Paul L. Caron

Sunday, March 8, 2015

ABA May Prohibit Reporting Law School-Funded Jobs as Full-Time, Long-Term Bar Passage-Required Jobs

ABA Logo 2The Data Policy and Collection Committee (chaired by Stetson Dean (and Tax Prof) Christopher Petruszkiewicz) of the ABA Section of Legal Education and Admission to the Bar has proposed prohibiting the reporting of law school-funded jobs as full-time, long-term bar passage-required jobs:

The reporting of law graduate employment outcomes is governed by Standard 509 of the ABA Standards for Approval of Law Schools. Standard 509(a) provides that “[a]ll information that a law school reports, publicizes, or distributes shall be complete accurate and not misleading to a reasonable law school student or applicant.” Standard 509(b) further provides that “[a] law school shall publicly disclose on its website, in the form and manner and for the time frame designated by the Council the following information: . . . (7) employment outcomes”.

The Data Policy and Collection Committee (Committee) considered how positions funded by law schools after graduation are classified by law schools and reported under Standard 509. Some law schools provide jobs for some of their graduates. The form of these jobs varies. In some cases, they are fellowships in public interest settings; in other cases, they are jobs doing research at the law school; and they can take other forms. Such positions generally have certain important features in common: the law school pays the graduates, directly or indirectly, and the jobs are temporary (they typically last up to a year, or very slightly longer). The question addressed by this memorandum is how these positions should be reported by the law schools to the ABA, and by the ABA and law schools to prospective students and other members of the public.

At present, law schools report most of these positions as “long-term, full-time” jobs. The jobs are therefore categorized, and presented to the public, in the same way as jobs elsewhere that are meant to last indefinitely and for which all law school graduates can compete (such as ordinary jobs at law firms, or in the government, or in public interest settings). The Committee has no criticism to make of these school-funded jobs, which often serve a valuable purpose for the student and, in some cases, for the public served by the position. The Committee believes, however, that the current categorization of such jobs is misleading in the following respects.

First, jobs that law schools provide for their graduates rarely are true “long-term” jobs. “Long term” is defined by ABA rules as meaning that the job lasts for at least a year. That definition is meant as a proxy to define jobs that will last more or less indefinitely. Jobs that schools provide to their graduates are, in almost all cases, highly temporary. Often the graduate is not committed to the job even for the full year, but rather is free to take a more attractive job if one appears (and this is the outcome that the school and the student hope will occur).

Second, and more importantly, jobs that a school creates for its graduates are not provided by the market. If a prospective student reads that a high percentage of a law school’s graduates have full-time, long-term jobs, that number creates an impression about the value of a degree from that school in the job market. If a portion of those jobs are not provided by the market, but are temporary jobs the school created for its graduates (directly or indirectly), the result is a misleading impression of the results the student can expect in the actual job market.

In response to these points, and after consideration of many alternatives, the Committee unanimously recommends two changes in the annual Employment Questionnaire. The first is to move the reporting of school-funded positions “above the line” in the Employment Summary Report form, so that they are reported as a separate Employment Status category (along with “Employed—Bar Passage Required,” “Employed—J.D. Advantage,” etc.), as shown on the attached proposed Employment Summary Report (Attachment A). The second recommendation is to amend the EQ Definitions and Instructions to provide that school-funded positions ordinarily will be reported as short-term positions (Attachment B is a red-lined draft.1 Attachment C is a clean draft.) These recommendations do not reflect any negative view of school-funded jobs. Schools are free to continue offering them and to publicize them as they like. The recommendations made here are to provide accuracy and clarity, and to avoid misleading consumers of the data that the ABA collects and requires schools to publish.

The Committee also recommends that exceptions be made to the rules just proposed if a job, and the funding for it, is open to graduates of all law schools, and when the graduate who accepts the job is committed to it for a full year. A job of that kind is within the spirit of the definition of a “long-term” position. A judicial clerkship, for example, satisfies those criteria, and is appropriately classified as “long term” even though it typically lasts for exactly one year. Clerkships are competitive positions that are consistent with market-generated jobs. If a job funded by a school has those same characteristics, it can reasonably be classified as a “full-time, long-term” position as well.

The Committee recommends, finally, that its proposed changes be effective with the current reporting cycle. We are assured by ABA staff that it is practically feasible to do so. The Committee considered these matters at its January 16-17, 2015 meeting. In advance of the meeting, the Committee gave public notice of possible revisions regarding the reporting of school-funded positions. The Committee received 25 comments (Attachment D), many from schools that employ some of their graduates for a period after graduation, reflecting a range of viewpoints.

In conclusion, the Committee notes that its recommendations may not be popular with some schools that provide jobs for their graduates. Some schools who provide such jobs may be made worse off; if the one-year jobs they provide are not counted as “full-time, long-term” bar passage- required jobs, the employment rate of their graduates may not appear to be as high as it now does. The Committee believes the result of its recommendations will generally be more accurate, however, and thus will benefit the consumers of ABA information. While schools that could be adversely impacted by the Committee’s recommendations may register objections to them (and many did so in their comments submitted to the Committee), the parties who will benefit from the recommendations – prospective students – are not likely to be heard from in this process, yet they have the most at stake as they decide whether and where to attend law school.

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This would be great. But a lot of schools are already getting around reporting directly funded positions through things like incubator programs, where the school asks its otherwise unemployed students to report themselves as full-time, long-term employed solo practitioners, and in turn, the school provides offices space, access to research tools, but no direct compensation.

Another thing schools are doing is working with smaller law firms who agree to pay the graduate a small stipend of around 40k (no benefits) for, you guessed it, one year to give the student a test run, with no guarantee of employment after the year is up.

So while this initiative would greatly improve transparency, the ABA must still do more to ensure that schools are forced to disclose true nature, duration and terms of all of the "jobs" their graduates are getting in this ever evolving arms race. These new ideas by law schools aren't necessarily bad either, but they should not be counted as long-term, full-term bar required jobs, which they are currently. It's great that schools are doing what they can to help their students, but when you look closely at the terms of these things, it becomes apparent that they are purposefully structured to benefit the schools' job stats.

Posted by: Anon | Mar 8, 2015 12:23:20 PM

I propose that Congress prohibit persons presently employed by law schools from serving on the quasi-governmental-regulatory agency, the American Bar Association, which regulates the schools employing the regulators.

But, I live in Venezuela, so that will never happen.

Posted by: Yeah... | Mar 8, 2015 3:33:16 PM