United States v. American Bar Association Civ. No. 95-1211 (CRR) (D.D.C.,); Response of the United States to Public Comments
Federal RegisterDec 12, 1995
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[Federal Register Volume 60, Number 238 (Tuesday, December 12, 1995)]
[Notices]
[Pages 63766-63863]
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[FR Doc No: 95-28678]
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_______________________________________________________________________
Part III
Department of Justice
_______________________________________________________________________
Antitrust Division
_______________________________________________________________________
American Bar Association; Response of the United States to Public
Comments; Notice
Federal Register / Vol. 60, No. 238 / Tuesday, December 12, 1995 /
Notices
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. American Bar Association Civ. No. 95-1211 (CRR)
(D.D.C.,); Response of the United States to Public Comments
Pursuant to Section 2(d) of the Antitrust Procedures and Penalties
Act, 15 U.S.C. Sec. 16(d), the United States publishes below the
written comments received on the proposed Final Judgment in United
States v. American Bar Association, Civil Action No. 95-1211 (CRR),
United States District Court for the District of Columbia, together
with the response of the United States to the comments.
Copies of the written comments and the responses are available for
inspection and copying in Room 207 of the U.S. Department of Justice,
Antitrust Division, 325 7th Street, NW., Washington, DC 20530
(telephone: (202) 514-2481) and for inspection at the Office of the
Clerk of the United States District Court for the District of Columbia,
Room 1825A, United States Courthouse, Third Street and Constitution
Avenue, NW., Washington, DC 20001.
Rebecca P. Dick,
Deputy Director of Operations.
In the United States District Court for the District of Columbia
United States of America, Plaintiff, v. American Bar
Association, Defendant. Civil Action No. 95-1211 (CRR).
United States' Response to Public Comments
Pursuant to the Antitrust Procedures and Penalties Act (``APPA'' or
``Tunney Act''), 15 U.S.C. 16 (b)-(h), the United States is filing this
Response to public comments it has received relating to the proposed
Final Judgment in this civil antitrust proceeding. The United States
has carefully reviewed the public comments on the proposed Final
Judgment. Entry of the proposed Final Judgment, with some limited
modifications, will be in the public interest. After the comments and
this Response have been published in the Federal Register, under 15
U.S.C. 16(d), the United States will move the Court to enter the
proposed Final Judgment.
This action began on June 27, 1995 when the United States filed a
Complaint charging that the American Bar Association (``ABA'') violated
Section 1 of the Sherman Act, 15 U.S.C. 1, in its accreditation of law
schools. The Complaint alleges that the ABA restrained competition
among professional personnel at ABA-approved law schools by fixing
their compensation levels and working conditions, and by limiting
competition from non-ABA-approved schools. The Complaint also alleges
that the ABA allowed its law school accreditation process to be
captured by those with a direct interest in its outcome. Consequently,
rather than setting minimum standards for law school quality and
providing valuable information to consumers, the legitimate purposes of
accreditation, the ABA acted as a guild that protected the interests of
professional law school personnel.
Simultaneously with filing the Complaint, the United States filed a
proposed Final Judgment and a Stipulation signed by the defendant
consenting to the entry of the proposed Final Judgment, after
compliance with the requirements of the APPA.
Pursuant to the APPA, the United States filed a Competitive Impact
Statement (``CIS'') on July 14, 1995. The defendant filed a Statement
Of Certain Communications on its behalf, as required by Section 16(g)
of the APPA, on July 12, 1995, and amended its statement on October 16,
1995. A summary of the terms of the proposed Final Judgment and CIS,
and directions for the submission of written comments relating to the
proposal, were published in the The Washington Post for seven days from
July 23, 1995 through July 29, 1995. The proposed Final Judgment and
the CIS were published in the Federal Register on August 2, 1995. 60
Fed. Reg. 39421-39427 (1995). The 60-day period for public comments
began on August 3, 1995 and expired on October 2, 1995.\1\ The United
States has received 41 comments, which are attached as Exhibits 1-41.
\1\ The United States has treated as timely all comments that it
received up to the time of the filing of this Response.
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I. Background
The proposed Final Judgment is the culmination of a year-long
investigation of the ABA. The Justice Department interviewed numerous
law school deans, university and college presidents, and others
affected by the ABA's accreditation process. Twenty-seven depositions
were conducted pursuant to Civil Investigative Demands (``CIDs'') the
Department issued. In addition, the Department reviewed over 500,000
pages of documents in connection with this investigation.
At the conclusion of its investigation, the Department determined
that the ABA accreditation process and four specific rules arising from
that process violated the Sherman Act. The Department challenged the
four rules and, more importantly, the accreditation process itself, and
it negotiated a proposed Final Judgment with the defendant that
adequately resolves its competitive concerns. The ABA indicated its
willingness to reform its accreditation process before the Complaint
was filed. After preliminary discussions with the Department, the ABA
began to implement the reforms. The Department, however, insisted that
the elimination of anticompetitive behavior should be subject to the
terms of a court-supervised consent decree.
The focus of this case was the capture of the ABA's law school
accreditation process by those who used it to advance their self-
interest by limiting competition among themselves and from others. The
case was not based on any determination by the Department of Justice as
to what, specifically, most individual accreditation rules should
provide. The Department is not particularly qualified to make such an
assessment and has not attempted to do so. The Department concluded
that the process that had produced the present rules was tainted. The
appropriate solution--and the relief imposed by the proposed decree--
was to reform the process, removing the opportunity for taint, and then
to have the cleansed process establish new rules.
II. The Legal Standard Governing the Court's Public Interest
Determination
A. General Standard
When the United States proposes an antitrust consent decree, the
Tunney Act requires the court to determine whether ``the entry of such
judgment is in the public interest.'' 15 U.S.C. Sec. 16(e) (1988). As
the D.C. Circuit explained, the purpose of a Tunney Act proceeding ``is
not to determine whether the resulting array of rights and liabilities
`is one that will best serve society,' but only to confirm that the
resulting settlement is `within the reachs of the public interest,' ''
U.S. v. Microsoft Corp., 56 F.3d 1448, 1460 (D.C. Cir. 1995) (emphasis
in original); accord, United States v. Western Elec. Co., 993 F.2d
1572, 1576 (D.C. Cir.), cert. denied, 114 S. Ct. 487 (1993); see also
United States v. Bechtel, 648 F.2d 660, 666 (9th Cir.), cert. denied,
454 U.S. 1083 (1981); United States v. Gillette Co., 406 F. Supp. 713,
716 (D. Mass. 1975.\2\ Hence, a court should not reject a decree
``unless `it has exceptional confidence
[[Page 63767]]
that adverse antitrust consequences will result--perhaps akin to the
confidence that would justify a court in overturning the predictive
judgments of an administrative agency.' '' Microsoft, 56 F.3d at 1460
(quoting Western Elec., 993 F.2d at 1577). Congress did not intend the
Tunney Act to lead to protracted hearings on the merits, and thereby
undermine the incentives for defendants and the Government to enter
into consent judgments. S. Rep. No. 298, 93d Cong. 1st Sess. 3 (1973).
\2\ The Western Elec. decision involved a consensual
modification of an antitrust decree. The Court of Appeals assumed
that the Tunney Act standards were applicable in that context.
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Tunney Act review is confined to the terms of the proposed decree
and their adequacy as remedies for the violations alleged in the
Complaint. Microsoft, 56 F.3d at 1459. The Tunney Act does not
contemplate evaluating evaluating the wisdom or adequacy of the
Government's Complaint or considering what relief might be appropriate
for violations that the United States has not alleged. Id. Nor does it
contemplate inquiring into the Government's exercise of prosecutorial
discretion in deciding whether to make certain allegations.
Consequently, a district court exceeds its authority if it requires
production of information concerning ``the conclusions reached by the
Government'' with respect to the particular practices investigated but
not charged in the Complaint, and the areas addressed in settlement
discussions, including ``what, if any areas were bargained away and the
reasons for their non-inclusion in the decree.'' Id. at 1455, 1459. To
the extent that comments raise issues not charged in the Complaint,
those comments are irrelevant to the Court's review. Id. at 1460. The
Court's inquiry here is simply whether the accreditation process set in
place by the proposed decree will cure the taint of self-interest that,
the Complaint alleges, had infected the process.
In addition, no third party has a right to demand that the
Government's proposed decree be rejected or modified simply because a
different decree would better serve its private interests in obtaining
accreditation or being awarded damages. For, as this Circuit has
emphasized, unless the ``decree will result in positive injury to third
parties,'' a district court ``should not reject an otherwise adequate
remedy simply because a third party claims it could be better
treated.'' Microsoft, 56 F.3d at 1461 n.9.\3\ The United States--not a
third party--represents the public interest in Government antitrust
cases. See, e.g., Bechtel Corp., 648 F.2d at 660, 666; United States v.
Associated Milk Producers 534 F.2d 113, 117 (8th Cir.), cert. denied,
429 U.S. 940 (1976). The decree is intended to set in place a fair
process that will produce fair results for those seeking accreditation.
It is not designed to transfer to the Department the process of
accreditation itself and require the Department to determine who should
or should not be accredited.
\3\ Cf. United States v. Associated Milk Producers, Inc., 534
F.2d 113, 116 n.3 (8th Cir.) (``The cases unanimously hold that a
private litigant's desire for [the] prima facie effect [of a
litigated government judgment] is not an interest entitling a
private litigant to intervene in a government antitrust case.''),
cert. denied, 429 U.S. 940 (1976).
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Moreover, comments that challenge the validity of the Government's
case and assert that it should not have been brought are beyond the
scope of this Tunney Act proceeding. It is not the function of the
Tunney proceeding ``to make [a] de novo determination of facts and
issues'' but rather ``to determine whether the Department of Justice's
explanations were reasonable under the circumstances'' for ``[t]he
balancing of competing social and political interests affected by a
proposed antitrust decree must be left, in the first instance, to the
discretion of the Attorney General.'' Western Elec., 993 F.2d at 1577
(internal quotations omitted). Courts have consistently refused to
consider ``contentions going to the merits of the underlying claims and
defenses.'' Bechtel, 648 F.2d at 666.
B. Special Commission
Finally, the fact that the consent decree includes a condition that
will occur after its entry is not a bar to its entry now. Many courts
have approved consent decrees requiring defendants, after entry of the
decree, to take actions that must be approved by the Government or the
court. For example, courts have entered consent decrees with provisions
requiring defendants to divest assets within a certain time period
after entry of the decree to a company approved by the Government and
requiring the court to oversee divestiture by a trustee if the
defendant did not meet the divestiture deadline. In United States v.
Browning-Ferris Industries, 1995-2 Trade Cas. (CCH) para. 71,079
(D.D.C. 1995) (Richey, J.), this Court entered a decree requiring the
defendant to divest assets within 90 days after entry, unless the
Government agreed to a partial divestiture. The decree gave the
Government authority to determine whether the buyer was a viable
competitor. Moreover, if Browning-Ferris did not meet the 90-day
deadline, the Court would appoint a trustee whose activities the Court
would oversee. Id. at pp. 75,166-67. Several courts have entered very
similar decrees. E.g., United States v. Baroid Corp., 1994-1 Trade Cas.
(CCH) para. 70,752 (D.D.C. 1994); United States v. Outdoor Systems,
Inc., 1994-2 Trade Cas. (CCH) para. 70,807 (N.D. Ga. 1994); United
States v. Society Corp., 1992-2 Trade Cas. (CCH) para. 68,239 (N.D.
Ohio 1992) (similar decree provisions); United States v. General
Adjustment Bureau, Inc., 1971 Trade Cas. (CCH) para. 73,509 (S.D.N.Y.
1971); United States v. Mid-America Dairymen, 1977-1 Trade Cas. (CCH)
para. 61,509 (W.D. Mo. 1977) (mandating divestiture within two years
after entry and allowing Government to object to proposed sale in
court).
Other decrees have included conditions that must be implemented
after their entry. In United States v. Baker Commodities, Inc., 1974-1
Trade Cas. (CCH) para. 74,929 (C.D. Cal. 1974), the district court
entered a decree requiring each consenting defendant, within 90 days
after entry, to independently re-establish its prices and to file with
the court and the United States an affidavit stating that they have
complied. Moreover, within two years after entry, defendant Baker was
required to divest certain interests to a person approved by the
Government or the Court upon a proper showing by Baker. Id. at pp.
96,160-61. Finally, if the Government objected to certain future
acquisitions, then the court would decide the matter, with Baker having
to show that the acquisition would not substantially lessen
competition. Id. This is akin to the hearing that could ensue here if
the Government challenged the Special Commission's revisions as
antitrust violations.\4\
\4\ See also United States v. Primestar Partners, L.P., 1994-1
Trade Cas. (CCH) para. 70,562 (S.D.N.Y. 1994) (decree prohibited
defendant, after entry, from taking programming actions without
prior Government approval); United States v. Pilkington PLC, 1994-2
Trade Cas. (CCH) para. 70,842 (D. Ariz. 1994) (defendants forbidden
after entry to assert certain patent claims except upon proper
showing to Government); United States v. Industrial Electronic
Engineers, 1977-2 Trade Cas. (CCH) para. 61,734 (C.D. Cal. 1977)
(decree required defendant, within 90 days after entry, to write a
policy statement approved by Government).
