The Revised ABA Standards for Approval of Law Schools: An Overview of the Major Changes

This article originally appeared in The Bar Examiner print edition, March 2015 (Vol. 84, No. 1), pp 44–53.

By Jeffrey E. LewisThe revised ABA Standards and Rules of Procedure for Approval of Law Schools (Standards), which became effective on August 12, 2014, are the culmination of a comprehensive review of the Standards begun in 2008. The Comprehensive Review was undertaken by the Standards Review Committee (SRC) of the ABA Section of Legal Education and Admissions to the Bar (Section) under direction of the Section Council (Council), which is recognized by the U.S. Department of Education as the national accrediting agency for programs leading to the J.D. degree in American law schools.1

The SRC is charged with reviewing proposed changes or additions to the Standards and may also initiate such changes. (The Department of Education requires that all accrediting agencies periodically review and update their standards and policies pertaining to approval of schools and programs.) This Comprehensive Review was undertaken in light of recommendations from the Accreditation Policy Task Force—assembled in 2007 to review accreditation policies and practices by taking a fresh look from a policy perspective—and from three special committees appointed to consider the recommendations of the Accreditation Policy Task Force and to report their suggestions to the Council: the Special Committees on Transparency, Security of Position, and Outcome Measures.2 Thus, the review began with a considerable prelude of careful thought about needed change.

During the Comprehensive Review the SRC held 23 public meetings, met with various interest groups, and participated in conferences, including those of the ABA, the Association of American Law Schools, and the National Conference of Bar Examiners (NCBE). The SRC agenda and draft proposals and recommendations to the Council were widely published. Hundreds of comments were received and considered by the SRC and the Council. Six hearings were held during the various notice and comment periods following Council preliminary approval. The Committee also held two open forum meetings for interested parties to provide comments to the Committee before making its recommendations to the Council.

The Comprehensive Review was completed with Council approval of the SRC recommendations at its March and June meetings in 2014, and with the concurrence of the ABA House of Delegates at the ABA Annual Meeting in Boston on August 11, 2014. While the new Standards became effective after that meeting, the Council and the Section, cognizant that law schools will need time to do the work that some of the revised and new Standards will require, established a transition and implementation plan. Under this plan, site visits in 2014–2015 will substantially rely on the 2013–2014 Standards. The new Standards will be applied to site visits beginning in 2015–2016, with the exception of certain new Standards pertaining to learning outcomes, curriculum changes, and assessment methods, which will be applied beginning in 2016–2017 and applied as appropriate to students who become 1L students that year.3 The revised Rules of Procedure, on the other hand, do not require a delay for implementation.

This article highlights some of the major changes to the Standards and offers examples of those changes. Most categories of change include too many examples to cover; in these cases, the most important changes are highlighted. Selected pertinent excerpts from the new Standards appear at the end of this article. While the Rules of Procedure were also substantially modified, those changes are not discussed in this article. Note that many Standards and Interpretations were renumbered as a result of the significant revisions (references in this article are to the revised Standards unless otherwise noted); the material found on the Standards web page of the ABA Section is helpful in that regard.4

Categories of Major Changes to the Standards

Learning Outcomes: The Standards were revised to incorporate student learning outcomes. This is one of the most significant developments in the new Standards.

New Standards 301(b) and 302, Learning Outcomes, introduce the requirement that law schools establish and publish learning outcomes designed to achieve the objectives of the program of legal education. This development is in line with the recommendation of the Outcome Measures Committee to increase reliance on output measures. It is consistent with the best practices in higher
education.

Certain minimum learning outcomes requiring competency in four key areas are outlined, though broadly stated to give law schools maximum flexibility. (See below for the learning outcomes specified in Standard 302.) Interpretation 302-1 states that other professional skills in which competency is required are to be determined by the law school and provides a nonexclusive list of skills that may be included, while Interpretation 302-2 allows a law school to identify any additional learning outcomes pertinent to its program.

Assessment of Student Learning: In a related development, new Standard 314, Assessment of Student Learning, requires that law schools use formative and summative assessment methods to measure student learning and to provide meaningful feedback to students.

