views reiterate those in MSL's prior Memorandum in support of its 
motion to intervene. However, these Comments also deal with numerous 
topics not covered in that Memorandum, and contain additional 
information on 

[[Page 63844]]
several topics which were covered in it.\1\

    \1\ Among the topics covered here but not in the Memorandum are 
the composition of site inspection teams, the practice of writing 
one-sided and even untrue site reports in order to force compliance 
with anticompetitive rules, appeals from the Accreditation Committee 
to the Council of the Section of Legal Education, term limits on 
membership on committees, the identity of an antitrust compliance 
officer, validation of ABA accreditation requirements in accordance 
with Department of Education rules, requiring first year courses to 
be taught by full-time faculty as defined by the ABA, barring full-
time students from working more than 20 hours per week, and 
requiring expensive library facilities and very large and expensive 
hard cover collections of books.
---------------------------------------------------------------------------

    We also wish to point out, as indicated in the prior Memorandum, 
that we believe the Complaint and Decree are a step toward eliminating 
serious anticompetitive practices that have injured hundreds of schools 
and hundreds of thousands of students. With changes to cure weaknesses 
that might otherwise undermine the effectiveness of the Decree, it 
could become not a mere step toward eliminating injurious 
anticompetitive practices, but almost certainly a highly effective step 
toward doing so. The needed changes, moreover, while curative, are 
relatively small in the total scheme of things. Yet, unless the changes 
are made, the Decree could fail to remedy the anticompetitive practices 
charged in the Complaint. We therefore urge the Government to make the 
necessary changes, so that the Complaint and Consent Decree will not 
risk ineffectiveness, but will instead fulfill their capability of 
being a major accomplishment which rectifies long-standing secretive 
practices that wreaked extensive anticompetitive and, indeed, 
antisocial injury.

2. The Consent Decree Does Not Contain Provisions Needed To Insure 
Against Continued or Renewed Capture of the Regulatory Process by 
Directly Interested Persons Who Hold Economically Self Interested, 
Anticompetitive Views

    The Complaint and the Competitive Impact Statement accurately say 
that the ABA's ``accreditation process has been captured by legal 
educators who have a direct interest in the outcome of the process.'' 
(CIS, p. 10; Complaint, pp. 12-13; see also CIS, p. 1.) Thus ``the ABA 
at times acted as a guild that protected the interests of professional 
law school personnel.'' (CIS, p. 2.) So strong was the evidence of 
guild capture that the Division eventually concluded ``that mere 
amendment of the ABA's Standards and practices would not provide 
adequate or permanent relief and that reform of the entire 
accreditation process was needed. * * * [T]he larger and more 
fundamental problem of regulatory capture also had to be addressed.'' 
(CIS, p. 16.)
    One of the most important steps taken in the Consent Decree to 
address the problem of regulatory capture is to limit the percentage of 
law school deans or faculty who can comprise the membership of key 
committees. (CIS, pp. 11-12.) Their membership on the Accreditation 
Committee, the Council and the Standards Review Committee cannot be 
greater than 50 percent (Consent Decree, pp. 5-6; CIS, pp. 11-12); 
their membership on the Nominating Committee (which nominates Section 
officers) cannot be greater than 40 percent. (Consent Decree, p. 6, 
CIS, p. 11.) (These four committees are hereinafter referred to 
collectively as ``committees.'')
    In addition, for five years appointments to the Council, the 
Accreditation Committee and the Standards Review Committee--but not the 
Nominating Committee--will be subject to approval by the Board of 
Governors.
    Limiting the membership of academics on the foregoing committees to 
``only'' 50 percent or ``only'' 40 percent is not likely, however, to 
cure the problem of capture of the process. Not only will the 
ostensible limitations make little difference to the existing 
percentage memberships on the Council and the Accreditation 
Committee,\2\ but, far more importantly, the capture of the process has 
not been primarily a question of numbers or percentages. It has been, 
instead, a matter of who has been interested in and willing to devote 
the most time to the work of the Section--to the work of establishing 
and implementing Section policies. As the DOJ recognized, accreditation 
is of direct concern to the professional well-being of the existing 
academic participants--it has deeply affected their academic salaries 
and working conditions and, because a leading position as an accreditor 
regularly enables them to obtain (lucrative) deanships, it has even 
been the determinant of their professional positions. Because of its 
effect on their academic salaries and working conditions, it has been 
of preeminent interest to academics who hold the anticompetitive view 
that the accreditation process should be used to force increases in 
salaries, enhanced fringe benefits, decreases in hours of teaching, and 
increases in perquisites. Members of the aforementioned committees who 
are judges or practicing lawyers, on the other hand, are usually far 
too busy on the bench or in practice to give accreditation the intense 
attention given it by the academics. And even when they do give it 
comparable attention, it almost invariably is the case that they are in 
agreement with the academics who captured and control accreditation, 
often because the lawyers and judges are themselves former academics 
(e.g., the most recent past Chairman of the Council, Joseph Bellacosa), 
or because, as events and testimony make plain, they defer to the views 
of the academics and support the academics' agenda.

    \2\ At a meeting of the American Association of Law Libraries, 
accreditation leader Roger Jacobs, a member of the Council, recently 
indicated correctly that the percentage limitations on the 
Accreditation Committee and Council will have little effect because 
the limitations ``only requires the shift in one member or so in 
each of those bodies.'' (Exhibit 1.)
---------------------------------------------------------------------------

    As stated buy a leading academic at Northwestern University Law 
School who from time to time has been active in the Section:

    * * * the most powerful force in the Section is made up of law 
school deans, who by and large defend the regulatory status quo. It 
could hardly be otherwise. The other predominant occupational groups 
represented in the Section--practitioners, judges and bar admissions 
officials--more often than not defer to the deans on most questions 
involving legal education. Such deference is natural both because 
the deans necessarily have superior knowledge of the internal 
workings of legal education and because they are willing to spend 
the substantial time necessary to maintain direction of the Section. 
To the practitioners, judges and bar admissions officials, service 
in the Section is a voluntary diversion from their real work; to the 
deans, it is part of their real work of effectively governing legal 
education.\3\

    \3\ John S. Elson, The Regulation Of Legal Education; The 
Potential For Implementing The MacCrate Report's Recommendations For 
Curricular Reform, 1 Clinical L. Rev. 363, 372-3 (1994) (footnotes 
omitted).
---------------------------------------------------------------------------

    The academics' capture and use of the accreditation process has 
also been augmented by additional factors. One is that, as said in the 
CIS, most of the accreditation process as it applies to particular 
schools ``was carried out by the Accreditation Committee and the 
Consultant's office. * * *'' (CIS, p. 10.) The Consultant ``direct[s]'' 
``[t]he day-to-day operation of the ABA's accreditation process.'' 
(CIS, p. 4.) However, as the Division recognized, ``the individuals who 
served on the Accreditation Committee and in the Consultant's office 
had been in these positions for many years.''(CIS. p. 10.) indeed, the 
Consultant, James White, 

[[Page 63845]]
has held the office for nearly 22 years--from January 1, 1974 until 
today.
    Furthermore, the Section as a whole, though containing 
approximately 6650 members, has long been under the control of about 
one percent of that total, or about 50 to 60 persons, who are the 
insider group that establishes and implements the Section's policies, 
and who are supported and assisted by another 30 to 35 persons who 
provide vigorous written and oral approbation for anticompetitive 
policies and additional manpower to carry out those policies.\4\

    \4\ The members of the insider group include (in alphabetical 
order): Jacquelyn Allee, Philip Anderson, Nina Appel, Joseph 
Bellacosa, Donald Dunn, Fred Franklin, Jose Garcia-Pedrosa, Laura 
Gasaway, Kathy Grove, Harry Groves, Jane Hammond, Joseph Harbaugh 
Frederick Hart, Rudulph Hasl, Thomas Jackson, Roger Jacobs, John 
Kramer, Wayne McCormack, Erica Moeser, Carl Monk, Lizabeth Mody, 
Richard Nahstoll, Gary Palm, William Powers, Henry Ramsey, Jr., 
Frank Read, Norman Redlich, Millard Ruud, John Ryan, Gordon Schaber, 
Pauline Schneider, Cathy Schrage, Marilyn Shannon, Philip Shelton, 
Steven Smith, Claude Sowle, Robert Stein, Rennard Strickland, Roy 
Stuckey, Leigh Taylor, Robert Walsh, Frank Walwer, Peter Winograd, 
James White, Sharp Whitmore, Marilyn Yarborough, and Diane Yu.
    The persons who have supported and assisted the insider group 
include (in alphabetical order): Steven Bahls, James Castleberry, 
Charles Daye, Roger Dennis, John FitzRandolph, Arthur Frakt, Steven 
Frankino, Martin Frey, Nelson Happy, Richard Huber, Isaac Hunt, 
Vincent Immel, Barbara Lewis, Jeffrey Lewis, Dennis Lynch, Peter 
McGovern, John O'Brien, Michael Olivas, Kenneth Randall, Barney 
Reams, Gail Richmond, Victor Rosenblum, Laura Rothstein, Anthony 
Santoro, Richard Schmalbeck, Randall Schmidt, John Sebert, Rodney 
Smith, Dennis Stone, Bradford Toben, Linda Whisman, and Leah 
Workman.
---------------------------------------------------------------------------

    None of these factors is affected by the percentage limitations on 
membership of committees. Nor is there any bar to continued domination 
of the Section by precisely the same individuals who captured it in the 
past. Therefore, because these persons continue to have a direct 
interest in accreditation, it is reasonable to expect that they will 
continue to be accreditation leaders in the future--as they are today, 
three months after entry of the Decree. But these persons have highly 
anticompetitive views, resisted the entry of the Consent Decree, 
continue to resist the existence of a Decree which they regard as the 
product of a Department of Justice that is ``out of control'' and an 
ABA leadership that ``sold out,'' \5\ and have already been taking 
concrete actions which directly flout specific provisions of the 
Decree.\6\

    \5\ The verbal opposition to the Decree is illustrated by 
statements made by a leading insider, Joseph Bellacosa (Exhibit 2), 
and by the knowledgeable statement of Dean Ronald Cass of Boston 
University Law School that ``People who are long-time section 
activists regard what's going on now as crazy and can't understand 
how this came to pass.'' ``They think the Department of Justice 
people are out of control and that the ABA sold out by settling.'' 
Ken Myers, ABA Accreditation Panel Urges Changes, But Critics Want 
More, National Law Journal, August 21, 1995, p. A16. (Bellacosa's 
statements, Exhibit 2, illustrate Cass' points.)
    \6\ Actions that contradict the Decree include the following. 
The ABA agreed the Decree was binding as of the day it was filed, 
June 27, 1995. The Decree provides (and the CIS confirms) that the 
Nominating Committee's membership cannot be comprised of more than 
40 percent academics. It also provides that no data is to be 
collected on salaries. Nonetheless, (1) in August, 1995, it was 
announced by the capturing insiders that a fourth academic was being 
added to the five person Nominating Committee, so that its 
membership was raised from 60 percent academics to 80 percent 
academics, instead of declining to the 40 percent allowed by the 
Decree. The academic being added to the Nominating Committee is 
preeminent captor Steven Smith, who, though apparently well-aware of 
antitrust problems with the ABA's practices (Exhibit 3), continued 
to be a leader in training site inspectors to engage in what he 
admitted was thought by many to be ``a guild effort to up salaries'' 
and in training them to disguise the true purpose of this guild 
effort by claiming it was necessary for quality. (Exhibit 4.) And 
(2) notwithstanding the Decree's ban against collection of salary 
information, in August 1995 the Consultant's office circulated a new 
questionnaire to law schools seeking salary data. (Exhibit 5.) The 
data are sought in a form that allows calculations of average 
salaries and, possibly, identification of individual salaries in 
certain instances. (The questionnaire was circulated approximately 
one month after accreditation captor Roger Jacobs, who is a law 
library director, circulated a letter on the Internet saying that 
several law library directors were wondering whether the Association 
of American Law Schools (``AALS'') would be willing to collect and 
distribute salary information now that the ABA is barred from doing 
so, and had received a reply from a law librarian saying this would 
not be wise. (Exhibit 6.))
---------------------------------------------------------------------------

    Notwithstanding that membership on crucial committees is limited to 
``only'' 50 percent or ``only'' 40 percent academics, continued 
domination of the accreditation process by these same capturing 
individuals must be expected to result in compliance with the Decree 
that is at best grudging and in the maximum amount of anticompetitive 
conduct that the members of the group feel they can ``get away with''--
for example, as has occurred, in conduct which flouts the Decree if 
this can be gotten away with and, as evidence and testimony show to 
have occurred in fact, in anticompetitive conduct that can be hidden by 
not stating the real reasons for action in documents and formal 
meetings, so that there can be no readily available evidence of 
anticompetitive purpose such as price fixing.\7\

    \7\ Efforts to ``get away'' with anticompetitive action are 
exemplified when anticompetitive conduct is hidden by not stating in 
writing or at formal meetings the real reasons for action, so that 
there can be no readily available evidence of anticompetitive 
purpose such as price fixing. (This was done in connection with 
MSL.) Inspectors have also disguised price-fixing motivation by 
claiming that higher salaries were necessary for quality. See note 
6, supra.
---------------------------------------------------------------------------

    Furthermore, requiring Board of Governors' approval for 
appointments to the Accreditation Committee, the Council and the 
Standards Review Committee may have little or no effect on any of this. 
There is no evidence of any effect to date, three months after the 
Decree was filed on June 27, 1995, and there are several reasons for 
skepticism that there will be significant future effect. For example, 
the Consent Decree contains no provision requiring the Nominating 
Committee--whose membership was recently raised to 80 percent 
academics, in violation of the Decree, by adding leading insider Steven 
Smith--to seek out nominees known to hold procompetitive views instead 
of nominating persons who hold the capturing insiders' anticompetitive 
views. Nor is there any provision requiring the Board of Governors 
itself to insist that there be nominees who hold procompetitive views 
instead of the prevailing anticompetitive views. Nor is there 
assurance, particularly given the annual turnover in ABA leadership, 
that the Board will long have any stomach for opposing the wishes of 
the powerful, anticompetitively-oriented Section of Legal Education. 
The high level politics of the ABA have made it a goal of Board members 
to make no enemies lest this stand in the way of advancement. The Board 
has therefore acceded to anticompetitive Section wishes in the past 
despite heavily documented warnings of serious antitrust violations, 
and already has failed to prevent violations of the Consent Decree even 
though it is being relied on to do so.
    What curative steps, then, can be taken to ensure that the Consent 
Decree effectively guards against continued capture of the 
accreditation process by precisely the same persons and continued 
anticompetitive conduct camouflaged by hiding underlying 
anticompetitive reasons? First, the Decree should bar members of the 
insider group, who are the persons responsible for the anticompetitive 
problems which arose--and also should bar their supporters--from any 
continued participation on behalf of the ABA in the accreditation 
process, just as securities law violators are often barred by 
injunctions from continuing to be active in the brokerage business.
    Second, just as federal injunctions often bar defendants from 
engaging in future violations of laws they have already violated, in 
order to preclude future anticompetitive use of the process by captors, 
the Consent Decree should not only bar the actions which it already 
does enjoin, but should also include a provision specifically banning 
the ABA from violating the Sherman Act through use of its other 

[[Page 63846]]
accreditation criteria to achieve anticompetitive purposes (which the 
Complaint and CIS specifically say was done at times by the 
captors).\8\

    \8\ We note in this regard that the Consent Decree already 
requires a number of Section officials to certify annually that they 
are abiding by the terms of the Decree and know of no unreported 
violations of it, and requires the Executive Director of the ABA 
(leading insider Robert Stein), the Consultant and the Consultant's 
staff to certify annually their understanding that failure to comply 
with the Decree can result in conviction for contempt of court. 
(Consent Decree, p. 10.) Clearly it would not be unfair to require 
the ABA itself to agree that it is abiding by the Decree by not 
committing acts that the Government had already determined to be 
anticompetitive but withheld challenging pending the Special 
Commission's Report.
---------------------------------------------------------------------------

    Third, the Decree should require the Board of Governors, on which 
the Division is depending, to itself seek out, and to insist that the 
Nominating Committee likewise seek out, nominees for the Accreditation 
Committee, Council and Standards Review Committee who are known to have 
procompetitive views and to oppose the anticompetitive conduct which 
prevailed for two decades. There are numerous individuals who, 
notwithstanding academic affiliations, are already known to fill this 
bill and who have shown great knowledge of and/or interest in 
accreditation matters.\9\