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In other cases, decrees have required defendants, after entry of
the decree, to eliminate from their bylaws or codes any sections that
are inconsistent with the decree. E.g., United States v. American Inst.
of Architects, 1990-2 Trade Cas. (CCH) para. 69,256 (D.D.C. 1990)
(Richey, J.); United States v. Hawaii Island Contractors' Ass'n, 1988-1
Trade Cas. (CCH) para. 68,021 (D. Hawaii 1988); United States v.
Society of Authors' Reps., 1982-83 Trade Cas. (CCH) para. 65,210
(S.D.N.Y. 1982). In addition, defendants have been ordered to
independently re-establish their prices after the decree is entered and
to file statements with the Government
[[Page 63768]]
explaining their basis. E.g., United States v. Brownell & Co., Inc.,
1974-1 Trade Cas. (CCH) para. 74,945 (W.D. Tenn. 1974); United States
v. First Washington Net Factory, Inc., 1974-1 Trade Cas. (CCH) para.
74,941 (N.D. Ala. 1974); United States v. Capital Glass & Trim Co.,
1973-1 Trade Cas. (CCH) para. 74,388 (M.D. Ala. 1973).
III. Entry of the Decree is in the Public Interest
Entry of the proposed decree is clearly well within the reaches of
the public interest under the standards articulated in Microsoft and
other decided cases. It prevents the ABA from fixing faculty
compensation and from enforcing its boycott barring ABA-approved law
schools from offering transfer credit for courses completed at state-
accredited laws schools and enrolling in their LL.M. programs graduates
of state-accredited law schools and members of the bar. Most important,
the proposed consent decree ends the capture of the accreditation
process.
Much as in most cases, the decree here requires subsequent action
that does not necessitate delay in its entry. The problem identified in
the Complaint--the capture of the ABA's accreditation process--has been
eliminated. Absent that capture problem, the ABA should be allowed to
set standards in areas principally involving educational policy. This
Court retains jurisdiction to ensure that the ABA's Special Commission
does not produce standards that are the product of capture. Nothing
more is legally required.
We received over 40 comments, which we have divided into seven
categories: other accrediting agencies; faculty; university
administrators; law schools not approved by the ABA; graduates and
students at non-ABA approved law schools; practicing attorneys; and the
general public.
A substantial number of the comments raise educational policy
questions and are directed to issues outside the allegations in the
Complaint. For example, they propose the ABA require additional
clinical education, modify the rules about required seating in the
library, or use bar passage rates to assess law school quality. Such
comments, while relevant to educational policy, go beyond the
allegations in the Complaint. Hence, they are not relevant to the
Tunney Act proceeding. Other comments criticize the Government for
bringing suit or argue that the Complaint is not justified. For
example, the former ABA Consultant on Legal Education contends that the
ABA has not conspired to fix faculty salaries. But comments about the
underlying merits and defenses are irrelevant in a Tunney Act
proceeding, as explained above. In addition, some commentators
complained about state rules requiring approval from an ABA-accredited
law school prior to taking the bar examination. Others complain about
other state government activities. Under Parker v. Brown, 317 U.S. 341
(1943), such state actions are exempt from antitrust prosecution. Some
state-accredited law school students and graduates complained about
ABA-approved law schools denying them transfer credit or refusing to
admit them to LL.M. programs. The decree stops the ABA from forbidding
law schools from offering such credit or enrolling these students. But
the individual decision of whether to do so remains up to the
individual school.
Furthermore, some commentators worried that the decree prevents
accrediting agencies from assessing the quality of educational
institutions engaging in legitimate accreditation activities. The
decree is directed only at the activities of the ABA. By preventing the
ABA from violating the antitrust laws, the decree ensures that the ABA
will engage in the legitimate accreditation activity of assessing the
quality of legal education programs. Four accrediting agencies argued
that the proposed decree is inconsistent with the Marjorie Webster
decision and that there may be an implied repeal of antitrust
enforcement because accreditation is regulated by the Department of
Education. Marjorie Webster Junior College Inc. v. Middle States Ass'n
of Colleges & Secondary Schools, Inc., 432 F.2d 650 (D.D. Cir.), cert.
denied, 400 U.S. 965 (1970). But Marjorie Webster itself held that
antitrust laws would apply to restrictions with a commercial motive and
practices that fix compensation and enforce a boycott have. In
addition, the agencies' Marjorie Webster argument goes directly to the
merits of the underlying claims and defenses, an inquiry that is
irrelevant in a Tunney Act proceeding, as noted above. Furthermore,
under the case law, there is no implied repeal and the Department of
Education has specifically deferred to the Justice Department on the
antitrust issues.
The Massachusetts School of Law (``MSL''), a private plaintiff in
antitrust actions in Pennsylvania and Massachusetts, recommends
altering the decree, delaying its entry, and requests the production of
documents from the Government's files. The Government opposes the
modifications and recommends no delay in entering the decree. Some of
MSL's comments go beyond the allegations in the Complaint. While MSL
may believe that its recommended changes are the ones that will ``best
serve society,'' the issue in a Tunney Act proceeding is only whether
the settlement is ``within the reaches of the public interest.''
Microsoft, 56 F.3d at 1460. No third party may demand that the proposed
decree be rejected or modified just because a different decree would
better serve its private interests. We further oppose MSL's discovery
request, as we believe it is improper to grant discovery collaterally
in a Tunney Act proceeding to a party whose discovery requests have
been denied in its own case.
The parties' agreement that the Special Commission should have the
first opportunity to report on issues that involve education and
antitrust policies is a reasonable accommodation. That the Special
Commission's report, ABA Board approval, and a possible Justice
Department challenge will occur after entry of the decree is no bar to
entry of the decree now. The decree prohibits a number of practices for
which there were no apparent educational policy justifications. The
accreditation standards on which the Special Commission will report do
not on their face constitute naked antitrust restraints, but the
Government seriously questioned the process by which these standards
were administered. The defendant had taken measures to reform its
accreditation process before agreeing to the consent decree and
affording it the first opportunity to address the remaining issues is a
reasonable compromise. The public has had the opportunity to comment on
the process and on the subject matter of these issues, although only a
few chose to do so. The Special Commission's report will be made public
and third parties will have the opportunity to provide the Justice
Department with possible objections.\5\
\5\ Additionally, as part of its supervisory powers, the Court
could, after entry of the decree, require the parties to report on
the Special Commission's report.
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Because the proposed decree is within the scope of the public
interest, the Court should enter it after the Government's responses to
the public comments are published in the Federal Register and the
Government certifies compliance with the APPA and moves for entry of
judgment.
IV. Response to Public Comments
This case has generated a large number of comments, despite the
absence of any apparent organized effort
[[Page 63769]]
to solicit comments. Because of the number of comments, the Government
has organized its Response based on the categories of those who
submitted comments.
A. Other Accreditation Agencies
The Department received five comments from other accrediting
agencies and one from an individual who has headed an accrediting
agency since 1973. These comments are generally critical of the
severity of the proposed Final Judgment and are concerned with its
possible effect on the practices of other accrediting agencies.
1-2. The Association of Specialized and Professional Accreditors
(``ASPA'') (Exhibit 1), and National Office for Arts Accreditation in
Higher Education (Exhibit 2)
ASPA is an umbrella organization with a membership of 40
specialized accrediting agencies (one of which is itself an umbrella
agency for 17 allied organizations). The National Office for Arts
Accreditation in Higher Education consists of four separate accrediting
agencies for schools of art and design, music, theater, and dance. ASPA
believes that the consent decree could produce ``unintended
consequences'' for other accrediting agencies by equating the presence
of expertise in an accreditation area with its automatic capture by a
vested interest and criticizes the data collection and other
limitations imposed by the consent decree as unnecessarily restrictive
or unnecessarily prescriptive. ASPA fears that the requirements of the
consent decree will create a climate in which fraudulent institutions
may use ``antitrust terrorism'' against accrediting agencies.
We share ASPA's concern that this action should not be used to
diminish accreditation's legitimate role as a guarantee of quality and
a source of information to the public. The requirements of the proposed
Final Judgment apply only to the defendant and only for the duration of
the decree. The terms of the decree are designed to remedy the
defendant's anticompetitive practices. They are not meant to be a
generalized prescription for other accrediting agencies.
The limitations in the decree on the collection and use of certain
data are directed only to remedy the defendant's conduct. The ABA
required by law schools to respond to detailed annual and site
inspection questionnaires that included providing extensive salary
data. The defendant used the data to raise the salaries of law school
deans, full-time faculty, and professional librarians during the
accreditation process. Because of this abuse, the proposed consent
decree prohibits the defendant from conditioning accreditation on the
compensation paid professional personnel or collecting salary data that
could be used to determine individual salaries.
Nor does the Government seek to discourage the participation of
individuals with ``professional expertise'' in the accreditation
process and the consent decree will not have that effect. The defendant
permitted its accreditation activities, however, to be captured by
legal educators who used it to advance their own personal interests.
The proposed consent decree remedies the defendant's abuses. The
Government is not suggesting it apply to other accrediting agencies
whose accreditation processes promote quality rather than the self-
interest of a group that controls the process.\6\
\6\ ASPA questions other specific consent decree provisions, not
because they are unwarranted in this proceeding, but because their
application to other accrediting agencies would produce bad results.
The provisions of the proposed Final Judgment, of course, apply to
the ABA.
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ASPA's concern that the proposed consent decree may promote
``antitrust terrorism'' against accrediting agencies by institutions
seeking accreditation is unwarranted. This is the first Justice
Department antitrust case brought against an accrediting agency in the
105-year history of the Sherman Act. The Government cannot prevent the
filing of meritless or harassing actions by private institutions, but
does note that such actions are costly to the plaintiff, and meritless
actions are subject to court sanctions.
Finally, ASPA points out that some of the requirements of the
proposed Final Judgment may conflict with the requirements of the
Higher Education Act. The Justice Department consulted with the
Department of Education concerning this objection. Sections VI (C)(1),
(D)(1) and E(1) of the decree require that elections and appointments
to the Council, the Accreditation Committee, and the Standards Review
Committee of the Section of Legal Education and Admission to the Bar
(``Section of Legal Education'') must be subject to the approval of the
ABA's Board of Governors (``Board'') for a period of five years. This
provision appears to conflict with 20 U.S.C. 1099b, requiring agencies
to be ``separate and independent'' of related trade associations. The
Department of Education recognizes the Section of Legal Education as a
specialized accrediting agency for law schools and has determined that
the ABA is a related trade association from which the Section must be
``separate and independent.'' Giving the ABA's Board power to
``approve'' elections and appointments to the Section's Council and
Committees thus may breach the ``separate and independent'' requirement
of Sec. 1099b. Consequently, the United States and the ABA have
proposed to modify the decree by substituting a notification
requirement in Section VI for the approval requirement.\7\ The parties
intended that these and other requirements in the proposed consent
decree would assist in the ABA's oversight of the Section of Legal
Education's accreditation activities. Changing the approval
requirements should not impair the ABA's oversight while simultaneously
ensuring that the requirement of 20 U.S.C. 1099b is not offended.
\7\ The proposed modification is attached as Exhibit 42.
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The National Office for Arts Accreditation joins in ABA's comments.
The National Office is particularly concerned that the Justice
Department may be setting an inappropriate precedent or providing
loopholes that may prevent accrediting bodies from working effectively
with problem institutions. While we are sympathetic to the National
Office's concern, the Justice Department believes that the remedies in
the proposed consent decree are directed just to the facts in this
case, not to the activities of other accrediting agencies. The
Department does not believe that effective antitrust enforcement--which
requires entry of the relief in this case--is at all incompatible with
quality accreditation.
3. Association of Collegiate Business Schools and Programs (``ACBSP'')
(Exhibit 3)
ACBSP has 500 business school members and is one of two accrediting
agencies in the business school area. ACBSP commented that a number of
States require that their state business schools must obtain
accreditation from the other business school accrediting agency,
thereby locking out ACBSP. The actions of States are exempt from the
antitrust laws under the ``state action'' doctrine announced in Parker
v. Brown, 317 U.S. 341 (1943), and its progeny. Consequently, the
activities ACBSP complains of are beyond the reach of antitrust
enforcement and outside of the matters in the Complaint.
4. American Library Association (``ALA'') (Exhibit 4)
The ALA commented on two points: the size and composition of
[[Page 63770]]
accreditation site inspection teams; and the proposed consent decree's
effect on accreditation agencies' functions. Without citing specific
examples, the ALA believes that the remedies in the consent decree are
overly prescriptive and may promote a bureaucratic and regulatory
environment antithetical to the analysis and accreditation of higher
education. The consent decree should not affect the composition of ALA
accreditation teams or its accreditation practices. The decree is
designed to ensure that the accreditation process proceeds on the basis
of legitimate academic concerns; the decree does not confine or
constrain the process in any other way.
5. Bernard Fryshman (Exhibit 5)
Dr. Fryshman has headed a nationally-recognized accrediting body
since 1973 and has been very active in the accreditation field.\8\ Dr.
Fryshman's principal point is that the cooperative nature of higher
education is intended to produce different bottom-line results than
commercial enterprises. Accordingly, Dr. Fryshman believes that higher
education should not be judged under antitrust standards. In his wide-
ranging comment, Dr. Fryshman appears to question the applicability of
the antitrust laws to any of the defendant's practices challenged in
this action, including the imposition of higher salaries. Dr. Fryshman
suggests a review of the corrective actions in the proposed consent
decree.
\8\ We believe that Dr. Fryshman's agency accredited rabbinical
and Talmudic schools.
