There's a great article on AboveTheLaw with regard to the bi-partisan heat that is currently being put on the ABA's law school accreditation committee with regard to their failure to regulate legal education in a meaningful way. The ATL article exposes as bunk much of the ABA's response to Senator Grassley's questions and raises a couple of pointed issues.
However, the author and many commentators that have entered the practice of law more recently might be able to more readily understand the accreditation committee's response with the benefit of a little context. In this post, we will take a look at the context of the problem - and then look at some aspects for fixing it in the next post.
More specifically, in 1995 the committee used to be pretty much exclusively run by law school faculty, but the Department of Justice stepped in and sued them as anti competitive - and won. They slapped a consent judgement on them and hit them with a $185K fine.
Well, for law school professors and Deans - who are often incredibly egotistical and often view themselves as literally above the law - this was an incredible insult. It effectively calls into question their professional judgement and was viewed as some as something like "the government messing in our personal affairs - we know better how to run things." Since that time, it has seemed like many members of the committee have dedicated themselves to doing two things 1) pushing the line toward perverting/suborning the consent judgement, and 2) trying to "prove" why the consent judgement renders them ineffectual.
With regard to the first element, the consent judgement limits the number of "deans and faculty" - so instead you get people that are "retired" deans or faculty or have some other questionable relationship with law schools. Their interests are often clearly aligned with that of the deans and faculty, but they fall outside the consent judgement. With regard to the second element, the committee has in general often seemed to adopt a rather childish attitude of "well, if that's what you want, then I will show you how bad it will be"- or - "Oh, law school management is ineffectual and things are going wrong? Well, we would LOVE to do something, but unfortunately we have this silly little consent judgement that effectively ties our hands. If you could only make that go away and apologize for bothering us, then we could get back to running things the right way - our way - they way that things should be and always have been run."
I would look for the ABA to plead powerless even more going forward. In this regard, people should note that when they say things like "such as actions are illegal", the "illegal" part is usually a veiled reference to the consent judgement. Think about it - would a lawyer ever take a firm position like "it is illegal" with regard to an action that they wanted to engage in? Would a law professor ever use such firm language unless they were advocating for something? Instead, the accreditation committee is attempting to use this crisis as an opportunity to have their restrictions relaxed and increase their personal power.
I don't mean to impugn all members that have ever served on the committee - there have been attempts to reform and there are still people trying to reform. However, there seems to be a consensus bad attitude that really needs to be considered as context in understanding their actions. Frankly, we are not talking about FACTS here - the actual illegality or what can literally be done or not done - it should be appreciated that their response is very definitely a work of ADVOCACY. Attempting to argue facts with them at this point would not be productive.
We will discuss some ways to address this in Part 2.