    \9\ They include, among others, Dean Colin Diver of the 
University of Pennsylvania Law School, Dean Ronald Cass of Boston 
University Law School, Dean Howard Glickstein of Touro College Law 
Center, Dean Patrick Hetrick of Campbell University Law School, 
President Thomas Brennan of Cooley Law School, Dean Howard Eisenberg 
of Marquette University Law School (formerly Dean of the University 
of Arkansas Law School at Little Rock), Dean Robert Reinstein of the 
Temple University Law School, Dean Anthony Pagano of the Golden Gate 
University Law School, Dean Henry Manne of the George Mason 
University Law School, Dean Richard Matasar of the IIT-Kent Law 
School, Thomas Leahy, who is a recent President of the Illinois Bar 
Association, Chancellor R. Gerald Turner of the University of 
Mississippi, Dean Timothy Heinsz of the University of Missouri Law 
School, Provost Mary Sue Coleman of the University of New Mexico, 
Dean David Shipley of the University of Kentucky Law School, 
President Steven Sample of the University of Southern California, 
Chancellor William H. Danforth of Washington University of St. 
Louis, Dean Majorie Girth of Georgia State University College of 
Law, President William Greiner of the State University of New York 
at Buffalo, President Thomas Salmon of the University of Vermont, 
and Dean Harvey Perlman of the University of Nebraska Law School.
---------------------------------------------------------------------------

3. The Consent Decree Will Not Eliminate the Secrecy Which Has Led to 
Violations of Law, Unwritten Rules, and Capture of the Process

    A second problem with the remedial provisions of the Decree arises 
because it does not curb the secrecy which infested the accreditation 
process and allowed illegality to flourish.
    A. The CIS correctly says that application of the accreditation 
process to individual schools ``was kept from public view and the 
supervision of the ABA's Board of Governors and House of Delegates.'' 
(CIS, p. 10.) The application of the process was in fact kept totally 
secret. Self studies, site inspection reports, schools' responses to 
those reports, transcripts of hearings before the Accreditation 
Committee and Council, action letters, schools' responses to action 
letters, and correspondence between schools and accreditors were all 
treated as highly confidential. Time and again--in articles, in briefs 
and in oral statements--the accreditors said such secrecy was essential 
because without it schools allegedly would be unwilling to share the 
truth with accreditors, and the accreditation process assertedly would 
collapse.\10\ On the basis of these assertions, complete secrecy was 
demanded and enforced, even though there are other accrediting bodies 
that make similar documents and assessments public and have thrived 
rather than collapsed.\11\

    \10\ See, e.g., the materials in Exhibit 7.
    \11\ See, e.g., the materials in Exhibit 8.
---------------------------------------------------------------------------

    A less charitable way of looking at the accreditors' demands for 
secrecy is that total confidentiality was needed not to preclude 
collapse of the process, but because (1)without total secrecy schools 
would not provide the extraordinary criticism of their own competence 
and programs which the accreditors needed to force universities to give 
the law schools more money for ever higher salaries, more full-time 
teachers, larger buildings, ever expanding libraries and other matters 
comprising the guild interests, and (ii) without secrecy the actions of 
the accreditors would have come to light. In the latter regard, the 
total secrecy of the accreditation process with respect to individual 
schools is what enabled the accreditors to fix prices and commit the 
other violations of the Sherman Act detailed in the Complaint, to 
develop and apply secret rules that were written nowhere, to treat 
schools inconsistently and arbitrarily, and to use the same people over 
and over again to enforce the anticompetitive policies.
    It is literally impossible to overestimate the extent to which 
violations, secret policies and arbitrary action flourished because of 
the secrecy. As is often the case with regard to written standards of 
conduct, the ABA's written criteria most often are generalized vessels 
whose content is supplied by the enforcement policies followed by 
enforcement officials.\12\ What was done in practice was therefore 
often more important than generalized written standards. The DOJ itself 
has recognized this de facto by saying time and again in the complaint 
and CIS that certain policies were followed in practice, including 
policies regarding compensated leaves, physical facilities, extending 
salary criteria from faculty alone to deans and librarians as well, the 
definition of an hour, and failure ever to recommend accreditation of a 
proprietary school. (See Complaint, pp. 6, 8, 9; CIS, pp. 5, 6, 8.) MSL 
itself, moreover, was subjected to a host of unpublished secret rules, 
which it has learned are common, to arbitrary and illegal procedures, 
and to inconsistent actions.

    \12\ This is another reason why the procompetitive or 
anticompetitive views of accreditation personnel are so crucial.
---------------------------------------------------------------------------

    Thus, among the commonly followed but unpublished rules to which 
MSL was subjected are ones requiring that: a school's salaries must be 
in the top half of schools with which it is compared; no transcription 
is permitted of fact-finding inspection meetings even though the 
accreditors perform a quasi-judicial function; site team reports are 
done jointly by representatives of the ABA and the Association of 
American Law Schools (``AALS''); and AALS representative writes the 
portion of a site report dealing with a school's faculty; a university 
cannot take more than 20 percent of the tuitions generated by its law 
school and, if a law school is not part of a university, it must spend 
all its revenues rather than use a part of them to create an endowment; 
law schools must meet a librarian/student ratio; law students (unlike 
medical students) cannot be given credit for clinical experience 
obtained in cases from which a supervising professor obtains fees; the 
faculty must control a school; not matter how much work she does for a 
school--even if she works 60 hours per week for it--a professor cannot 
be treated as a full-time professor if more than 20 percent of her time 
is spent doing compensated work for clients, but a professor will be 
counted as a full-time faculty member although she spends extensive 
time every week working on a probono basis; leaves of absence have to 
be granted with pay; the Law School Admissions Test (``LSAT'') is the 
only permissible entrance test; a school often must require full-time 
students to sign affidavits saying they are not working more than 20 
hours per week; a school will ipso facto be said to be of poor quality 
if it makes extensive use of adjuncts instead of employing a 

[[Page 63847]]
large full-time faculty; and a school's physical facilities will be 
called inadequate if they are not new or recently refurbished and do 
not cost literally tens of millions of dollars.
    The arbitrary procedures and inconsistent actions to which MSL was 
subjected included: the site inspection team was stacked with the 
insiders to insure the adverse site report desired by the accreditors; 
site inspectors were prejudiced against MSL before they even inspected 
it; they intentionally wrote a biased and false report; rules were 
applied against MSL that were applied to no other schools or that were 
invented on the spot; MSL was criticized on the basis of comparative 
statistics that had been withheld from it; the School was criticized 
for matters on which it had a far better record than other schools that 
were praised (e.g., bar passage rates); procedural delays were placed 
in the School's path; site inspectors were chosen who had grave 
conflicts of interest; some of the same persons sat on both the 
Accreditation Committee and on the Council which reviewed the 
Accreditation Committee's decision; intentionally false statements were 
made to MSL and its students; and certain site inspectors may have been 
applying more stringent Association of American Law Schools (``AALS'') 
criteria although MSL was not seeking AALS membership.
    From MSL's study of the accreditation process, knowledge the School 
has obtained in discovery, information it has received from other 
schools, and even statements in the Complaint and CIS, it is clear that 
MSL's experience was typical in the sense that secret rules and 
arbitrary and inconsistent conduct, as well as grave violations of the 
antitrust laws, have been de rigueur in ABA accreditation. Yet none of 
this could have happened if the accreditation process regarding schools 
had been open--if the documents kept secret had instead been made 
public. For, if the relevant documents had been public--just as their 
analog court and agency briefs, records and opinions are public--then 
the affected law schools, faculty members, students, scholars and 
analysts, law enforcement agencies, reporters, potential students and 
members of the public would all have been able to see that there were 
violations of law, unwritten rules, and inconsistent treatment of 
schools. The result would have been that these things would not have 
occurred or, at minimum, would have been quickly stopped.
    B. The short of it is that secrecy was and remains the essential 
precondition of accreditation misconduct, and openness was and remains 
the best guarantee against it. Yet, the Consent Decree does not require 
an end to the secrecy that has prevailed. The closet the Decree comes 
to providing for openness on any matter other than the identity of site 
inspectors is to say that the Council must annually send the Board of 
Governors a report of accreditation activities during the preceding 
year, including a list of schools on report or under review, with 
identification of each school's areas of actual or apparent non 
compliance with the Standards and how long the School has been on 
report or under review. (Consent Decree, p. 6.) But even this report--
which goes only to the Board, and not to any other person--can be 
provided ``on a confidential basis if necessary.'' (Consent Decree, p. 
6.) Given the long, strongly held view of the accreditors that 
confidentially is always necessary, as a practical matter it is certain 
that these annual reports will be kept confidential, thus maintaining 
secrecy from everyone but Board members. And, since the reports do not 
need to discuss the reasons why schools are held not to comply with 
given Standards, even complete openness of these reports would not 
enable schools, scholars and analysts, potential students, reporters or 
others to know such underlying reasons, much less to know of unwritten 
rules that are used as reasons.\13\

    \13\ The provision of the Consent Decree (p. 6) requiring the 
Accreditation Committee to send reports to the Council suffer from 
all the same weaknesses plus the weakness that the reports go to the 
Council alone.
---------------------------------------------------------------------------

    C. Thus, the secrecy which led to illegality will, as a practical 
matter, be preserved under the Consent Decree. There is, however, a 
simple step that would cure this and would almost certainly insure, in 
and of itself, that the process is conducted in a legal and fair way in 
the future--in a way that does not violate the Sherman Act and does not 
violate elemental rules of fairness and due process. The Consent Decree 
should be changed to provide that the documents created during the 
accreditation process will be available to any person, just like 
analogous court and agency briefs, records, transcripts and opinions 
are available to any person. This would make it impossible to have a 
repetition of the illegality, unwritten rules, inconsistency and 
arbitrariness that arose. For such conduct would be quickly discovered 
and attacked by a host of schools, analysts, students, reporters, 
members of the public, and enforcement officials. Justice Brandeis said 
that sunlight is the best disinfectant; the principle is applicable to 
ABA accreditation.

4. The Consent Decree's Novel Provisions for Review of Anticompetitive 
Practices by a Special Commission Heavily Comprised of Accreditation 
Insiders May Cause the Decree To Fail To Remedy Anticompetitive 
Practices Charged in the Complaint

    A. The CIS says that the DOJ originally intended to seek to 
prohibit anticompetitive rules relating to calculation of student/
faculty ratios, limitations of teaching hours, leaves of absence, and 
banning of credit for bar review courses. (CIS, p. 15.) Ultimately, 
however, the DOJ agreed that, although these practices, plus practices 
regarding physical facilities and allocation of revenues between law 
schools and universities, had been used ``inappropriately'' ``at times 
to achieve anticompetitive, guild objectives'' (CIS, pp. 9, 13), they 
nonetheless should be reviewed ``in the first instance by the ABA 
itself'' (CIS, p. 16). The practices, the Government agreed, should 
thus be submitted to a ``Special Commission.'' (Consent Decree, pp.7-8; 
CIS, p. 16). That Commission, it is now known, is the so-called Wahl 
Commission. It is packed with accreditation insiders who had captured 
the accreditation process and, when the Decree was filed on June 27, 
1995, it had been sitting for over a year and was nearing the end of 
its work, which from inception had been due to be completed by the 
first week in August, 1995.
    Under the Consent Decree, the Special Commission's Report is to be 
submitted to the Board of Governors ``no later than February 29, 1996'' 
(CIS, p. 13), and the Board, after reviewing it for an unspecified 
period (presumably for the purpose of possibly making changes in the 
Commission's recommendations), will file it with the Government and the 
Court. (CIS, p. 13.) The Government can then challenge the Report in 
Court within 90 days if the Special Commission ``fails to consider 
adequately the antitrust implications of continuing the ABA's past 
practices * * * '' (CIS, p. 16.)
    The government states that this arrangement is ``novel relief.'' 
(CIS, p.13.) The DOJ's agreement to allow an insider-dominated Special 
Commission to make the initial decisions on crucial anticompetitive 
practices could result in failure of the Consent Decree to stop those 
practices, however.
    B. The members of the Special Commission were appointed by two 
leading members of the group which controls ABA accreditation: Joseph 

[[Page 63848]]
Bellacosa, the immediate past Chairman of the Council, and Robert 
Stein, who preceded Bellacosa in that position and now is Executive 
Director of the ABA. There are 15 Commission members, at least eight of 
whom are part of the heart and soul of, or are closely tied to, the 
capturing inside group. A ninth member belonged to a closely 
cooperating group, the Special Accreditation Committee of the 
Association of American Law Schools, and the Commission has worked 
closely with two other leaders of the controlling inside group.
    Confining ourselves to listing only one or two of the accreditation 
credentials for each of these persons, the relevant members of the 
Special Commission are: Commission Chairperson Rosalie Wahl, a former 
Chair of the Council, which oversees the Accreditation Committee; Henry 
Ramsey, Jr., a recent former Chair of the Council and Chair of the 
committee which produced a 1990 report seeking broader funding for 
insiders; Pauline Schneider, a recent chair of the Accreditation 
Committee; Diane Yu, recently a member simultaneously of both the 
Accreditation Committee and the Council; Talbot D'Alemberte, a former 
Chairman of the Council; Joseph Harbaugh, a Section activist and former 
head of the Section committee on diversity; Nancy Neuman, a member of 
the Accreditation Committee and recently the president of the AALS, 
which cooperates closely with the ABA in accreditation; and Thomas 
Sullivan, who has been a member of the Accreditation Committee of the 
cooperating AALS.
    In addition, the Special Commission worked closely with the ABA's 
Consultant, James White, who has headed the controlling group for 
nearly 22 years. And, of the two ``reporters'' who helped write the 
Commission's report, one was Frank Read, a long time Section activist 
and former president of the cooperating Law School Admission Council, 
who was serving as James White's Deputy Consultant during the period of 
the Special Commission's work.
    Thus, review of anticompetitive accreditation practices has 
initially been placed largely in the hands of persons who have 
vigorously implemented and thoroughly approve of those anticompetitive 
practices, who resisted the Consent Decree and continue to resist it, 
and who, in the words of Dean Cass, regard the Decree as the product of 
a Department of Justice that is ``out of control'' and of an ABA 
leadership that ``sold out by settling.'' \14\ (P. 7, and pp. 7-8, N. 
5, supra.)