Interpretation 314-1 provides definitions of formative and summative assessment methods (see below), while Interpretation 314-2 provides for flexibility in implementing the assessment requirement.

Evaluation of Program of Legal Education, Learning Outcomes, and Assessment Methods: A further related development is the adoption of new Standard 315, Evaluation of Program of Legal Education, Learning Outcomes, and Assessment Methods, which requires that law schools evaluate their programs of legal education, adopted learning outcomes, and assessment methods on a regular basis.

Law schools are expected to use the results of their evaluations to assess the degree to which students have achieved competency in the learning outcomes and to improve their programs accordingly. Interpretation 315-1 gives law schools flexibility in determining what assessment methods to use across the curriculum. The transition and implementation plan for the Standards provides a phase-in period so that law schools may develop their learning outcomes and assessment methods to be in compliance with the new Standard.

Curriculum—Professional and Practical Training: The revised Standards emphasize professional and practical training through new curricular requirements.

Although the Curriculum Standard (now Standard 303) already mandated that law schools require each student to receive substantial instruction in the areas of professional responsibility and professional skills, the Standard now contains a specific graduation requirement of credit hours in these areas. Under the revised Standard, law schools must require each student to satisfactorily complete one course of at least two credit hours in professional responsibility and at least six credit hours of a course or courses in experiential learning. Simulation courses, law clinics, and field placements qualify as experiential learning courses as long as they involve professional skills with multiple opportunities for performance and self-evaluation. New Standard 304, Simulation Courses and Law Clinics, defines and sets out the qualification requirements for simulation courses and law clinics; field placements are addressed under modified Standard 305.

The types of “substantial opportunities” for additional professional and practical training required to be offered by law schools in former Standard 302(b) (for live-client or other real-life practice experiences, student participation in pro bono activities, and small group work) have been reworded in what is now Standard 303(b); those substantial opportunities are now listed as law clinics or field placements and pro bono legal services, including law-related public service (small group work was eliminated).

Revised Interpretation 303-3 (former Interpretation 302-10) encouraging law schools to promote pro bono opportunities for law students now references pro bono legal services in the context of the ABA Model Rules of Professional Conduct and recommends that each student provide at least 50 hours of pro bono service during law school.

Increased Flexibility: One of the primary goals of the Comprehensive Review of the Standards was to provide law schools increased flexibility.

For example, one of the most significant changes in the Standards is the elimination of the calculation of the student-faculty ratio (former Interpretations 402-1 and 402-2). The SRC was of the view that the ratio did not properly account for all students enrolled in the law school and did not properly account for the size of the faculty, given the important changes in law school curriculum, teaching methodologies, and administrative structures since these two Interpretations were adopted. There are a number of factors that can be considered in making a functional judgment about the adequacy of the teaching faculty without resorting to a student-faculty ratio calculation. The elimination of the student-faculty ratio removes from the Standards what was widely viewed as an artificial and misleading calculation that did not accurately reflect the quality of the legal education being delivered in any particular law school.

Experimentation and Innovation: Experimentation and innovation are also encouraged with the new variance process found in Standard 107.

Standard 107 distinguishes between variances in an emergency and those sought to experiment with a new or innovative program or concept. In making this distinction, experimentation is encouraged. The Council may grant a variance if it is consistent with the purpose and objectives of the Standards overall. The SRC was of the view that the new experimental variance rule has the potential to improve the delivery of legal education over time, and that the potential benefits of Council-authorized variances outweigh any potential harm.

Admission Test: Interpretation 503-3 provides a limited variance to the use of the LSAT in admissions.

There has long been a presumption that the LSAT satisfied the Standard 503 requirement of a “valid and reliable admission test.” The new Interpretation provides a safe harbor variance from the use of the LSAT in very limited circumstances and for no more than 10% of any entering class. Outside of the safe harbor, the variance process is available to clarify when any other alternative test admissions programs may be employed on an experimental basis. (See the sidebar for the circumstances of the variance.)