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Admittedly, higher education differs in some important respects
from commercial enterprises; but it is a significant and growing part
of the national economy. While this Circuit has held that the antitrust
laws do not apply to the ``non-commercial'' aspects of post-secondary
accreditation, Marjorie Webster, 432 F.2d at 650, the efforts of an
accrediting agency to fix the salaries and perquisites of professional
staff and engage in other guild activities unrelated to quality
assurance are clearly commercial activities that restrain trade. We
agree with Dr. Fryshman that it is ``inappropriate for government to
determine how lectures are to be delivered, what books are to be read
and what facilities are appropriate,'' but disagree that antitrust
enforcement has no role in eliminating anticompetitive distortions of
the process.
6. Accrediting Bureau of Health Schools, Accrediting Council of
Continuing Education and Training Accrediting Council for Independent
Colleges and Schools, and National Accrediting Commission of
Cosmetology Arts and Sciences (``Four Agencies'') (Exhibit 6)
These Four Agencies have filed a joint comment and request a
hearing concerning possible modification and entry of the proposed
Final Judgment. The Four Agencies suggest that the proposed consent
decree is inconsistent with the Marjorie Webster decision and that
there may be an ``implied repeal'' of antitrust enforcement in this
area because accreditation is regulated by the Department of Education.
The Four Agencies request that Section XI(C) of the proposed Final
Judgment be amended by adding: ``Nothing in this judgment shall be
construed to modify any of the provisions of the Higher Education Act
of 1965, as amended, or any of the regulations adopted pursuant
thereto, or any existing law concerning the recognition of private
accrediting agencies, or the activities of such agencies relating
thereto.''
This Circuit's decision in Marjorie Webster does not prevent the
Court from finding entry of this proposed consent decree is in the
public interest. In Marjorie Webster, the Court held that an
accrediting agency's refusal to accredit a junior college solely
because it was organized as a for-profit corporation did not violate
the antitrust laws because the Sherman Act does not apply to the
noncommercial aspects of the liberal arts.\9\ The Court noted that
antitrust policy would be applicable to restrictions that had a
commercial motive. 432 F.2d at 654-55.\10\
\9\ In reaching its decision, the Court doubted that Marjorie
Webster ``will be unable to operate successfully * * * unless
considered for accreditation,'' 432 F.2d at 657; Marjorie Webster
has since passed from existence. The Court also noted that the
defendant did not possess monopoly power over accreditation,
something the ABA clearly possesses in the 42 States where
graduation from an ABA school is a prerequisite to taking the bar
examination.
\10\ In fact, in a civil antitrust action, liability may be
shown by proof of either an unlawful motive or an anticompetitive
effect. United States v. United States Gypsum Co., 438 U.S. 422, 436
n.13 (1978).
---------------------------------------------------------------------------
An institution's form of organization should not be the basis for
totally excluding it from an industry,including the provision of a
legal education. Significantly, the ABA eliminated its Accreditation
Standard 202, which denied the accreditation of for-profit law schools,
during the Justice Department's investigation. In its enforcement
activities in industries in which some competitors are organized as
not-for-profits and some as for-profits (e.g., hospitals), the
Antitrust Division does not find that an entrant's particular form of
organization is of decisive significance in antitrust analysis. Nor do
courts. See United States v. Rockford Mem. Corp., 898 F.2d 1278 (7th
Cir. 1990), cert. denied, 498 U.S. 920 (1990); FTC v. University
Health, Inc., 938 F.2d 1206, 1214-16 (11th Cir. 1991). Since the ABA
has already abandoned Standard 202, since its ``market power'' is
signficantly greater than that of the defendant in Marjorie Webster,
and since entry into the law school field should not be unreasonably
restricted, the Four Agencies' comment that the relief of the proposed
Final Judgment is inconsistent with Marjorie Webster is incorrect and,
therefore, no bar to the Court's finding that entry is in the public
interest.
Subsequent to Marjorie Webster, the Supreme Court held that the
Sherman Act applies to all anticompetitive restraints, regardless of
the non-profit status of the defendant. Goldfarb v. Virginia State Bar,
421 U.S. 773, 787-89 (1975). To the extent Marjorie Webster suggests a
``liberal arts'' exemption from the antitrust laws, that suggestion has
been rejected. As one district court observed, ``Marjorie Webster is of
questionable vitality after Goldfarb, to the extent that it draws
bright lines between education and business or accreditation policy and
commerce.'' Welch v. American Psychoanalytic Ass'n, 1986-1 Trade Cas.
(CCH) para. 67,037 (S.D.N.Y. 1986).
The Four Agencies also contend that there is an ``implied
immunity'' from the antitrust laws for the activities of accrediting
agencies because they are subject to Department of Education oversight.
The implied immunity doctrine is not nearly so broad as the Four
Agencies would suggest. The leading case on this point is the Supreme
Court's decision in National Gerimedical Hospital versus Blue Cross,
452 U.S. 378 (1981). Prior to Gerimedical, the Supreme Court had held
that antitrust repeal was implied only if necessary to make the
regulatory statute work, and even then only to the minimum extent
necessary. Silver v. New York Stock Exchange, 373 U.S. 341 (1963). In
Gerimedical, the Supreme Court clarified this standard, holding that:
``Implied antitrust immunity is not favored and can be justified only
by a convincing showing of clear repugnancy between the antitrust laws
and the regulatory system.'' 452 U.S. at 390-91 (emphasis added). The
Four Agencies have not, and cannot, make this clear
[[Page 63771]]
showing.\11\ Indeed, in the Department of Education's ``Staff Analysis
of the ABA's Section of Legal Education's Interim Report on its
Standards to DOE and Massachusetts School of Law's Compliant,'' the
staff noted:
\11\ In an advisory opinion, the Federal Trade Commission
informed another accrediting agency, the Accrediting Commission on
Career Schools and Colleges of Technology, that the 1992 Higher
Education Act Amendments, specifically, 20 U.S.C. Sec. 1099b(a)(5),
relied upon by the Four Agencies, conveyed no implied repeal of the
antitrust laws, finding no broad or inherent conflict between the
antitrust laws and the Department of Education's regulatory regime.
January 19, 1995 FTC Advisory Opinion, File No. P94 4015; see 5
Trade Reg. Rep. (CCH) para. 23,755.
---------------------------------------------------------------------------
One aspect of MSL's complaint against the Council that is
totally outside of the Department's purview is the charge that the
Council has violated federal antitrust laws for the economic benefit
of law professors, law deans, and law librarians but to the
detriment of students. That matter is currently before the Justice
Department.\12\
\12\ December 5-6, 1994 Staff Analysis appended as Exhibit 43.
Amending the proposed consent decree in the manner requested by the
Four Agencies is unnecessary. While the comment claims that the
Government and the ABA are asking the Court to approve ``a broad, in-
depth intrustion of the Sherman Act * * * that will have a chilling
effect on the entire accreditation process * * *'' (comment, p. 5), the
proposed Final Judgment addresses three specific practices (it prevents
the ABA from fixing salaries and engaging in a boycott). The decree
does not interfere with the day-to-day accreditation process that
determines whether law schools offer quality educations. The decree
simply ensures that the process rests on legitimate educational
principles. Nor does it conflict with controlling precedent in this
Circuit or the doctrine of ``implied immunity.'' The decree binds only
the parties to it. The Four Agencies fail to show how it will prevent
the defendant from carrying out its accrediting obligations under the
Higher Education Act or how it will prevent other accrediting agencies
from doing so.
B. Law School Faculty
The Justice Department received nine comments from administrators
and faculty at ABA-approved law schools.\13\ The substance of these
comments vary enormously, but all recommend some modification of the
proposed Final Judgment.
\13\ One of these comments is from the Clinical Legal Education
Association, an organization of more than 400 clinical teachers who
``have a dual identity as law teachers and practicing lawyers.''
Comment, p. 1. Four of the nine faculty comments were from clinical
instructors.
---------------------------------------------------------------------------
1, Clinical Legal Education Association (``CLEA'') (Exhibit 7)
CLEA maintains that, because the accreditation process has been
dominated by legal academics (i.e., research scholars) and deans, it
has not served the function of insuring that law school graduates are
adequately prepared to practice law. CLEA claims that the proposed
consent decree will further entrench the power of legal academics and
will interfere with the ability of accreditation to improve the quality
of lawyers. CLEA further believes that requiring a university
administrator not affiliated with a law school on each site inspection
team will entrench legal academics since university administrators are
concerned that law schools are not sufficiently ``academic,'' i.e.,
research-oriented. Additionally, according to CLEA, the proposed
consent decree will not change the ABA standards that favor legal
academics over clinicians with respect to tenure and law school
governance. CLEA also believes that the proposed Final Judgment is not
``final'' because of the pendency of the report of the Special
Commission and because the Government retains authority to review
changes in the accreditation process.
Whether legal education is better served by emphasizing legal
scholarship or practical clinical instruction is neither an antitrust
issue nor an issue addressed in the Complaint. CLEA raiss an issue of
educational policy, not antitrust policy, that should not be governed
by the consent decree. Furthermore, to the extent that these comments
raise issues not alleged in the Complaint, they are outside the scope
of a Tunney Act review. Mircosoft, 56 F.3d at 1448, 1459. The inclusion
of non-law school university administrators on site inspection teams is
intended to reduce the likelihood that accreditation will be used to
advance the narrow economic interests of law school faculty and
administrators.
CLEA supports the provision in the proposed consent decree
requiring the ABA to reconsider its standards regarding student-faculty
ratios, but is concerned that the Special Commission is scheduled to
make its report after entry of the consent decree. The Special
Commission's August 3, 1995 preliminary report noted the wide-spread
dissatisfaction with the past manner in which student-faculty ratios
were computed for accreditation purposes and will report on this issue.
CLEA also claims that the proposed consent decree gives the Government
authority to review all changes in the ABA's accreditation process.
This seems to be an unduly expansive reading of the Government's rights
under Section VIII(D) and Section X of the proposed Final Judgment.
2. Howard B. Eisenberg (Exhibit 8)
Mr. Eisenberg is dean of Marquette Law School and a former dean at
the Arkansas-Little Rock Law school. Dean Eisenberg expresses concern
that the Government's law suit was ``commenced and settled without
input from legal educators or consumers of legal education.'' He is
also dissatisfied that Section VII of the proposed consent decree
``leaves open for future determination five issues of extraordinary
importance to legal education.'' Dean Eisenberg believes that leaving
these matters to the Special Commission strikes him ``as a guarantee
that the Court will be involved in protracted and difficult litigation
in the future over these matters.'' Consequently, Dean Eisenberg urges
that entry of the proposed consent decree now is premature and not in
the public interest, or that Section VII should be deleted entirely.
We believe that Dean Eisenberg has vastly overstated the likelihood
of protracted and difficult litigation, or the possibility of any
litigation at all, and also has exaggerated the breadth of the
Government's involvement in the remaining five issues. The decree
simply sets in place procedures to ensure that the accreditation
requirement of paid sabbaticals, the computation of student-faculty
ratios, and other standards should not be manipulated by a control
group to further its own interests. The Special Commission may make
recommendations that, as difficult questions of educational policy, cna
be fairly disputed, but the Government does not anticipate that the
Special Commission and the Board will fail to resolve our antitrust
policy concerns or that the Special Commission's analysis will spark
litigation.
3. John S. Elson (Exhibit 9)
Mr. Elson is a professor at Northwestern Law School. He has been on
the Section of Legal Education Accreditation Committee, is a former
chair of the Section's Skills Training Committee, and has served on
about 15 site inspection teams since 1986. Professor Elson sees the
proposed Final Judgment as offering a ``unique opportunity'' to return
ABA accreditation to its only proper purpose, ``the adequate
preparation of law students for competent and ethical legal practice.''
[[Page 63772]]
Professor Elson, therefore, proposes adding the following
injunctive provision to Section IV of the proposed consent decree:
The ABA is enjoined and restrained from: * * *
(E) adopting or enforcing any standard, interpretation, rule or
policy that is not needed in order to prepare law students to
participate effectively in the legal profession.
Professor Elson is also concerned that the proposed consent decree
will leave law school academics in control of the process. They will
continue to emphasize the production of scholarship as a priority and
relegate clinical training to a lesser role. Professor Elson also
expresses his dissatisfaction with the Special Commission's initial
report, which he believes affirms the priority given to legal
scholarships and its explicit rejection of proposals emphasizing
practical training. Professor Elson believes that his proposed
modification will fairly and effectively protect the public interest in
having adequately prepared law graduates without denying market entry
to those who can satisfy that public interest.
While criticizing the provision of the proposed Final Judgment that
seeks to open participation in the accreditation process, Professor
Elson does not specifically address what procedures he would prefer. We
agree that, in law school accreditation, just as in accreditation in
other areas, participation in the process is more apt to come from
people within the discipline and who have a stake in the effect of
accreditation. The proposed consent decree makes reasonable efforts to
include more outsiders. For example, no more than 50% of the membership
of the Council, Accreditation Committee or Standards Review Committee
may be law school deans or faculty. The term limitation will also
produce greater turnover among those participating in the process.
Professor Elson plainly thinks that legal education should give a
higher priority to practical training. This is a matter of educational,
not antitrust, policy and it is outside the limits of the Complaint and
proposed consent decree.