    \14\ From the Complaint and the CIS, it is not clear whether and 
the extent to which the DOJ, when negotiating the Decree, had been 
informed by the ABA as to the heavily insider nature of the Special 
Commission , the length of time it had been sitting (over one year), 
or that its work was due to be completed at the beginning of August, 
1995. The Consent Decree contains some language which, because 
expressed in the future tense (the ``ABA shall: establish a Special 
Commission'') (Consent Decree, P. 7 (emphasis added)), would 
indicate that the Government did not know, when negotiating the 
Decree, that the already long-existing Wahl Commission would be the 
Special Commission. On the other hand, the CIS, filed approximately 
three weeks after the Decree, contains language which, because 
expressed in the past tense, indicates that the Government had 
possessed at least some relevant knowledge about the Wahl Commission 
when negotiations were in progress. (The CIS says, for example, that 
the DOJ had ``considered'' that the Commission ``had progressed'' in 
the work doing. (CIS, p. 27).)
    The question of the extent of the Government's knowledge when 
negotiating the Decree is an important one. Prior to agreeing that 
the insider-packed Wahl Commission, which was due to finish its work 
shortly, would be the Special Commission, the DOJ had proposed that 
the Special Commission should be ``separately constituted as an 
antitrust review committee.'' (CIS, p. 17.) If the DOJ was apprised, 
when it agreed that the Wahl Commission rather than a separate 
antitrust committee should be the Special Commission, that the Wahl 
Commission was an insider-packed group that had been sitting for a 
long period and was about to finish its work, then one might 
disagree with the Government's decision that the Wahl group should 
be the Special Commission, but the decision was nonetheless an 
informed one. But if the Government had not been told of the heavily 
insider nature of the Wahl Commission and that the Commission had 
been sitting for over a year and its work was nearly completed--if 
the DOJ had not been informed that the Commission was heavily 
comprised of persons who, the Government correctly charged, had 
captured the accreditation process and used it for anticompetitive 
purposes and who were about to submit their report--then it would 
appear that the ABA leaders with whom the Government was negotiating 
withheld crucial information even though the Government is heavily 
depending on them to make the Consent Decree efficacious.
---------------------------------------------------------------------------

    C. It would be unrealistic to expect a 15 person Commission with so 
many members and associated persons who are leaders of the controlling 
inside group to vigorously recommend changes in accreditation 
practices, or not to minimize any changes that intense opposition to 
their practices cause the group to feel compelled to recommend 
notwithstanding their predilections. Thus, it is not surprising that 
the Commission's initial Report (Exhibit 9), delivered August 3, 1995, 
did in fact minimize recommended changes in the subjects of interest to 
the DOJ. And although their own views were published for 61 single 
spaced pages, members of the Commission (successfully) requested 
Commission member Ronald Cass to suppress publication of a ``lengthy 
separate statement'' of views which differ from ones the majority had 
put forth.
    In a brief, 1\1/4\ page ``Separate Statement'' appended to the 
Commission Report, Dean Cass said he had prepared a ``lengthy separate 
statement'' of his views because he disagrees both with the 
Commission's views on accreditation and with its treatment of specific 
issues. (Exhibit 9, p. 62). The specific issues include two which the 
DOJ agreed to have reviewed by the Special Commission, student/faculty 
ratios and the allocations of funds between law school and university. 
They also include other specified issues plus unspecified ones as to 
which Cass says there is ``a basis for skepticism'' about existing 
accreditation practices or the changes proposed by the Commission. 
(Exhibit 9, p. 62.) However, ``[a]t the request of a number of 
Commission members'' Dean Cass withheld his lengthy separate statement 
from publication ``until the Commission completes its work.'' (Exhibit 
9, p. 62.) Until then, his separate statement will be available only 
members of the Council and the Board of Governors. (Exhibit 9, p. 62.)
    Dean Cass' timing of the publication of his views is a reference to 
the fact that, because the DOJ has agreed to have the Commission review 
anticompetitive practices listed above, the Commission has said it will 
meet again in September and issue a supplementary Report sometime in 
October. It is Dean Cass' hope that the withholding of his lengthy 
statement of dissenting views will contribute to the Commission 
changing its mind, and accepting recommendations that he says it 
already has rejected, when it meets again this fall. (Exhibit 9, pp. 
62-63.) It is his further hope that, if the Commission does not accept 
recommendations it has already rejected, the ABA will nonetheless take 
further steps to remedy the problems. (Exhibit 9, p. 63.)
    Thus, it is impossible at this time to know Dean Cass' views 
regarding weaknesses in the majority's current recommendations. Also, 
it is possible that neither additional changes recommended in the 
majority's supplementary Report due in October, nor Dean Cass' views, 
will be available early enough to be known to the Division or the Court 
if the latter assesses in October, 1995 whether the Decree's provisions 
for review of anticompetitive practices by the Special Commission are 
within the reaches of the public interest. Additionally, it is certain 
that, if the Court considers the issue this October, neither the 
Division nor the Court will know what if any corrective action the ABA 
will take should the Commission's Supplementary Report continue to 
reject 

[[Page 63849]]
significant changes in anticompetitive practices.
    Thus, although both the Senate and House Reports on the Tunney Act, 
and the Court of Appeals for this Circuit, have made clear that the 
Court must receive information necessary to determine whether a consent 
judgment is in the public interest,\15\ information of consequence to 
this question will continue to be unavailable to the Division and the 
Court well into the future.

    \15\ S. Rep. No. 93-298, 93d Cong., 1st Sess. 6-7 (1973); H.R. 
Rep. No. 1463, 93d Cong., 2d Sess. 8 (1974); United States v. LTV, 
Corp., 746 F.2d 51, 52 n. 2 (D.C. Cir. 1984).
---------------------------------------------------------------------------

    Indeed, under the Consent Decree this information could be delayed 
until mid 1996. The Decree provides that the Special Commission will 
submit its report to the Board of Governors no later than February 29, 
1996 (Consent Decree, p. 8), eight months after the Decree was filed. 
There is no written time limit on the time during which the Board of 
Governors can review the recommendations. (Consent Decree, p. 8.) It is 
realistic to believe the Board might not finish its review until the 
ABA's August, 1996 convention. The Government then has an additional 90 
days to decide whether or not to challenge the recommendations. 
(Consent Decree, p. 8.) Therefore, it is entirely possible that the 
recommendations, and whether there will be a government challenge to 
them, will not be known until 15 months to 1\1/2\ years after the 
Consent Decree was filed. And, if the Government does challenge the 
recommendations in Court, the final result might not be known for yet 
another year or two. Thus, in addition to placing in the hands of 
anticompetitively-oriented insiders the task of recommending changes to 
practices they desire, the provisions of the Decree relating to the 
Special Commission are a recipe allowing extensive delay, instead of 
requiring expedition.
    D(i). Although neither the contents of the Supplementary Report nor 
subsequent corrective actions by the ABA can presently be known, what 
can be known at this time is that the Special Commission's current 
recommendations, as expected, often exemplify avoidance and 
minimization of changes in anticompetition practices. A prime example 
is the student/faculty ratio, as can be illustrated by discussing the 
origin of the ratio, its anticompetitive effects, its indefensibility, 
and the minimal or nonexistent nature of the change recommended by the 
Commission. We discuss these in turn.
    D(ii) With the exception of fixing of salaries, which is banned 
outright by the Consent Decree, the accreditors' methods of calculating 
and using the student/faculty ratio are the most anticompetitive 
restrictions enforced by the insider group. They are in origin solely 
the products of that group. They appear nowhere in the accreditation 
Standards, but rather were created by capturing insiders via an 
Interpretation in 1978 without action by the House of Delegates. They 
have been used for their own purposes ever since by the capturing 
insiders without action by the House of Delegates.
    D(iii). The anticompetitive effects of the ratio are drastic. In an 
anticompetitive blow at the ability of any law school to provide a 
lower cost education by using fewer full-time professors (whose 
presence in large numbers is desired by the capturing insiders), and in 
a simultaneous anticompetitive blow at the ability of a law school to 
provide practical instruction instead of only the theoretical 
instruction usually provided by the full-time professors, the ratio 
discourages the use of adjunct professors to teach courses. That is, it 
anticompetitively discourages teaching by highly knowledgeable judges 
and lawyers whose teaching salaries, even when adequate, are less than 
those of full-timers, and who bring a wealth of practical knowledge and 
experience to the classroom. It discourages this by providing that no 
adjunct can be counted at all, not even fractionally, when computing 
the ratio. Thus, schools must hire more full-timers to meet the ratio, 
instead of using adjuncts to teach courses.
    To insure that schools do hire more full-timers, the ratio is 
enforced with Draconian stringency. Schools have, indeed, been forced 
by the accreditors to hire enough full-timers to bring their ratios 
down even far below the written ones stated in the insiders' published 
Interpretation on the subject.
    Additionally, in a further anticompetitive blow against use of 
individuals with practical experience, unlike the prevailing practice 
in medical schools where many full-time professors also engage in 
active practice and regard this as essential to keeping abreast of 
knowledge needed in the classroom, the ABA accreditors preclude full-
time professors from engaging in an active practice and thereby 
obtaining practical knowledge that should be brought to the classroom. 
The preclusion is accomplished by refusing to count a full-time 
professor in the student/faculty ratio if he or she also maintains an 
active practice. Because schools are stringently required to meet the 
ratio, and expensive full-time professors will not be counted towards 
the ratio if they have an active practice, no school can afford to have 
such professors. Similarly, and with the same effect, a full-time 
professor, including one who teaches a full load of courses, will not 
be counted toward the ratio if he or she also does significant 
administrative work. Thus, no school can afford to have its professors 
hold administrative positions as well as teach.
    D(iv). None of this can successfully be defended on the ground that 
it is needed for quality. The Consultant has admitted on deposition 
that the ABA has developed no empirical proof that the ratio leads to 
quality education. (Exhibit 10.) The DOJ has pointed out in its 
Complaint and CIS that, although part of the policy supporting the 
ratio is the desirability of smaller classes and more student/faculty 
contact (Complaint, p. 8; CIS, p. 7), the ABA ``did not measure actual 
class size or effectively measure actual student/faculty contact.'' 
(CIS, p. 7.) It is a well known fact that, notwithstanding the ratio, 
large classes, not small ones, are the norm in most law schools, 
particularly in the first year or two of school, and student/faculty 
contact is at a minimum because the interests of the full-time faculty 
members lie elsewhere. We question, indeed, whether it is accidental 
that the Section of Legal Education, though it has maintained an 
elaborate statistical measurement program that includes extensive 
figures on fully 85 different subjects, has never sought easily 
available statistics on actual class sizes, let alone statistics on 
estimated amounts of student/faculty contact. Such data, it is obvious, 
would have shown that the insiders' ratio does not result in small 
classes or student/faculty contact.
    It is becoming increasingly understood that, if one truly desires 
small classes, the way to achieve them is by use of knowledgeable 
judges and lawyers as adjuncts. This provides a cost-effective method 
of obtaining large numbers of highly competent professors whose 
presence enables a school to offer many more, and smaller, classes. It 
is also becoming increasingly recognized that, because of a difference 
in attitude, adjunct professors often make themselves more available to 
students than full timers.
    Furthermore, notwithstanding the traditionally prejudiced views 
that the capturing insiders hold against adjunct professors--who 
inherently threaten insiders' guild objectives of ever higher 

[[Page 63850]]
salaries for full-time professors and ever more full-time professors--
the results of a recent survey of student bar association 
personnel,\16\ discussed in an article on the use of adjuncts,\17\ show 
that law students regard adjunct professors as equal or preferable to 
full-time professors. Students are, of course, the consumers who are 
paying the bills, and consumers, the Supreme Court has said, are the 
persons to whom the Sherman Act awards choice. National Society of 
Professional Engineers versus United States, 435 U.S. 679, 695 (1978).

    \16\ Exhibit 11.
    \17\ The article, entitled ``The Advance of the Adjunct,'' is in 
Exhibit 12.
---------------------------------------------------------------------------

    Student bar association officials at 29 schools responded to a 
survey questionnaire which inquired about students' evaluations of 
adjunct teachers versus their evaluations of tenure track professors, 
i.e., full-time professors. Sixty-one percent of the respondents found 
adjuncts as qualified as full-time professors, 32 percent found 
adjuncts more qualified, and only 7 percent found them less qualified. 
Forty-three percent of the respondents found adjuncts to be as 
available to meet with students as full-timers, 32 percent found them 
more available, and only 25 percent found them less available. Sixty-
four percent said an adjunct had been the professor who contributed 
most to their education; only 36 percent said that it had been a full-
time professor. Sixty-eight percent said that if a particular state law 
course were on a bar exam, they would prefer to take it from an adjunct 
professor; only 32 percent preferred a full-time professor. Sixty-eight 
percent said full-time professors should practice law--which is 
anathema to the full-time faculty who captured ABA accreditation and 
dominate the Special Commission--and only 32 percent felt to the 
contrary. Views favorable to adjuncts were also expressed, by 
overwhelming percentages, with regard to other important matters.\18\ 
All these results obtained though 93 percent said adjuncts taught not 
just electives, but core or required courses--which, like full-time 
professors practicing law, is anathema to the full-time faculty who 
captured ABA accreditation and dominate the Special Commission.

    \18\ Seventy-nine percent said with regard to Criminal 
Procedure--now widely regarded as a core course and often a required 
one--that they would prefer to take it from an adjunct; only 21 
percent preferred a full-time professor. Eighty-six percent found 
full-time professors more likely to cancel classes than adjuncts, 
and only 14 percent found adjuncts more likely to cancel. Ninety-
three percent found full-timers more likely to arrive late to 
classes; only seven percent found adjuncts more likely to be late. 
Ninety-six percent thought that ABA accreditation guidelines should 
be the same with regard to use of adjuncts as with regard to full-
timers, and only four percent felt to the contrary.
---------------------------------------------------------------------------

    This survey of the opinions of the consumers of legal education 
directly contradicts the unfounded claims made about adjuncts by the 
accreditation insiders--claims which the consultant had to admit under 
oath lack any empirical statistical basis. (Exhibit 10.)
    The situation has been aptly explicated in letters written to the 
Special Commission by knowledgeable deans and lawyers, including the 
Deans of the Touro, University of Pennsylvania, Campbell University, 
and Case Western Reserve University Law Schools. Their comments, which 
are appended at the back of this Memorandum, make clear that the 
failure to include adjuncts when calculating the student-faculty ratio 
is for many reasons arbitrary and unjustified. The Dean of the Touro 
College Law Center aptly summed up the matter by saying, ``I agree with 
those who find it insulting to the practicing bar to refuse to 
recognize the contributions that adjuncts can make to a law school's 
program. Adjuncts are not included in the calculation of the student-
faculty ratio. * * * The leading trial lawyer in the state, who taught 
trial practice as part of the law school's program, would not be 
included in that law school's student-faculty ratio.'' Appendix, infra.
    The Dean of the University of Pennsylvania Law School summed up the 
matter by calling the student/faculty ratio arbitrary and by saying its 
definition of full-time faculty is ``arbitrary almost to the point of 
absurdity.'' Appendix, infra.
    D(v). Yet, notwithstanding the deeply anticompetitive nature of the 
student/faculty ratio and particularly its anticompetitive effect of 
greatly reducing the number of adjunct professors,\19\ the Special 
Commission made only minimal recommendations for change.\20\ And, 
though obviously cognizant that intense opposition to current practices 
regarding the ratio disabled it from declining to recommend any change 
whatever, the Commission couched its suggestions in language so 
abstract and general that it is meaningless because it could be met 
even if there were to be no change whatever in actual results.

    \19\ At a recent meeting of the American Association of Law 
Libraries, Donald Dunn, who is the Library Director of the Western 
New England College School of Law and has been on many site 
inspection teams, stated publicly that the ``action letter'' 
recently received by his law school placed it under a show cause 
order to decrease the number of its adjunct professors. (Exhibit 
13.)
    \20\ The Government has indicated a need for reconsideration of 
the exclusion of adjuncts from the student/faculty ratio. There 
appears to have been a drafting mistake that could nullify this, 
however. Apparently in an effort to insure that adjunct faculty 
members who belong to the Accreditation Committee, Council, 
Standards Review Committee or Nominating Committee are not counted 
against the percentage limitations on academics who can belong to 
those committees, the Consent Decree defines ``faculty'' as all 
persons who teach except for adjuncts. (Consent Decree, p. 2 
(emphasis added).) This apparent drafting error could be used to 
assert that the exclusion of adjuncts from ``faculty'' need not be 
reconsidered and changed in any way, when in reality its intended 
meaning is only that adjuncts should not be considered ``faculty'' 
when determining whether there is a violation of the percentage 
limitations applying to the number of faculty on committees. This 
drafting error should be corrected, perhaps by simply including 
adjuncts in the Consent Decree's definition of ``faculty,'' but 
adding that ``adjuncts shall not, however, be considered faculty for 
purposes of determining the number of faculty members on the 
Accreditation Committee, Council, Standard Review Committee or 
Nominating Committee.''
---------------------------------------------------------------------------

    Thus, although in one place the Report says the ratio should ``take 
into account'' the contributions of adjuncts, in its immediately 
following ``recommendation,'' the Commission does not say adjuncts 
should be counted on some proportional basis or on any basis at all. 
Rather, it says only that it is ``reasonable to consider the effect of 
adjuncts on the quality of the academic program in assessing the 
significance of student/faculty ratios.'' (Exhibit 9, p. 29.) One who 
is so minded can take these effects into consideration as the insiders 
claim to have done for years, but can then decide the effects do not 
warrant any change in the application of the ratio, as the insiders 
have also done for years. Furthermore, rather than require adjuncts to 
be counted on some basis, the insider dominated Wahl Commission 
accepted the insiders' erroneous assertions regarding alleged problems 
with adjuncts.\21\ (Exhibit 9, pp. 27-28.)

