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Thomas M. Cooley Law School v. ABA:

Today the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's rejection of the Thomas M. Cooley Law School's due process claims agains the American Bar Association. Cooley claimed tha the ABA violated its due process in failing to accredit two satellite programs operated by the law school, and by imposing sanctions on Cooley for operating the programs without prior ABA approval. Judge Gibbons wrote the opinion for the panel. Judge Batchelder wrote a separate concurring opinion. Both are available here.

DavidBernstein (mail):
I don't have the exact statistics handy, but Cooley educates a huge number of future black and Hispanic attorneys. And, given its basically open admissions policy, it does so without preferences. That the ABA consistently gives Cooley such a hard time while pressuring other law schools to enact de facto quotas that lead to a huge failure rate among African American students raises suspicions regarding the ABA's sincerity.
8.16.2006 11:24am
Hoosier:
And the sincerity of blue-chip firms in the region that won't hire from Cooley, John Marshall, Cleveland-Marshall . . .
8.16.2006 11:37am
Lincoln (www):
I read that while Cooley has an open admissions policy, they turn on you like a rabid dog in your 2nd or 3rd year, forcing many students who perform poorly to drop out so they don't affect the school's bar passage rates.
8.16.2006 12:25pm
Hoosier:
Lincoln--

That was the expereince of a friend of mine, who was trying to bi-locate between Lansing and Minneapolis due to his child custody arrangement.

I won't get specific, since a couple administrators were involved. But it was a real crushing blow to him.

If this is actually a policy, aren't the bar pass rates offset by the lower graduation rate?
8.16.2006 12:36pm
David Maquera (mail) (www):
I practice in Michigan and have met with a few students from Cooley. All of the above is true. They have a pretty easy admissions policy but you will be dropped from the school if you don't make the grade. Furthermore, you don't get a refund on your tuition, which is rather expensive, if you are dropped from the school. Granted this may be the case with any other law school but most any other law school has a tough admissions policy so that very few students are put in a situation where they have invested a lot of time and money in a law school program only to find out by their second or third year that they will be dropped from the program.
8.16.2006 12:45pm
Houston Lawyer:
I would hope a law school with an open admissions policy would have a higher flunk-out rate than a selective school. Selective schools that employ race-based admissions must avoid flunking out those who were given preferences to get in.
8.16.2006 12:49pm
Lincoln (www):
Hoosier, since admissions policies for most law schools appear to revolve around the US News and World Report rankings, I think such statistics are weighted, and bar passage rates carry a MUCH higher weight than the graduation rate... at least that's my impression.

It would be disingenuous for Cooley to present itself as minority friendly, since their proclivity for torpedoing students in their second or third year has left a lot of students thousands and thousands of dollars in debt with nothing to show for it.
8.16.2006 12:51pm
ksd:
I graduated from the University of Michigan Law School in 94, and practiced in Detroit from 94 to 98. I'm a big supporter of Cooley, and several friends of mine went there. My experience is that Cooley was sort of the "anti-Michigan." Michigan was VERY hard to get admitted to, but once admitted, you were pretty much assured of graduating; no one failed out of Michigan. On the other hand, Cooley would take just about anyone, but the pressure to perform once there was enormous. My friends who went to Cooley worked much harder than I did at Michigan. At the time, I heard that only about 1 in 3 students who started at Cooley were expected to graduate, while the graduation rate at Michigan was something like 98% (I can't vouch for the accuracy of those figures, either then or now). Cooley also offered academic scholarships to applicants with high grades, which of course Michigan and others top tier school didn't to (no need to!). There was a matrix of undergrad GPA and LSAT score, and high enough values on both would result in as much as a 100% tuition waiver. I foolishly declined and paid $75,000 for the "name brand" degree from Michigan.

Michigan almost certainly had the better/smarter top 10%, and I'm willing to bet that Michigan produces a lot more academics and appellate judges than Cooley. My experience, however, is that Cooley produces a lot of hard-working, capable and well-trained lawyers, and that the average Cooley grad is much better prepared to begin practice than the average Michigan grad.
8.16.2006 1:22pm
Dustin (mail):
Mr. Bernstein, I always thoguht Cooley also had huge failure rates for minorities (and all other categories, too).