Technological Developments: A number of changes were made in response to developments in the technological environment, two examples of which are listed below. These changes also provide greater flexibility to law schools.

Distance Education: Standard 306 now provides that a law school may grant up to a total of 15 credit hours toward the J.D. degree for distance education courses that otherwise qualify under the Standards. This is one-sixth of the typical law student’s law study and an increase from 12 credit hours in the former Standard. Importantly, while the opportunity for distance education has been increased, the rules governing creditable distance education are still properly designed to ensure that the law student’s academic experience is comparable to the traditional classroom experience. Standard 306 was generally updated for more clarity and now includes a clearer definition of a distance education course.

Library Collection: Options for the format of the law library collection have also changed considerably, with a movement from the traditional book collection to databases that are electronically available. In recognition of this development, Standard 606, which referenced a “core collection of essential materials accessible in the law library,” has been amended to require “a core collection of essential materials through ownership or reliable access.” Interpretation 606-2 further defines “reliable access” by providing guidance on ways in which to fulfill this requirement.

Additional Substantive Changes: A number of other substantive changes were made to the Standards, a few examples of which are listed below.

Granting of J.D. Degree Credit for Prior Law Study: At least two-thirds of the credits needed for the J.D. degree must now be obtained in an ABA-accredited J.D. curriculum. Specifically, new Standard 505 provides that the total credits permitted for prior law study (abroad, or non-ABA-accredited school, or LL.M. program) are limited to one-third of the credits required for the J.D. degree. This ends the practice of some schools to grant one year of credit for a law school education abroad and one year of J.D. credit for an LL.M. at their law school toward the equivalent of three years of the required J.D. credits. One or the other, but not both, may be credited toward the J.D. degree.

Student Support Services: Another substantive change was the modification of Standard 508 to provide that debt counseling is a mandatory function for student support services. While most law schools have long provided this counseling, it is now no longer a matter of discretion to do so.

Qualifications for Admission to the Bar: The substance of Standard 504 was changed to specify that the requirement to advise students of the “character, fitness, and other qualifications for admission to the bar in every U.S. jurisdiction” must be fulfilled by including a statement in its application for admission and on its website. The revised Standard provides explicit language to be used for the statement (see the sidebar).

Increased Objectivity: The Standards were modified in a number of instances to be more objective.

An important example is found in Standard 101, Basic Requirements for Approval. Specifically, Standard 101(a) previously required that an approved law school “shall demonstrate that its program is consistent with sound legal education principles. It does so by establishing that it is being operated in compliance with the Standards.” That language was changed to make the Standard more objective: an approved law school “shall demonstrate that it is being operated in compliance with the Standards.” Changes such as this were made throughout the Standards.

Requirements Regarding Policies: Where law schools are required to have policies, there is a new requirement that they must adopt, publish, and adhere to those policies.

For example, Standard 303 previously required a law school to “have and adhere to sound academic standards.” The revised Standard, now Standard 308, requires law schools to “adopt, publish, and adhere to sound academic standards.” This “adopt, publish, and adhere to” language is used in several places throughout the revised Standards and was intended to achieve more objectivity as well as to increase transparency.

Reporting Requirements: The Standards were revised to highlight reporting requirements.

For example, old Interpretation 101-1 covering information that must be furnished by law schools to the Accreditation Committee and the Council was upgraded in importance by moving it into new Standard 104 that provides that the information provided by a law school must be “complete, accurate, and not misleading and must be submitted in the form, manner, and time frame specified by the Council.” Moving this requirement into the Standard highlights the importance of providing accurate information to the Council.

Conforming to Department of Education Requirements: Some changes in the Standards were required by U.S. Department of Education regulations.

For example, new Standard 310 uses the U.S. Department of Education definition of a credit hour: 50 minutes of classroom or direct faculty instruction plus 120 minutes of out-of-class work per week for 15 weeks (including one week for a final exam). In other words, a total of 170 minutes per week for 15 weeks of instruction (including one week of exams) qualify for one academic credit. The Standard also provides some alternate ways of determining the time; it refers to an “equivalent amount of work over a different amount of time.” This represents a shift from the use of minutes to the use of the concept of a credit hour to describe the various curricular requirements of the Standards.