    \21\ Given the meaningless nature of the Special Commission's 
recommendations regarding the ratio, and the Commission's reliance 
on shop-worn cliches, it is not overly surprising that Commission 
members did not care to see publication of Dean Cass' views on the 
ratio.
---------------------------------------------------------------------------

    E. The foregoing discussion of the student/faculty ratio 
demonstrates that, by agreeing to have anticompetitive practices 
reviewed by the Special Commission comprised largely of insiders who 
enforced, approved of and created those practices, the Government has 
agreed to a compliance procedure that may cause the Consent Decree not 
to rectify the anticompetitive practices

[[Page 63851]]

identified in the Complaint. There are, however, at least two curative 
practices that could solve this problem.
    The first is that, in accordance with the DOJ's initial intent, 
misuse of the practice should simply be enjoined. As discussed above, 
using a technique common to federal law, such an injunction would 
prohibit the practices from being used to violate the Sherman Act.
    Second, instead of following the presently contemplated schedule 
under which a Tunney Act hearing is planned for October 23, 1995, in 
accordance with a revised and expedited schedule discussed below, a 
postponement of the hearing should be sought until the Special 
Commission's final report and Dean Cass' lengthy separate statement 
have been published, the ABA has either made changes in the Report or 
announced that it will not do so, and the Government has determined 
whether to challenge any of the Special Commission's recommendations. 
This would enable first the DOJ and then the Court to know if what if 
any changes have been recommended and/or made with respect to 
anticompetitive practices charged in the Complaint, when assessing what 
action to take. Such knowledge would at minimum be desirable to the 
DOJ's assessment, and under the Tunney Act is essential to the Court's 
assessment, of whether the decree is within the reaches of the public 
interest. Otherwise the Court will be passing on a decree without 
knowledge of what, if anything, will be banned in connection with 
anticompetitive practices identified in the Complaint.
    Furthermore, postponing the Tunney Act hearing until such knowledge 
is available should be combined with a revised schedule in order to 
spur quicker action that would avoid the undue passage of time invited 
by the current provisions of the decree. Instead of the Special 
Commission not having to submit the Report until February 29, 1996, the 
Board of Governors then having unlimited time to review the 
recommendations, and the DOJ then having 90 days to decide on 
challenges, a firm date such as December 31, 1995, should be set as the 
time by which the Commission's report must be finished, any changes to 
it need to have been made by the ABA, and the DOJ need have notified 
the Court whether it accepts the Report or intends to challenge any of 
its provisions. The date of December 31, 1995 is, after all, more than 
six months after the Consent Decree was filed.

5. The ``Novel'' Relief Involving Review by the Special Commission 
Raises Additional Problems (i) Because it May Bind the Court, 
Regardless of Relevant Circumstances, to Use a Full Blown Rule of 
Reason Analysis Rather ``Quick-Look'' Rule of Reason Analysis When 
Considering a Government Challenge to Recommendations of the Special 
Commission, and (ii) Because it Circumvents the Tunney Act Rights of 
Third Parties

    In addition to compliance weaknesses stemming from the composition 
and views of the Special Commission, there also are other reasons why 
use of this admittedly novel compliance mechanism may cause failure to 
rectify the anticompetitive practices identified in the Complaint.
    A. First, the Government has agreed that, if it challenges any of 
the proposals in the Special Commission's Report, the challenge will be 
decided ``by this Court applying a Rule of Reason antitrust analysis.'' 
(Consent decree, p. 8.) This may be intended to bind the Court in 
advance to use a full blown Rule of Reason analysis. It would be 
inappropriate to confine the Court in advance to such a full blown Rule 
of Reason analysis, when it is surely possible and indeed probable that 
some of the anticompetitive practices on which the Commission is to 
make recommendations are susceptible to a ``quick-look'' Rule of Reason 
analysis in which the Court could quickly determine that there is a 
lack of redeeming procompetitive value.\22\

    \22\ It is even possible that in certain instances per se 
analysis should apply. In the Ivy League Overlap case, United States 
v. Brown University, et al., 5 F. 3d 658 (3d Cir. 1993), the Third 
Circuit repeatedly and extensively pointed out that quick-look Rule 
of Reason treatment, or even per se treatment, could be appropriate 
in an antitrust case involving education if restraints were 
motivated by self-interested economic factors, involved price-
fixing, or lowered output. Such factors are often present here, as 
discussed below.
---------------------------------------------------------------------------

    This is even more the case since, in accordance with its incredible 
standard practice of saying that there are no determinative documents 
to be made available to the Court and the public, the DOJ has not 
provided any information indicating why it believes that the matters 
which are to be the subject of recommendations by the Special 
Commission should necessarily be adjudicated under a full blown Rule of 
Reason analysis rather ``quick-look'' Rule of Reason analysis or other 
analysis.
    The following examples demonstrate why this Court should not be 
bound in advance to a full blown Rule of Reason analysis:
    A(i). The exclusion of adjuncts from the student/faculty ratio has 
been a method used to increase dramatically the demand for full time 
professors and, by doing so, to (a) simultaneously make necessary the 
payment of higher salaries to them while (b) lowering their individual 
output by spreading the same work among a larger body of full-timers. 
It has been, in short, a method of concertedly increasing the demand 
for and the price of full-time labor, whether this is efficient or 
not.\23\ Such concerted action is normally a per se violation of the 
antitrust laws (except when taken by a certified labor union)--it 
normally is not even given the benefit of ``quick-look'' Rule of Reason 
treatment. However, the recommendations of the Special Commission may 
result in little or no change in the rule excluding adjuncts from 
computations of the student/faculty ratio. If that is the result, it 
would seem proper to apply, at most, a ``quick-look'' rule of reason 
analysis.

    \23\ Simultaneously, at least at schools with limited resources 
that cannot afford to adequately pay both a large number of full-
timers and a large number of adjuncts, and probably at other schools 
as well, it reduced the demand for adjuncts, and thereby caused 
reduction in the compensation paid to them.
---------------------------------------------------------------------------

    A(ii). The exclusion of clinicians who are not on tenure track or 
its equivalent, when computing a school's student/faculty ratio, has 
been a method of concertedly insuring higher salaries for non-clinical, 
or ``academic,'' faculty. There is, indeed, evidence showing that 
opposition to including such clinicians in the ratio arose because they 
generally were paid less than ``academic'' faculty and thus would bring 
down the average and median salary levels that all schools were 
required to meet for academic faculty. (Exhibit 14.) There is not as 
yet any recommendation from the Special Commission reversing the 
exclusion of such clinicians, nor has the Government provided any 
evidence as to why such exclusion has any procompetitive benefits, let 
alone significant ones. In the circumstances, ``quick-look'' Rule of 
Reason treatment is the most that is warranted.
    A(iii). As appears to be implied by the statement in the CIS that 
over one-third of all ABA-approved schools are on report for inadequate 
facilities even though nearly all schools occupy new or substantially 
renovated facilities (CIS, p. 8), the problem existing with regard to 
physical facilities has been, in the bluntest terms, that the 
accreditors have required schools to build the law school equivalent of 
the Taj Mahal. The accreditors seem never to be satisfied unless a 
school's facilities are such that they cost from $20 to $60 million. 
The accreditors operate at such a 

[[Page 63852]]
micromanagement level in this regard that, as the Dean of the Temple 
University Law School recently pointed out, they will put a school ``on 
report'' if it allegedly does not provide adequate office space for 
every one of dozens of not-for-credit student organizations. (Exhibit 
15, Testimony of Robert Reinstein, Dean of Temple University Law 
School, before the Wahl Commission.)
    The Special Commission's present recommendation regarding physical 
facilities will make little or no change in this situation. For the 
Commission, while recommending that the current Standards be replaced 
by a new one, simultaneously recommends that the current Standards be 
retained as Interpretations, i.e., that they be retained in a different 
guise. (Exhibit 9, p. 31.) And the Commission's recommendation does not 
even begin to reach what has been the real problem: the way in which 
the rules, be they Standards or Interpretations, are enforced in 
practice by the accreditors. It is the method of enforcement which 
here, and often elsewhere too, has caused inappropriate application of 
rules to further anticompetitive guild interests.
    In these circumstances, it is difficult to comprehend why 
continuation of a failure to recommend drastic changes in practices 
that inevitably require unnecessarily huge inputs of resources--that 
inevitably require $20, $40 or $60 million dollar buildings to satisfy 
the accreditors when far less expensive facilities would be completely 
serviceable--should be given anything more than ``quick-look'' Rule of 
Reason treatment.
    A(iv). It is not difficult to cure the problem arising because the 
Decree may bind the Court to use a full blown Rule of Reason analysis 
in deciding a governmental challenge to recommendations of the Special 
Commission. Cure requires only that the provision in question be 
removed from the Decree. That would leave the Court free to use a full 
blown or ``quick-look'' Rule of Reason analysis, as appropriate, or 
even a per se analysis if and when appropriate.
    B. Second, the Decree unnecessarily and improperly allows only the 
Government to challenge the Special Commission's recommendations. (CIS, 
p. 17.) Unlike the Tunney Act, which allows third parties to file 
documents explaining why they believe the provisions of a decree are 
too weak to cure the violations identified in the Government's 
Complaint, there is no provision here for other parties to file 
comments explaining why they believe Special Commission recommendations 
which the Government should accept in whole or in major part are 
insufficient.
    In the normal consent decree the relief is stated, and private 
parties can comment on it under the Tunney Act. Here, realistically 
speaking, the provisions for review by the Special Commission are not 
themselves relief, but only a method of obtaining possible future 
relief. Yet, there is no provision for private parties to comment on 
that future relief when it becomes known--why may not occur for a 
considerable period of time, as discussed above. Hence, the Tunney 
Act's provisions allowing third parties to comment on relief stated in 
a consent decree have been circumvented. This will be of particular 
importance if the Special Commission issues minimalist recommendations, 
as thus far seems likely, the Board of Governors does not strengthen 
them considerably, and the Government either does not challenge them at 
all or challenges them only in minor or minimal ways.
    To cure this problem, third parties should specifically be given 
the right to comment on the Commission's recommendations in order to 
ensure that their Tunney Act right to comment on relief is preserved. 
Alternatively, as discussed earlier, the Court should postpone its 
Tunney Act hearing until a specified date (such as December 31, 1995) 
by which time the Commission's recommendations shall have been 
submitted, any changes shall have been made by the Board of Governors, 
and the DOJ shall have decided which recommendations it accepts and 
which it will challenge.

6. There are Important ``Procedural'' Matters Which Have not Been 
Addressed Effectively in the Consent Decree or Have not Been Addressed 
at all

    Contributing to the violations of law charged in the Complaint are 
several ``procedural'' points which, when directly addressed in the 
Consent Decree, have been addressed in a way that may not remedy the 
problems, or which have not been addressed at all in the Decree.
    A. First is the composition of inspection teams. These have been 
stacked by the Consultant and his colleagues to insure the 
anticompetitive results they desire at a school. Thus, even the 
insider-dominated Special Commission has had to concede that only two 
percent of the inspectors have participated in 38 percent of the 
inspections. (Exhibit 9, p. 51.)
    MSL's inspection team was illustrative, having been stacked with 
insiders who previously had anticompetitvely devastated schools, and 
who would be sure to write a highly adverse report against MSL in order 
to anticompetitvely stifle its innovations and efforts. The inspectors 
thus included leading insiders such as Steven Smith, Peter Winograd, 
Jose Garcia-Pedrosa, and Richard Nahstoll.
    The Consent Decree does not effectively remedy the problem. All 
that it does is require (i) that ``to the extent reasonably feasible'' 
(Consent Decree, p. 6 (emphasis added)), each inspection team shall 
include one non-law school university administrator and one practicing 
lawyer, judge or public member, and (ii) that there be publication of 
the names of those who inspected each school (Consent Decree, pp. 6-7). 
These remedies could easily prove useless, for several reasons:
F
    A(i). Given publicly acknowledged difficulties in finding six or 
seven persons whose schedules simultaneously allow them to inspect 
during a given week, it often may not prove ``reasonably feasible,'' 
and it usually will be easy for the Consultant to claim it is not 
``reasonably feasible,'' to find a knowledgeable non-law school 
administrator and a knowledgeable practicing lawyer, judge or public 
member to be on an inspection team.
    A(ii). The Consultant can continue to appoint anticompetitively 
oriented insiders to inspection teams for schools for which the insider 
group desires highly critical reports that preclude or cause threatened 
withdrawal of accreditation. Publishing the list of inspectors will not 
cure this. For all that the Consultant will need to do is save 
anticompetitive insiders for inspections of schools the insiders 
privately desire to be injured by adverse reports.
    A(iii). Even when the Consultant appoints non-law school 
administrators, practicing lawyers, judges or public members to an 
inspection team, if the insiders desire to injure a school, the 
appointees can be persons who will support the goals of the insider 
group. This was done to MSL.
    B. A second problem, not addressed anywhere in the Decree, is that 
inspection teams regularly write deeply one-sided, even outright false, 
inspection reports designed to castigate schools and thereby force them 
to adhere to the insiders' wishes regardless of how anticompetitive 
those wishes may be. MSL was a victim of this practice \24\ and, 
notwithstanding the 

[[Page 63853]]
secrecy with which the accreditation process has been cloaked, in 
conversations, in some site reports it has managed to obtain, and even 
in other written materials it has learned of other schools that were 
likewise subjected to the practice. Thus notwithstanding the prevailing 
secrecy, even a letter to the Wahl Commission reveals an analogous 
experience at the highly regarded law school of the State University of 
New York at Buffalo. There the inspection team wrote a negative report 
notwithstanding expressions of approval and even delight that it made 
in person. The President of the University thus wrote as follows to the 
Wahl Commission:

    \24\ Instead of reporting the favorable views expressed about 
MSL by Massachusetts judges and lawyers, the site report on MSL 
invented false claims that Massachusetts judges were concerned about 
MSL's student/faculty ratio and about the small percentage of 
applicants interviewed by the entire Admissions Committee rather 
than by one admissions officer. The report also omitted to mention, 
mentioned only cursorily, or gravely distorted MSL's objectives, the 
persons whom MSL serves and the fact that they have been frozen out 
of legal education, the methods MSL uses to bring efficiency into 
law school operations, MSL's efforts to diminish the long standing 
gulf between the academic and practical sides of law, its innovative 
courses and methods, its high percentage of truly small classes, 
important qualifications of MSL's faculty, the quality of 
instruction, the capabilities of MSL's students, the extensive 
student/faculty contact at MSL, MSL's view of scholarship, MSL's 
salary structure, MSL's teaching loads, the School's grading curve, 
the faculty's role in School governance, the School's views on 
attendance, MSL's views on the use of adjuncts, the student/faculty 
ratio, MSL's admissions process, MSL's electives, MSL's instruction 
in ethics, the School's program of concentrations, its residency 
practices, its class schedules, its clinical programs, the School's 
financial aid views and practices, its minority policies, its 
retention rates, its bar passage record, MSL's administrative 
structure, its library philosophy, its physical facilities, the 
School's law review, its placement philosophy, the criticism of 
legal education discussed in MSL's self study and underlying many of 
the School's views and practices, and crucial philosophies 
underlying MSL's finances.
---------------------------------------------------------------------------

    The site evaluation team expressed amazement that a law faculty 
could develop such a well-coordinated, thoroughgoing revision of its 
curriculum and build near-unanimous faculty support for the changes. 
In meetings with the faculty, dean, provost and me, they expressed 
great enthusiasm for the path our law school had marked out for its 
future. From all that they said, it was clear that the team took a 
very positive view of the law school, its faculty, and its programs 
and new curriculum.
    But, the team's positive firsthand response notwithstanding, 
their report and the Accreditation Committee's response to us was 
full of quibbles. It bore faint evidence of what the site evaluation 
team saw and applauded. It bore ample evidence, however, that the 
elaborate and complex rules of the accreditation system are focused 
on the trees--some might even say the scrub underbrush--rather than 
the forest. It is this approach in accreditation report after 
accreditation report that has ground down innovative, forward-
thinking law faculty members and law faculties over the years.
    Lest you think this is another president beating his drum, 
please note that I have been a member of UB's law faculty for 28 
years; I taught regularly in our law school until I became provost 
eleven years ago; and I have observed this process from up close for 
a long time. I generally believe that it will take more than 
tinkering to put right the encrusted system that has grown over the 
years. After reading the testimony before the National Advisory 
Committee last December, I was left wondering whether the current 
system has the capacity to get past tinkering and into significant 
reform. (Exhibit 16 (emphasis added).)

