ABA decides key to more law school transparency is less transparency

According to Kyle McEntee and Patrick Lynch, the two founders of the Law School Transparency project, the American Bar Association Section of Legal Education and Admissions to the Bar is about to do something that could well represent a significant setback in the struggle to achieve law school transparency.
  Understanding what’s going on requires some background on how law graduate placement statistics are gathered.   (I’m indebted to the LST folks for helping me to understand a confusing bureaucratic maze of overlapping constituencies and procedures).

Each year in February, law schools report nine month employment statistics to the National Association or Law Placement (NALP), on the basis of the responses they get from graduates to a questionnaire designed by NALP.  NALP has no regulatory authority over ABA schools, hence cooperation with NALP is voluntary (several law schools don’t participate, although something upwards of 95% do).   At the end of the process, NALP has some sort of individual data on almost all graduates of ABA-accredited schools from the previous year -- or at least it does to the extent one can trust law schools to accurately report to NALP the information they’re getting from their graduates.

It’s important to recognize that this data set --even if we assume law schools are reporting the information they gather accurately to NALP -- is very incomplete.  For instance less than half of 2010 graduates reported any salary information, and my research indicates that what graduates do report in regard to matters such as full-time versus part-time employment, and permanent as opposed to temporary jobs (and some graduates don’t supply this information) is far from completely accurate.  Schools don’t, as far as I know, audit the responses they get, and NALP doesn’t audit the information it gets from the schools.  (Given stories like this this it makes sense to be concerned about the lack of verification procedures throughout the system).
 

An even more important limitation, from the standpoint of law school transparency, is that NALP and the schools have a confidentiality agreement that prohibits NALP from publishing school-specific data.  NALP publishes only national statistics, which have some limited value for prospective law students trying to figure out whether law school in general makes sense for them, but obviously no value at all in regard to choosing between individual schools.

In the fall, eight months after the previous year’s employment data is reported by the law schools to NALP, the ABA starts collecting aggregated school-specific data from the schools themselves. The ABA, unlike NALP, does publish data on individual schools in its Guide for prospective law students -- but in such a heavily redacted form that it’s worse than useless for prospective students.  The questionnaire the ABA currently uses requires schools to disclose to it the NALP data on what percentages of students report themselves as being employed in jobs that require or prefer law degrees, jobs that are full-time and part-time, and jobs that are permanent and temporary, but the ABA doesn’t publish any of this: instead it publishes an overall employment rate for each school, i.e., it counts all jobs equally for the purposes of determining “employment.”  This is worse than useless from the perspective of the potential law students because it gives a wildly inaccurate picture of how many law graduates are getting real law jobs (it would be better if the ABA Guide published no employment stats at all rather than publishing stats this inherently deceptive).

Finally, subject to a couple of minor caveats, USNWR uses the same data the schools supply to the ABA, with all its distortions, to compile employment statistics for its rankings.  (This is why the 2011 USNWR rankings use employment data from the class of 2009 – the ABA hasn’t even begun to gather the data on the class of 2010, although NALP has had this data for seven months now).

This summer, the ABA piece of this puzzle appeared to be moving in the right direction, when the Legal Education section announced that starting this October it would begin collecting the individual student data from the schools, for the putative purpose of allowing the ABA to publish more useful employment information in its Guide.   Now, incredibly enough, according to McEntee and Lynch, the committee in charge of creating the new questionnaire has, pending a final decision to be taken today, decided it won’t even be asking law schools for information on whether graduates have full-time or part-time jobs, or whether the jobs they have require or prefer a J.D.  

So the ABA is moving from a situation in which it collected this crucial data but didn’t publish it, to one in which it won’t even collect the data in the first place! The rationale for this appears to be a masterpiece of lawyerly obfuscation, with the central claim being that the current definitions of full-time versus part-time employment, and J.D. required versus J.D. preferred jobs,  aren’t “clear enough.”  

The truly unfortunate consequence of all this may be that, since the ABA isn’t going to collect this information about the class of 2010 (keep in mind that this whole process has the added extra bonus of being two full years behind the employment market by the time anything gets published), many law school may well treat this as an excuse for refusing to report any full-time/part-time, J.D. required/J.D. preferred data to USNWR, which as of June was promising to publish more detailed employment information, given that the ABA had announced it was going to start collecting information at the same level of granularity as NALP.

The upshot is that, when March 2012 rolls around, law schools will have, thanks to the ABA’s legal education section (which is essentially controlled by law school deans), a brand-new justification for continuing to refuse to publish meaningful employment statistics, in the form of the claim that the ABA has determined that better definitions must be devised before such statistics can be released.

Why would the ABA legal education section take such a step in the current climate, in which more attention than ever is being focused on the failure of law schools to report meaningful employment data? My guess, based in part on what I’ve seen of 2010 and 2011 employment numbers, is that the legal administrators who are the dominant force in the ABA section are all too aware of how bad those numbers really are.  My sense is that as bad as things were for the class of 2009, things were worse for the class of 2010 -- and 2011 is shaping up as worse still.

If this is right, then they’re behaving like gamblers desperately trying to buy time for one last score that will get them out of a deep hole (the score here being a big turnaround in the employment market for law grads).  That would mean the law school establishment is all in favor of transparency – but not just yet, not until the numbers are better, and we can cover all these bets we’ve made with our new $100 million buildings, and our 12 new faculty slots, and our terrific new programs in this and that and the other.  We just need one more chance to get back to even . . .

Sign the Law School Transparency Petition.