Required Disclosures: Revised Standard 509 builds on recent Council action strengthening the reporting requirements for consumer information.5

Law school reporting of information such as employment and conditional scholarships must now be accomplished through prescribed charts. This makes it possible for the prospective law student to achieve a reliable and accurate comparison between law schools on these important considerations. Law school reporting of other required information (such as academic requirements and transfer of credit) is not susceptible to a specific format but must be disclosed in a “readable and comprehensive manner.”

Elimination of Certain Standards and Interpretations: Several Standards and Interpretations were eliminated because they were seen as being unenforceable, unnecessary, unclear, or repetitive.

Most notable was the elimination of the 20-hour limitation on employment for full-time students (former Standard 304(f)); this was viewed as fundamentally unenforceable.

Redesignation of Certain Interpretations as Standards: The SRC identified a number of Interpretations that were, in their substance, Standards and not mere interpretations of Standards. They were, therefore, redesignated as Standards. Such redesignation was one of the most significant changes to the Standards.

For example, former Interpretation 305-4(a) provided that “[a] law school that has a field placement program shall develop, publish and communicate to students and field instructors a statement that describes the educational objectives of the program.” This is now Standard 305(f) (with minor modifications). (Other examples are listed under other categories of change in this article.)

Standards Subject to Future Evaluation

Several issues addressed by the SRC and the Council were highly controversial, and in the end no changes were made:

Bar Passage: The SRC proposed changes to the bar passage provision (former Interpretation 301-6, regarding determination of the sufficiency of a law school’s bar passage rate in meeting the objectives of its program of legal education to prepare its students for admission to the bar). Most significant was the proposal to require a law school to report bar examination results for all its graduates known to have taken a bar examination within two calendar years from graduation. The proposals were stalled in part due to complaints from law schools that obtaining information regarding bar passage for all students was a difficult task for law schools. Former Interpretation 301-6 was moved, unchanged, to new Standard 316.

Professional Environment: The attempt to clarify the requirements regarding tenure also failed to pass. Standard 405, Professional Environment, governs the status and security of position for law faculty. Alternative proposals to modify this Standard generated substantial criticism from law school faculty during the comment period.6 Since no proposal for change garnered the approval of a majority of the Council, current Standard 405 remains in place.

Credit for Compensated Field Placement Programs: Another controversial issue was the prohibiting of law schools from granting credit for field placement programs for which the student receives compensation (former Interpretation 305-3, now Interpretation 305-2). Retention of this Interpretation was recommended by the Council, but it was referred back to the Council after the House of Delegates heard strong testimony for and against the provision. The House concurred in all of the proposed new Standards and Rules of Procedure with the exception of Interpretation 305-2. This Interpretation remains in place pending further review by the Council.

Several other matters raised during the Comprehensive Review will continue to be studied. For example, one remaining issue is whether certain groups currently covered by the non-discrimination Standard, such as those with disabilities or certain sexual orientation characteristics, should also be included in the Standard that requires law schools to demonstrate by concrete action a commitment to diversity and inclusion.

Conclusion

Overall, as a result of the changes to the Standards, programs of legal education in American law schools will remain rigorous, while at the same time becoming more practical and skills-focused. There will be a greater focus on outcomes (such as learning outcomes, bar exam results, and employment rates). The revised Standards also require increased reporting of consumer information for greater transparency. In addition, the revisions address many of the changes that have occurred in legal education since the last Comprehensive Review. Finally, the revisions respond to changes and requirements in the U.S. Department of Education regulations, streamline the sabbatical review process, strengthen curricular requirements, and strengthen the reporting requirements for consumer information.

It should be noted that the Comprehensive Review occurred during a period of dramatic change in the legal profession and legal education—a transition from high enrollments and bountiful employment opportunities to reduced enrollments and a contraction of the job market. The Standards, substantially improved against the backdrop of these stresses and strains on the legal profession and legal education, are destined to strengthen the quality of American legal education as we go forward.

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