    C. A third problem is that it is unlikely that any beneficial 
effect will flow from the Decree's provision that the ABA shall 
``permit appeals from Accreditation Committee Action Letters to the 
Council.'' (Consent Decree, p. 5.) For such appeals have always been 
permitted. They are, indeed, provided for in the existing rules. The 
difficulty has not lain in the absence of a right of appeal. It has 
lain, rather, in the fact that the Council has mainly been a rubber 
stamp for the Accreditation Committee because both have been dominated 
and populated by the same group of insiders, and it is therefore 
explained to and widely understood by schools caught in the toils of 
the process that an appeal to the Council will do them no good. The 
only thing that would do them any good, they are made to understand, is 
knuckling under to the Accreditation Committee. (Thus it is that 
capturing insider Henry Ramsey admitted to the DOE at a hearing that 
the Council rarely disagrees with Accreditation Committee actions. 
(Exhibit 17.))
    Accordingly, the provision for an appeal to the Council is 
meaningless as a practical matter.
    D. The Decree also does not address, and therefore fails to remedy, 
another feature of the process that has kept it in the hands of the 
group of insiders: The same persons sometimes serve simultaneously on 
two of the four committees mentioned in the Decree (e.g., serve 
simultaneously on the Council and the Accreditation Committee), and, 
even when persons don't serve on two of the committees at the same 
time, membership on the committees is rotated among the same group of 
persons, so that an insider serves first on the Accreditation Committee 
and then, having acted in accordance with the group's wishes, moves up 
to the Council, while at other times being a member of the Standards 
Review or Nominating Committees.
    The Decree cures none of this. It does not prevent simultaneous 
service on two committees. And its provisions for term limits allow a 
minimum of twelve years membership, through successive nonsimultaneous 
memberships on the Accreditation Committee and Council; and actually 
allows 18 years of successive membership on those two committees if a 
person chairs each of them, as several have done.\25\ The ostensible 
term limits further allow an additional three years on the Standards 
Review Committee and an unlimited period of membership on the 
Nominating Committee.

    \25\ The Decree's provisions allow an individual two three-year 
terms on each of the committees (for a total of twelve years) plus 
an additional three years as chair of each committee.
---------------------------------------------------------------------------

    Nor, of course, does the Decree place any limit on the length of 
time that a person can be Consultant. It this allows one to use the 
Consultancy for decades as a power base, as James White has done.
    Thus, the provisions for term limits, far from limiting the power 
of the group which has captured the accreditation process, presents 
opportunities for that group to perpetuate themselves in power.
    E. What, then, can be done about these various problems? There is a 
certain amount of tinkering that can be done to improve the Decree, 
such as providing that a person's membership on any and all committees 
shall be limited to a collective total of six years, or that service as 
Consultant is limited to five years. But the two really crucial changes 
that would virtually insure against further violations and improper 
conduct are ones discussed above. First, the whole process should be 
made an open one. If all the pertinent documents, meetings and 
transcripts are open and subject to scrutiny by interested parties and 
the public, accreditors will no longer have the ability to get away 
with violations of law, false statements, phony or incompetent site 
reports, inconsistent and arbitrary conduct, and so forth. Second, the 
entire body of persons who captured and misused the process in the 
past, or assisted those who did, should be excluded from it in the 
future.

7. The Government's Heavy Reliance on the ABA Leadership Could Result 
in Failure to Remedy the Violations Charged in the Complaint

    It is evident from the Consent Decree and the CIS that the DOJ is 
relying very heavily on the leadership of the ABA to prevent the 
Decree's effectiveness from being undermined by its weaknesses. Thus 
the Decree requires that all Interpretation and Rules shall go before 

[[Page 63854]]
the House of Delegates (Consent Decree, pp. 4-5), requires that for 
five years elections to the Council, Accreditation Committee and 
Standards Review Committee (but not the Nominating Committee) shall be 
subject to Board of Governors approval (Consent Decree, pp. 5-6), 
requires the Council to send annual reports to the Board of Governors 
(Consent Decree, p. 6), requires the Board to receive site inspection 
questionnaires before they are sent to law schools (Consent Decree, pp. 
6-7), and indicates that the Board will review the Special Commission's 
recommendations (Consent Decree, p. 8). And thus it is that the CIS 
says that one reason the DOJ agreed that the insider-dominated Wahl 
Commission could be the Special Commission is that the ``ABA leadership 
was now familiar with and sensitive to antitrust concerns.'' \26\ (CIS, 
p. 17.)

    \26\ It is a curious contrast that, when he announced the 
Consent Decree, the ABA's president, with its General Counsel at his 
side, said ``We do not believe that we have violated the Sherman Act 
in any particular.'' See n. 28, infra.
---------------------------------------------------------------------------

    It is therefore clear that reliance on the ABA leadership to 
rectify anticompetitive actions has supplanted the more usual procedure 
of barring such actions in a consent decree. This course of conduct, 
however, is fraught with problems. One major problem is the perception 
it invites. The other is whether the ABA leadership can or should in 
fact be depended upon.
    With regard to perception, although MSL does not claim to be au 
courant with all Division practices, it seems unusual for an 
enforcement agency not to seek to bar practices it finds illegal, and 
to instead tell the organization that violated the law to cure its 
derelictions itself. Reminiscent of overly generous treatment of 
violations that arose from misuse of power by private parties and led 
to the Tunney Act, this course of conduct leads to the question of why 
the ABA was given special dispensation. Further fueling this question 
is the fact that the ABA and government officials work together on many 
projects, high DOJ officials speak regularly at ABA conventions, the 
ABA passes on judicial nominees, and there are other ties. As wrong and 
unfair as the perception of untoward leniency may be, it will be there, 
particularly in this day and age.
    Nor will the perception of special leniency necessarily be 
dissipated by assertions that questions of educational quality exist. 
The DOJ found instances when guild objectives rather than educational 
quality was the catalyst for inappropriate use of requirements 
regarding ratios, resources, facilities, etc. The question will thus 
remain of why wasn't anticompetitive conduct barred in at least those 
circumstances? Why was ``novel'' relief devised in those circumstances?
    The perception of inappropriate leniency will be heightened because 
of serious questions over whether the ABA's leadership can or should be 
depended upon to be a major vehicle for reform. We note that, as a 
matter of history, in the mid 1970's it was thrice necessary for the 
DOJ to bring litigation or issue warnings, or for private parties to 
bring litigation, in order to put an end to antitrust violations 
committed or encouraged by the ABA. This occurred with regard to 
lawyers' fees, lawyer advertising, and prepaid legal service plans.\27\ 
Yet the same mid 1970's, precisely when it was caught in three 
violations, was also the period when the ABA undertook the massive 
development of a fourth set of violations, in the field of 
accreditation of law schools. These historical facts do not give any 
reason to believe that the ABA leadership should be depended upon to be 
the vehicle of antitrust enforcement.

    \27\ See materials in Exhibit 18.
---------------------------------------------------------------------------

    Further, the more recent record provides ample additional reason to 
think the leadership should not be depended on in this way, 
notwithstanding the statement in the CIS that the leadership has 
undergone some sort of conversion to better appreciation of the needs 
of antitrust. Prior to this claimed epiphany, the leadership had no 
interest in rectifying the antitrust violations. Thus, both the Board 
of Governors and the House of Delegates rejected MSL's efforts to 
resolve the relevant matters, notwithstanding MSL's extensive written 
and oral warnings of serious antitrust problems. The Board, indeed, 
after debate on whether to hear an oral presentation by MSL, decided 
against even hearing it. Subsequently, as the Section 16(g) Statement 
would indicate, the DOJ investigation was in progress for nearly 1\1/2\ 
years before ABA officials displayed any interest in resolving the 
antitrust matter with the Government. (They have never shown the 
slightest interest in resolving it with MSL.)
    Then, after signing the Consent Decree, the ABA leadership has 
shown no sign indicating it can be relied on to be a primary vehicle of 
rectification, but has instead shown it should not be so relied on. 
When announcing the Decree, the President of the ABA, with the General 
Counsel sitting next to him, proclaimed, as said, that ``We do not 
believe that we have violated the Sherman Act in any particular''; this 
June 27th statement denying violation was carried in the ABA's national 
publication, the ABA Journal, as well as in other nationally circulated 
media.\28\ Today, three months after the Decree was filed, the 
leadership appears to have done little if anything to enforce it, but 
has instead acted in a manner that is inconsistent with both its letter 
and spirit, and that augurs further anticompetitive actions. Thus, the 
leadership has not stopped the insiders from already violating the 
Consent Decree by demanding salary information from schools and raising 
the number of academics on the Nominating Committee to 80 percent, 
though the number permitted under the Consent Decree is only 40 
percent.\29\ The leadership has not taken steps to replace the insiders 
who have controlled and used the Section to further guild purposes: the 
same people still populate the pertinent committees, new persons with 
pro-competitive views have not been added to the committees, James 
White, the ABA's Legal Consultant still sits, and the new ABA Executive 
Director was a recent Council Chairman.

    \28\ Henry J. Reske, ABA Settles Antitrust Suit on 
Accreditation, ABA Journal, August 1995, at 24; Shanie Latham, ABA, 
Justice Dept. Settle Antitrust Suit, The National Jurist, August/
September, 1995, at 6.
    \29\ The leadership allowed salary information to be sought via 
questionnaire even though the Consent Decree provides that the Board 
of Governors should receive questionnaires before they are sent to 
law schools. (Consent Decree, pp. 6-7.)
---------------------------------------------------------------------------

    Additionally, rather than requiring postponement and change in the 
Special Commission's Report, the leadership allowed the insider-
dominated Commission, on August 3rd, to release an initial report whose 
recommendations are vastly inadequate to remedy violations. Nor has the 
leadership taken steps to remedy untrue statements made in antitrust 
proceedings regarding the alleged nonavailability or irrelevance of 
documents and regarding an alleged longstanding practice of supposedly 
not considering salaries when making accreditation decisions. The 
statements regarding nonavailability of documents contradict the ABA's 
production to the Government in this antitrust proceeding and the 
statements regarding salaries contradict the Government's statements in 
its Complaint and Competitive Impact Statement.
    Nor can it be ignored that the ABA is a very political organization 
in which the Section has long wielded great political power, that 
ambitious persons rise in the leadership by not making enemies of those 
with power, that there is continuous turnover of the elected 

[[Page 63855]]
officers of the ABA, that the politically powerful Section continues to 
violently oppose the Consent Decree, and that, while it is claimed that 
the leadership has now undergone a metamorphosis regarding its 
antitrust responsibilities, the leadership, as said, cared nothing 
about antitrust for a long period of time.
    Thus there is ample historical and current reason to fear that the 
DOJ's reliance on the ABA leadership, rather than on an injunction, as 
the vehicle for obtaining compliance with the antitrust laws will prove 
inadequate and may result in a failure to rectify the violations 
charged in the Complaint. There are two simple steps that can be taken 
to cure this problem, however. First, anticompetitive practices found 
to exist by the Government should be enjoined, as discussed above. 
Second, to test whether the leadership will in fact act in accordance 
with a new found commitment to antitrust, the Tunney Act hearing should 
be postponed until December 31, 1995 (as discussed above) to see 
whether the leadership forwards recommendations adequate to cure the 
violations and whether it has taken other steps that are required by 
the Decree or are desirable to cure violations. Such other steps would 
include, for example, appointing numerous persons known to have 
procompetitive views to the various committees, and excluding from 
further Section work the capturing insiders and their supporters, who 
are responsible for the problems.

8. The Effectiveness of the Decree is Potentially Diminished by Lack of 
Knowledge Regarding the Identity of an Antitrust Compliance Officer, by 
a Serious and Inexplicable Limitation on the Compliance Officer's 
Duties, and by Reliance on Staff of the Department of Education Who 
Have Been Ineffective in Regard to the ABA

    The Consent Decree provides that the ABA shall appoint an Antitrust 
Compliance Officer who shall supervise a compliance program by, among 
other things, supervising accreditation activities to insure they are 
not inconsistent with certain provisions of the Decree. (Consent 
Decree, pp. 8-10.) The Antitrust Compliance Officer is to be appointed 
within 30 days of entry of the Decree. The Decree also provides that 
the ABA shall, by October 31, 1995, hire an independent, non-legal-
educator, outside consultant to assist in validating all Standards and 
Interpretations as required by the Department of Education (``DOE'') 
and to develop a plan for such validation by December 31, 1995. 
(Consent Decree, p. 7.)
    A. The existence of an Antitrust Compliance Officer could be a 
matter of the first importance. However, the identity of the Officer is 
crucial. Antitrust is a field in which there is a wide gulf between the 
opinions of two vigorously differing sides of the bar. There is the 
plaintiff's side of the bar, composed of Government enforcers and 
plaintiffs' treble damages lawyers, who believe in and seek relatively 
widespread and vigorous application of antitrust. On the other side, 
there is the defense side of the bar, whose members, by belief and 
affiliation, generally minimize the circumstances in which antitrust 
violations should be found to exist. There are relatively few lawyers 
who straddle the two camps intellectually and by professional 
affiliations.
    If the person appointed to be the Compliance Officer is highly 
defense oriented by belief and previous professional commitments and 
work, then the result is likely to be approval of activities which 
would be found anticompetitive and which would not be approved even by 
persons who straddle the two camps. What is anticompetitive, and what 
cannot be justified by claims of being necessary for quality, are, 
after all, matters which are subject to differences of opinion. Thus, 
the identity, professional background, and views of the Compliance 
Officer will almost surely be vital in determining whether the person 
will be an adequate proponent for the strictures of the Decree. His or 
her identity will be vital to assessing whether the public interest 
will be served or thwarted by the provision for a Compliance Officer.
    Yet, as said, under the Decree the Compliance Officer will not be 
selected until after the Decree is entered--and thus will not be known 
to the Court when assessing whether the public interest will be served. 
The Court will thus be unable to make a fully knowledgeable assessment.
    The problem, however, is readily curable. The Decree need only 
provide that the Compliance Officer must be named a reasonable time 
before the Tunney Act hearing, so that knowledgeable assessments can be 
made by the DOJ, commentators and the Court as to the likelihood that 
the named individual will be a vigorous proponent of antitrust. Naming 
a Compliance Officer before the Tunney Act hearing should not pose any 
more problem than naming a DOE consultant by October 31, 1995, which 
the Decree specifically provides shall be done. (Consent Decree, p. 7.)
    Additionally, the Decree presently contains a paramount hole in the 
duties of the Compliance Officer. The Officer is to review ABA actions 
to be sure they do not violate Sections IV and VI (Consent Decree, pp. 
8-9.), which respectively (a) list the activities banned outright by 
the Decree--including price fixing, denial of entry into graduate 
programs, denial of transfer credit, and preclusion of profit making 
status--and (b) supervise various procedural matters such as those 
involving membership on committees. But the Compliance Officer has no 
supervisory responsibilities relating to Section VII of the Decree, and 
therefore does not supervise the ABA's accreditation activities in the 
areas where recommendations are to be received from the Special 
Commission (after review by the ABA leadership), recommendations which 
are to govern if not challenged by the Government or which are to 
govern as possibly amended after a DOJ challenge. This is an 
incomprehensible lacuna in the duties of the Compliance Officer. The 
accreditation rules governing the matters to be treated by the Special 
Commission--e.g., student/faculty ratios, hours of work by professors, 
physical facilities, and so forth--have encompassed several of the most 
crucially important, most anticompetitive, actions of the accreditors. 
Yet, as said, such matters are not to come within the purview of the 
Antitrust Compliance Officer. How can this possibly be justified? How 
can it be within the reaches of the public interest? There is, of 
course, a simple corrective step, which is to change the Decree so that 
the Compliance Officer also has the duty of reviewing and supervising 
accreditation activities involving student/faculty ratios, hours of 
work and other matters that are to be addressed in the first instance 
by the Special Commission and reviewed by the ABA.
    B(i). The reason why the DOJ has required the ABA to ``validate'' 
the accreditation criteria as required by the DOE is not entirely 
clear. It would be clear if, in accordance with the DOE's abstract 
written criteria of ``validity,'' DOE approval ensured that ABA 
accreditation criteria assure educational quality. Unfortunately, 
however, DOE review of the ABA has been wholly ineffective to date in 
assuring quality.
    (ii). DOE assessment of accrediting agencies such as the ABA is 
carried out by a small office which has relatively few staff members. 
For convenience we shall refer to it simply as the Accreditation and 
State Liaison Division (``ASLD''). The ASLD receives reports from 
accreditation agencies such as the ABA; ASLD has charge of scores of 
such agencies who report to it. After 

[[Page 63856]]
reviewing a report from an accrediting agency, and otherwise 
communicating with it, ASLD makes a recommendation to the National 
Advisory Committee on Institutional Quality and Integrity (``NAC'') on 
what action should be taken regarding the accrediting agency. To 
consider and recommend such action, the NAC meets two times a year, for 
about three days at a time. Its recommendation for each agency is 
forwarded to the Secretary of the Department of Education, whose office 
sends the accrediting agency a letter that usually adopts the NAC's 
recommendation.
    The NAC is by and large an admirable group. It is comprised of 
volunteers who generally are accomplished in the field of education or 
other public fields--numerous university presidents, professors, other 
knowledgeable academic persons, legislators, and public spirited people 
serve on the NAC. They appear to give it extensive time and to work 
hard, and most of them seek to do what is right.\30\

    \30\ Unfortunately, one member of the NAC, Robert Potts (who was 
supported by the General Counsel's office of DOE, amazingly enough), 
refused to disqualify himself from participating in the NAC's 1994 
discussion of the ABA though he was then the President of the 
National Conference of Bar Examiners (``NCBE'') which works very 
closely with the Section of Legal Education. (Exhibit 19.) The 
relationship between the NCBE and the Section is exemplified by the 
fact that the NCBE and the Section jointly publish a ``Comprehensive 
Guide To Bar Requirements,'' that the joint Guide sets forth the 
Code of Recommended Standards for Bar Examiners, which says that all 
bar admission candidates should be required to have attended an 
approved ABA School, and that Potts and Joseph Bellacosa, then 
Chairman of the Council, jointly signed a Preface to the 1995-96 
edition of the joint Guide. Exhibit 20. Not surprisingly, Potts 
supported the ABA in the NAC's discussion.
---------------------------------------------------------------------------

    But the NAC operates under serious handicaps. Being comprised of 
volunteers who have time consuming, energy consuming professional 
careers elsewhere, but who nonetheless are confronted with the need to 
read reports and make decisions on scores of matters annually, the time 
that NAC members can give to any one accreditation agency individually, 
or even to all collectively, is limited. To a major extent, therefore, 
the NAC has to rely on the Staff of the ASLD.
    The Staff's work with regard to the ABA, however, has been 
ineffective to date in assuring quality and in precluding self-
interested conduct unrelated to quality. Perhaps this is because, as 
the responsible staff member said at a hearing on December 5, 1994, the 
staff members, who are not lawyers, feel that they are ``not in a 
position to say'' whether or how quickly ABA criteria need to be 
revised. (Exhibit 21.) Perhaps it is because the ASLD is a small 
office. Perhaps it is simply a reflection of the fact that, as publicly 
stated by Assistant Secretary David Longanecker at a meeting of the NAC 
on December 5, 1994, the DOE had not been doing its job well (``there 
was serious skepticism about the Department of Education's performance 
and very, very, very serious questions about the performance of the 
accrediting community * * *'' (Exhibit 22)). Whatever the reasons, 
there was ineffectiveness with regard to the ABA. Time and space 
preclude extensive elaboration here of the many facts showing such 
ineffectiveness, so we are simply attaching as exhibits illustrative 
materials showing crucial points the staff ignored (Exhibit 23.) Many 
of those points are the same ones that the Division has now made in the 
Complaint and CIS. Thus, it is perplexing that the Antitrust Division 
would now rely on the DOE as a vehicle for assuring quality or for 
precluding self-interested conduct.

