The ABA council frequently revisits its accreditation standards. The council aways invites feedback on standards changes through a notice and comment process. For the most part, changes are relatively routine and non-controversial.
In the past few years, however, the council has proposed some changes to the ABA standards that have been questioned or outright opposed by large numbers of law school deans.
Decanal opposition to standards changes may not always be a problem. The ABA council’s primary duty as an accreditor is to the public and the profession, and it may sometimes have good reason to adopt a standards revision that is opposed by many or most law school deans.
On the other hand, deans are well-situated to see problems and unforeseen consequences in proposed changes to the standards. Especially when large numbers of deans speak as a group, the ABA council should take the concerns raised by the deans very seriously.
Deans are not monolithic, and I certainly do not speak for them as a group. That said, there appears to be widespread concern among the deans about some issues that controversial standards revisions seem to have in common.
Individually and in groups, deans have raised concerns that when it proposes standards revisions, the ABA council (a) is often not clear about what problem it is trying to solve, (b) either does not collect relevant data in support of its proposal or does not share that data with the public, and (c) does not always distinguish between things that require nationwide mandatory standards, on the one hand, and things that are a good idea, on the other.
It is to address this last issue that I want to make the case for an ABA Statement of Best Practices for law schools and legal education.
A Statement of Best Practices would allow the ABA council to collect and endorse policies, procedures and practices that could be aspirational goals for law schools and legal educators. The crucial difference between accreditation requirements and best practices is that the former are mandatory while the latter are optional.
If the ABA council adopted a Statement of Best Practices, a law school would have the benefit of having a collection of recommendations to use as a resource while having the freedom to go in another direction, if it concluded that doing so is best for its particular facts and circumstances.
American law schools, after all, are a remarkably diverse group of institutions — public and private, religious and secular, located in red and blue states. What might work very well for some law schools might not work well for others.
Best practices point in a particular direction while providing space for innovation and institutional pluralism. Accreditation standards — appropriately in many circumstances — are inflexible and mandate one rule for all.
The Association of American Law Schools, the organization that serves as American legal education’s learned society, has membership requirements that are reflected in its bylaws and regulations. It also has a separate set of Statements of Good Practices for matters that do not warrant mandatory rules.
The ABA council is an accreditation body while the AALS is a learned society. As a result, the ABA standards and the AALS membership requirements have some subject matter overlap but do not cover all the same topics. The AALS’s Statements of Good Practices, however, provide an example of an organization having distinct sets of mandatory rules and advisory statements.
The greatest virtue of a Statement of Best Practices is that it would naturally lead the ABA council to ask whether a new proposal is a matter for the standards or for the best practices.
The council would benefit from considering that question no matter how it is answered on any issue. As things stand now, the council often must choose between a mandatory uniform standard and taking no action on an issue at all. Having a Statement of Best Practices would create space for the council to address issues that are important but do not warrant national uniformity.
Asking whether an issue requires national uniformity would lead to better decision making. It also might lead to less angst among law school deans — which, I can personally attest, would be a very good thing.
op-ed submitted by D. Benjamin Barros, dean at Stetson University College of Law
