Night Law School Challenges Bar Examiners

     LOS ANGELES (CN) - The Southern California Institute of Law sued the members of the state Committee of Bar Examiners, challenging new accreditation rules that could cost it its accreditation if fewer than 40 percent of its graduates can pass the bar exam.
     The new accreditation rules took effect Jan. 1.
     The Southern California Institute of Law "offers an exclusively part-time evening program," with campuses in Santa Barbara and Ventura, it says in its 42-page federal complaint.
     It sued 22 members and former members of the Committee of Bar Examiners, individually and in their official capacity. The CBE itself is not named as a defendant.
     The school claims the guidelines violate its right to due process and free speech.
     The complaint states: "Until recently, the CBE did not impose any absolute percentage minimum bar passage rate that a school must maintain in order to preserve its accreditation. Instead, under guideline 6.2 of the Guidelines for accredited Law School Rules ('collectively, the 'Guidelines'), the CBE was historically required to consider eleven different factors when qualitatively and quantitatively measuring a law school's performance.
     "On December 2, 2012, the CBE unlawfully deviated from these benchmarks and adopted without rhyme or reason, and contrary to its rule-making authority, guidelines 12.1 and 12.2 promulgated pursuant to new rule 4.160(M) of the Accredited Law School Rules (collectively, the 'rules'). The Rule and Guidelines which became effective Jan. 1, 2013, radically alter the previous standards by imposing a mandatory minimum 40 percent bar passage rate in order for a school to maintain its accreditation, and subject CALS [California accredited law schools], including SCIL, to sanctions, including notice of noncompliance, probation, and the loss of accreditation, for failing to maintain a cumulative bar exam pass rate of 40 percent or higher measured by averaging results over a previous five-year period.
     "The new standard is a wooden test that fails to take into account the school's mission, the nature of its student body, the quality of its faculty and academic program, its efforts to maximize students' chances of success on the bar exam, or other factors considered historically during the re-accreditation process. To make matters worse, the new test is applied retroactively. The test requires the calculation to be made over a retrospective five-year period, condemning any school with less than a 40 percent rate in some or all years predating 2013 to the negative impact of the lower rates on its overall average. Schools that do not meet the requirement when they file their yearly reports in 2013 will receive a notification of non-compliance which badly tarnishes a school's reputation. Beginning in 2016, schools that fall below the minimum cumulative bar examination pass rate will be placed on probation and could ultimately lose their accreditation if they do not comply with the requirements by the end of 2017." (Some citations omitted.)
     The Southern California Institute of Law was founded in 1986. It says its students "are primarily working adults from low-to-moderate income groups, with approximately one-third of SCIL's student body consisting of underrepresented ethnic and racial groups. For these reasons, SCIL operates evening programs which offer a rigorous academic environment and small class sizes. The programs are flexible and affordable with students currently completing a four-year legal education for a total tuition cost of under $35,000."
     Its two campuses have 75 to 100 students and 30 "distinguished faculty members" combined, plus administrative staff, the complaint states.
     It says it was accredited by the CBE in 1996 "after a decade of effort," and is one of only two law schools to be accredited in the past 26 years.
     "Since 1996, SCIL has been re-accredited five times after undergoing a rigorous re-inspection and evaluation process on each occasion," the complaint states.
     The school says the CBE extended its accreditation to 2016 after a CBE inspection in 2010.
     "By immediately and retroactively changing the basis of this accreditation grant, the new guidelines impose a disability on SCIL and other CALS based in part on a law school's bar passage rates in prior years," the complaint states. "The guidelines thus render past actions sanctionable even though they were not by themselves sanctionable at the time. ... Moreover, by using the 40 percent benchmark as stand-alone measure that is based retroactively on the past performance of graduates, the guidelines dramatically change the entire regimen under which the license to operate an accredited law school was granted."
     The school claims that neither rule 4.160, nor California's Business & Professions Code explicitly allow the CBE to apply the guidelines retroactively. It claims the new guidelines are arbitrary, and that the CBE adopted them in violation of its own procedures.
