JD Portability: One Reason Why ABA Accreditation Probably Isn’t Going Anywhere
What once was a relatively anodyne topic — accreditation of U.S. law schools — has recently become a lightning rod for a variety of political conflicts.
It was not always thus. The American Bar Association assumed a role in accrediting law schools in 1921 and was recognized by the U.S. Department of Education as the national accrediting agency for JD programs that same year. The accrediting function is currently performed by the ABA’s Council of Legal Education and Admission to the Bar
. The Council promulgates standards
and closely examines law schools’ compliance with those standards every 10 years in the context of a site visit
. The subject matter of the ABA standards runs the gamut from admissions procedures to the determination of credit hours for coursework to requirements for learning outcomes and assessment (about which I have written at some length).
This is not to say that the ABA’s accreditation work has been without controversy. At times, legal educators have objected to some of the Council’s regulatory initiatives. Most recently, the Council proposed increasing the number of required experiential learning credits from six to 12, which many law school deans opposed. In response, the ABA delayed a vote on the proposal.
But another wave of opposition comes not directly from the law schools being regulated, but from the states in which those law schools are located. Specifically, a handful of states have recently considered removing the long-standing requirement that law students must graduate from an ABA-accredited law school in order to sit for the bar exam in that state. (Another handful of states, California most prominent among them, have long permitted graduates from non-ABA-accredited schools to sit for the bar exam; the current movement is unrelated).
Theoretically, this would give law schools within those states the latitude to abandon their efforts to comply with the ABA standards. In reality however, most law schools expect that some portion of their graduates will seek employment outside of the state in which the law school is situated. In order to seek employment out of state, graduates need to be able to sit for the bar exam and be admitted to legal practice in other states. And the vast majority of those states still require graduation from an ABA-accredited law school as a prerequisite. So, it is simply bad business for law schools to give up on ABA accreditation if they want to continue to cater to a student body that values geographically mobility. As Dean Robert Chesney of the University of Texas School of Law put it in a letter to the Texas Supreme Court , “widespread interest in national degree portability means that schools have to account for the bar exam eligibility rules across the country and not just in their home state.”
Law schools may also be playing the long game. The trend of eschewing ABA accreditation requirements arose very quickly and may ebb just as quickly depending on the turn of political tides. Legal education is more like an aircraft carrier than a skiff and is not able to change direction quickly. Making significant changes to the program of legal education in light of what might be a temporary phenomenon is not consistent with that nature.
And at the end of the day, and as of publication of this blog post, the Department of Education still recognizes the ABA as the national accrediting body for JD programs. While this may change in the future, the underlying incentives for maintaining ABA accreditation will not.