4. Jeffrey L. Harrison (Exhibit 10)
Mr. Harrison is the Chesterfield Smith Professor of Law at the
University of Florida College of Law. His principal hope is that the
Antitrust Division will devote further study to the issues of the
proposed market definition, competitive harm, and the appropriate
remedy. Other than the prohibition against price fixing in Section
IV(A) of the proposed consent decree, Professor Harrison recommends
abandoning all of the other prohibitions in the decree, at least until
there is data showing that the ABA's accreditation process has
unreasonably restricted entry. In the alternative, Professor Harrison
believes the decree should be modified to permit the collection and
dissemination of ``past'' compensation data because it ``can be
critical'' in diagnosing the problems of a law school. Professor
Harrison also recommends dropping the 50% membership limitation of
legal academics on the Council, its Accreditition Committee, and the
Standards Review Committee, describing them as ``counter-productive.''
While perhaps useful as an academic exercise, Professor Harrison's
objections to the alleged theoretical weaknesses of the Government's
case are not appropriate for a review of whether entry of the proposed
Final Judgment is within the reaches of the public interest. The Court
should assume that there is some basis to the allegations in the
Complaint and determine whether the proposed consent decree
sufficiently remedies the alleged violations. A value of the consent
decree process is that it releases the Court and the parties from the
time and expense of a Rule of Reason inquiry into all of the issues
raised in the Complaint.\14\
\14\ We do not wish to ``try'' the issue of output restriction
but do question the manner in which Professor Harrison uses
statistics. Rather than the 30-year comparison in his comment (p.
3), a more appropriate period would be from when the current
Standards were made applicable (1975) and when the Consultant's
office regularized the ABA's current accreditation regulatory regime
(late 1970s). Roughly halving the 30-year period used by Dr.
Harrison, comparing 1980-81 statistics with those of 1994-95, the
number of ABA-approved law schools increased only from 171 to 177
(+3.4%) and total J.D. enrollment in ABA-approved schools increased
only from 119,501 to 128,989 (+7.9%).
---------------------------------------------------------------------------
The Government strongly disagrees with Professor Harrison's
suggestion that ``past'' compensation data can be used as a surrogate
for measuring quality. Observations of outputs are a more reliable
measure of quality.
5. Gary H. Palm (Exhibit 11)
Mr. Palm is Clinical Professor of Law at the University of Chicago
Law School. Professor Palm currently serves on the Council of the
Section of Legal Education, was a member of the Accreditation Committee
from 1987 to 1994, is a past member of the Clinical Education and
Skills Training Committee, and served on 14 ABA site inspections from
1984 to 1994, nine of which were in Europe. Professor Palm believes
that the proposed consent decree does not recognize that ``the real
conspiracy'' involved just law school deans and academics, not other
faculty, and that the proposed consent decree ``will likely result in a
lessening of vigorous enforcement of accreditation standards.''
Professor Palm makes a number of proposals in his comprehensive
comment. He recommends that another section of the ABA or some other
entity should perform law school accrediting, claiming that the ABA has
been a ``paper tiger'' with respect to ensuring adequate training in
legal skills and values.
Finding a substitute for the Section of Legal Education would not
be easy since a new agency will have to obtain Department of Education
and state certifications. Additionally, the ABA initiated accreditation
reforms before the consent decree discussions started. The Justice
Department seldom, if ever, seeks to eliminate an entrant as antitrust
relief and, unlike monopoly or merger cases, partial divestiture here
is not a realistic remedy.
Professor Palm's comment, and those of other clinicians, are
critical of the ABA accreditation requirement with respect to skills
training. This is essentially a question of education, not antitrust,
policy. Professor Palm believes that there is a need for substantial,
additional diversification in the accreditation process, particularly
the continued or greater involvement of clinicians on site inspection
teams or as part of the law faculty representation on the Council and
committees. Again, whether clinicians should be included among faculty
appointments to site inspection teams and governing committees is not
an antitrust issue.
Professor Palm also criticizes procedural difficulties with respect
to the report of the Special Commission. He urges either that the
public be given a chance to comment on the report or that the consent
decree not be entered until after the Special Commission makes its
report.
Professor Palm also makes specific comments with respect to several
of the subjects on which the Special Commission will report. He
criticizes the current computation of student-faculty ratios for
excluding as ``faculty,'' adjuncts and part- and full-time skills
teachers who have short-term employment contracts.
He defends the current application of the facilities standards. The
precise contours of the facilities standard are not challenged by the
Department nor are they before the Court. The Department does not
intend to constrain the setting of legitimate educational
[[Page 63773]]
standards. Because the facilities standards raise issues of legitimate
educational policy that are within the Special Commission's expertise,
the Department believes the Commission should have the first
opportunity to reconcile the issues of antitrust and educational
policy. Professor Palm also argues that the ``adequate resources''
standard should be applied to reallocate greater resources for skills
instruction. This is neither an antitrust issue nor one raised in the
Complaint. Professor Palm has suggested an appointment, as an amicus
curiae, of a representative for the public interest. The Justice
Department represents the public interest in this proceeding and
Professor Palm has shown no breach of that representation. Most of
Professor Palm's suggestions seem intended to advance clinical training
at law schools. This is an educational policy issue that is irrelevant
here and certainly one that does not call for a court-appointed
representative.
6. Millard H. Ruud (Exhibit 12)
Former ABA Consultant on Legal Education Millard Ruud submitted an
extensive comment criticizing the proposed consent decree.\15\ He
doubts that the ABA violated the antitrust laws. He believes that the
ABA accreditation process is not a guild and that it has not been
captured by legal educators. He also doubts that there was an agreement
to ratchet up law teachers' salaries. Professor Ruud does not believe
that deans want the ABA to impose unreasonably high salary requirements
for full-time faculty and argues that deans only want to meet the
competition set by market forces. He contends that leading law schools
must compete with major law firms for highly-qualified faculty, and
must offer competitive salaries to retain and recruit these faculty.
\15\ Professor Ruud was the ABA's first Consultant on Legal
Education, serving from 1968 to 1973; was the Executive Director of
the American Association of Law Schools which conducts joint law
school accreditation inspections with the ABA; has participated in
numerous law school site inspections; and has extensive experience
in ABA and AALS law school accreditation. Professor Ruud was
involved in drafting the Standards under which the ABA operated for
many years. These include the Standards fixing faculty compensation.
Professor Ruud has conducted over 40 site inspections, although all
but three of these were before 1979. He is currently a professor at
the University of Texas.
University of Texas Provost and its former law dean Mark Yudof
has a somewhat different view of the consent decree than Professor
Ruud. ``Yahoo!'' was the first response from Mark Yudof'' after he
was told of the consent decree, the Texas Lawyer reported. Provost
Yudot called the ABA's process an ``accreditation hammer'' that did
not recognize diverse models of legal education. Texas Lawyer, July
3, 1995 at 7 (Lexis, News Library).
---------------------------------------------------------------------------
Professor Ruud also comments that the ABA has not ``monopolized''
accreditation through its own actions because state supreme courts and
bar admission authorities gave the ABA the power to approve law
schools. He notes that there are competitive disadvantages for
unapproved law schools because these schools are considered to be lower
in quality. ABA-approved schools have an advantage in recruiting
quality students and faculty. Professor Ruud also questions the meaning
of the phrase ``state-accredited'' law schools in the decree and
correctly points out the decree only prohibits the ABA from requiring
ABA-approved law schools not to accept credit for work at state-
accredited schools.
Professor Ruud questions the decree's requirement that a university
administrator who is not affiliated with a law school be included on
site evaluation teams. He claims that it is present ABA practice to
include university administrators when the law school is affiliated
with a university. He asks why university administrators should be
included in evaluating law schools that are not part of a university.
Professor Ruud further believes that the consent decree is an
excessive intrusion into ABA governance and questions some specific
decree provisions. He assets that the issues the Special Commission is
to examine go beyond antitrust. He further believes that the decree
should not set term limits for membership on the Council, Accreditation
Committee, or Standards Review Committee. Finally, Professor Ruud
describes the basic purpose of accreditation: ensuring that the school
meets the basic requirements of quality and informing other schools
that a degree from an accredited school should be recognized by them.
The purpose of this proceeding is not to evaluate the merits of the
Government's case. To the extent comments challenge the Department's
decision to bring this case, they are beyond the scope of this
decision.
7. Roy T. Stuckey (Exhibit 13)
Mr. Stuckey is a professor in the Department of Clinical Studies at
University of South Carolina Law School. Professor Stuckey served on
the Council of the Section of Legal Education from 1988 to 1994 and the
Standards Review Committee from 1990 to 1995. He has been a member of
about 11 site inspection teams since 1982.
Professor Stuckey objects to entry of the proposed Final Judgment
unless it is modified:
(1) to allow the ABA to continue gathering data about faculty
compensation; (2) to allow the ABA to continue considering
compensation as one factor in determining the quality of a law
school's program of education; and (3) to allow the ABA to permit
some people to serve at least six years on the Standards Review
Committee.
Professor Stuckey believes that compensation is related to quality,
knows of no data showing that law school faculty are compensated
disproportionately to similarly qualified judges and lawyers, and
points out that the ABA's data collection was reliable but will now
have to be done by someone else.
The an on salary data collection is for only the 10-year term of
the decree and is intended as a prophylactic. The defendant's practice,
compiling a ``peer group'' salary comparison prior to a site inspection
and pressuring the law school (or, more frequently, university
administrators) to raise salaries without a finding that the law school
was unable to attract and retain competent faculty, was an
anticompetitive practice that artificially inflated law school
personnel salaries. The consent decree prevents the defendant from
collecting salary information to reduce the likelihood that the
behavior alleged in the Complaint will recur. During the time that the
consent decree limitations apply, site inspectors will be able to use
such direct measurement of faculty quality like classroom instruction,
scholarly production, and bar and practical skills preparation. The ABA
is not enjoined from continuing to collect and disseminate other law
school data.
The Standards Review Committee has in the past been totally
dominated by law faculty. In addition to proposing new Standards, the
Committee also adopted Interpretations that were not fully subject to
public and Board review and were, at times, protective of law school
professional personnel in an anticompetitive manner. The Standards
Review Committee has staggered terms so that it will have varying
levels of experience. The one-term limitation on service on the
Standards Review Committee is a reasonable prophylactic provision
designed to get more individuals involved in law school accreditation.
8. Lawrence A. Sullivan and Warren S. Grimes (Exhibit 14)
Mr. Sullivan and Mr. Grimes are professors at Southwestern
University School of Law. Professors Sullivan and Grimes fear that the
proposed consent decree may lead to a relaxation of accreditation
standards that will be particularly harmful in California. They
[[Page 63774]]
also oppose the prohibition against the defendant's collecting and
disseminating salary data.
California has 16 ABA-approved law schools, 19 state-accredited law
schools, and 37 uncertified law schools, according to the comment.
Professors Sullivan and Grimes note that, while, admittedly, the ABA-
approved schools are able to attract better qualified students, the
August, 1994 California bar results for first-time takers show that the
average pass rate for each of the ABA-approved schools was higher than
those for any law school in each of the other two categories. The
comment suggests that this raises consumer protection issues since
students at non-ABA-approved schools are investing much time and money
with a diminished likelihood of passing the bar or finding legal
employment.\16\ This case is not intended to inhibit in any way the
setting of legitimate educational standards and the proposed Final
Judgment does not do so. Accreditation is a consumer protection
service. It informs students that an accredited school meets
appropriate educational standards. The proposed Final Judgment leaves
in place a process to provide this service.
\16\ We have the 1992 and 1993 California bar results, but not
for 1994. The results do not show what percentage of graduates of
each law school ultimately passed the California bar. We agree with
the comment's observation that better qualified applicants generally
will choose to attend an ABA-approved school because, among other
reasons, gradation from an ABA-approved school is a bar prerequisite
in most States. The range of pass rate in 1992 and 1993 for July
first-time takers and all takers in February is:
------------------------------------------------------------------------
ABA- State-
approved accredited
(percent) (percent)
------------------------------------------------------------------------
July 1993........................................ 69-92 0-89
February 1993 *.................................. 40-87 0-75
July 1992........................................ 63-90 25-75
February 1992 *.................................. 54-85 5-61
------------------------------------------------------------------------
* Most takers in February are repeaters and the results are for all
takers.
The comment also fears that the consent decree will relax standards
in two areas--student-faculty ratios and library facilities--permitting
new schools to be accredited, thereby injuring the 12 ``second-level''
ABA-approved schools in California. The consent decree, however, does
not address library facilities, and simply requires that student-
faculty ratio standards be reassessed by an unbiased group.
Professors Sullivan and Grimes also believe that the collection of
salary data serves a number of legitimate and important functions. We
agree, but believe it should be kept separate from ABA accreditation
because of past abuses.\17\ A school that attracts a higher-quality
faculty at a lower cost should be rewarded in the marketplace and not
punished in an accreditation inspection. Consequently, the proposed
consent decree restricts the ABA from this activity for its 10-year
duration. The comment properly points out that other organizations,
without the incentives of this one, should be able to collect this
information.
\17\ The dean of one very high salary law school criticized the
ABA's persistence in obtaining his school's salary data, stating
that obviously his law school's salaries were adequate and the ABA
was using the salary data to ``ratchet up'' salaries at lower paying
law schools.
---------------------------------------------------------------------------
9. Bardie C. Wolfe, Jr. (Exhibit 15)
Bardie C. Wolfe, Jr. is a professor of law and the law library
director at St. Thomas University School of Law in Miami, Florida.