Maybe we need more lawyers, and surely it wouldn't be bad if minorities had more realistic paths to becoming lawyers, but this type of school is not the answer.

A great idea would be an easier, slower, more educational and less competitive law school. A place where anyone can go to school and be able to graduate, but perhaps in 5 or 6 years. These lower ranked law schools that flunk out a huge number of their classes are little more than ponzy schemes. I'm not trying to be elitist, but if these schools are supposed to exist to provide access to the legal profession for those lacking the best credentials, they are failing miserably.
8.16.2006 1:38pm
jack (mail):
Dustin,

The third year of law school is already of questionable utility. Please don't encourage them to drag it out any longer.
8.16.2006 2:00pm
cld:
What happens to the students that have already started taking classes, say at the Grand Rapids campus? Do they have to repeat that year at the Lansing Campus?

Thank You in advance for any answers you can provide.
8.16.2006 2:20pm
Drive By Comments:
I think that what everyone is missing in Cooley's (and other law schools with similar policies) admissions/retention program is a very simple, and very basic point.

They're giving people who otherwise would not have one a chance at law school. Sure, a ton of them fail out. But, think about it- the very fact that they needed to attend a law school with essentially open admissions makes it very likely that there are fundamental problems in these students' preparation for law school.

In many ways it is similar to the situation in California with the schools that have been accredited by the state bar- most of their students never pass the bar or otherwise amount to much of anything within the legal profession. But enough do that people keep coming back to them. And, many of their students would not be attending law school at all but for their existence.
8.16.2006 2:23pm
HLSbertarian (mail):
Dustin,

Why should law school be "a place where anyone can go to school and be able to graduate?" Cooley is weeding out people who probably wouldn't pass the bar anyway. What's the benfit of having the same students spend 6 years' worth of tuition to fail?
8.16.2006 2:49pm
Dave Hardy (mail) (www):
I have always thought the ABA accreditation requirement was rather anomalous (save as a means of keeping down the number of attorneys and thus reducing competition)....

Requirement of passing a bar exam is obviously an appropriate one -- a test of skill in the field where one is to be licensed. But a requirement that (even if you have sufficient skill to practice) you first graduate with a JD is a bit less justified.

Then we get to ... AND that JD must be from an institution licensed by a *private entity,* the ABA. A private, voluntary group, to which most of the licensed profession does not belong. One which, as a private body, can impose arbitrary standards at will. (And does so -- see the earlier threads on how its diversity policy appears to be commanding law schools to violate state law).

I don't see the justification for requiring that, in order to get a government-issued license, one must graduate from a school certified by a private organization.
8.16.2006 2:49pm
TaxLawyer:
FYI,

The ABA granted accreditation to the Cooley satellites about 3 weeks ago. The decision today is thus of little note (except perhaps as a data point for Prof. Bernstein's arguments contra the ABA's role in the accreditation process -- which, incidentally, the decision today paints as a rather ordinary exemplar of a long-accepted practice in academic accreditation).

Read about the ABA's about-face here.
8.16.2006 3:04pm
Josh Ard (mail):
I graduated from Cooley and used to work there. The story is a bit more complicated. At first Cooley had a "give 'em a chance but be tough" policy. Easy in and easy out. I see nothing wrong with that IF the ones who don't make it are weeded out early before they waste much time and money. It is clearly questionable to keep people around for 2+ years and then say that they can't make it. Cooley changed and made it easier for people to get second and even third chances. That kept more people in longer and led to higher graduation rates. Coincidentally, this was a time minority enrolment increased dramatically as other schools tightened their admissions policies. As a result, bar passage rates plummeted. Cooley finally realized that more support had to be given to students to make them better prepared for the exam. In the last round of results, the passage rates went back up dramatically. We need some schools with an easy admission rate as long as graduates have a statistically decent chance of passing the bar exam.
8.16.2006 3:46pm
ksd:
Drive By said:

the very fact that they needed to attend a law school with essentially open admissions makes it very likely that there are fundamental problems in these students' preparation for law school.

Not necessarily. What I believe is more likely is that they needed to attend a law school with open admissions because they often failed to meet the standards set by other law schools for the admission to those schools. What the difference between your formulation and mine? Simple -- you presume a correlation between meeting the standards set by other law schools, and "preparation for law school." That's true only if you definition of "preparation for law school" is "meets the admission requirements."

