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Monday, April 30, 2018

Frakt: Did The ABA Find WMU-Cooley In Compliance With Accreditation Standards As Part Of Lawsuit Settlement?

Thomas Cooley Logo (2017)Following up on Thursday's post, ABA: Western Michigan-Cooley Law School Is Now In Compliance With Accreditation Standards:  David Frakt, The ABA Finds Thomas Cooley In Compliance. But Why?:

The ABA made a surprise announcement this week, reversing their earlier decision that WMU Thomas Cooley Law School was out of compliance with Admissions Standard 501(b) and finding the school is now in compliance. So how did the least selective law school in the country convince the ABA to let it off the hook? I have been trying to make sense of this decision and have a theory. But before I share it, let’s review the history. ...

[T]he ABA’s finding of non-compliance was completely justified. In fact, Cooley’s admissions practices were worse in almost every respect than all of the other dozen schools that the ABA has found to be out of compliance with Standard 501(b). ...

[H]ere is my theory of what is really going on:  the Council’s decision must be part of a settlement between the ABA and Cooley to resolve the lawsuit that Cooley has filed against the ABA.  Cooley must have agreed to make significant changes to their admission practices (the key words in the ABA Letter are “concrete steps taken by the Law School with respect to its admissions policy and practices”) and drop their lawsuit in exchange for the ABA finding that the school is now in compliance.   Maybe Cooley agreed to pay for the ABA’s legal fees as well. I expect to see an announcement in the near future that the suit has been voluntarily dismissed.    Anything else just doesn’t make sense. ...

Presumably, the terms of the settlement are confidential so we may not get independent confirmation of this from either party, nor are we likely to find out the details of the promises Cooley made to the ABA.  Our first indications of how much the ABA forced Cooley to raise its standards may not be until the next 509 reports come out in December 2018.   But if the ABA gave Cooley a couple of admissions cycles to meet certain admissions targets we may not know until December 2019 or later exactly what was required of Cooley.  Meanwhile, Cooley gets to claim that they are in full compliance with ABA Standards right now, which is a complete joke.

While settling the lawsuit with Cooley may have made sense for the ABA (if that is indeed what happened), such a decision may have unintended consequences.  By finding Cooley to be in compliance with 501(b), when several other schools with less egregious admission practices have recently been found out of compliance, the ABA has opened itself up to more accusations of arbitrary and capricious decision-making (exactly the accusations that Cooley has made) and potentially additional litigation.  After all, if the least selective law school in the country is in compliance with Standard 501(b), then how can any other law school be found out of compliance?

Rick Bales (Former Dean, Ohio Northern):

I had the same reaction as David to the ABA's announcement. Until now, the ABA's actions on accreditation have been relatively consistent and predictable. I think the ABA owes all law schools a better explanation of how Cooley's situation is different from that of the other schools David mentions. If the only difference is Cooley's litigation tactic, I would expect a lot of future litigation by other schools. I sincerely hope there is a better explanation.

I reached out to Barry Currier (Managing Director, Accreditation and Legal Education, ABA Section of Legal Education and Admissions to the Bar), and he provided me with the following statement:

As the Public Notice posted on the website of the Section indicates, the Accreditation Committee has concluded that Western Michigan University Thomas M. Cooley Law School is now in compliance with Standard 501(b) and Interpretation 501-1. The ABAlaw school accreditation process includes opportunities for schools to address matters of non-compliance determined by the Accreditation Committee and the Council. When that occurs, and the committee or the council conclude that the steps taken by a school have addressed the concerns that led to the finding of non-compliance, then the appropriate action is to find that the school has returned to good standing on those issues.

Prior TaxProf Blog coverage:

https://taxprof.typepad.com/taxprof_blog/2018/04/frakt-did-the-aba-find-wmu-cooley-in-compliance-with-accreditation-standards-as-part-of-lawsuit-sett.html

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Comments

This is strong circumstantial evidence that my theory was correct.  If I were wrong, and there were no settlement, then Mr. Currier would have simply said so.  But if there is a settlement, Mr. Currier is likely precluded from discussing it, so he has offered this bland generality.  His reference to "steps taken by a school" that "have addressed the concerns that led to the finding of non-compliance" without any reference to what those specific steps are, is also suggestive of a confidential agreement.  If the ABA was able to extract binding promises from Cooley to end their abusive admission practices, then this settlement may well be in the public interest (and consistent with the ABA's role as accrediting agency), but it is hard to assess without knowing any of the details.  Time will tell.

Posted by: David Frakt | Apr 30, 2018 12:56:58 PM