Professor Wolfe submitted comments about the ABA annual questionnaire
and Standards. The ABA sends out a questionnaire each year seeking law
school operations information. Professor Wolfe believes that the annual
questionnaire section on library resources should include computerized,
not just paper, collections. Otherwise, the ABA, in effect, forces law
schools to purchase expensive books and other paper publications that
are available in electronic form. Professor Wolfe also is concerned
about the ABA Standards for law libraries. He advocates law school
libraries sharing electronic resources through networks and the
Internet. This would enable libraries to share expensive but little
used titles. He would also like to see electronic resources held by
other parts of the university counted as part of the law schools'
resources.
It may be a laudable goal to decrease library expenses by sharing
electronic information. But the issue of what resources libraries must
have for student and faculty research implicates issues of educational
policy, not antitrust issues and is outside the ambit of this case and
the Tunney Act proceeding.
10. Marina Angel (Exhibit 16)
Ms. Angel is a professor of law at Temple Law School. Her comment
was transmitted on October 16, two weeks after the close of the comment
period.
Professor Angel complains that Section IV(A) of the proposed
consent decree, prohibiting the collection of salary data, may prevent
the enforcement of ABA Accreditation Standards 211-213 that prohibit
discrimination. While Professor Angel does not state it, salary data
showing apparent discrepancies between protected and other groups may
be a basis for pursuing discrimination claims. The consent decree does
not prevent law schools, however, from maintaining that data.
Additionally, as Professor Angel has noted, Section V of the decree
notes that nothing in the proposed decree prohibits the ABA from
conducting a bona fide investigation of whether a law school is
complying with its accreditation standards.
C. University Administrators
1. Bernard J. Coughlin, S.J. President of Gonzaga University (Exhibit
17)
Gonzaga University President Bernard J. Coughlin, S.J., believes
that 40% of a site inspection team should be people who are not law
school deans or law faculty. He further believes that the consent
decree should mandate the Special Commission to consider whether to
revise ABA practices regarding control of financial resources. Father
Coughlin is concerned that the ABA gives law school deans and faculty
too much control of financial resources contributed to or generated by
the law school. Father Coughlin also expressed concern that the ABA's
proposed decree notification did not identify the officer to whom
comments should be sent.
The ABA accreditation process was captured by legal educators.
Section VI of the decree is designed to remedy this problem. The decree
requires that site teams include a university administrator not
affiliated with the law school and other public members. It also
requires that law faculty make up no more than 50% of the Accreditation
Committee and Council. Together, these provisions will significantly
open up the process. Requiring site teams to include more people who
are not law faculty may make it difficult to fill the teams. Being a
member of a site team involves a substantial amount of work.
Intra-university resource allocation raises issues of educational
policy. The resources standard will be initially addressed by the
Special Commission.
Finally, Father Coughlin expressed concerns about notification by
the ABA. In accord with the Antitrust Civil Process Act, the Justice
Department published the proposed Final Judgment and CIS in the Federal
Register and newspapers, informing members of the public that they may
submit comments to the Antitrust Division of the Justice Department.
The ABA, on its own, individually notified presidents of universities
with ABA-approved law schools of the proposed Final Judgment.
[[Page 63775]]
The legal education community is now well acquainted with this case and
the proposed Final Judgment.
D. Law Schools Not Approved by the ABA
The Department received three comments from law schools not
approved by the ABA.\18\ They are generally critical of the limited
scope of the Final Judgment.
\18\ MSL's comment is responded to in Section IV.H.
---------------------------------------------------------------------------
1. University of La Verne (Exhibit 18)
The University of La Verne (``LA Verne'') is a law school
accredited by the State of California but not approved by the ABA.
While the California state court will admit graduates of California-
accredited schools to its bar, most state bar admission rules require
graduation from an ABA-approved school. First, La Verne believes that
the consent decree does not restrain the ABA's support of bar admission
or employer requirements that applicants graduate from ABA-approved law
schools. Second, La Verne is concerned about the decree provisions
relating to the physical facilities Standards and Interpretations. La
Verne thinks that the ABA has required costly facilities in the past
and is particularly worried that ABA Interpretations will continue to
prohibit the leasing of law school facilities. Third, La Verne is
opposed to the ABA's requirements about law library seating. Fourth, La
Verne wants the Justice Department and Court to carefully review the
Special Commission's proposals regarding calculating the faculty
component of student-faculty rations. Fifth, La Verne fears that ABA
inspection teams will use salary data available for other sources.
Finally, La Verne believes that the ABA should ascertain the quality of
law schools by measuring such outcomes as bar passage rates.
Preliminarily, we note that the consent decree is tailored to
remedy the antitrust violations alleged in the Complaint: The ABA's
acting as a guild for legal educators, and the resulting competitive
distortion of the accreditation process. In addition, the decree is
designed to remedy the four ABA accreditation practices that were
alleged in the Complaint as Sherman Act violations. This is the purpose
of a consent decree: to provide relief appropriate for the allegations
in the Complaint. Microsoft, 56 F.3d at 1448, 1459.
La Verne's first concern, whether the ABA has encouraged States to
require graduation from an ABA-approved school for bar membership, is
outside the scope of charges in the Complaint and, consequently, is not
addressed in the proposed Final Judgment. Moreover, in general, an
organization's lobbying of state agencies is immune from antitrust
liability under Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961), and its progeny. The fact that
individual employers may require graduation from an ABA-approved law
school is not itself an antitrust violation and is outside the scope of
the Complaint and relief in this case.
Second, La Verne is concerned about the ABA's rules on facilities.
As we alleged in the Complaint, while adequate physical facilities is a
relevant factor in assessing an educational program's quality, the
facilities standards may have been applied inappropriately to enhance
working conditions for law faculty. The ABA's facilities standards and
practices, like others addressed in Section IV(D) of the Complaint,
raise what are, in essence, educational policy issues. Hence, under the
decree, they have been initially referred for re-evaluation to the
Special Commission.
Third, the issue of library seating is not raised in the Complaint
and is, thus, not a part of this proceeding.
Fourth, with regard to the student-faculty ration issue, the
Department has required that this question of educational policy be
reconsidered through a process not infected by capture. The Department
will carefully review the Special Commission's report.
Fifth, the consent decree expressly forbids the ABA from taking any
actions that impose salary requirements or using law school
compensation data in connection with the accreditation or review of any
law school. Consequently, ABA inspection teams cannot use any such
data, regardless of its source, without the defendant risking contempt
sanctions.
Finally, outcomes, like bar review passage rates, may be a useful
measure of educational quality. This is, however, an issue of
educational policy, not an antitrust issue and is outside the matters
alleged in the Complaint.
2. Reynaldo G. Garza School of Law (Exhibit 19)
Reynaldo G. Garza School of Law (``Garza'') is a Texas law school
that is not approved by the ABA. The Texas Supreme Court mandates that
bar applicants be graduates of ABA-approved law schools. Garza
complains that the proposed consent decree does not deal with the
requirement that bar applicants be graduates of ABA-approved law
schools and the effect of this Standard on graduates of unapproved law
schools. Second, Garza alleges that the consent decree does not address
the ABA requirement of a core library collection. Third, the decree
does not address the ABA's requirement that law schools have a full
time law librarian.
We respond by noting, first, that the decree was tailored to
address the antitrust violations alleged in the Complaint. The
Complaint does not challenge state requirements that bar applicants
must graduate from ABA-approved schools. The actions of States are
exempt from the antitrust laws under the ``state action'' doctrine
announced in Parker v. Brown, supra.
The ABA Standards on core library collection and full-time
librarian administrators are not challenged in the Complaint as
antitrust violations and appear to involve solely questions of
educational policy.
E. Graduates of Unapproved Law Schools
The United States received 13 comments from students and graduates
of law schools that are not accredited by the ABA. Among the schools
represented are Texas Wesleyan School of Law, the Commonwealth School
of Law in Massachusetts, an unnamed state-accredited law school in
Alabama, and five California schools: Western State University in San
Diego; West Los Angeles School of Law; Glendale University College of
Law; People's College of Law; and an unnamed law school. The majority
of these comments describe the consequences of ABA accreditation for
graduates of law schools not approved by the ABA.
Ten graduates and students criticized the rules in various States
that require bar applicants to graduate from ABA-approved law schools
only. They suggested that the consent decree abolish or weaken these
rules. These graduates were: Deborah Davy (Western State University)
(Exhibit 20); Joel Hauser (People's College of Law) (Exhibit 21);
Wendell Lochbiler (West Los Angeles School of Law) (Exhibit 22); Larry
Stern (Glendale College of Law) (Exhibit 23); Julie Ann Giantassio
(Western State University) (Exhibit 24); Robert Ted Pritchard (enrolled
in unnamed non-ABA approved law school) (Exhibit 25); Donald H. Brandt,
Jr. (Texas Wesleyan University) (Exhibit 26); David White (Western
State University) (Exhibit 27); Bill Newman (an unnamed unaccredited
California law school) (Exhibit 28); and Russell R. Mirabile (school
not named) (Exhibit 29).
[[Page 63776]]
Ms. Davy, Mr. Pritchard, and Mr. Stern suggested that graduates of
state-accredited law schools should be allowed to take any state's bar
examination. Mr. Mirabile proposed waiving graduates of all unapproved
schools into the bar. Mr. Brandt proposed eliminating the ABA's power
to accredit law schools. Mr. Brandt alleges that his school, Texas
Wesleyan University, was granted provisional ABA approval on the
condition that it graduate its third-year class before receiving that
approval. Hence, Mr. Brandt did not graduate from an ABA-approved law
school.
The ABA does not itself set state bar admission criteria.
Approximately 42 States require graduation from an ABA-approved school
as a condition for sitting for the bar. Such state requirements fall
within the ``state action'' immunity from antitrust prosecution
recognized by the Supreme Court in Parker v. Brown, supra, and its
progeny. Consequently, we did not and cannot address state bar
admission requirements in the proposed Final Judgment.
Five comments discuss graduates of unapproved law schools being
denied admission into advanced legal degree (``LL.M'') programs at ABA-
approved law schools. Ms. Davy contends that the ABA intrudes upon the
discretion of the law schools and proposes amending the Final Judgment
to make all individuals holding a Juris Doctor degree eligible for
admission into ABA-approved LL.M. programs. Mr. Lochbiler explained
that he was denied admission into a number of ABA-approved LL.M. and
J.D. programs; each institution refused to accept a graduate of an
unaccredited school. Mr. Stern said that he was denied admission into
LL.M. programs because no ABA-approved school would consider him
without risking its accreditation. Mr. White was recently denied
admission to an LL.M. program at an ABA-accredited Florida law school.
He claimed the school would not change its policy regardless of the
consent decree. Mr. Brandt noted that has continued educational options
have been limited, but did not describe these options.
Under the consent decree, the ABA may not bar a law school from
enrolling a member of the bar or a graduate of a state-accredited law
school in an LL.M. or other post-J.D. program. Previously, the ABA
Standards had barred law schools from doing so. The decree permits
individual law schools the discretion to admit whom they want in their
graduate programs.
Five comments focus on the ABA's rules prohibiting approved schools
from offering transfer credit for courses at unapproved law schools.
The author of one comment, who wished to remain anonymous,
graduated from a state-accredited, but not ABA-approved, law school and
is a member of the bar (Exhibit 30).\19\ He wrote that the dean of an
ABA law school in another State refused to grant credit for any of his
courses. The dean was aware of the proposed Final Judgment. The author
believes that the proposed Final Judgment should be modified to prevent
approved schools from refusing to grant credit. Mr. Prichard described
an admissions representative of an ABA-approved California law school
who told him that the institution does not accept any credits earned at
a non-ABA school. The admissions representative allegedly stated that
the consent decree did not change this. Mr. Prichard advocates several
modifications to the proposed Final Judgment, including requiring all
law schools to sign the consent decree and mandating that all state-
accredited law schools be automatically granted provisions approval by
the ABA.
\19\ The author requested having his name and address withheld
from the comment because he has an application pending with an ABA-
approved law school. We have redacted this information in the copy
of the comment filed with the Court.
---------------------------------------------------------------------------
In his comment, Frank DeGiacomo proposes deleting from the proposed
Final Judgment the phrase in Section IV(D)(2) that allows the ABA to
require that ``two-thirds of the credits required for graduation must
be successfully completed at an ABA-approved law school.'' (Exhibit
31). Mr. DeGiacomo contends that the provision deters competition from
non-ABA law schools. He alleges that ABA-approved schools have few
seats for transfer students and that transfer applicants from
unaccredited schools are viewed less favorably than students from ABA-
approved law schools who are perceived as having achieved greater
academic achievement.
James B. Healy submitted to the Government a background brief by
himself and three other students detailing the closure of the
unaccredited Commonwealth School of Law. The closure prevented them
from graduating (Exhibit 32). The four unsuccessfully sought to
transfer to 15 law schools with credit for their courses at
Commonwealth. Mr. Healy inquires whether the students have any
recourse. Finally, Mr. Mirabile believes ABA-approved schools should
give complete credit for all work at unapproved law schools.
Under the consent decree, the ABA may not prevent ABA-approved
schools from offering transfer credit for work successfully completed
at a state-accredited law school. The decree allows the ABA to require
that two-thirds of the credits required for graduation be successfully
completed at an ABA-approved law school. As with the LL.M. programs,
the decree leaves the choice of whether to offer transfer credits to
the individual school. Some schools may choose to do so; others may
not.
Mr. DeGiacomo proposes eliminating the requirement that two-thirds
of the credits be completed at an ABA-approved law school and Mr.