My view is that the law school admission process is driven largely by factors that have little bearing on a student's likelihood of success in law school, and little bearing on their likelihood of success as lawyers. As a result, I'm all for open admissions.
8.16.2006 3:46pm
jgshapiro (mail):
the average Cooley grad is much better prepared to begin practice than the average Michigan grad.

Substitute any ranked school for Michigan and that sentence holds true. All of the top law schools are basically running a 3-year poly sci course with little practical training for being a lawyer. I graduated Michigan in 94 too and the only practical training there was a legal writing course (ungraded, of course) and a handful of clinics taken by relatively few students.

The common line is that you are being trained to "think like a lawyer," and that you will pick up the skills on the job. But if you don't go to a large or medium size firm first (where you can learn at a reasonable pace) and instead start on your own, you would likely be committing malpractice on a weekly basis. Fortunately, most grads of top scools do go straight to large or medium size firms, so this problem is ameliorated to a large degree.

The lower ranked schools appear to mostly train you at legal skills (and at passing the bar exam), so you will be able to hit the ground running. Which you will have to do, because hardly any large or medium size firm would hire you from one.
8.16.2006 3:52pm
Drive By Comments:

My view is that the law school admission process is driven largely by factors that have little bearing on a student's likelihood of success in law school, and little bearing on their likelihood of success as lawyers. As a result, I'm all for open admissions.


Your view is incorrect.

The admissions process is almost entirely driven by LSAT scores and GPAs, with little regard to other factors.

Statistically, the LSAT score is the ONLY variable correlated with performance in law school (it has a coefficient of about .45, which isn't great, but is, again, the only statistically significant predictor) - law school admissions processes, to tell the truth, don't emphasize the predictors of success enough.
8.16.2006 3:52pm
JRL:

"Requirement of passing a bar exam is obviously an appropriate one -- a test of skill in the field where one is to be licensed."


Sure, it is appropriate if one must be licensed, but is licensure really necessary?
8.16.2006 4:23pm
AaronC:
DrivebyComments,

The r of 0.45 is the correlation between LSAT score and 1L GPA - not the correlation between LSAT score ans success in the practice of law.
8.16.2006 4:33pm
Dave Hardy (mail) (www):
Sure, it is appropriate if one must be licensed, but is licensure really necessary?

Chuckle--we have that in a way here in AZ. A decade or two ago the legislature set out to investigate claims that the bar disciplinary process was stacked in favor of people and firms with clout. Naw, never happens. Just because two guys in a powerful political firm had charged a client an extra $10K to get a favorable plea bargain, hinting that it was for a bribe, when in fact the plea had already been offered, and were then given no or minor sanctions....

Bar refused to honor a legislative subpoena, Supreme Ct. upheld its position.

Legislature said, OK, you want to play games? The bar, as a state agency, is sunsetted, and the statutes against practicing w/o a license are repealed.

The courts still require licensing for appearance, but all other legal functions, anyone can hang out a shingle They're called legal document preparers.

Regrettably, lots are incompetent. I've heard a judge try to redraft one of their domestic default judgments and finally give up. They'd inserted a termination of parental relationship, which wasn't even within the court's jurisdiction. I warned a person away from another, who was an attorney disbarred for ripping off a disabled client -- her mother -- to pay a malpractice claim. No kidding...
8.16.2006 4:43pm
Houston Lawyer:
1L GPA is the primarly measure that law firms look for in hiring their summer clerks. Don't discount it.
8.16.2006 4:45pm
Steve:
Uh, I was also Michigan '94. What's with all my classmates posting in this thread?
8.16.2006 4:58pm
Drive By Comments:

The r of 0.45 is the correlation between LSAT score and 1L GPA - not the correlation between LSAT score ans success in the practice of law.


That's true, I elided a couple of steps.

As Houston Lawyer noted, the 1L GPA is disproportionately powerful in determining career options.

However, even more important, 1L GPA is by far the best predictor of success or failure on the bar examination, with an r of .6 or so, and bar passage is, in many ways, the best measure of early success in the field.

