The ABA Shouldn't Get To Grade Its Own Homework

Authored by Bryan Cutsinger via RealClearEducation,

The organization tasked with accrediting the nation's law schools will appear before a federal advisory panel later this month to defend its government-recognized status as an accreditor. This status gives the Council of the American Bar Association Section of Legal Education and Admissions to the Bar the power to determine which schools have access to federal student aid and, in most states, whether graduates may sit for the bar. In short, federal recognition gives the council extraordinary power over entry into the legal profession.

Last month, the Department of Education identified numerous compliance failures by the council and recommended ending that recognition. Among the Department's findings was that the council is not sufficiently "separate and independent" from the ABA - a charge that is far from surprising.

The council is not separately incorporated from the ABA. Nor do the two organizations possess a distinct employer identification number, or file separate tax returns. Moreover, the ABA has the authority to amend the council's bylaws, giving the profession's principle membership organization authority over the accreditor's governing framework. The council does have procedures in place to insulate individual accreditation decisions from ABA politics. But these internal checks are unlikely to be effective if the two entities are one in the same.

The problem extends far beyond the legal profession. In a forthcoming study in the European Economic Review, I examined whether there was similarly structural entanglement between all 25 federally recognized professional accreditors and their corresponding professional or membership associations. I found that 22 share an employer identification number, consolidated tax filing, or single legal identity.

My findings don't prove that every accreditation decision is improper. They do, however, identify a potential conflict of interest that can lead to worse outcomes for students and consumers alike. Incumbent professionals benefit when entry into their profession is limited - fewer lawyers means higher salaries. Students and consumers, by contrast, benefit from affordable, innovative routes into a profession.

To be sure, accreditation standards can play an important role in protecting quality. But they can also suppress competition by excluding new schools or less costly methods of training. An independent accreditor is necessary because the same rule can serve either purpose.

Consider distance education in law. Until 2018, the ABA limited how many hours a law student could earn online to 15 of the 83 necessary to earn a law degree. The council then increased that limit to one-third and, after the pandemic demonstrated the viability of remote learning, increased that limit to half. Those earlier restrictions may have been justified on the grounds that they promote higher quality education, but law students deserved to have that decision made by an institution structurally independent of the profession benefiting from the entry limits those restrictions created.

Federal regulations already require accreditors to be separate and independent from affiliated trade or membership organizations. However, a grandfather provision exempts accreditors continuously recognized since Oct. 1, 1991, while another provision permits shared personnel, facilities and equipment. As it happens, most established professional accreditors predate the cutoff. For them, formal independence has largely been optional.

The Department of Education has proposed eliminating both exceptions. The proposed changes would also bar association staff from serving on accreditor decision-making bodies, require independently determined budgets, and mandate disclosure of organizational affiliations.

Those are important reforms, but they do not go far enough. Every accreditor should be required to separately incorporate and file its own tax return. At least 60 percent of an accreditor governing board should be independent of the affiliated association, so that one vacancy or recusal cannot transfer control. And no professional association should provide more than 15 percent of an accreditor's revenue - a benchmark adapted from international auditor-independence rules.

Critics will argue that accreditation requires professional expertise. I agree. Experts can play an important advisory role without creating a conflict of interest. The separately incorporated nursing, public-health and naturopathic-medicine accreditors in our study show that independence and expertise can coexist.

The central question the members of the panel must ask themselves later this month is simple: "Can an accreditor be meaningfully independent when it has no legal existence apart from the professional association it regulates?" The answer is obvious: No.