Mirabile proposes granting credit for all work at unapproved law
schools. For reasons of educational policy, an accrediting agency may
require that the bulk of an education be completed at the degree-
granting institution. The two-thirds requirement allows the ABA to
ensure quality control--the legitimate purpose of accreditation. The
decree provision rests on the ABA's existing parallel rule for credit
for courses completed at foreign law schools, a rule that did not so
directly implicate the guild interests that distorted the rule for
transfers from domestic schools.
In addition to comments about bar admission and LL.M. requirements,
Mr. Stern pointed out that the ABA's student-faculty ratio rules that
no rational application to educational quality because they excluded
part-time faculty from the ratio. Evidence that anticompetitive
purposes had distorted the formulation of the present student-faculty
ratio rule was the basis of the Department's allegation in the
Complaint. But low student-faculty ratios may ensure smaller classes
and more student-faculty contact, desirable educational outcomes.
Because of this, the Special Commission will have the first opportunity
to address this educational policy issue.
F. Other Practicing Attorneys
The Justice Department received comments from five other practicing
attorneys.
1. William A. Stanmeyer (Exhibit 33)
William A. Stanmeyer is a practicing attorney and former law
professor. He commends the Justice Department for bringing this action.
He believes that many of the ABA's Standards are irrelevant to quality
legal education, sometimes vague, and often applied arbitrarily. Mr.
Stanmeyer is troubled by outgoing ABA President George Bushnell's
denial of any wrongdoing and fears that the ABA will resist real
change.
[[Page 63777]]
The Justice Department agrees that some of the ABA's accreditation
practices had little to do with quality. The decree is designed to
remedy these problems. In terms of Mr. Bushnell's comment, a defendant
is not required to admit to the charges in the Complaint as part of a
settlement. This is one of the incentives to enter a decree instead of
proceeding to trial. Finally, the Department expects that the contempt
sanction will be sufficient to ensure that the ABA will abide by the
decree.
2. Four Concerned Lawyers (Exhibit 34)
The Justice Department received an anonymous comment from ``4
Concerned Lawyers.'' They congratulate the Department on the consent
decree. They are concerned about having the ABA's Consultant on Legal
Education, Jim White, reporting to the ABA's Executive Director, Bob
Stein. They fear that friendship between White and Stein will prevent
the latter from effectively supervising the former. Second, the four
wish that the Justice Department would investigate the relationship
between Consultant White and Indiana University, where he teaches, and
examine the payment arrangements between them.
In response, we note, preliminarily, that the decree does not
require the Consultant to report to the Executive Director. Moreover,
there are strong incentives to ensure that the terms of the decree are
carried out. Violations of the consent decree are punishable by
contempt sanctions. In fact, the Consultant and Executive Director must
sign annual certificates acknowledging this. In addition, the decree
opens up the ABA's accreditation operations to more scrutiny. The
Accreditation Committee, Council, and Standards Review Committee will
have many members who are not affiliated with law schools. The payment
antitrust concern or relate to the antitrust violations alleged in the
Complaint.
3. Frederick L. Judd (Exhibit 35)
Frederick L. Judd is an attorney, certified public accountant, and
a graduate of Brigham Young University (``BYU'') law school. He fears
that the ABA's requiring law schools to set schedules that limit the
amount of time students can work excludes students who need to work to
pay for law school. Mr. Judd wished to work as a C.P.A. while a full-
time BYU student, but was prevented from setting up a class schedule
that would enable him to work during the day.
The ABA's Standard limiting full-time students to 20 hours of work
per week does not raise antitrust concerns or relate to the violations
alleged in the Complaint. There may be strong educational policy
reasons to limit students' work so they may devote more time to their
studies.
4. Michael L. Coyne (Exhibit 36)
Michael L. Coyne is an attorney in private practice in North
Andover, Massachusetts, and is also associate dean of MSL. In his
comment, Dean Coyne complains about deposition testimony of former
Accreditation Committee Vice Chairman Claude Sowle and ABA Consultant
on Legal Education James White, taken by MSL in its private action
against the ABA. Dean Coyne believes that their testimony about
salaries is at odds with Paragraphs 15 and 16 of the United States'
Complaint, in which we allege that the ABA collected salary data for
peer schools and found that schools which paid salaries below the
median were non-compliant. Dean Coyne says that Mr. Sowle testified in
the private action that the ABA has not paid attention to geographic or
competitive salary information for some time. He asks the Department to
clarify whether this testimony contradicts documentary evidence held by
the Justice Department.
Dean Coyne also seeks disclosure of materials that were obtained
under the Antitrust Civil Process Act, 15 U.S.C. Secs. 1311-1314. The
Act imposes strict disclosure limits on the Government (15 U.S.C. 1313
(c) and (d), and the Government must comply with them.
The ``Government's Opposition To MSL's Motion For Intervenor Status
and For Determinative Documents And Materials,'' filed on October 10,
1995, addresses MSL's request for documents in more detail. Were the
Court to order production of the documents, there would be a
substantial chilling effect on the Department's work. Defendants would
be less willing to enter consent decree because they would fear it
would lead to the production of their documents. MSL has a private
action against the ABA and has sought discovery in that action. That is
the proper forum for MSL's discovery requests.
Dean Coyne also attached pages 207-08 of Mr. Sowle's testimony to
his comment. On those pages, Mr. Sowle admitted that the Accreditation
Committee considered how salaries paid by a school compared to those
paid by its peers. Dean Coyne's concern as to the substance of the
deposition testimony regarding the use of salary information does not
seem directly relevant to the issue in this APPA proceeding. That issue
is whether entry of the proposed consent decree is in the public
interest. Regardless of the testimony, the relief proposed adequately
deters the defendant from using the accreditation process to fix
salaries.
5. Jackson Leeds (Exhibit 37)
Mr. Leeds believes that the consent decree will allow state courts
to violate antitrust laws in regulating admissions to the bar.\20\ Mr.
Leeds believes that the New York Court of Appeals wrongly requires law
schools to be approved by the ABA, American Association of Law Schools,
or the New York State Department of Education. Moreover, Mr. Leeds
apparently requested from the City University of New York Law School at
Queens College (``CUNY'') a copy of the ABA's site inspection report
for CUNY. CUNY apparently refused because distribution of the report is
limited to those authorized to receive it by the ABA's Council of the
Section of Legal Education. Mr. Leeds also is upset that CUNY admits
students with low traditional indicators (test scores and GPAs), and
claims that CUNY does not enforce class attendance policies.
\20\ It is not entirely clear that Mr. Leeds is a practicing
attorney. His letter indicates legal training and, hence, we have
classified him here as such.
---------------------------------------------------------------------------
In response, the Justice Department notes that, under Parker v.
Brown, supra, and its progeny, the actions of the state courts in
determining bar admissions or in approving law schools are immune from
antitrust prosecution. CUNY's apparent refusal to give Mr. Leeds the
inspection report, CUNY's admissions standards, and its class
attendance policies do not raise antitrust issues and are not related
to the subject matter of the Justice Department's Complaint in this
action.
G. Members of the General Public
The Justice Department received comments from three individuals
whom we cannot identify as being in any of the preceding categories.
1. Robert Reilly (Exhibit 38)
Robert Reilly is concerned about practicing lawyers who are
graduates of unapproved law schools but who are unable to practice in
many States because those States require graduation from ABA-accredited
law schools. Mr. Reilly believes that the States impose this
requirement to limit competition and to deny graduates of unapproved
law schools the ability to practice law in the place they wish to live.
State bar admission requirements restricting bar membership to
graduates of ABA-approved schools may limit competition, but they
cannot be
[[Page 63778]]
challenged under the antitrust laws because of the ``state action''
immunity doctrine announced by the Supreme Court in Parker v. Brown,
supra. Consequently, such requirements are beyond our enforcement
jurisdiction.
2. Robert W. Hall (Exhibit 39)
Robert Hall, President and Director, Hawaii Institute for Biosocial
Research, expressed dissatisfaction with the proposed Final Judgment,
primarily because he believes that it does not remedy the ABA's role in
``anticompetitive admissions processes required by the ABA in the
accreditation process.'' In particular, he criticized the control of
the Law School Admissions Council (``LSAC'') by ABA-approved law
schools. He does not believe that law schools should use the LSAC's
aptitude test (the ``LSAT'') in the admissions process.
While the ABA's Accreditation Standards require that law schools
use the LSAT, or a comparable aptitude test, we do not know that the
ABA requires law schools to maintain median LSAT scores. The ABA's
requirement appears consistent with Department of Education regulations
mandating that accrediting agencies require that accredited schools
employ a suitable aptitude test to screen applicants. Whether the LSAT,
or any other test, is a reliable indication of an aptitude for a field
of study seems to involve educational, not antitrust, policy questions.
This issue is also not raised in the Complaint.
Mr. Hall also criticized the domination of the law school
accreditation process by insiders and the lack of public involvement in
the accreditation process. We recognize this problem and the consent
decree remedies it by introducing more people outside of legal
education into the accreditation process and by setting term limits for
members of the committees that oversee law school accreditation. Mr.
Hall further believes that the insider status of some members of the
Special Commission may have the effect of putting the fox in charge of
the chicken house. The proposed consent decree answers this, too, by
requiring that the ABA's Board of Governors review the Special
Commission's findings. Additionally, the Justice Department may
challenge the Special Commission's recommendations in this case.
Mr. Hall further believes that the ABA has boycotted any law school
that does not have small classes for at least some part of its total
instructional program. He believes it will be costly for a proprietary
school to offer small classes. In response, we note that the size of
classes usually raises issues of educational policy. An accrediting
agency may require some small classes so students benefit from greater
teacher contact.
Finally, Mr. Hall criticizes the ABA Interpretation requiring law
schools to have facilities that are owned rather than leased. He points
out that this may be a problem in areas where land and buildings are
extremely expensive. In response, the Justice Department notes that the
decree is tailored to the antitrust violations alleged in the
Complaint. The ABA is not charged with violating the antitrust laws by
virtue of all of its facilities standards, including its rules
regarding leased facilities or their implementation.
3. Amrit Lal (Exhibit 40)
Amrit Lal wrote to congratulate the Justice Department on the
consent decree. Dr. Lal believes that state bar examiners allegedly
manipulate bar exam results to limit bar admissions. The Supreme Court,
in Hoover v. Ronwin, 466 U.S. 558 (1984), held that the state action
immunity doctrine protected one state supreme court's bar admissions
restrictions from an antitrust claim that made similar allegations. Dr.
Lal also alleges that the Pennsylvania Board of Law Examiners
discriminate on the basis of age, ethnic identity, and national origin.
These concerns do not relate to the matters alleged in the Complaint.
H. Massachusetts School of Law (Exhibit 41)
MSL has filed a massive 83-page comment with an Appendix and about
400 pages of Exhibits. MSL previously filed an Intervention Motion that
both parties oppose. MSL was denied accreditation by the ABA in 1994
and has filed an antitrust case against the ABA in the Eastern District
of Pennsylvania. Last month, MSL filed a second action against the ABA
in a Massachusetts state court, alleging unfair competition, fraud, and
other matters. MSL's comment recommends numerous changes in the
proposed Final Judgment, the delay of its entry, and the vast
production of documents and materials from the Justice Department's
investigatory files. The Government opposes the requested modifications
and recommends no delay in the entry of the Final Judgment. We also
oppose MSL's ``discovery'' request, believing that it is particularly
inappropriate to grant discovery collaterally in an APPA proceeding to
a party whose discovery requests have been denied in its own
litigation.
1. Capture
MSL does not believe that the proposed consent decree adequately
remedies the ``capture'' of the ABA accreditation process by the group
that benefited from it. MSL suggests, as more effective remedies,
requiring the ABA to choose ``procompetitive'' nominees for the Council
and Committee (MSL provides the names of 21 possible nominees), and
banning any members of the ``insider'' group (MSL lists about 47
``insiders'' and about 32 of their ``helpers'') from further
participation in accreditation. It urges that the decree should ban
``the ABA from violating the Sherman Act through use of its other
accreditation criteria to achieve anticompetitive purposes.'' Comment,
p. 11. The Government believes that it is inappropriate for it or the
Court to micromanage the defendant's accreditation activities to
require that certain people be designated to participate in
accreditation and others prohibited. Such relief would be extraordinary
and unique among consent decrees. Enjoining the ABA from violating the
Sherman Act in its application of its remaining accreditation criteria
is at the other extreme--so vague as to add little effective relief.
This is because such a provision requires a Rule of Reason trial just
to enforce a contempt action. The consent decree's limits on law school
faculty participation on governing committees, the required involvement
of ``outsiders'' on site inspections, and the close involvement of the
ABA's Board, itself undoubtedly independent from accreditation
``insider'' control, are reasonable measures to eliminate the capture
of the accreditation process.\21\
\21\ The ABA's Board, independent of consent decree
requirements, has also required the Consultant of the Section of
Legal Education to report to the ABA's Executive Director.
---------------------------------------------------------------------------
MSL claims that the ABA has violated the consent decree by adding
an extra academic to the Section of Legal Education's Nominating
Committee and that the new data questionnaire circulated by the ABA to
law schools requests data from which average and, possibly, individual
salaries can be calculated is in violation of the decree. Our
information, however, is that no additional academics have been added
to the Nominating Committee since the decree was filed, and that the
event that MSL describes took place last year. The 1995-96 Nominating
Committee has one legal educator.\22\ As to the data
[[Page 63779]]
questionnaire, our understanding is that average salaries cannot be
calculated, except in the most gross fashion, and that individual
salaries cannot be calculated in any fashion from the data being
collected. Moreover, the aggregated salary expense data the ABA
collects is not given to the Accreditation Committee, the Council or
members of site teams, and is not used in connection with law school
accreditation. The Justice Department does not object to the collection
of this data as long as it cannot be disaggregated.