So a law school admissions committee, seeking to maximize, such as it can, the number of students it admits who will be successful, would try to select students who are the most likely to become lawyers- that is, students most likely to perform highly in their first year of law school.

And that leads us back to the LSAT.

I know that it is currently fashionable to discount standardized tests such as the LSAT as being either discriminatory or not particularly relevant. Similarly, I'm sure that many lawyers will find it somehow personally offensive that their performance can be reasonably well predicted by such a test.

The fact remains that it is the sole tool that provides a predictable and accurate estimate of a law student's success.

GPA does not. Undergraduate institution does not. A "spirit of community service" certainly does not. Mercenary intentions do not.

The LSAT does.
8.16.2006 5:19pm
Christopher Cooke (mail):
Yet another victory for our favorite monopoly.

It is interesting here that no one has bothered to comment on the judicial opinions that are the subject of Professor Adler's post. I was surprised that the ABA could be sued under a due process claim, given that it is not a state actor, but rather a private, voluntary professional organization. Apparently, however, there is a well-recognized common law right of due process when "quasi" regulatory private actors are involved. Here is how the majority put it:


Many courts, including this one, recognize that "quasi-public" professional organizations
and accrediting agencies such as the ABA have a common law duty to employ fair procedures when
making decisions affecting their members. See Foundation for Interior Design Education Research
v. Savannah Coll. of Art &Design, 244 F.3d 521, 527-28 (6th Cir. 2001); Chicago School of
Automatic Transmissions, Inc. v. Accreditation Alliance of Career Schools and Colleges, 44 F.3d
447, 450 (7th Cir. 1994); Wilfred Acad. of Hair &Beauty Culture v. Southern Ass'n of Colls. &
Schools, 957 F.2d 210, 214 (5th Cir. 1992); Medical Inst. of Minnesota v. National Ass'n of Trade
&Technical Schools, 817 F.2d 1310, 1314 (8th Cir. 1987). Courts developed the right to common
law due process as a check on organizations that exercise significant authority in areas of public
concern such as accreditation and professional licensing. See Majorie Webster Junior Coll., Inc.
v. Middle States Ass'n of Colls. &Secondary Sch., Inc., 432 F.2d 650, 655-56 (D.C. Cir. 1970);
Falcone v. Middlesex County Medical Soc., 170 A.2d 791, 799 (N.J. 1961); see also Foundation,
244 F.3d at 527-28 (recognizing the development of this right). The ABA is such an organization,
and we must therefore determine whether the ABA afforded Cooley adequate process in denying
the applications for satellite programs and imposing sanctions.


The opinions themselves are fairly unremarkable. Cooley opened up two branches without telling the ABA, whose rules and standards require notice. The ABA issued a "show cause" hearing notice to Cooley, who sued the ABA in district court to enjoin it from punishing or sanctioning Cooley, arguing various due process violations and a claim under the Higher Education Act. Then, Cooley cured its violations before the "show cause" hearing before the ABA. The main issue of disagreement between the majority and concurring opinion was could the ABA discipline Cooley, given that it had corrected its violations by the hearing, under the language of its rule. Everyone (the district judge, and all three appellate judges) agreed that Cooley's due process claims were meritless and that Cooley had no private right of action under the Higher Education Act.

I suppose the lack of comments on the opinions is due to the rather unremarkable legal issues discussed in them.
8.16.2006 8:19pm
Lincoln (www):
Would it have made any difference if Cooley had decided NOT to correct the violations prior to the hearing?
8.16.2006 10:18pm
Christopher Cooke (mail):
Lincoln: yes, the court's opinion would have been unanimous that the ABA could sanction Cooley. Judge Batchelder concurred because she thought the ABA's rules required a showing that the school was in violation at the time of the "show-cause" hearing.
8.16.2006 11:52pm
Lincoln (www):
Hmm, if Cooley's purpose was to challenge the ABA monopoly, probably this wouldn't have been the best way to go about it.
8.17.2006 1:37am
BT:
Where the lawyers hired by Cooley to represent them at trial, Cooley graduates?
8.17.2006 8:58am
BT:
Correction, the first word should have been were. Given my spelling abilities, I guess I too could have gone to Cooley!!!
8.17.2006 9:01am