HISTORY OF THE
ADMINISTRATION OF THE AMERICAN LAW SCHOOL ACCREDITATION PROCESS
James P.
White, Consultant on Legal Education to the American Bar Association, United
States
To review the history of the American law school accreditation process one must begin by a review of the history of legal education in the United States.
Until the end of the 19th century, legal education in the United States essentially took place by apprenticeship and self-directed reading. In the early years of the development of this republic, there were essentially three categories of law schools. First, there were those which were modeled after the continental schools of law of the time in which the law schools became a department or chair within the college or university. Thus, legal education was considered as part of general liberal arts education.
The second type of law school which developed in the United States was one which we would now define as a proprietary law school, that is, a law school without connection to any university or college but an independent school. These schools were self-supporting and any income in excess of their actual expenses benefitted the proprietors of the school who were normally the faculty of the law school.
The third type of law school and the type of law school which became the benchmark for the development of all American legal education were university law schools, law schools such as Harvard, established in 1817, and Yale, after its establishment in 1824. These law schools were part of the universities but conducted an education program similar to the Litchfield model.
The first two varieties of law schools, that is those law schools which provided that the chair of law or law department was part of the liberal arts program within the college or the university and the proprietary school of law, by and large, ceased to exist in any significance in that form by the beginning of the last third of the 19th century. Generally speaking, American law schools in this period, the middle to latter part of the 19th century, developed according to a professional and university approach. I believe that we can say until the 1870's legal education in America’s colleges and universities was but a small part of an era when lawyer qualifications consisted of apprentice training and education in proprietary law schools, but that American law schools were established during that period of time and became the model for the development of legal education in the post 1870's.
In the latter part of the 19th century and the first several decades of the 20th century, a number of new university law schools were created. For the most part these new university law schools were in urban, private universities or non-urban state universities. These new law schools provided opportunity for upward mobility of many. They have become the backbone and strength of American legal education.
The American Bar Association was founded in 1878 and at its first meeting took two important steps towards the creation of today’s approval process. First, it created the Committee on Legal Education and Admissions to the Bar. Second, it adopted the following resolution:
That the Committee on Legal Education and Admissions to the Bar be instructed to report at the ensuing annual meeting, some plan for assimilating throughout the Union, the requirements of candidates for admission to the bar, and for regulating, on principles of comity, the standing, throughout the Union, of gentlemen already admitted to practice in their own states.
At this time, most American lawyers still were educated through law office study. The number of law schools was increasing, however, as they often were among the first colleges established at new universities. Given this increase, it is not surprising that in 1879, at the second meeting of the ABA, the Chair of the Committee on Legal Education and Admissions to the Bar reported:
There is little if any dispute now as to the relative merit of education by means of law schools, and that to be got by mere practical training or apprenticeship as an attorney’s clerk. Without disparagement of mere practical advantages, the verdict of the best informed is in favor of the schools.
The Committee then presented four resolutions to the assembly. The first resolution restated the 1878 resolution regarding the establishment of the principles of comity to govern admissions to the bar in the various states. The second resolution recommended that the state and local bar associations of each state be urged to further “the maintenance of public authority of schools of law, provided with faculties of at least four well paid and efficient teachers.” The third resolution stated the following:
Resolved, That the said state and other local bar associations be respectfully requested to recommend and further in such law schools a general course of instruction.
The fourth resolution provided the following:
Resolved, That the said state and other local bar associations be respectfully requested to recommend and further in such law schools the requirement of attendance on at least the studies and exercises appointed for said course of three years, as a qualification for examination to be admitted to the bar.
Despite the growing number of law schools, however, law school graduates still were a minority among the practitioners and judges attending the meeting. Consequently, the recommendations of the Committee were not adopted by the ABA assembly.
Thirteen years later, the Committee on Legal Education and Admissions to the Bar presented the following resolutions to the annual meeting of the ABA:
Resolved, That as the American Bar Association strongly recommends that the power of admitting members to the Bar, and the supervision of their professional conduct, but in each State lodged in the highest court of the State . . . .
Resolved, That at least two years of study should be required of every student before he presents himself for examination . . . .