\22\ The Nominating Committee members are a California
practitioner, a law school librarian, a university president (who is
a former law school dean), a Nebraska practitioner, and a non-lawyer
public member. The term of the individual mentioned by MSL expired
last summer.
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2. Secrecy
MSL points out that the ABA's accreditation Standards and
Interpretations are often quite general. Their content has been
supplied by the enforcement process and by the policies followed by
enforcement officials. MSL believes that a simple cure for monitoring
the ABA's actual accreditation practices would be to require that all
documents created during the accreditation process be made public.
The proposed Final Judgment does require the defendant to publish
annually the names of those who participate in domestic and foreign
site inspections and the schools inspected. Additionally, the Council
must report to the Board all schools under accreditation review and the
reason the law schools are still under review. The Council must also
approve and the Board review all annual and site inspection data
questionnaires sent to law schools. Our interviews indicated that some
individuals thought that schools and site inspectors might be inhibited
in some respects if their free exchange of views during the
accreditation process were made public. Since this appears to be a
matter implicating legitimate accreditation process concerns, the
Government was reluctant to include total disclosure as required
antitrust relief.
3. The Special Commission
MSL attacks the composition of the Special Commission, claiming
that they were appointed by the two immediate past Chairmen of the
Council and that at least 8 of the 15 commissioners ``are part of the
heart and soul * * * or are closely tied to the capturing inside
groups.'' \23\ Comment, p. 20. While many of the members of the Special
Commission have had close ties to the ABA and its accreditation
activities, its membership is six legal academics (including one well-
known critic of ABA accreditation), two judges, one university
president (a past ABA president and Council Chair), five practitioners
(including one critic of ABA accreditation), and one public member (the
president of the League of Women Voters). The Special Commission had
been established by the ABA, prior to settlement negotiations with the
Government, to make a comprehensive review of the ABA's accreditation
of law schools. The Government will closely examine its report. The
proposed decree leaves matters that have legal educational policy
implications to the Special Commission. The ABA had initiated the
Special Commission in response to criticisms prior to the filing of the
Department's case and it is reasonable to give the first opportunity to
address these policy interests to the Commission. The Special
Commission's recommendations are subject to the approval of the ABA's
Board. The Government may challenge any proposal with respect to the
six subjects enumerated in the proposed consent decree.\24\ The
Government expects that it and the defendant will resolve any
differences that may develop so that court involvement in the process
will be unnecessary.
\23\ Only two of the Commissioners are listed in MSL's
enumeration of the 79 ``insiders'' and ``helpers'' group. Comment,
p. 6 n.4.
\24\ The six subjects are a small part of the Special
Commission's entire report.
---------------------------------------------------------------------------
MSL claims that this process involves lengthy delays, possibly 15-
18 months, and requests that either the Court delay entry of the decree
until the Special Commission's report is adopted and approved by the
Board and Justice Department, or that the Court should allow third
parties the opportunity to comment.
While we do not expect anything so lengthy as a 15-18-month delay,
entry of the decree should occur now.\25\ The decree has established a
reasonable, defensible remedy to treating the allegations in the
Complaint. Specific practices that clearly violate the antitrust laws
and cannot be justified on educational policy ground have been
immediately enjoined. The process that produced these and other
accreditation rules is in the process of reformation, with the initial
work being done by the ongoing Special Commission, subject to later
approval by the ABA Board and Justice Department.
\25\ The decree can be entered once the comments and the
Response have been published in the Federal Register and the
Government has certified to the Court compliance with the APPA.
---------------------------------------------------------------------------
The public has had the opportunity to comment on the subject areas
referred to the Special Commission and some, including MSL, have.
Certainly, if third parties have comments or complaints about the
Special Commission's report, which will be made public, the Justice
Department welcomes and will consider those comments.\26\ We have often
initiated judgment enforcement proceedings based on information from
third parties. Public comments will be valuable in forming our response
and in our discussions with the defendant after the Special
Commission's report.
\26\ Only a few of the 41 comments discuss the Special
Commission.
---------------------------------------------------------------------------
MSL claims that use of the Special Commission circumvents the
Tunney Act. The consent decree establishes a process rectifying the
conduct alleged in the Complaint. The public has had the opportunity to
comment on the process as well. The Department will welcome comments
when the Special Commission's report is public. In the unlikely event
the two parties cannot reconcile differences on the Special
Commission's report, the proposed consent decree provides that the
Court will resolve the Government's challenge, applying a Rule of
Reason analysis.
MSL believes that such a challenge should be decided under a
``quick look'' analysis. In a recently decided case, however, the Third
Circuit remanded for a Rule of Reason analysis a district court
decision that had applied a ``quick look'' analysis where elite
Northeastern universities fixed the price charged to commonly-admitted
students who also received financial aid. United States v. Brown
University, et al., 5 F.3d 658 (3rd Cir. 1993). The subjects referred
to the Special Commission do not directly restrain price and do not
seem as appropriate for a ``quick look'' analysis.
MSL also comments on some of the topics on which the Special
Commission will report. It notes that the student-faculty ratio
standard has been applied by the ABA against law schools to require the
employment of the capturing group--full-time legal theorists--and
discourages the use of judges and practitioners.
The proposed consent decree left the initial recommendation
regarding the correct use of student-faculty ratios to the Special
Commission for several reasons. Student-faculty ratios are generally
regarded as a useful legitimate accreditation tools, as is the
requirement of a core full-time faculty. The Government expects that
the Special Commission and the ABA Board will suitably assess the
continuing utility of student-faculty ratios in a manner that
[[Page 63780]]
does not skew the outcome to promote guild interests.
MSL also criticizes the ABA's use of the vague facilities
accreditation standards to micromanage law schools and to require the
construction of what it terms ``Taj Mahal'' law school facilities. The
use of this standard to enhance unnecessarily full-time faculty working
conditions is an appropriate concern. Since adequate facilities can be
clearly related to educational quality, but the construction of
unnecessary facilities imposes costs on universities and state
governments, the Special Commission should have the opportunity to
recommend a standard and practice that will consist wholly of
legitimate educational concerns.
4. ``Procedural'' Matters
MSL believes that the proposed relief is inadequate to eliminate
the capture problem. MSL anticipates that the ABA will claim that it
was not ``feasible'' to include practitioners to staff 6-7 person
inspection teams and staff them with insiders.\27\ The proposed consent
decree does require that the composition of site teams be made public.
This will make it easier for the public, and the Government, to see if
the defendant is living up to its obligations under the decree. MSL
raises the specter of other possible abuses by a Legal Consultant
intent on evading, at a minimum, the spirit of the consent decree. The
decree cannot address all possible outcomes but a systematic evasion of
its mandate is cause for a contempt hearing. On balance, the decree
makes a reasonable effort to eliminate capture of the accreditation
process while preserving the ABA's ability to perform legitimate and
important accreditation work. This case has also captured the attention
of the ABA's leadership, which has personal and economic incentives to
avoid a repetition of the conduct that caused the United States to
bring this suit.
\27\ There is no requirement that the size of inspection teams
be that great. ABA inspection teams have doubled in size over the
past 20 years.
---------------------------------------------------------------------------
5. Reliance on ABA Leadership
MSL doubts that the ABA's leadership can be trusted to effect
changes in the accreditation process, relying, in particular, on the
ABA's outgoing president's statement denying antitrust liability. A
value of the consent decree process is that it permits the Government
to obtain effective and immediate relief that the defendant may accept
in part because it does not require an admission that can be used
collaterally. Whether the defendant believes it has violated the
antitrust laws is not as important as whether it intends to comply with
the decree. Further, unlike defendants in most antitrust cases, the
ABA's leadership did not economically benefit from the conduct alleged
in the Complaint, nor, perhaps, did the ABA itself. Benefit accrued to
legal academics in the Section of Legal Education, not ABA leaders who
have an economic incentive to avoid conduct that may be costly to their
organization. The leadership adopted changes and entered this decree
over the apparent opposition of the leadership of the Section of Legal
Education.\28\ MSL's recitation of ABA antitrust ``insensitivity,''
involving far different subjects several decades ago, is of little
relevance.
\28\ Within a month of the filing of the consent decree, the
chairpersons of the Council and Accreditation Committee had
resigned, sharply criticizing the settlement.
---------------------------------------------------------------------------
6. ABA Antitrust Compliance Officer
MSL also objects to the provision of Section VIII of the proposed
Final Judgment that requires an antitrust compliance program, including
the appointment of an antitrust compliance officer. Compliance programs
have been a fairly standard provision in civil antitrust cases brought
by the Government and settled by consent decrees since the Folding
Carton case in the late 1970s.\29\ The compliance program is, if
anything, somewhat more rigorous than in other consent decrees.
\29\ U.S. v. Alton Box Board Co., 1979-2 Trade Cas. (CCH)
para.62,992 (N.D. Ill. 1979). The then-Assistant Attorney General of
the Antitrust Division described the antitrust compliance program as
``innovative provisions that add a new dimension to . . . [a] recent
emphasis on preventive antitrust.'' P. 1, Legal Times of Washington,
July 9, 1979.
---------------------------------------------------------------------------
We expect that the ABA's General Counsel will be named as the
compliance officer. This, too, typically occurs in Government antitrust
consent decree proceedings. We know of no case in which the ``identity,
professional background and views of the Compliance Officer'' was an
issue in an APPA proceeding. Clearly, since the compliance officer may
be required to provide advice to the defendant's officials, one cannot
expect the compliance officer to be one chosen by MSL.
MSL claims that it is ``an incomprehensible lacuna'' for the
proposed consent decree not to give the antitrust compliance officer
``supervisory responsibilities'' with respect to the Special
Commission. But, we see no there, there. The Special Commission's
charge is to reconcile the educational policy questions in the six
subjects it is to report on. While it may be seeking antitrust advice,
there is no reason why its work, which also includes a comprehensive
review of law school accreditation, must be supervised by the antitrust
compliance officer or why that should be required by the Court.
MSL also claims that the Department of Education's review of ABA
accreditation ``has been wholly ineffective to date in assessing
quality.'' It believes that Section VI(L) of the proposed consent
decree may be related to that claimed failure by the Department of
Education.\30\ MSL concludes that ``it is perplexing that the Antitrust
Division would now rely on the DOE as a vehicle for assuring quality or
for precluding self-interested conduct.'' Comment, p. 58. The Justice
Department disagrees with MSL's statement about the Department of
Education and has no doubt that the Department of Education has carried
out its mandate under the Higher Education Act. MSL's claims does not
relate to whether entry of the proposed Final Judgment is within the
reaches of the public interest, the issue now before the Court.
\30\ MSL's venturing into unrelated subjects and gratuitous
attacks on a Cabinet agency is further reason why it should not have
party or amicus curiae standing in this proceeding.
---------------------------------------------------------------------------
7. MSL Discovery Requests
MSL's comment restates the arguments made in its September 26
Intervention Motion for discovery of the Government's investigative
files. As its first ground, MSL contends that it is entitled to
discovery of a ``wide spectrum of documents, evidence, memoranda and
other evidence that can be determinative'' under Sec. 16(b) of the
APPA. The APPA calls for the Government to file ``materials and
documents which the United States considered determinative in
formulating [the proposed consent decree]'' (emphasis added). Usually,
there are no such documents and there were none in this proceeding.\31\
\31\ The Government attached three documents as exhibits to its
Memorandum Opposing Intervention that, while not ``determinative,''
were relevant to the proposed consent decree since they showed the
ABA was reforming its accreditation of law schools before settling
this case.
---------------------------------------------------------------------------
MSL again heavily relies on United States v. Central Contracting
Co., 537 F. Supp. 571 (E.D. Va. 1982). since Central Contracting was
decided, however, two courts in this District have rejected requests
for documents not identified by the United States as ``determinative.''
United States v. LTV Corp., 1984-2 Trade Cas. (CCH) para.66,133 at
66,335 n.3, appeal dismissed, 746 F.2d 51, 52 (D.C. Cir. 1984); United
States v. Airline
[[Page 63781]]
Tariff Pub. Co., 1993-1 Trade Cas. (CCH) para.70,191 at 69,894. MSL
attacks at great length the Government's certification in most APPA
proceedings that there were no 16(b) ``determinative'' documents. All
of the APPA proceedings were court-supervised and the courts entered
the consent decrees. The Government previously briefed this issue and
incorporates that brief by reference.\32\
\32\ At pages 11-20 of our October 10 Memorandum opposing
intervention, we briefed the Court on the Sec. 16(b) determinative
documents requirement.
---------------------------------------------------------------------------
As a second prong for discovering the Government's investigative
files, MSL claims that 16(e) of the APPA provides for such discovery in
the public interest when there is ``. . . a need to protect the
interests of injured parties by making available to them documents and
information gathered by the Government that will `assist in the
effective prosecution of their claim.''' Comment, p. 68. Of course, no
court has ordered such discovery in the 20-year history of the Tunney
Act and none of the other 40 comments in this proceeding requested such
discovery. MSL's stated purpose for its request is improper--to intrude
into the Government's deliberative process to second-guess its use of
prosecutorial discretion. Nor should MSL be able to use the APPA
proceeding here to obtain discovery it was denied in its pending case
against the ABA in the Eastern District of Pennsylvania. The discovery
sought by MSL goes far beyond the limited purpose of an APPA
proceeding, which is the review of the decree itself, not a review of
the actions or behavior of the Justice Department.
