Attacks on Law Schools and the Regulation of Legal Education (part 2)
In addition to the attacks on legal education and the regulation of legal education at the federal level discussed in the previous post, state-level attacks are also underway. These challenges threaten the de facto national system of law schools that exists today under the authority of the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association (Council) law school approval process.
Whether or not the Council or some other entity controls and manages the process, it is important to have a national set of standards for the law school J.D. programs. This post explains why and what would be lost without a national system; it also discusses what a more fragmented state-by-state system would likely require. Both the Supreme Court of Florida and the Supreme Court of Texas have started projects to explore this matter. Other jurisdictions may follow suit.
The national impact of the Council’s standards and processes is clear from the data on the source of the legal education of bar applicants present in each of the 56 jurisdictions that license lawyers (50 states, the District of Columbia, and 5 territories), which is released annually by the National Conference of Bar Examiners (NCBE). Each of these jurisdictions accepts the J.D. degree from a law school that the Council approves as meeting the jurisdiction’s legal education requirement, and in many jurisdictions such a degree is required.
For 2024, the most recent year for which data is available, 83 percent of all bar exam takers and 91 percent of bar passers were J.D. graduates from a law school approved by the Council. Excluding takers and passers who received their legal educations outside the United States, 95 percent of takers and 98 percent of passers had a J.D. from a law school approved by the Council. Takers and passers without an ABA-approved J.D. were concentrated in four states (Alabama, California, Massachusetts, and Tennessee), each of which has a special rule for non-ABA law schools located in that state. A few other states allow graduates of one or more of these non-ABA law schools to sit for their exam. These four states were the only jurisdictions with more than 50 bar takers whose legal education was from a law school located in the U.S.
The data show that state supreme courts and state bar admissions processes rely on the Council’s law school approval process. It is fair to say that the responsibility to review and approve law school J.D. programs has been delegated or outsourced to the Council, similar to the way in which the state courts and bar admissions community rely on the NCBE’s work on the bar examination.
The question that is now being asked by the Texas and Florida courts is whether the national scope of the Council’s process is a good thing. For a number of reasons, it is. A national law school approval process is:
1. Better for applicants for admission to law school. Because a J.D. degree from any of the 190+ ABA-approved law schools will meet every admitting jurisdiction’s legal education requirement for admission to practice, applicants to law school can shop for the best legal education program for them (program and price) anywhere in the U.S.
2. Better for graduating law students and recent law graduates. As law students approach graduation and the start of their careers as lawyers, they can look for employment anywhere in the U.S. because the ABA-approved law school J.D. is an acceptable legal education credential for admission in every state. Students frequently are not certain where they might want to practice law or where there opportunities might be. Planning a course of study is more difficult, for sure, if the student must take a number of jurisdictions’ degree requirements into account.
3. Better for employers of graduating law students and recent law graduates. Because a J.D. degree from any of the 190+ ABA-approved law schools will meet every admitting jurisdiction’s legal education requirement for admission to practice, those who hire recent law graduates benefit by being able to draw from a larger national pool of law graduates, without concern about whether the particular person meets the local standards for admission to practice.
4. Better for law schools. But for a national law school approval process, law schools would have to monitor the admissions rules of every jurisdiction and adjust their curriculum and program requirements to satisfy all those jurisdictions where graduates might wish to be admitted.
5. Better for state courts and bar admissions processes. Whether or not each state would need or choose to adopt a comprehensive set of particular standards and establish annual reporting and periodic inspection processes similar to the Council’s process, if a national system fragments, then each jurisdiction would need to have some structure to provide this function itself. That would require at least some staff, some infrastructure, and some volunteer time. Duplicating 50+ times what the Council does is not the most effective and efficient way to do this work.
6. Better for the public. The public benefits for all of the reasons set out above. A fragmented system, as discussed below, would be more expensive, and certainly more confusing, than a national system.
