Paul L. Caron

Friday, May 25, 2018

Third Law School Represented By Kirkland & Ellis Sues ABA Alleging Arbitrary Enforcement Of Accreditation Standards

Arizona Summit Logo (2015)Press Release, Arizona Summit Law School Sues American Bar Association:

Arizona Summit Law School (Summit) today filed suit in the United States District Court for the District of Arizona against the American Bar Association (ABA), seeking injunctive relief and damages against the ABA for abusing its law school accreditation powers. Summit is represented by former Solicitor General of the United States Paul D. Clement, former Assistant Attorney General of the United States Viet D. Dinh, and H. Christopher Bartolomucci, all of Kirkland & Ellis LLP.

"Today's filing alleges that the ABA has violated due process in applying its accreditation standards," said Kirkland & Ellis' Clement. "The ABA's actions regarding the law school have been arbitrary and capricious and a departure from what is legally expected of those wielding powerful accreditation authority."

Summit's complaint claims the ABA denied the school due process as Summit sought, in good faith, to demonstrate its compliance with accreditation standards. It also alleges selective and disparate application of these standards in conjunction with disregard of material evidence. The complaint alleges further that the ABA targeted Summit under pressure from Department of Education (DOE) officials, who have since left the agency, to act against proprietary schools or risk losing its accreditation authority. These due process claims arise under the Fifth Amendment of the United States Constitution and are directly connected to the ABA's decision to place the school on probation.

Arizona Summit Interim Dean Penny Willrich states that "the imposition of a sanction as strong as probation allowed the ABA to punish Summit retrospectively for acts which, at the time they were performed, were not a violation of the Standards. This allowed for the creation of a false narrative about Summit as an alternative to the facts – thus enabling the ABA to make the decision it wants." She points to numerous other law schools with weaker outcome metrics that have not been sanctioned or subjected to milder penalties. Dean Willrich notes that "the ABA deliberately has turned a blind eye to our achievements, mission, and results – which include bar examination performance that at times has led the state and, despite a recent decline, remains consistent with nationwide trends and in compliance with accreditation standards. Indeed, dozens of other schools with similar or lower incoming credentials of their students were not – and many still have not been – found out of compliance or sanctioned by the ABA."

In support of its claims, Summit makes the point that the ABA has used vague, inconsistent, and indeterminate standards as the basis for its actions. Despite the school's requests, the ABA has refused to provide any guidance on what the school must do to establish compliance. Summit's complaint also maintains that the ABA is operating in violation of Department of Education and Higher Education Act requirements for clear and written requirements and standards, as well as reasoned explanations of its decisions. Because of the due process violations, Summit has had to communicate the ABA's flawed determinations to students, prospective students, alumni and faculty, as well as to the legal community and the general public, causing demonstrable and irreparable harm to the school.

Summit President Donald Lively says "it is hard to imagine a more blatant due process violation. The ABA's accreditation standards inherently are vague, indeterminate, and subject to manipulation. They constitute an open invitation for subjectivity, bias, and double standards in their application – abuses that we have experienced first-hand and are precisely what due process protects against. Compounding the abuse is the ABA's refusal to provide any specific guidance on what a school found out of compliance must do to reestablish compliance. At its core, the accreditation process is a reflection of the ABA's own self-interest through ends justify the means decision-making. When these factors are in play, principles of due process, fairness, and social utility invariably give way. Hopefully, our case will be a catalyst for long overdue reform that aligns ABA standards and practices with accreditation norms in higher education and ensures that the ABA operates with the same respect for the principles of due process that are supposed to govern regulatory practices in this country."

Summit's contention that the ABA has abused its accrediting power does not mark the first time the association has faced such scrutiny. In 1996, the ABA entered into a consent decree with the Department of Justice that led to a final judgment based on its application of accreditation standards.

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