9. In Order To Insure That the Purposes of the Tunney Act Are Carried 
Out and Its Provisions Complied With, the Consent Decree Needs To 
Provide for the Filing of Determinative Documents and Materials, and 
Approval of the Decree Must be Conditioned on Making Available The 
Documents That Injured Private Parties Need to Effectively Pursue Their 
Claims

    A. Under Section 2(b) of the Tunney Act, 15 U.S.C. 16(b), any 
``materials and documents which the United States considered 
determinative in formulating'' the proposed consent decree ``shall also 
be made available to the public at the district court and in such other 
districts as the court may subsequently direct.'' Under Sections 2(e) 
(1) and (2) of the Act, 15 U.S.C. Sec. 16(e) (1) and (2), in 
considering whether the consent decree is in the public interest, the 
court may consider the decree's ``competitive impact,'' its ``impact * 
* * upon the public generally,'' and its ``impact * * * upon * * * 
individuals alleging specific injury from the violations set forth in 
the complaint.''
    Notwithstanding Section 2(b)'s injunction that determinative 
materials and documents should be made available, the DOJ, following 
its nigh uniform practice, has said in the CIS that there are no such 
materials or documents. (CIS, p. 15.) It has also said that the decree 
will ``neither impair nor assist'' the bringing of treble damages 
actions (CIS, p. 14.), which is a way of saying the decree will have no 
``impact * * * upon * * * individuals alleging specific injury from the 
violations set forth in the complaint.'' As discussed in more detail 
below, these statements raise serious questions regarding the 
compliance mechanisms of the decree and regarding whether the DOJ is 
fulfilling the duties placed upon it by the Tunney Act.
    B. When the Tunney Act was enacted in the aftermath of a scandal 
over settlement of a government antitrust case against IT&T, Congress 
was deeply concerned, as Senator Tunney said, about ``antitrust 
violators [who] wield great influence and economic power'' and can 
``bring significant pressure to bear on government, and even on the 
courts, in connection with the handling of consent decrees.'' \31\ An 
important matter, said Senator Tunney, was ``the excessive secrecy with 
which many consent decrees have been fashioned.'' \32\

    \31\ 119 Cong. Rec. 24597 (quoting Judge Skelly Wright) (1973).
    \32\ Consent Decree Bills: Hearings on H.R. 9203, H.R. 9947, and 
S. 782 Before the Subcommittee on Monopolies and Commercial Law of 
the Committee on the Judiciary, House of Representatives, 93d Cong., 
1st Sess. 38 (1973).
---------------------------------------------------------------------------

    Congress desired the consent decree process to remain a viable 
method of resolving government antitrust litigation, but it also wanted 
courts to have sufficient information to make a considered judgment on 
whether the public interest was being served, and it was deeply 
concerned lest consent decrees injure the interests of private 
plaintiffs who had been harmed by violations. The need for a balance 
was stressed in the Senate Report in language later quoted in the House 
Report. The Reports said that a ``court must have broad discretion to 
accommodate a balancing of interests. On the one hand, the court must 
obtain the necessary information to make its determination that the 
proposed consent decree is in the public interest. On the other hand, 
it must preserve the consent decree as a viable settlement option.'' 
\33\ The Reports then pointed out that, where the interests of private 
plaintiffs required it, ``the court can condition approval of the 
consent decree on the Antitrust Division's making available information 
and evidence obtained by the government to potential, private 

[[Page 63857]]
plaintiffs which will assist in the effective prosecution of their 
claims.'' \34\

    \33\ The Circuit Court stated in United States v. LTV Corp., 746 
F.2d 51, 52 n.2 (D.C. Cir. 1984), that ``The APPA was adopted in the 
wake of concerns that government consent decrees had been entered in 
secrecy and without adequate attention to the public interest. The 
twin goals of the Act have been described as ``[f]irst, that the 
courts would be able to obtain the requisite information enabling 
them to make an independent determination, and second, that the 
consent decree process would be preserved as a viable settlement 
option.''
    \34\ S. Rep. No. 93-298, 93d Cong., 1st Sess. 6-7 (1973); H.R. 
Rep. No. 1463, 93d Cong., 2d Sess. 8 (1974); LTV, supra n. 33.
---------------------------------------------------------------------------

    The concern over harm to private plaintiffs was elaborated on the 
floor by Senator Tunney. He said that, because the Government may be 
the only party with sufficient resources to effectively counter a 
wealthy defendant, one consequence of a consent decree is that it 
leaves few private plaintiffs who have the resources to sustain a case:

    The consent decree [as distinguished from pursuing a case to 
judgment through trial] has a number of major public consequences, 
however. First, it means that the substantial resources of the 
Justice Department will be removed from the effort to establish that 
the antitrust laws were violated. Because consent decrees by statute 
carry with them no prima facie effect as an admission of guilt, 
private parties who may have been damaged by the alleged violations 
are left to their own resources in their efforts to recover damages. 
As a practical matter because of the protracted nature of antitrust 
litigation, and the deep pockets of many corporate defendants, few 
private plaintiffs are able to sustain a case in the absence of 
parallel litigation by the Justice Department.\35\

    \35\ 119 Cong. Rec. 3449, 3451 (remarks of Sen. John V. Tunney, 
introducing S. 782, 93d Cong., 1st Sess., February 6, 1973).
---------------------------------------------------------------------------

    He then extensively pointed out that, because of the effect of 
consent decrees on private plaintiffs harmed by the violations, it can 
be appropriate not to enter a decree, but to instead require the 
Government to go to trial so that private plaintiffs will be aided:

    * * * [I]n addition to weighing the merits of the decree from 
the viewpoint of the relief obtained thereby and its adequacy, the 
court is directed to give consideration to the relative merits of 
other alternatives and specifically to the effect of entry of the 
decree upon private parties aggrieved by the alleged violations and 
upon the enforcement of the antitrust laws generally.
    These latter two points merit some additional explanation. 
First, as is well known by the antitrust bar, in the vast majority 
of cases, the Government is the only plaintiff with resources 
adequate to the task of protracted antitrust litigation. Thus, a 
major effort of defense counsel in any antitrust case is to 
neutralize the Government as plaintiff and leave prospective private 
plaintiffs to their own resources. Consent decrees have that effect 
because by statute they cannot be used as prima facie evidence of a 
violation in subsequent suits by private plaintiffs.
    Thus, removal of the Government as plaintiff through entry of a 
consent decree has a profound impact upon the ability of private 
parties to recover for antitrust injuries. Such a result is by no 
means improper nor perhaps in every case unreasonable. But because 
of that impact, it is a factor which should enter into the calculus 
by which the merits of the decree are assessed. It may well be that 
the economic cost to the public of a particular antitrust violation 
merits the application of governmental resources toward gaining a 
recovery of that cost in damages for those who can establish their 
injury.\36\

    \36\ 119 Cong. Rec. 3449, 3452 (1973) (emphasis added).
---------------------------------------------------------------------------

    As Congress provided, an alternative to refusing to enter a consent 
decree and thereby forcing the government to try a case in order to aid 
private parties is, in the words of the House and Senate reports, to 
``condition approval of the consent decree on the Antitrust Division's 
making available information and evidence obtained by the government to 
potential, private plaintiffs which will assist in the effective 
prosecution of their claims.''
    C. To incorporate in the Tunney Act its concerns that the Court 
receive information needed to determine whether a decree is in the 
public interest, and whether the interests of injured private parties 
are preserved, Congress enacted three specific provisions. One is 
Section 2(e)(1), under which the Court is to consider the competitive 
impact of the consent decree. The second is Section 2(e)(2), under 
which the Court considers the impact of the decree on parties harmed by 
the violations and can condition approval of the decree on the 
government's making available to private parties the information and 
evidence it obtained. The third is Section 2(b), under which the 
Government is to file the documents that were determinative in 
formulating the consent decree. Section 2(e)(1) and 2(e)(2) are self 
explanatory. Section 2(b), the determinative documents provision, 
requires some elaboration.
    There is a wide spectrum of documents, evidence, memoranda and 
other materials that can be determinative in deciding what provisions 
shall be put into and which kept out of a consent decree. For the 
specific provisions of the decree--the practices it bans, the ones it 
does not ban, and its enforcement mechanisms--depend on what the 
government has learned in the course of its investigation. This was put 
as follows in Senate hearings on the Tunney Act by Professor Howard 
Lurie, who testified that the determinative materials provision:

    Covers more than simply those materials and documents which were 
relevant to the Government's decision to settle the case by consent, 
but covers in addition those which were relevant to the formulation 
of the consent judgment. In other words, the bill calls for the 
disclosure of those materials and documents which were relevant to 
the relief, and that of necessity includes those materials and 
documents which go to establish or prove the violation of law.\37\

    \37\ Hearings Before the Subcommittee on Monopolies and 
Commercial Law of the Committee on the Judiciary, House of 
Representatives, 93d Cong., 1st Sess. 128 (1973).
---------------------------------------------------------------------------

    Precisely because it was aware that the ``determinative documents'' 
provision encompasses a wide range of documents and evidence, the 
Antitrust Division vigorously opposed it. Thus, Assistant Attorney 
General Thomas Kauper wrote Congress a letter of opposition saying 
that:

    The bill, as reported out, provides that the United States shall 
file, in addition to that which it already files, ``other materials 
and documents which the United States considers determinative in 
formulating the proposed consent judgment.'' This conceivably could 
require production of virtually every piece of paper generated by 
the staff of the Antitrust Division, outside reports of complainants 
and the like, as such documents may be considered in one way or 
another to have entered into the determination of the government to 
enter the settlement, and thereby would be ``determinative.'' \38\

    \38\ 119 Cong. Rec. 24601 (1973).
---------------------------------------------------------------------------

    Notwithstanding the Division's opposition, Congress enacted the 
determinative documents provision as originally drafted.
    The Division, however, then embarked on a course of nullifying the 
provision by saying in nearly every case, as it has here, that no 
documents were determinative. Reduced to its essence, the Division's 
position almost uniformly has been that, because many documents were 
determinative, no documents were.
    The Division's position has been litigated in only one case--United 
States versus Central Contracting Co., Inc.--in which the court 
rejected the Government's position three separate times, at 527 F. 
Supp. 1101, 531 F. Supp. 133, and 537 F. Supp. 571 (E.D. Va. 1982). In 
its first opinion, the court, pointing out that the Tunney Act ``sets 
out procedural requirements with which the parties are to comply,'' 
held that:

    Where the parties ignore the procedures, not only is the public 
hampered in its efforts to provide the Court with information that 
the Court may find helpful, but also the silent record raises a 
specter, however incorrect in a given case, of the questionable 
practices which characterize some of these arrangements that 
Congress sought to guard against through passage of the Act. See 119 
Cong. Rec. 24598 (1973).\39\

    \39\ Central Contracting, 527 F. Supp. 1101, 1102.
    
[[Page 63858]]

---------------------------------------------------------------------------

    The court then refused to accept the Government's nullification of 
the determinative documents procedure:

    The Court finds plaintiff's statement in Paragraph 7 of its 
competitive impact statement that it considered ``no materials and 
documents * * * determinative'' in formulating its proposal for a 
consent judgment to be almost incredible. Section 2(b) of the Act 
refers in ``any * * * materials and documents which the United 
States considered determinative in formulating such proposal.'' 15 
U.S.C. 16(b). The Court is skeptical that no documents were 
significant in formulating the proposed consent judgment. If any 
documents were considered plaintiff should comply with Section 2(b) 
forthwith.\40\

    \40\ Id. at 1104.
---------------------------------------------------------------------------

    The Court expressed its views even more vigorously in its second 
opinion, 531 F. Supp. 133, 134:

    But in the instant case, plaintiff appears to interpret 
``determinative'' as if it means a single critical or decisive 
document which evoked a cry of ``Eureka!'' from the Justice 
Department. The Government seems to contend that if no one document 
were ``determinative'' it may refuse to disclose the several 
documents which were determinative. Although it is conceivable that 
in some rare case a single document may hold such vital importance 
it is hardly conceivable that no document is of vital importance. 
Indeed, in most circumstances a determination will be based upon an 
aggregate of facts, materials, and documents, no one of which may be 
of overwhelming importance but when viewed together are 
determinative as to the way in which the United States elects to 
proceed in a given situation. The materials and documents that 
substantially contribute to the determination to proceed by consent 
decree must be disclosed and a list thereof published pursuant to 
section 2(c) of the Act. 15 U.S.C. 16 (b) and (c). (Emphasis in 
original.)

    In its third opinion, the Court rejected the Government's position 
that ``the legislative history of the Act supports a definition of 
`determinative' which excludes `evidentiary materials' obtained by the 
government.'' 537 F. Supp. at 574. The Court said that ``[i]n most 
cases * * * a determination to proceed on a given course will be 
reached upon an aggregate of information'' which today is ``collected 
and communicated in document form,'' and it is ``the aggregate of these 
documents and other materials that leads the Justice Department to a 
conclusion that it should enter into a consent decree.'' Id. at 575. 
Nor, said the Court, did the government argue that ``the decision to 
proceed with the consent decree was an idea that came out of the blue. 
Rather, the idea emerged through consideration of compiled information 
concerning the alleged offense * * *'' Id. at 576 (emphasis added).
    The Court once again rejected the Division's continued claim that 
there are no determinative documents, saying:

    * * * by it own statistics, the Department of Justice states 
that out of the 188 cases that have settled by consent decree since 
the enactment of the Act, only 16 have involved ``documents [and 
other materials] which the government considered determinative in 
formulating the relief,'' Pl.Br. at 6. If this be true, (and given 
the Justice Department's construction of the Act, the Court does not 
doubt its truth) then the directive in the Act is either 
superfluous, or it is being misinterpreted or subverted. The Court 
presumes that Congress did not intend legislation to be superfluous 
* * * Id. at 575.
* * * * *
    Plaintiff suggests that it is not unusual for there to be no 
determinative documents even in the most complicated of cases. CF., 
United States v. AT&T, Civ. No. 74-1698 (D.D.C.) (dismissal of 
monopolization suit against AT&T in which Justice Department has 
agreed to abide by provisions of the Act). That view, in the opinion 
of the Court, is based upon a misinterpretation of the Act. The Act 
clearly does not require a full airing of Justice Department files 
but the Court cannot countenance plaintiff's claim that though 
Congress enacted sunshine legislation the courts may blandly (and 
blindly) accept government certification in case after case that no 
documents or materials, by themselves or in the aggregate, led to a 
determination by the government that it should enter into a consent 
decree. (Id. (emphasis added).)
    The Court simply cannot accept an interpretation of legislation 
that permits the government to assert in 172 out of 188 cases that 
it considered neither documents nor any other materials 
determinative in reaching its conclusion to enter into a consent 
decree. To reiterate, the Act as interpreted by this Court requires 
the government to disclose ``[t]he materials and documents that 
substantially contribute to the determination [by the government] to 
proceed by consent decree. * * *'' United States v. Central 
Contracting Co., supra, at 134 (E.D.Va. 1982). This does not require 
full disclosure of Justice Department files, or grand jury files, or 
defendant's files, but it does require a good faith review of all 
pertinent documents and materials and a disclosure of those which 
meet the above criterium. (Id. at 577 (emphasis added).)

