Paul L. Caron

Tuesday, August 9, 2022

ABA Loosens Distance Learning Accreditation Standard; Council Withdraws Diversity Proposal After Public Criticism

ABA Legal Ed (2021)Resolution 301: Amendments to Definitions (7) and (8) and Standards 306 and 311 of the ABA Standards and Rules of Procedure for Approval of Law Schools.  Approved.

  • Definition (7): Distance Education Course
  • Definition (8): Distance Education J.D. Program
  • Standard 306: Distance Education
  • Standard 311: Academic Program and Academic Calendar
  • Resolution With Report
  • Final Resolution

Summary of the Resolution:

Definitions (7) and (8) and Standards 306 and 311 provide clarification on the Council’s current distance education limits, incorporate new information from the U.S. Department of Education (USDE), provide guidance on remote participation by students as an ADA accommodation or in exceptional circumstances, and clarify credits included in the 20 percent limitation., ABA House of Delegates Votes to Loosen Restrictions on Distance Education for Law Students:

”Distance Education J.D. Program” means a program in which a law school grants a student more than one-third of the credit hours required for the J.D. degree for distance education courses or more than 10 credit hours during the first one-third of a student’s program of legal education.

The following language was added to Standard 306:  “Distance Education law school courses for which credit is given towards the J.D. degree must provide regular and substantive interaction between the students and faculty teaching the course. Distance education credits may not be counted towards the J.D. degree if they exceed the credit hour limitations in Standard 311(e).” ...

“Remote participation in a non-distance education course by a student as an accommodation provided under law (such as the Americans with Disabilities Act) or under exceptional circumstances shall not cause the course to count towards the distance education credit limits in Standard 311(e) for that student,” according to the resolution. The law school shall document all instances in which it permits a student’s remote participation “in a non-distance education course for which the credits will not be counted towards the credit hour limits in Standard 311(e),” according to the resolution. ...

A law school shall not permit a student to be enrolled at any time in coursework “for credit in the J.D. program” that exceeds 20% of the total credit hours required by that school for graduation.

The following language (in quotes) has been added: A law school “that does not offer a J.D. degree via distance education under Standard 105(a)(12)(ii)” may grant “a student up to one-third of the credit hours required for the J.D. degree for Distance Education Courses;” according to the resolution. ...

“This measure is prudent, and provides needed clarification as the new academic year begins,” Anthony Crowell, dean and president of New York Law School told Monday.

New York state law deans have been speaking out about how an ABA-approved law school may grant up to one-third of the credit hours required for the J.D. degree for distance education courses, but that New York state hasn’t been keeping pace.

“One-Third … is nearly twice as much distance learning as what’s permitted by the New York Court of Appeals,” four New York law deans—Horace E. Anderson Jr., dean of Elizabeth Haub School of Law at Pace University; Michael T. Cahill, president and dean of Brooklyn Law School; Anthony W. Crowell, dean and president at New York Law School; and Matthew Diller, dean and Paul Fuller professor of law at Fordham University Law School—wrote in a commentary that appeared in the New York Law Journal in May advocating for the New York Court of Appeals to ease limits on remote learning.

Currently, students who graduate with a hybrid J.D. cannot sit for the New York state bar exam due to the state’s limit on the number of distance education credits that can be earned in law school per Rule 520.3 “Study of Law in Law School.”

ABA Journal:

For Standard 306, revisions include requirements that faculty monitor students’ engagement, provide feedback on course work and facilitate group discussions in remote learning. With Standard 311, the change clarifies that law schools can grant up to one-third of the credits needed for a law degree without applying for a substantive change with the council.


The resolution says a distance education course is defined as "one in which students are separated from all faculty members for more than one-third of the instruction and the instruction involves the use of technology to support regular and substantive interaction between the students and all faculty members, either synchronously or asynchronously." The resolution also clarifies that a law school may provide students with one-third of the credit hours required for a law degree in distance education courses.

Resolution 300:  Standards 206 and 405 of the ABA Standards and Rules of Procedure for Approval of Law Schools.  Withdrawn.

Summary of the Resolution

Amendments to Standard 206 require individual law schools to ensure the effective educational use of diversity by providing (1) full access to the study of law and membership in the profession to all persons with a particular focus on underrepresented groups related to race and ethnicity, (2) a faculty and staff that includes members of underrepresented groups with the same focus related to race and ethnicity, and (3) an inclusive and equitable environment for a larger list of groups. Amendments to Standard 405 require law schools to follow their tenure and academic freedom polices., After Multiple Revisions, ABA House of Delegates Withdraws Diversity and Inclusion Resolution:

The Council of the American Bar Association’s Section of Legal Education and Admissions to the Bar voted Monday to withdraw Standard 206, a proposed diversity and inclusion measure that previously underwent several revisions based on concerns raised in public comments.

The resolution, aimed at bolstering the ABA’s existing diversity and inclusion standard, was withdrawn to await further consideration and discussion with other entities, an ABA spokesperson told on Monday.

Between last spring and February 2022, the proposal was revised three times. ...

Bill Adams, managing director of ABA Accreditation and Legal Education, released a statement in October saying several media reports had mischaracterized the proposed revisions to Section 206 put out for comment in the spring.

“In addition to other mischaracterizations of the proposal, reports that the proposal required quotas were inaccurate, and quotas will not be imposed in any new proposals,” Adams said in the statement. ”Similarly, claims that the proposal required schools to violate the law were inaccurate and referenced a provision in the current standard that has never been interpreted to require schools to violate laws or constitutional provisions. In fact, the provision explicitly permits law schools ‘to demonstrate the commitment required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.’”

ABA Journal:

A resolution involving changes to law school standards focused on diversity and academic freedom has been withdrawn by the council of the ABA’s Section of Legal Education and Admissions to the Bar.

Prior TaxProf Blog coverage:

Resolution 302:  Amendments to Rules 19 and 29 of the ABA Standards and Rules of Procedure for Approval of Law Schools.  Adopted.

  • Rule 19: Attendance at Council Meetings and Hearings
  • Rule 29: Teach-Out Plan

ABA Journal

The approved revisions include adding language that law schools do not have the right to observe council deliberations related to hearings. Also, the changes give more authority to council-appointed executive committees regarding teach-out plans.

Update: Syracuse Law Graduates 45 Inaugural Online JD Students

In May, 45 students graduated from Syracuse University College of Law with a degree obtained through the school’s J.D. Interactive (JDi) program, launched in 2019. The program includes semester-long classes that are completely virtual, along with six short course residencies and an externship, according to the school.

Rule 520.14 of the Court of Appeals rules allows for a waiver based on “undue hardship,” a Syracuse spokesperson told on Tuesday.

Rule 520.14 “Application for Waiver of Rules” states: “The Court of Appeals, upon application, may in its discretion vary the application of or waive any provision of these rules where strict compliance will cause undue hardship to the applicant.”

For JDi students, the same reasons that made a traditional, residential program inaccessible for them have shown undue hardship, according to the spokesperson.

None of the JDi graduates have been denied the petition, so far, and have been able to sit for the New York bar, the Syracuse spokesperson said.

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