Is the American Bar Association's Accreditation Monopoly about to End?

My latest Civitas Outlook column looks at the growing pressure on the ABA's role in law school accreditation.

For all practical purposes, the American Bar Association has a monopoly on law school accreditation. There is, at present, no other entity approved to accredit law schools, and the vast majority of states require graduation from an ABA-approved school in order to take the bar exam.

The ABA's de facto monopoly may explain why the organization has been able to impose ever-increasing (and often quite costly) requirements on law schools without ever really demonstrating that these requirements enhance educational outcomes, benefit students, or create better lawyers. It has also enabled the ABA to impose pressure on law schools to embrace progressive priorities, race-conscious admissions in particular (not that most law schools would resist).

There is increasing unhappiness with the ABA, and other accrediting institutions. Storm clouds are brewing at both the state and federal level. But will this pressure produce any change? I explore these issues, and possible reforms, in my latest column for Civitas Outlook. Here's a taste:

As the cost of legal education continues to rise and technological changes threaten to transform the delivery of legal services, the ABA's de facto monopoly on legal accreditation is under siege. Texas and Florida, the states with the third and fourth-most lawyers in the country, are both considering whether to stop requiring bar applicants to have attended an ABA-accredited school. At the same time, the Trump Administration is pushing to expand accreditation options. An April Executive Order directed the Department of Education to step up scrutiny of existing accrediting institutions while simultaneously expediting approval of new accreditors so as "to increase competition and accountability in promoting high-quality, high-value academic programs focused on student outcomes." . . .

In theory, accreditation could serve as a means of consumer protection, helping ensure students do not waste money on fly-by-night operations and graduate capable of passing the bar and serving clients. Yet it is not clear that ABA accreditation has ever actually served that purpose. Just as the medical profession has sought to limit the number of medical school spots to constrain the supply of doctors, the history of legal accreditation suggests that the ABA became involved to advance the financial interests of existing lawyers.

Whether the ABA sees itself as a cartel today, much of its accreditation behavior aligns with what a self-interested cartel would do. Accordingly, many of the ABA's accreditation requirements focus on costly inputs, such as the number of books in the library or the number of full-time, tenured faculty, that have no demonstrated relationship to a student's ability to pass the bar or become an effective lawyer. These requirements, however, have helped inflate the cost of obtaining a law degree and stifled innovation in legal education. . . .

If the ABA's accreditation standards serve their purposes of ensuring quality legal education and protecting consumers, it should welcome competition. If current accreditation standards produce better lawyers, the organization should have nothing to fear. But if, as many suspect, the ABA's standards have served the interests and ideological leanings of the organization, at the expense of the public and prospective students, then some degree of competitive pressure could foster a needed course correction. The ABA did not always accredit law schools, and there is no reason it should continue to do so forever.

You can read the whole thing here.