    In short, first Congress overrode the Antitrust Division's efforts 
to defeat the broadly encompassing determinative documents provision, 
and then the only Court to consider this issue flatly rejected the 
Division's consistent efforts to subvert Congressional intent, 
including efforts to subvert it by arguing that determinative documents 
do not include evidentiary materials. Notwithstanding this, and even 
though antitrust law is a documents-driven field, the Government, as 
here, continues to ignore its responsibilities, the will of Congress, 
and judicial disapprobation by claiming in virtually every case that no 
documents were determinative.
    D. Serious questions regarding the efficacy of the Consent Decree's 
compliance mechanisms, and the DOJ's fidelity to its statutory duty, 
arise because here the Government claims, as usual, that there were no 
determinative documents. Such questions also arise because of a need to 
protect the interests of injured parties by making available to them 
documents and information gathered by the Government that will ``assist 
in the effective prosecution of their claims.''
    D(i). Determinative documents and materials. As discussed above, 
there are numerous questions here regarding the efficacy of compliance 
mechanisms in the Decree. Without submission by the Government of 
documents and materials showing why the DOJ believed those mechanisms 
will be successful and therefore decided to include them in the Consent 
Decree, the Court cannot make--as Congress intended it to make--an 
informed determination that the Decree's remedial provisions are in the 
public interest. Without submission of the determinative documents and 
materials, the Court is remitted to simply accepting the Government's 
unsupported claims that provisions it agreed to are in the public 
interest--the very kind of uninformed judicial acceptance that Congress 
sought to avoid by passage of the Tunney Act. This can be demonstrated 
by the following examples:
    (a). Having found that reform of the accreditation process is 
necessary because it has been captured by self interested persons, the 
Government formulated a Consent Decree that relies on percentage 
limitations on the number of faculty on various committees to achieve 
such reform. The Government determined to so rely even though, under 
the Decree, the very same persons who captured and used the process are 
free to comprise up to 50 percent of the membership of pertinent 
committees, and even though the problem of capture has resulted not 
from mere numbers, but from these individuals' deep interest in and 
their consequent willingness (and their time) to do the work of 
accreditation. What determinative documents and materials persuaded the 
Government that notwithstanding these facts, (1) accreditation will not 
continue to be controlled by these individuals, and (ii) they will not 
be able to continue to maneuver accreditation in their own interest? Is 
the Government persuaded that these apparent problems are not in 

[[Page 63859]]
fact problems because determinative documents and materials show that 
the ABA leadership has promised it that the individuals who captured 
the process will be excluded from the relevant committees or will 
comprise only a very small proportion of them?
    (b) The Government has formulated a Decree that places heavy 
reliance on the ABA leadership to control the Section and preclude 
further anticompetitive actions. The DOJ did so even though it knew 
that the leadership resisted correcting the problems in the past when 
they were called to its attention in 1993, 1994, and early 1995, that 
the leadership persuaded it to allow a Special Commission packed with 
insiders--who believe in the violations--to make recommendations for 
change, and that the ABA is a highly political organization in which 
the Section wields much power. The Government continues to rely on the 
leadership though the latter has thus far taken no steps to clean house 
in the Section and has allowed the Section to flout the Consent Decree. 
Why has the Government done this? Are there determinative documents and 
materials showing that the ABA leadership has made promises of change 
and that such promises are backed by believable commitments for future 
action even though events to date do not bear out any such commitments?
    (c). At least on its face, the Government's formulation of a Decree 
that relies on the insider dominated Wahl Commission to be the Special 
Commission that recommends changes in anticompetitive practices is 
unwarranted. This is the more true because of the inadequacy of the 
Commission's initial recommendations and its members' request for the 
suppression of the views of Dean Cass. What, then, do determinative 
documents show to be the reasons that led the Government not to adhere 
to its initial position that a special antitrust review committee 
should be the Special Commission, and to agree instead that an insider-
dominated group responsible for the challenged violations can be the 
Special Commission? Are there determinative documents showing that the 
ABA leadership made a commitment to change the recommendations of the 
Wahl Commission if they were inadequate?
    (d). As with almost all conspiracies, secrecy concerning 
accreditation has been the linchpin of the conspiracy. It is secrecy 
that allowed anticompetitive actions, secret rules and inconsistent 
conduct to exist unknown to scholars and analysts, enforcement 
agencies, reporters, members of the public and others, and which 
disabled potential students from learning more about schools as a 
matter of consumer protection. At least on its face, the Consent Decree 
formulated by the DOJ allows extensive secrecy to continue. Why? What 
do the determinative documents show as to why this is being allowed? Do 
they show that, notwithstanding that the Decree does not on its face 
open up the process to public scrutiny, there are commitments from the 
ABA leadership to open it to public scrutiny in order to insure against 
future anticompetitive actions, secret rules and inconsistent conduct?
    (e). The Government initially intended to seek a prohibition 
against anticompetitive ABA rules on student/faculty ratios, 
limitations of teaching hours, leaves of absence, and banning of credit 
for bar review courses. It has evidence that such rules, plus rules on 
physical facilities and allocation of resources, have at times been 
used to further guild interests. It knew the circumstances in which 
they had been so used. It knew that it was common for the rules to be 
used in conjunction with fixing of the price of salaries, which is 
banned outright, and that actions taken in conjunction with forms of 
price fixing are normally banned along with the price fixing.
    Yet, the DOJ became persuaded that the rules implicate educational 
concerns and, instead of enjoining them, at least in the circumstances 
in which they have been used anticompetitively, agreed to formulate a 
Decree that allows them to be considered by a Special Commission. Why? 
What do determinative documents and materials show to be the reasons 
why they were not banned outright in any circumstances whatever, not 
even when used in conjunction with price fixing or in circumstances 
known to be intended to advance guild interests?
    (f). The DOJ formulated a Decree in which the duties of the 
Antitrust Compliance Officer do not encompass accreditation rules in 
areas where the Government has found the accreditors to have 
anticompetitively pursued guild interests instead of educational 
quality (areas such as ratios, physical facilities, etc.). Why were 
such areas excluded from the antitrust compliance program? What do the 
determinative documents show in this regard?
    D(ii) Interest of injured private parties. In the last two decades, 
the ABA has caused injury to and sometimes even the outright 
destruction of a significant number of law schools, because 
anticompetitive rules identified in the Complaint were used to deny 
accreditation to the schools, to withdraw accreditation from them, to 
make clear to schools that it was useless for them even to seek 
accreditation, and to raise the costs of beginning new schools. Many of 
these injured institutions, particularly those injured during the 
latter half of the period, have potential claims against the ABA, but 
most of them will never be able to afford to bring the claims, and if 
they were to bring them, would be unable to afford to pursue them to 
victory, unless approval of the Decree is conditioned upon the 
Government making available the claim-proving information and documents 
it has gathered. For as the ABA has shown in its litigation against 
MSL, its defense tactics are the very scorched earth tactics that 
caused Senator Tunney to say when introducing the Tunney Act (i) that 
``because of the protracted nature of antitrust litigation, and the 
deep pockets of many corporate defendants, few private plaintiffs are 
able to sustain a case in the absence of parallel litigation by the 
Justice Department,'' (ii) that ``a major effort of defense counsel in 
any antitrust case is to neutralize the Government as plaintiff and 
leave prospective private plaintiffs to their own resources,'' and 
(iii) that the costs to injured parties of violations might justify 
requiring the Government to go to trial instead of being allowed to 
settle by consent, and that led Congress to say in its Reports that a 
court should consider conditioning approval of the Decree upon the 
Government making relevant documents available to private parties.
    The ABA's defense tactics, tactics Congress knew and feared, 
feature stonewalling against production of documents needed to prove a 
case: in nearly two years, as the Government knows, the ABA has 
produced to MSL less than 50,000 of the 544,000 documents which it 
admits to having produced to the Government and which led the latter to 
say in its CIS that it could prove the charges in the Complaint--which 
are mainly identical to MSL's.\41\

    \41\ As said earlier, the ABA has also made untrue 
representations regarding alleged lack of availability of documents 
which it has already assembled and produced to the DOJ, and has 
presented false deposition testimony, concerning price fixing, which 
contradicts the charges the Government has made and says in the CIS 
it can prove. We have attached recent briefs filed by MSL discussing 
the false testimony. (Exhibit 24.)
---------------------------------------------------------------------------

    That the ABA uses these tactics to defeat the claims of injured 
private parties is an unhappy demonstration that, contrary to the 
Government's statement, the Consent Decree will have a deeply adverse 
impact on private 

[[Page 63860]]
parties, many of whom will be unable to afford even to bring their 
claims, let alone pursue them to victory, if the Decree is entered 
without making documents and information available to the private 
parties. It is likewise a demonstration that approval of the Decree, in 
accordance with Congressional intent and statutory language, should be 
conditioned on the Government making available to private parties the 
documents and materials it has gathered that will enable them to 
effectively prosecute their claims. This is required in order to give 
appropriate consideration to the decree's ``impact * * * upon * * * 
individuals alleging specific injury from the violations set forth in 
the complaint.'' 15 U.S.C. 16(e)(2).

10. There are Three Areas, Involving Rules Which Stifle Competition, in 
Which USL Urges the Division to Reconsider its Decision not to Act

    We conclude with a discussion of three matters to which we 
recommend the Government give further consideration.\42\ Because the 
matters were not charged as violations in the Complaint, in accordance 
with the Court of Appeals decision in United States  v. Microsoft 
Corp., 56 F.3d 1448 (D.C. Cir. 1995), MSL is not urging that the Court 
should require the Consent Decree to be revised to cover these matters. 
Rather, MSL is urging only that the Division itself might decide to 
reconsider them because they involve anticompetitive guild actions used 
to prevent the establishment of new, and to eliminate existing, law 
schools that provide a more efficient, lower cost education. Such 
education makes law school accessible to less economically privileged 
individuals, e.g., to persons from working class and minority 
backgrounds. These guild practices also lessen the quality of legal 
education.

    \42\ There are additional deeply anticompetitive practices which 
MSL believes are violations of the antitrust laws, but they are not 
discussed here.
---------------------------------------------------------------------------

    A. The Requirement That Substantially All First Year Courses Be 
Taught By Full-Time Faculty Members As Defined By The ABA. In the CIS, 
the Government says that it initially proposed injunctive relief 
barring the ABA's requirement that substantially all first year courses 
be taught by full-time faculty (CIS, p. 15), but that evidence it 
gathered persuaded the DOJ to abandon its opposition to the practice. 
(CIS, p. 16.) Given the current unavailability of determinative 
documents showing what evidence persuaded the Division to abandon its 
opposition, MSL cannot know why the DOJ came to feel it permissible to 
force all 178 accredited law schools, and every law school seeking 
accreditation, to follow this practice without even a single exception. 
What we do know, however, is that the practice is anticompetitive, can 
result in legal education being unaffordable to persons who are less 
privileged economically, and often lessens, not heightens, the quality 
of legal education.
    The anticompetitive nature of the practice is obvious. There are a 
number of unaccredited law schools in this country--in California, 
Tennessee, Alabama, Georgia and Massachusetts--which seek to make legal 
education available to less privileged individuals, particularly 
persons from the working class and minority persons such as African-
Americans and Hispanic-Americans. Many of these schools use highly 
knowledgeable judges and lawyers as adjuncts to teach various first 
year courses. The schools exist in the aforementioned states because 
the states allow the schools' graduates to take bar examinations. But 
the growth of the schools is stifled because their students cannot take 
bar exams elsewhere, and such schools cannot be established 
elsewhere.\43\

    \43\ The populations whom those schools seek to serve in the 
five aforementioned states, and who would be served by similar 
schools elsewhere, often are in straitened economic circumstances. 
Yet they too wish to rise on the socio-economic scale, and it has 
been the promise of America that they should have a chance to rise 
as high as their capabilities and willingness to work can take them. 
Nonetheless, the unchallengeable historic record show that, since 
its founding in 1878, the ABA has regularly taken actions to bar 
this rise, and that actions which prevent it have for more than 30 
years been a staple of the activity of the Section of Legal 
Education. Robert Stevens, Law School: Legal Education in America 
from the 1850s to the 1980s, passim (1983); Jerold S. Auerbach, 
Unequal Justice: Lawyers and Social Change in Modern America, passim 
(1976). Such actions by the ABA and the Section of Legal Education 
have always been defended by the mantra of quality. But though 
wrapped in the flag of quality, the actions have always knowingly 
harmed and continue to knowingly harm the poor, immigrants, 
minorities and the working class.
---------------------------------------------------------------------------

    The rule thus anticompetitively stifles the growth and 
establishment of schools devoted to serving the less-privileged. 
Furthermore, the rule reflects true--and correctly felt--terror of 
competition. For at least 90 years the Section of Legal Education has 
been aware that, because they provide a lower cost method of legal 
education, the schools in question will ultimately expand to 
populations additional to the economically less-privileged if the 
schools are allowed to flourish with the cachet of ABA accreditation. 
Many people--whether poor, middle class or rich--do not want to pay 
$20,000 per year in tuition for legal education if good education is 
available at $5,000 or $10,000 per year. The terror this potential 
competition presents has become particularly acute today (as it was in 
the 1920s) because (i) the cost of tuition at ABA schools, driven by 
the expensive guild mandates of the accreditors, has become so high and 
(ii) (a) students, like the practicing and judging arms of the legal 
profession, are increasingly demanding education in practical skills, 
(b) current ABA schools often are deficient in such education and have 
locked themselves into high cost structure that leave little or no 
financial room for adding skills training to the curriculum, (c) 
students would go to schools that offer such skills if the schools were 
ABA accredited, and (d) the schools which currently are precluded from 
obtaining accreditation do, or if established would, offer extensive 
education in practical skills (as well as the customary theoretical 
training).\44\ There is thus serious concern over the competition such 
schools would offer if accreditation were not precluded by ABA rules, 
including the rule requiring substantially all first year courses to be 
taught by full-time faculty members as defined by the ABA.

    \44\ It is especially crucial that adjunct professors teach the 
all-important practical skill of writing in the first year of law 
school. Failure to train students to write well is one of the 
gravest deficiencies of legal education. It can be cured only by 
giving extensive, intensively supervised writing courses to students 
in small groups having approximately ten or less students and taught 
by competent, perhaps even professional, writers. This is the way 
that writing is taught competently in the few areas of education 
where it is taught competently. The only financially feasible method 
of doing this for most law schools is to hire a large corps of 
capable adjuncts who are professional writers or, in some cases, are 
lawyers who write well. Every other method the law schools have 
tried has been a jury rigged, Rube Goldberg failure. Using third 
year students to supervise writing classes has been a failure. Using 
instructors who are recent law school graduates with no practical 
experience has been a failure. Having a full-time professor 
supervise scores of students has been a failure because the amount 
of work needed is too great to effectively supervise scores of 
people. But under the ABA's rule regarding first-year courses, the 
only method that will work cannot be used, since the use of a large 
body of professional writers or competent lawyers as adjunct writing 
teachers would almost surely cause a violation of the guild rule 
regarding first year classes.
---------------------------------------------------------------------------

    B. The Ban On Full-Time Students Working More Than 20 Hours Per 
Week. This rule bars a school from competing by allowing its full time 
students to work for compensation more than 20 hours per week outside 
the law school. By preventing schools from thusly competing, the rule 
destroys the ability of some less-economically privileged persons to 
obtain a legal education and works an enormous hardship on other such 
persons.