     It claims that many prominent members of the legal community opposed the guidelines when the CBE circulated them for public comment, including retired Justice Elizabeth Baron of California's Second Court of Appeal.
     The opponents argued that law schools exist to teach students the law, not to help them study for the bar. They said that the American Bar Association does not force its accredited schools to meet certain bar passage rates, according to the complaint.
     "The ABA thus recognizes that students' success on the bar exam is by no means an accurate measure of the quality of their law school education, and that a law school should have discretion as to the extent it wishes to incorporate bar preparation into its academic curriculum," the complaint states.
     The institute claims defendant George C. Leal, Director of Educational Standards of the State Bar of California, promised to take the opposition's arguments into consideration during the CBE's final vote. But the CBE approved the guidelines "within less than 72 hours of the public comment deadline," the complaint states.
     It claims that Leal defended the guidelines in an email to three law school deans, claiming that a bar exam study supported the CBE's decision to adopt the 40 percent bar passage requirement.
     But "Leal's flood of irrelevant statistics" failed to demonstrate a link between "the quality of legal education and bar examination pass rates," the complaint states.
     "The motivation for the adoption of guidelines 12.1 and 12.2 appears to be tethered to the false notion that higher bar passage rates reflect a better quality of legal education, and a misguided sense of consumer protection without any findings that consumers ... need the regulations for protection," the complaint states.
     The institute claims the 40 percent passage rate was "plucked from thin air," and that the CBE "offers no explanation and cites no substantial evidence ... as to why this should be a one-size-fits-all rule that ignores other quantitative and qualitative measures or a law school's particular demographic."
     It claims that the new guidelines do not identify the consumers the CBE claims the guidelines will protect.
     "In the case of the ABA, consideration of bar passage rates as an accreditation factor is intended to serve the interests of taxpayers who subsidize federal tuition loans for students attending ABA-accredited schools. By contrast, SCIL and many other CALS do not qualify for Title IV federal tuition loans or state loans. If current or prospective students are really the concern, then the new standards work against the interests of students who seek out schools like SCIL which emphasize an education in the law rather than a proficiency in test-taking. It is doubtful that the CBE saw students as the consumers needing protection because it did not bother to consult with current or prospective students at SCIL or other CALS," the complaint states.
     It claims the requirements "disproportionately affect" small law schools that have only a handful of students taking the bar "because the results are easily skewered and, statistically speaking, unrepresentative of the quality of a school's academic program."
     The CBE acknowledges that bar passage rates from schools with fewer than 30 students taking the exam are unreliable. But small schools such as the plaintiff typically have 10 to 15 students taking the exam, which "is not a valid statistical sampling measure according to the CBE's own psychometrician," the complaint states.
     The school also claims the CBE violated the separation of powers because the CBE is part of California's judicial branch. As such, the CBE has authority to create rules governing "the admission, discipline, suspension and disbarment" of lawyers in the state, but "[i]t is quite another thing to delegate to the CBE ... the unconstrained power to prescribe rules and standards for the accreditation of California law schools that operate entirely outside the judicial branch," the complaint states.
     "CBE's course of conduct reveals a blatant, arbitrary and outrageous disregard for governing procedure, applicable evidentiary standards, and the fundamental interests of students, law schools and legal education in general, in violation of the fundamental principle of fairness," the complaint adds.
     The institute seeks declaratory judgment that Rules 12.1 and 12.2 are unconstitutional, a restraining order and compensatory and punitive damages for due process violations.
     It also asks the court to "report any defendants found to have knowingly and intentionally violated plaintiff's constitutional rights to the California Supreme Court, since those defendants in so acting were misusing and abusing powers conferred on them by that court."
     In October 2010, the institute filed a federal antitrust lawsuit against TCS Education System, claiming TCS stole business secrets during negotiations for TCS to acquire the institute, then gave this information to the institute's main competitor, the Santa Barbara & Ventura Colleges of Law, to drive the institute out of business.
     The school is represented by Helena Wise of Burbank and George Shohet of Venice.