SALT law professor organization tries to derail important reform on minimum bar passage outcomes

"We write on behalf of the Society of American Law Teachers (SALT)" are words that should be preceded by a trigger warning. Caution: America’s leading oh-so-progressive organization of wealthy law professors is about to violate your sense of personal decency by explaining that the economic interests of its members are identical to the access to justice needs of the marginalized and downtrodden.

The ABA recently circulated an unusually promising draft revision to its standard on bar passage rates (ABA Standard 316). If adopted, the revised Standard will impose a requirement that 75% of a law school’s graduates who sit for a bar exam must pass the exam within two years. The proposed revision would eliminate multiple alternate and less burdensome ways of establishing compliance. Perhaps as significantly, the revision eliminates the eight ways a law school can demonstrate good cause for its lack of compliance, which currently include the following rule-devouring catch-all: "Other factors, consistent with a law school’s demonstrated and sustained mission, which the school considers relevant in explaining its deficient bar passage results."

There are 709 words in existing ABA Standard 316, of which 398 are devoted to setting forth the good cause excuses. By contrast, the draft revision of Standard 316 is a model of beautiful clarity at 34 words. Well, perhaps not so beautiful if you are a law professor at a substandard school, like many of the law professors in the SALT organization.  

The co-presidents of SALT, Prof. Sara Rankin of Seattle Law and Prof. Denise Roy of Mitchell-Hamline, recently submitted a four-page long comment to the ABA expressing numerous "concerns" and "unanswered questions" (aka objections) as to the ABA proposal, and urging retention of all the "good cause" excuses for noncompliance in the event that the revised standard is adopted. Some excerpts from SALT’s letter:

"We are concerned as well, about the impact the proposed standard may have on law schools’ willingness to provide opportunities to students who perform less well on standardized tests such as the LSAT. . . . If the new standard is more difficult for schools to satisfy, or if schools worry that it will be more difficult to satisfy given declining bar passage rates, will schools rely even more heavily on LSAT scores in their admissions process? What impact will this have on the admission of students from diverse, economically disadvantaged, and non-traditional backgrounds? What impact will this proposed change have on the overall diversity of the bench and bar? These are important questions to address before making this change."

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"Will this new standard, which focuses on a 75% bar exam pass rate, have consequences with respect to what law schools teach and how they assess? . . . Will a strict 75% pass rate cause schools to focus on traditional outcomes tested by the bar exam, rather than to think expansively about learning outcomes related to skills development, access to justice, and cultural competence?"

 * * * 

"Whatever the Council decides with respect to the standard itself, we urge the retention of the list of factors that may be taken into account as "good cause" for extending the period the law school has to demonstrate compliance with the standard. . . . The lengthy list of factors in the current standard contains thoughtful and helpful suggestions for considering the complex reasons why a law school may be failing to meet the standard but nonetheless be on a path to compliance.

I more or less share SALT’s left-wing political orientation, and so am especially exasperated by the group's flair for making its crassly self-interested lobbying sound like progressive advocacy.

Are these pedagogues of the oppressed so cocooned in self-righteous obliviousness that they do not realize that staggering law school debt loads make bar passage a far greater imperative than mastering legal academia's jargon-drenched version of "cultural competence," or other such expansive learning outcomes, even for the most social justice-oriented law students? 

Are these academic champions of equality simply uninformed that their weaker-credentialed "diverse, economically disadvantaged, and non-traditional" students are massively subsidizing the tuitions of their more privileged students, an allocation of burdens  regressive enough to make the ghosts of Reagan and Thatcher rise up and dance a foxtrot to the tune of "Ain't We Got Fun"? 

The growing segment of law grads who cannot pass the bar exam will provide zero diversity to the legal profession, though I fear plenty to unemployment lines and mental health facilities. 

SALT is critical of the destructive social consequences of market economics, and that is where they and I share immense common ground. I am sure that SALT would be outraged if, for instance, firearms manufacturers and dealers lobbied against a proposed regulation to make it more difficult for at-risk individuals to obtain their dangerous product. Or if a polluter asserted its self-evident good faith as justification for failure to comply with environmental laws. Or if a tobacco corporation created a marketing or "pipeline" program to generate future demand for its product among schoolchildren. Or if a sweatshop owner publicly fretted that workplace safety rules could hinder his or her ability to provide opportunities. Or if a subprime mortgage lender, circa 2006, proudly touted the diversity of its customers.

Along with SALT, my fist is raised in solidarity with the activists who protest the harmful activities and inadequate regulation of private industry. Unlike SALT, however, my fist is not lowered when attention turns to the lucrative nonprofit law school industry. I do not care how frequently or sincerely law faculty blab about justice or its trendy seven-syllable synonym "intersectionality"-- law schools with weak employment and bar passage rates are exploiting the people they claim to serve. Whatever their rhetorical commitments to the public interest, law schools are self-interested entities that enrich their managerial class while creating vast negative externalities, just like corporate predators.

Consumer disclosure is not enough to end the scam. Rigorous minimum outcome standards, such as Revised ABA Standard 316, must be imposed and schools that fail to meet them should flunk out of accreditation.