[[Page 63861]]

    Since only slightly more than one-third of the ABA law schools 
offer part-time study,\45\ there are many geographical areas of the 
country where no part-time legal education is available. In those areas 
persons whose financial situation compel them to hold full-time jobs 
are precluded from attending law school or can attend only under 
extreme hardship. The rule barring schools from competing by allowing 
students to work more than 20 hours per week thereby makes it 
especially difficult or even impossible for such individuals, however 
competent, to attend law school as a means of exercising their right to 
choose a career and of improving their socio-economic position. In 
other geographic areas the same results obtain because, though part-
time education is available, it is only available in sufficient 
quantity at ABA schools to accommodate a fraction of the competent but 
less-privileged applicants who must hold full-time jobs.\46\ The 
anticompetitive rule perpetuates these antisocial results regardless of 
whether the excluded or injured individuals are capable of taking a 
full schedule of law school courses while working more than 20 hours 
per week, as many are.

    \45\ Only 15 percent of first year seats in law school are 
devoted to part-time students. (Exhibit 25.)
    \46\ Leading insider Leigh Taylor has said that ``Evening 
students are older (4 to 5 years older at [his law school]), tend to 
come from a lower economic situation, and tend to be married and 
have children. Typically there are more minority students in the 
evening.'' (Exhibit 26 (emphasis added).)
---------------------------------------------------------------------------

    There is no defensible justification for this rule. To begin with, 
when the Standards were adopted in 1973, the House of Delegates 
expressly made clear its intention, which was part of the legislative 
history, that the rule would not apply to persons who worked in a law 
firm--that was regarded (rightly) as in itself being legal training. 
(Exhibit 27.) It is the capturing insider group which has extended the 
rule to work done for a law firm. It has done so in defiance of the 
express intent of the House of Delegates.
    Furthermore, it is widely known that the rule is regularly violated 
instead of being enforced in the name of purported quality of 
education. It is common in large cities for full-time students to work 
more than 20 hours per week for compensation, especially at law firms. 
The ABA accreditors know this is occurring, and in effect wink at 
it.\47\ They wink at it even while ostensibly enforcing it by forcing 
schools to require full-time students to sign affidavits saying they 
are not working more than 20 hours per week.

    \47\ American Bar Association Section of Legal Education and 
Admissions to the Bar, Legal Education and Professional 
Development--An Educational Continuum, Report of the Task Force on 
Law Schools and the Profession: Narrowing the Gap, 268 (July 1992).
---------------------------------------------------------------------------

    Moreover, the accreditors discriminatorily purport to bar more than 
20 hours of work per week only when it is done for compensation (by 
students who need the money). The accreditors do not bar a full-time 
student from working 25, 30 or even 40 hours per week at a public 
interest organization that does not pay the student. Nor do the 
accreditors ban a woman (or a man) from working in the home 30 or 40 
hours per week or more, as many female students do, nor bar a wealthy 
full-time student--and there are such--from spending 30 or 40 hours per 
week tracking investments. As said, the only thing banned by the 
anticompetitive, antisocial rule is work exceeding 20 hours per week by 
those who need to and do obtain compensation--by those who need the 
money.
    C. The Requirement of Enormously Expensive But Needless Hard Copy 
Books In A Law School Library. It is widely regarded that librarians 
have been among the groups which most effectively captured the ABA 
accreditation process and used it to advance their own, often 
anticompetitive guild interests, including higher salaries for 
librarians, ever greater prestige obtained through greater independence 
within the law schools and university library systems, obtaining of 
near-tenure for library directors, ever fancier and more elaborate 
physical facilities for libraries (facilities that now can cost ten 
million dollars or more), and very large, ever expanding hard cover 
collections of books that cost several millions of dollars.
    Because of their enormous costs, the requirements of ever more 
elaborate physical facilities for libraries and ever larger hard cover 
book collections are instrumental in anticompetitively preventing the 
establishment and growth of lower cost, efficient schools that seek to 
serve the economically less privileged.'
    In recent years, the advance of computerized, electronic research 
capabilities, and CD Rom collections, have made cost of the expensive 
hard cover books totally unnecessary and correlatively had made it 
unnecessary to have huge library facilities to store and service 
enormous hard cover collections. We are, indeed, hurtling towards the 
age of what the Dean of the University of Pennsylvania Law School has 
called the ``virtual library.'' (Exhibit 28.) The vast bulk of 
materials needed by most law school libraries is now instantly 
available on computers, and students and faculty members can access 
these materials not just in law school libraries or law school offices, 
but at home, or anywhere, by means of modems.\48\

    \48\ The materials are also available within minutes or hours 
via fax machines, and overnight via Federal Express and other forms 
of overnight mail.
---------------------------------------------------------------------------

    Yet the ABA accreditors, though slowly changing their rules, still 
require a law school to have millions of dollars worth of hard cover 
books to obtain accreditation and still require elaborate physical 
facilities. These requirements are simply another of the devices which, 
because of the costs they impose, are used to anticompetitively exclude 
schools that desire to make education available at lower cost to less 
affluent persons.

Conclusion

    As said at the inception of these Comments, MSL believes the 
Consent Decree is a step towards eliminating long-standing 
anticompetitive practices. But the Decree contains weaknesses that 
could undermine its effectiveness in combatting these practices. MSL 
therefore urges the Division to cure those weaknesses so that the 
Decree, rather than possibly being undermined, will in fact prove to be 
the major procompetitive step it is capable of being.

        Respectfully submitted,
The Massachusetts School of Law at Andover, Inc.
500 Federal Street, Andover, MA 01810.

PROPOSED MODIFICATION TO PROPOSED FINAL JUDGMENT, p. 5, Part VI (B)

(Note: deletions are bracketed; insertions are italicized.)
to the same public comment and review process and approval procedures 
that apply to proposed Standards;
    (B) permit appeals from Accreditation Committee Action Letters to 
the Council;
    (C) revise the Council's membership as follows:
    (1) for a period of five years, all elections shall be [subject to] 
reported to the Board [approval];
    (2) members shall serve staggered three-year terms, with a two-term 
limit; however, officers may serve as officers for an additional term 
beyond the six-year limit; and
    (3) no more than 50% of the members shall be law school deans or 
faculty;
    (D) revise the Accreditation Committee's membership as follows:
    
[[Page 63862]]

    (1) for a period of five years, all appointments shall be [subject] 
reported to the Board [approval];
    (2) all members shall serve staggered three-year terms, with a two-
term limit; and
    (3) no more than 50% of the members shall be law school deans or 
faculty;
    (E) revise the Standards Review Committee's membership as follows:
    (1) for a period of five years, all appointments shall be [subject 
to] reported to the Board [approval];

U.S. Department of Education

Staff Analysis of the Interim Report Submitted by the Council of the 
Section of Legal Education and Admission to the Bar of the American Bar 
Association

December 5-6, 1994.

Background

    The Council of the section of Legal Education and Admission to 
the Bar of the American Bar Association (ABA) appeared on the first 
list of nationally recognized accrediting agencies published by the 
Commissioner of Education in 1952. The Council has received periodic 
renewal of recognition since that time.
    The Council's most recent review by the National Advisory 
Committee was in May 1992. At that time, there was considerable 
third-party opposition to the Council, most of which centered on its 
accreditation standards. As a result, Advisory Committee members 
questioned Council representatives at length about their process for 
reviewing and revising the standards. Upon completion of that 
discussion, the Advisory Committee recommended that, while renewing 
the Council's recognition for a period of five years, the Secretary 
should also require the Council to submit an interim report by July 
1, 1993 on its effort to strengthen compliance with Sec. 602.16(i)--
maintenance of a systematic program of review designed to assess the 
validity and reliability of the Council's criteria, procedures and 
standards. On August 18, 1992, the Secretary renewed the Council's 
recognition for a period of five years and requested the interim 
report on Sec. 602.16(i).
    In January 1994, the Massachusetts School of Law (MSL), one of 
the third parties that testified in opposition to the Council at the 
May 1992 meeting of the National Advisory Committee, filed a formal 
complaint against the Council and requested that the Secretary 
terminate the Council's recognition on the grounds that it failed to 
follow appropriate and required standards, procedures, and 
regulations. MSL cited a number of reasons for its request, many of 
which were related to the issue of whether the Council's criteria, 
procedures, and standards were valid and reliable. Consequently, in 
this analysis, Department staff examines both the Council's interim 
report and MSL's complaint. The analysis also takes into account 
both the Council's response to MSL's compliant and subsequent 
responses by MSL and the Council.
    It should be noted that, as is customary when the Department 
receives a compliant against an accrediting agency, staff provided 
the Council with an opportunity to respond to MSL's complaint. MSL 
subsequently requested and, because of the seriousness of its 
charges against the Council, was granted an opportunity to rebut the 
Council's response. MSL's rebuttal was not received by the 
Department, however, until August 1994. Department staff's 
investigation of MSL's complaint was completed in as timely as 
manner as possible, given the delay in the submission of MSL's 
rebuttal and the extent of the documentation submitted by both 
parties.

Summary of Findings

    While the Council has technically complied with the requirement 
to provide the Secretary with a progress report on its efforts to 
assess the validity and reliability of its standards by describing 
its process for reviewing its 100- and 200-series standards, it has 
not provided any results of its work to date. The Council needs to 
do so.

Staff Analysis

    602.16(i)  It maintains a systematic program of review designed 
to assess the validity and reliability of its criteria, procedures, 
and standards relating to its accrediting and preaccrediting 
activity and their relevance to the educational and training needs 
of affected students.
    Problem: At the time of the Council's last review, there was 
considerable third-party opposition to the Council, most of which 
centered on the validity and reliability of its standards. Noting 
that the Council had reported that work was continuing on the 
assessment of the validity and reliability of its standards as a 
result of a conference held on the subject in 1989, the Advisory 
Committee requested an interim report on the Council's continuing 
progress assessing validity and reliability.
    Agency Response: The Council maintains a Standards Review 
Committee, each of whose meetings includes a review of the validity 
and reliability of certain standards among the ones currently used 
to accredit programs. At its November 1992 meeting, the Committee 
agreed to concentrate on the 100- and 200-series of its standards. 
At its meeting in January 1993, the Committee focused on the 100-
series standards, discussing various comments received from the 
membership on the standards and agreeing to proposed some changes to 
the membership. At its May 1993 meeting, the Committee continued its 
review of the 100-series and began work on the 200-series. At the 
conclusion of the meeting, the Committee decided that, rather than 
propose changes in either series' standards to the Council's 
different constituencies, it would continue its standards review for 
the next 2-3 years and then propose all the changes at once. Its 
rationale for this course of action was the effect that more than 
one of the modified standards would have on some of the Council's 
other standards.
    Staff Determination: By describing the process it is engaged in 
to review the validity and reliability of its standards, the Council 
has technically complied with the requirement that it submit an 
interim report addressing its continuing progress assessing validity 
and reliability. However, the Council has failed to provide any 
concrete results of its efforts, presumably because it plans to 
extend its current review effort over the next 2-3 years.
    The Department's new regulations require not just a 
demonstration that the Council has in place a systematic program for 
the review of the validity and reliability of its standards but a 
demonstration that each of its standards provides a valid measure of 
the educational quality it is intended to measure and a consistent 
basis for determining the educational quality of different law 
schools. It is the Council's compliance with this new requirement 
that is challenged by MSL in its complaint against the agency.
    Like all agencies, the Council must take action to bring itself 
into compliance with this new requirement. Department staff 
recognizes that this will take some time. However, Department staff 
also recognizes that in the interim some institutions may be denied 
accreditation, placed on probation, and/or forced to take corrective 
action to come into compliance with standards that may in fact prove 
not to be valid and reliable measures of educational quality. For 
this reason, Department staff believes it is critical that the 
Council keep the Department thoroughly informed of its progress in 
assessing the validity and reliability of its standards and the 
results of that assessment. Specifically, the Council should provide 
the Department with an interim report in each of the next two years, 
and that report should include complete reports of each meeting of 
its Standards Review Committee, including any proposed changes in 
Council standards that are under consideration, and reports of any 
other meetings, forums, or other opportunities for discussion of its 
standards that took place that year. Department staff has been 
informed by MSL that at least one such opportunity--a meeting of a 
group of law school deans--is scheduled to take place in January or 
February of 1995.
    At this point, Department staff believes that any termination of 
the Council's recognition on the grounds that its standards are 
neither valid nor reliable measures of quality, as has been 
requested by MSL, is premature and without merit. All currently 
recognized accrediting agencies need to come into compliance with 
the requirement in the new regulations that each of their standards 
must provide a valid measure of the educational quality it is 
intended to measure and a consistent basis for determining 
educational quality. To single the Council out for noncompliance at 
this time when other agencies are likewise in noncompliance would be 
unfair to the Council.
    While MSL may not like the Council's current standards and may 
question their validity and reliability, it has not provided 
convincing evidence to contradict the Council's assertion that its 
current standards have in fact been adopted by its members in the 
manner that has been agreed to by the members for the establishment 
of accreditation standards. Thus, even though they may be found at 
some future date not be fully valid or reliable indicators of 
educational quality, at the present time the Council's standards 
represent the current best thinking of those in the profession.

[[Page 63863]]

    MSL has indicated that there is some opposition to the current 
standards from within the organization but has provided no evidence 
of large numbers of members opposing ABA standards at its meetings 
and being constantly frustrated in their efforts to change the 
standards by undemocratic procedures on the part of the Council. If 
there is in fact opposition to the Council's standards, it is 
Department staff's opinion that the Council appears to have in place 
the mechanisms that will allow those who seek change to be heard. 
The scheduled meeting of the law school deans early in 1995 is 
evidence that those in opposition to the standards have the ability 
to work from within and propose changes that they believe will 
strengthen the accreditation process.
    Department staff further believes that the Council's standards 
have been subject to regular, systematic review by the profession 
and have been changed whenever the profession deemed necessary. It 
also appears to Department staff that any changes to the standards 
have been decided upon only after proper consultation with the 
membership and other relevant constituencies. Thus, from the 
Department's perspective, the Council has acted in accordance with 
the criteria for recognition as far as the review and subsequent 
revision of its standards is concerned. MSL points out that, as an 
unaccredited law school, it is not part of the membership, and 
therefore, does not have adequate opportunity for input into any 
changes to the standards. Department staff's response to this 
concern is that the Council is not obliged by the requirements for 
Secretarial recognition to consult with non-members like MSL.
    One other aspect of MSL's complaint against the Council is 
particularly relevant to the validity and reliability issue. MSL 
charges that the Council has throttled diversity among law schools 
by refusing to follow a written provision contained in its own 
standards that is intended to promote such diversity. As evidence to 
support its charge, MSL states that its requests for several 
variances have been repeatedly denied by the Council. Department 
staff believes that in general MSL's requests for variance were not 
accompanied by a compelling rationale for the request and that there 
is no evidence to suggest that, if they were accompanied by such 
rational, they would not have been given fair consideration by the 
Council.
    Other aspects of MSL's complaint against the Council have no 
direct bearing on the validity and reliability issue. Department 
staff has investigated them and found some of them to be without 
merit. For example, MSL charges that the Council regularly violates 
the requirements of due process but does not provide convincing 
evidence to support its charge.
    Still other aspects of MSL's complaint relate to new 
requirements imposed on accrediting agencies as a result of the 
Higher Education Amendments of 1992 and the Department's regulations 
implementing those amendments. For example, MSL charges that the 
Council does not provide public notice of when a law school will be 
considered for accreditation and does not provide an opportunity for 
public comment on the school's qualifications for accreditation. All 
agencies must come into compliance with this requirement and the 
other new requirements, but it takes time for them to develop and 
implement the requisite standards, policies, and procedures. 
Department staff believes that there is no evidence to suggest that 
the Council will not do so in a timely and appropriate manner.
    It should be pointed out that MSL presented many aspects of its 
current complaint to a member of the National Advisory Committee 
when it reviewed the Council in 1992, yet the Advisory Committee was 
satisfied with the Council's overall performance at the time and 
recommended renewal of recognition for the maximum period of five 
years. Thus, it does not appear to Department staff that MSL has 
presented compelling new evidence to warrant a full review of the 
agency before its originally scheduled renewal date.

    Note. One aspect of MSL's complaint against the Council that is 
totally outside of the Department's purview is the charge that the 
Council has violated federal anti-trust laws for the economic 
benefit of law professors, law deans, and law librarians but on the 
detriment of students. That matter is currently before the Justice 
Department.

[FR Doc. 95-28678 Filed 12-11-95; 8:45 am]
BILLING CODE 4410-01-M