U.S. Justice Dept. Sues American Bar Assoc. for Anti-Trust Violation re: Law Schools

United States v. American Bar Association


We filed the second and most significant of our recent trade association cases last June, also here in the District, against the American Bar Association. We charged that its law school accreditation program was controlled by law school faculty, who were using the ABA’s power over accreditation to force law schools to inflate faculty salaries and benefits.


The accreditation program run by the ABA’s Section of Legal Education — 90 percent of whose members were law school faculty — involved extensive requirements, enforced by on-site inspections, probationary periods, and periodic renewals. The individuals who served on the Section’s Accreditation Committee had been there for many years, and their activities had for a long time largely escaped supervision by the ABA’s Board of Governors and House of Delegates.


Among other things, the ABA committee required that the law school’s faculty salaries — the price of teaching talent — be “comparable” with those of other ABA-accredited schools, and required each accredited school to submit detailed salary information in order to verify compliance with this requirement.


In practice, we charged, the ABA committee further manipulated this price-fixing requirement by permitting the faculty of the law school under review to select their own “peer group” of other law schools to compare salaries with. Not surprisingly, the faculty often chose higher-ranked schools or schools located in higher-cost areas for the peer group, which inflated the salary levels. We found a number of instances in which law schools were placed on probation for having an “inadequate” salary structure.


ABA accreditation is virtually essential to the success of a law school. The bar admission rules in over 40 States require graduation from an ABA-accredited law school as a condition for taking the bar exam.


The ABA committee further flexed its muscle by prohibiting an accredited law school from accepting transfer credits from unaccredited law schools, or from accepting graduates of unaccredited law schools into its graduate programs — even if the other school was accredited by the State.


That case has also been resolved by a consent decree, which is still being reviewed by the court. Under the decree, the ABA committee cannot impose any comparative requirement, or collect any comparative data, regarding law school faculty compensation. Nor can the ABA committee prohibit schools from accepting credits or graduates from State-accredited law schools.


The decree also requires a number of reforms to the structure of the Accreditation Committee and the Legal Education Section to ensure that law school faculty no longer dominate, and that accreditation-related activities are subject to effective outside supervision.


Finally, the decree requires that a Special Commission, which had already been established by the ABA, advise the court on the appropriate use of several other accreditation requirements that we looked at. These are requirements that can serve legitimate educational purposes, but that we found had also been used at times to feather the nests of law school faculty. These requirements relate, for example, to faculty teaching-hour limitations, student-faculty ratios, faculty sabbaticals and other leaves of absence, and quality of law school facilities.


Tomorrow is the deadline for the ABA Board of Governors to file the Commission’s final report with the court, along with the Board’s comments. After a public notice and comment period, we will file our own comments


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