[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]]
_______________________________________________________________________
Part III
Department of Justice
_______________________________________________________________________
Antitrust Division
_______________________________________________________________________
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.
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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.
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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.)
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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.
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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.
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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