The Standards Review Committee's Comprehensive Review of Accreditation Policy Moves Forward

Donald J. Polden
Dean, Santa Clara University School of Law
Chair, Standards Review Committee

In the Spring 2009 issue of Syllabus, I provided a detailed look at the comprehensive review of the Standards, Interpretation and Rules of Procedure by the Standards Review Committee (Committee). A periodic comprehensive review of the Section's accreditation policies is required by the United States Department of Education and by the policy .of the Council. The current full review of the Standards was launched in 2008

In the following paragraphs, I will provide an update on the work of the Committee since the last report and encourage legal education's continuing involvement in the work of the Committee. Legal education is undergoing significant changes due to forces within and outside legal education and the practice of law. The comprehensive review will lead to accreditation standards that reflect the challenges and opportunities facing law schools while maintaining an overarching commitment to high-quality educational programs. I encourage interested readers to read the Committee's Statement of Principles of Accreditation and Fundamental Goals of Legal Education.

An Open and Inclusive Process
Two years into the review process, the Committee has accomplished a great deal and anticipates concluding the first stage of the review process in summer 2011. Following the Committee's preparation of proposed revisions, the drafts will be submitted to the Council. The Council will circulate the proposed revisions for public comment and the Committee will conduct open and public meetings that invite comments, concerns and recommendations concerning the proposed revisions. The Committee then prepares a final set of recommendations, based in part on suggestions made in the public comment phase. The Council then discusses the proposed revisions and, if appropriate, adopts them, subject to a final opportunity for comment by the House of Delegates.

In addition to this process, which is provided for by Council Internal Operating Practices, the Committee has solicited written comments and suggestions and to date has received well in excess of 125 written submissions. These memoranda and letters have identified helpful issues and made recommendations that led to improved drafts of the revisions. Moreover, all of the Committee's drafts and reports are published on the Committee's website prior to Committee discussion.

As the Committee completes the first phase of the comprehensive review, it continues to seek written comments on drafts of revisions to the Standards, Interpretations and Rules of Procedure. Commentators can send their statements to me, dpolden@scu.edu, or to JR Clark, Paralegal, Section of Legal Education and Admissions to the Bar..

Student Learning Outcomes and Assessment
In the last report, I described the Committee's development of standards that would, if adopted, require approved law schools to articulate the skills, knowledge and ethical values that the schools expected their students to acquire during law school, provide a curriculum that permits the students to develop, acquire and demonstrate those acquired outcomes, and periodically assess the students' acquisition of those skills, knowledge and values. The draft standards have been thoroughly vetted by many thoughtful leaders in legal education and the recent set of standards will be acted upon by the Committee in spring 2011. The proposed new policies provide law schools with considerable flexibility in the design and implementation of assessment programs—clearly eschewing a "one size fits all" approach—and the Committee will recommend a fairly lengthy period of time to permit compliance by schools if ultimately adopted by the Council.

Controversial Provisions Concerning Law Schools' Curriculum Policies
At its January 2011 meeting, the Committee took up a series of proposed changes to some longstanding, but controversial, standards and interpretations dealing with law schools' curricula and student policies. Some of these controversial provisions include those requiring approved law schools to have policies, among others, concerning student class attendance, constraining the receipt of compensation and academic credit in externships, and limiting student employment to 20 or fewer hours per week. The Committee will be addressing these issues and other possible changes that will give law schools greater curricular and programmatic flexibility in distance education initiatives.

Requirement of a Valid and Reliable Entrance Examination
Standard 503 currently requires all applicants to approved law schools to have a score on a valid and reliable entrance examination (to date, the LSAT remains the only examination that has been determined to be valid and reliable in predicting first-year performance). The Committee will propose that this requirement be removed as a requirement for schools. The Committee concluded that schools should have greater flexibility in designing their admission strategies and that the current requirement may hamper schools' programs to attract a more diverse entering class. The Committee also noted that the growth in variances from Standard 503 by the Accreditation Committee suggested that schools should have greater flexibility in determining the composition of their entering classes.

Revisions to the Provisions Dealing with Faculty Employment Terms and Conditions
The Committee has considered drafts of possible changes to several current provisions mandating that deans have tenure as members of their law faculties (206), that library directors have "security of position" (603) and that some groups of full-time instructional faculty (i.e., clinic and legal writing faculty) have some form of security of position on the faculties they serve (405). The Committee has taken a very different look at the accreditation policies applicable to employment terms and conditions. In part, the Committee's draft draws heavily from the Report of the Special Committee on Security of Position, which was referred to the Committee by the Council in 2008. The new draft of Committee provisions will provide law schools with greater flexibility in the employment relationships they form with their full-time faculty while strengthening the duty of law schools to protect their faculty members' academic freedom and enhancing the burden on approved schools to demonstrate their ability to attract and retain a qualified faculty in all positions. Finally, the new draft adds a provision that will, if approved, require law schools to demonstrate that all full-time faculty members have appropriately designed rights to participate in governance of the law school.
The provisions proposing changes to the terms and conditions of employment of clinical and legal writing faculty have generated considerable discussion and concern. Ultimately, of course, the Council will determine whether a new approach to the accreditation policies that require law schools to attract and retain a qualified faculty, protect their academic freedom, and govern the law school is appropriate for contemporary legal education at this time.

Revisiting Policy on Bar Examination Pass Rates
The Committee was informed by several constituencies that Interpretation 301-6, which was passed only a few years ago and established certain minimum thresholds for bar examination results, was inadequate and needed to be revisited. According to those sources, the current bar examination pass rates are not rigorous enough and, further, that it is not clear whether schools that meet the minimum pass standards also must meet other standards dealing with the quality of the curriculum or the quality of admitted students (i.e., that they are likely to be successful in law school and pass the bar examination). The question here is whether a minimally acceptable bar pass will "trump" demonstrated deficiencies in other aspects of a school's program.

Adequacy of Certain Consumer Information
In recent months, a lot of public concern—by law students, by bar leaders, and by practicing lawyers—has been expressed about the clarity and adequacy of public information about employment results for law school graduates. This is a complicated matter because there are at least three sources of published information about employment statistics for law school graduates: NALP, ABA and U.S. News & World Report. Moreover, all the reported statistics are based on self-reported information provided by graduates and are nuanced (i.e., they do not discern types of legal employment or underemployment, or whether there is a legal employment at all). In 2010-2011, the Committee will consider changes to Standards 509 (Consumer Information) regarding the reporting of employment information.

Concluding Thoughts
In closing, I want to note that the foregoing paragraphs describe only some of the important work that the Committee is doing to improve the Standards and the process of gaining and maintaining approved status. The Committee is thoroughly reviewing all the current standards and interpretations to improve their clarity, transparency and pertinence to contemporary legal education. We encourage your comments and suggestions on the drafts and reports that our Committee is producing and, in the near future, we encourage your attendance and participation in the public comment phase of the comprehensive review.

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