The Section continued in its support of law schools, and in 1921 it adopted resolutions which represent a major evolutionary step in the history of today’s approval process. These resolutions, adopted by the Section and the House of Delegates were as follows:
(1) The American Bar Association is of the opinion that every candidate for admission to the bar should give evidence of graduation from a law school complying with the following standards:
a) It shall require as a condition of admission at least two years of study in a college.
b) It shall require its students to pursue a course of three years duration if they devote substantially all of their working time to their studies, and a longer course, equivalent in the number of working hours, if they devote only part of their working time to their studies.
c) It shall provide an adequate library available for the use of the students.
d) It shall have among its teachers a sufficient number giving their entire time to the school to insure actual personal acquaintance and influence with the whole student body.
(2) The American Bar Association is of the opinion that graduation from a law school should not confer the right of admission to the bar, and that every candidate should be subjected to an examination by public authority to determine his fitness.
(3) The Council on Legal Education and Admissions to the Bar is directed to publish from time to time the names of those law schools which comply with the above standards and of those which do not, and to make such publications available, so far as possible, to intending law students.
(4) The president of the Association and the Council on Legal Education and Admissions to the Bar are directed to cooperate with the state and local bar associations to urge upon the duly constituted authorities of the several states the adoption of the above requirements for admission to the bar.
(5) The Council on Legal Education and Admissions to the Bar is directed to call a Conference on Legal Education, in the name of the American Bar Association, to which the state and local bar associations shall be invited to send delegates, for the purpose of uniting the bodies represented in an effort to create conditions favorable to the adoption of the principles above set forth.
Regulation of legal education in the United States is unique among all nations. Under the doctrine of separation of power, authority for bar admissions principally resides in the highest court of each state or admitting jurisdiction. The role the ABA plays as a central accrediting body has allowed accreditation to become national in scope, rather than fragmented among the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and Guam. The interest of the states and the various admitting jurisdictions in a competent bar obviously is great. Without a nationally recognized accrediting agency, such as that provided by the ABA, ensuring a competent bar would place upon each state or admitting jurisdiction the annual burden of assessing the merits of each applicant’s educational qualifications and the merits of his or her law school. Since the 1920s, the vast majority of jurisdictions has obviated this burden by relying upon the ABA’s admission process.
I believe that the ABA accreditation process is an example of the profession responding to public need. While there may be criticism voiced of the process, and healthy criticism is to be encouraged, the accreditation process has developed under certain fundamental principles. First, the profession itself is best equipped to form the ultimate judgment of quality. Second, participation by different components of the profession, including the bench, the bar, and the professorate, is the best way to form that professional judgment. Third, a thorough understanding of the operation and legitimacy of the accreditation process is required for the process to be effective. Professional review of law schools engenders confidence in individual state admitting authorities that the public is served by lawyers who have received a legal education meeting standards of the profession. Today, as it has for many years, graduation from an ABA-approved law school qualifies an applicant to sit in any American admitting jurisdiction. The ABA approval process is recognized by the highest courts of the admitting jurisdictions as assuring that the graduate possesses the requisite qualifications to permit his or her entry into the practice of law. This result–instilling states and admitting jurisdictions with confidence in the requisite qualifications of law school graduates and providing them a standard upon which to rely–is the goal of the ABA accreditation process.
The American Bar Association has delegated the accreditation of law schools to the Section of Legal Education and Admissions to the Bar. The Council of the Section has created an Accreditation Committee currently consisting of eighteen members. These include members of the judiciary, the practicing bar, the academic community and the non-lawyer public. This Committee meets four times each year at law schools throughout the United States.
The Committee considers applications for provisional approval, full approval, sabbatical reviews of fully approved law schools, acquiescence in the establishment of a post-JD degree program, and an increasing variety of foreign programs including semester abroad programs, foreign summer programs, individual student study abroad, and cooperative programs of foreign study.
The Accreditation Committee acts on the basis of detailed reports produced by site evaluation teams, consisting of up to eight persons (academics, practicing lawyers, judges and university administrators to single site evaluators for specialized site visits.) In the case of regular site evaluation visits, a representative of the Association of American Law Schools is a member of the team if the school is a member of the Association. Training sessions are conducted for chairs of site teams, new site evaluators and representatives of law schools undergoing site evaluation. These are reviewed by the Accreditation Committee and a variety of actions are taken including recommendations for approval of schools, continued approval of schools, acquiescence in post-JD programs and approval of a variety of foreign programs. These actions are communicated in a detailed “action letter” to the respective school.
The participation of all segments of the profession gives credibility to the accreditation process.