The Association of American Law Schools (AALS) outlined these and other reasons why a national system for approval of the J.D. degree makes sense in a helpful statement, The Critical Importance of National Accreditation of Law Schools, released in April 2025. While it is true that Council’s process is a national one, the AALS statement may overstate the point about its entrenchment. The ABA played a central role in the evolution of modern legal education by adopting professional standards for law schools more than 100 years ago and by establishing the Committee on Legal Education and Admissions to the Bar, the first formal section of the ABA. In the early years the ABA rules stood alongside state rules that prescribed the education needed for bar admission; ABA approval was a mark of distinction, perhaps, and useful to the schools but it was not always required.
Courts’ reliance on the Council’s process grew in the post- World War II period to be as pervasive as it is today, as courts recognized that the law degree conferred by a school approved by the Council would be sufficient proof of a satisfactory legal education for a new lawyer without further inquiry by the court or the bar examiners. The Florida Supreme Court’s order, for example, reports that the Council’s approval became the exclusive method to satisfy the legal education leg of its bar admissions rule in1992. The Texas court’s order states that its delegation of authority to the ABA/Council rules and process occurred in 1983. Also important to note, the process changed from being one where the approval of schools was under the authority of the larger ABA to one under the separate and independent authority of the Council.
Criticism of the Council’s standards and process have and continue to come from several vantage points. Among the concerns expressed in recent years about the Standards are: lack of required skills/practical training; limitations on distance learning; inflexibility of the terms and conditions of employment of faculty (some wanting more and some wanting less protection); over reliance on inputs (credentials of students, books in the library, facilities) and too little focus on outcomes (bar passage rates, assessment of learning outcomes, job placements); and too much focus on diversity.
It is the last point that may have been the basis for the recent orders to study the matter issued by the courts in Florida and Texas. The current process is managed by the Council, but that does not have to be the case. Many critics of the current system are critical of the larger ABA, as much or moreso than the Council. For them, the fact that the Council is within the ABA is the problem, or at least part of the problem. That may be true in some respects (perhaps the subject for a subsequent post), but the facts are that, for its accreditation work, the Council operates separately and independently of the larger ABA. The Council, not the larger ABA, establishes the standards and controls whether a law school is or remains approved. A Council process controls election of Council members. The Council sets the fees that law schools pay for its accreditation work, and the revenue those fees generate is earmarked for the Council’s accreditation work. The ABA House of Delegates, the larger ABA’s governing body, plays only a limited role in the setting of the Standards. The House is given the opportunity to concur in the adoption of a standard approved by the Council. The House cannot propose, adopt, or amend a standard on its own motion. If the House does not concur, the matter is referred back to the Council. If that non-concurrence and reference back happens twice and the Council once more affirms its decision to adopt or amend a standard, the Council’s action stands. The House of Delegates also has zero say in the approval, removal of approval, or sanctioning of a particular law school.
There is little doubt that the public interest – national, state, and local – is well served by a national law school approval process, but only so long as the rules and procedures that the Council puts in place are appropriate and the standards and processes overall have the respect of the stakeholders in the process. A number of fundamental questions present themselves. Should the Council resign its US DoE recognition while continuing its “approver” function? Should the law school approval process move out of the ABA, seeking a new home or becoming an independent entity. Should there be a new or an additional “approver”? How, if at all, should the composition of the Council or its governance process be changed? None of these changes would be easy or quick, but given the importance of our law schools and legal education programs to the legal profession and our legal system, nothing should be off the table, including staying with the current structure and continuing to work on the standards and process, which have served us reasonably well over the decades.
In this work, it will be very important to engage the state supreme courts more deeply than has been the case in my experience. Given their responsibility to manage the bar admission process, they are, in truth, the Council’s primary stakeholder. The establishment of the Committee on Legal Education and Admissions Reform (CLEAR) by the Council of Chief Justices and the recent projects in Texas and Florida are evidence of this fact. There is a lot of work to be done by the Council, the courts, and the law schools to figure out what changes, if any, are needed to assure that this legal education piece of the making of a lawyer works well as it should.
The study of law has been part of the academy from the academy’s earliest days. But in addition to this role as part of an academic enterprise, today’s law schools need to be understood as one of the fundamental building blocks of the legal system. The matters discussed here should be considered in the broader context of what the largely self-regulating legal profession can and should expect law schools to be and to accomplish. Subsequent posts will dive into these issues.