MSL's attempt to obtain discovery under 16(e) should be denied for
a number of reasons. MSL should not use this proceeding to obtain
discovery it was unable to gain in its two pending cases against the
ABA. If anything, the APPA was designed to protect injured parties who
are uninformed as to the source of their injury, not disappointed
litigants. The purpose MSL states for its discovery request goes well
beyond the limited purpose of an APPA proceeding and no court has
required such production under Sec. 16(e). Additionally, requiring the
production of investigative files will harm the public interest by
discouraging other antitrust defendants from entering into consent
decrees, and will make more difficult compliance with CIDs during
Antitrust Division investigations.
8. Non-Decree Matters
In its comment, MSL requests the Government to give further
consideration to three subjects outside the Compliant and proposed
Final Judgment. The subjects are the accreditation requirements that
substantially all law school first-year courses be taught by full-time
faculty, the prohibition against full-time law students working more
than 20 hours per week, and the library facilities and core collection
requirement. MSL correctly recognizes that these matters are outside
the scope of this APPA proceeding. Microsoft, 56 F.3d at 1459-60.
Conclusion
For these reasons, the Court should enter the consent decree upon
the Government's certification to the Court of compliance with the
APPA.
Dated: October 27, 1995.
Respectfully submitted,
D. Bruce Pearson,
Jessica N. Cohen,
James J. Tierney,
Molly L. Debusschere,
Attorneys, U.S. Department of Justice, Antitrust Division, 555 4th
Street, NW., Room 9903, Washington, DC 20001, Tel: 202/307-0809, Fax:
202/616-5980.
Certificate of Service
On October 27, 1995, I caused a copy of ``United States' Response
To Public Comments'' to be served by hand-delivery upon:
David L. Roll,
Richard L. Whiting,
Roger E. Warin,
Steptoe & Johnson, 1330 Connecticut Avenue, NW., Washington, DC
20036
and by Federal Express upon:
Ronald S. Flagg, Sidley & Austin, 1722 Eye Street, NW., Washington, DC
20006
David T. Pritikin, Sidley & Austin, One First National Plaza, Chicago,
Illinois 60603
Darryl L. DePriest, 541 N. Fairbanks Court, Chicago, Illinois 60611
D. Bruce Pearson
In the United States District Court for the District of Columbia
[Civil Action No. 95-1211 (CRR)]
United States of America v. American Bar Association.
United States' Response To Public Comments; Exhibits
Exhibits
Comment of Association of Specialized and Professional Accreditors
(``ASPA'')
Comment of National Office for Arts Accreditation in Higher
Education
Comment of Association of Collegiate Business Schools and Programs
(``ACBSP''
Comment of American Library Association (``ALA'')
Comment of Bernard Fryshman
Comment of Accrediting Bureau of Health Schools, Accrediting Council
of Continuing Education & Training, Accrediting Council for
Independent Colleges and Schools, and National Accrediting
Commission of Cosmetology Arts & Sciences (``Four Agencies'')
Comment of Clinical Legal Association (``CLEA'')
Comment of Howard B. Eisenberg
Comment of John S. Elson
Comment of Jeffrey L. Harrison
Comment of Gary H. Palm
Comment of Millard H. Ruud
Comment of Roy T. Stuckey
Comment of Lawrence A. Sullivan and Warren S. Grimes
Comment of Bardie C. Wolfe, Jr.
Comment of Marina Angel
Comment of Bernard J. Coughlin, S.J., Gonzaga University
Comment of University of La Verne
Comment of Reynaldo G. Garza School of Law (``Garza'')
Comment of Deborah Davy
Comment of Joel Hauser
Comment of Wendell Lochbiler
Comment of Larry Stern
Comment of Julie Anne Gianatassio
Comment of Robert Ted Pritchard
Comment of Donald H. Brandt
Comment of David White
Comment of Bill Newman
Comment of Russell R. Mirabile
Comment of an Author to remain Anonymous
Comment of Frank DeGiacomo
Comment of James B. Healy
Comment of William A. Stanmeyer
Comment of ``Four Concerned Lawyers''
Comment of Frederick L. Judd
Comment of Michael L. Coyne
Comment of Jackson Leeds
Comment of Robert Reilly
Comment of Robert W. Hall
Comment of Amrit Lal
Comment of Massachusetts School of Law (``MSL'')
Proposed modification to consent decree
December 5-6, 1994 Staff Analysis
Association of Specialized and Professional Accreditors
September 25, 1995.
John F. Greaney, Chief,
Computers and Finance Section, U.S. Department of Justice, Antitrust
Division, 555 4th Street, NW.--Room 9903, Washington, DC 20001
Dear Chief Greaney: The Association of Specialized and
Professional Accreditors (ASPA) appreciates the opportunity to
provide comment on the issues and actions proposed to settle the
antitrust suit of the United States of America against the American
Bar Association, filed June 27, 1995, as Civil Action No. 95-
1211(CR). A list of ASPA's 40 member specialized and professional
accrediting agencies is enclosed.
[[Page 63782]]
ASPA does not presume legal expertise in this case, but does see
and wishes to comment on the potential impact of the proposed
settlement on accreditation theory and practice as it affects the
education of students and the improvement of institutions and
programs. ASPA does not take issue with prohibitions against the use
of accreditation to establish specific dollar figures for
compensation paid to faculty, administrators or other employees.
ASPA has no comment regarding settlement terms associated with
transfer of credit based on the profit or not-for-profit status of
an institution.
ASPA supports the principle of a free and open market in the
education arena and believes that educational quality should be
pursued in ways that promote such a free market. After careful
reading of the Competitive Impact Statement filed on July 27, 1995,
ASPA concludes that the Department of Justice, in its interactions
with the American Bar Association, has gone beyond the
identification and remediation of specific problems and has created
theories and potential precedents that could do serious damage to
educational quality and to the practice of accreditation. ASPA's
comments are intended, in part, to help reduce the unintended
consequences that are likely to result if the proposed Final
Judgment is not modified prior to being finalized.
1. The document, in its tone, equates the presence of expertise
with the automatic capture of a field against the public interest,
long service with conflict of interest, and confidentiality with
collusion for sinister purposes.
We believe that in the vast majority of cases, expertise helps
to build and maintain excellence and the kind of progress that
creates and sustains a free market. Long service contributes to the
development of expertise, wisdom and consistent application of
standards and criteria in the accreditation process, as in other
situations. Surely this is one reason that most judges are appointed
for life. Likewise, appropriate confidentiality enables serious and
honest reviews of institutions and programs by minimizing
superficiality and the defensiveness that are often imposed by
public relations considerations when deliberations are not
confidential.
2. In a data-based society, it is excessive and inappropriate to
prohibit the collection or dissemination of data by an accrediting
agency or professional association.
The Justice Department has identified a problem with the
particular uses of data. The identified problem does not focus on
the existence of the data or the fact of its collection. Accrediting
agencies and affiliated professional associations collect and
publish data as a resource. That collection does not seem to be an
antitrust issue, or if so, it extends beyond accreditation into
other higher education arenas. The settlement, in our view, can
appropriately focus on the appropriate use of data, while not
focusing on or limiting its existence or generation.
3. To prohibit any use of compensation and similar data could
create a chilling effect on self-assessment and other benign
practices.
A truly comprehensive review of all elements involved in the
work of a particular university or program can require the use of
compensation and other similar data. There is a clear distinction
between using statistics to set salary and similar requirements and
using such statistics (along with other data) in local management
decisions. Data facilitate comparisons of performance against a
school or program's mission, goals and objectives. To restate, the
focus of the Competitive Impact Statement should be to limit the
inappropriate use of data, not any use.
4. The proposed final judgment inappropriately imposes specific
numerical requirements on:
a. the composition of various decision-making bodies.
The specific numbers outlined in the Competitive Impact
Statement will not in-and-of-themselves ensure either a free market
or educational quality, nor will any other set of numbers. We are
not aware of any validity and reliability study proving that the
presence of professionals or public members in certain proportions
changes the values of an accrediting agency, increases fairness or
integrity, or brings about true representation of a profession or
the public as a whole.
While we strongly favor the presence of professional expertise
and public oversight in accreditation activities, we believe that
the federal government should not dictate particular distributions,
especially as this could be viewed as an attempt to use precedent to
set national policies in these areas.
b. the length of terms of office.
When volunteers who serve on decision-making bodies or
accrediting teams are prevented by stringent term-limits from
developing sufficient experience or expertise, agency staff can have
a disproportionate influence on the accreditation process. While we
favor appropriate limits on terms, such limits are best set by the
agencies themselves. There is no evidence that suggests that shorter
terms promote the Department of Justice's antitrust and free-market
objectives.
c. the size and composition of accrediting teams.
If extrapolated over the accreditation community as a whole, the
effect of such stipulations on size and composition of site visit
teams could increase the cost of accreditation site visits by as
much as 200%-to-300% with little benefit except for the symbolic
value of representation. An accrediting agency must have appropriate
standards, well-trained volunteer personnel, and written policies
and protocols that are consistent with free-market objectives.
However, when an agency has such mechanisms in place, it is wasteful
and unnecessary to require participation formulas that are based on
place of work.
5. The specified appeal and reporting requirements between the
ABA's Accreditation Committee, Council and Board of Governors appear
to directly conflict with the U.S. Department of Education's
requirement for increased separation and independence of the
accrediting arm from the professional association.
Section 602.3(b)(1)-(3) of the USDoE's Procedures and Criteria
for Recognition of Accrediting Agencies requires accrediting
agencies with gatekeeping responsibilities to maintain an arm's
length ``separate and independent'' distance from their professional
associations (see enclosure). In addition, another section of the
DoE Criteria requires that accrediting agencies must not report to
their professional associations any accreditation information that
is not also reported to the public. Thus, accreditors are faced with
two different points of view and with conflicting requirements. It
is our contention that oversight by a larger or parent body will
neither automatically create nor prevent conflict of interest.
6. Annual publication of schools visited and their site visitors
would bring accreditation personnel decisions into a public
relations context, damage important conditions of confidentiality
and overemphasize the role of site visitors in the final
accreditation decision.
Settlement terms such as this publication requirement are likely
to reduce volunteer participation in accreditation, especially by
distinguished individuals from prestigious institutions. We see no
linkage between this concept and the maintenance of a free market.
We do see a number of harmful, probably unintended, side effects.
7. Taken together, the issues raised in 1-6 above will produce a
climate and create doctrine and precedents that will offer
incentives for fraudulent institutions and programs to use a kind of
``antitrust terrorism'' against accrediting agencies.
Under the consent decree proposed by the Department of Justice,
an institution engaged in unfair or even illegal hiring and
compensation practices could not be questioned by an accreditor,
using data, without being threatened with an antitrust action.
In summary, ASPA believes that the Department of Justice, in its
zeal to pursue perceived antitrust violations, has gone beyond what
is necessary. In doing this, inappropriate indicators of compliance
were designed. If accepted, these indicators could be extremely
destructive to the legitimate efforts of accrediting agencies to
consider the full range of available information and to work to
deploy a wide range of expertise in the service of higher education
and the public.
Accrediting agencies are expected to identify the problems an
institution or program has in complying with the accreditation
standards but are not expected to dictate how those problems should
be addresses as that is the prerogative of the specific institution
or program. In a similar way, ASPA asks that the Justice Department
identify the problems of concern and ask the specific agency, in
this case the ABA, to develop and defend a solution. The Justice
Department should not dictate the solution, especially in light of
the potentially harmful consequences that are likely to extend
beyond this particular case to the broader arena of accreditation
and higher education. For this reason, ASPA asks that prior to final
filing the Final Judgment be shortened and focused to address only
those practices that directly produce anticompetitive conditions.
We appreciate the opportunity to submit these comments and would
also appreciate
[[Page 63783]]
any opportunity to discuss these matters with you more fully.
Sincerely,
Milton Blood,
Chair, ASPA, Director of Accreditation, American Assembly of Collegiate
Schools of Business.
cc: Members, ASPA Board of Directors
ASPA-member Accrediting Agencies
Regional Accrediting Agencies
Cynthia A. Davenport, ASPA Executive Director
Enclosures:
ASPA-Member Accrediting Agencies
DoE Criteria Sec. 602.3 re: Separate and Independent
MB/cd
ASPA Membership Roster
1. Acupuncture: National Accreditation Commission for Schools and
Colleges of Acupuncture and Oriental Medicine (NACSAOM)
2. Allied Health: Commission on Accreditation of Allied Health
Education Programs (CAAHEP)--CAAHEP serves as an umbrella agency for
17 separate allied health Committees on Accreditation (CoAs)
3. Architecture: National Architectural Accrediting Board, Inc.
4. Art & Design: National Association of Schools of Art and Design
5. Business: American Assembly of Collegiate Schools of Business
(AACSB)
6. Chiropractic: Commission on Accreditation for the Council on
Chiropractic Education
7. Clinical Laboratory Science: National Accrediting Agency for
Clinical Laboratory Sciences (NAACLS)
8. Computing Sciences: Computing Sciences Accreditation Board, Inc.
9. Construction: American Council of Construction Education
10. Counseling: Council for Accreditation of Counseling and Related
Education Programs (CACREP)
11. Dance: National Association of Schools of Dance (NASD)
12. Dentistry: Commission on Dental Accreditation, American Dental
Association (CDA/ADA)
13. Dietetics: Commission on Accreditation/Approval, American
Dietetic Association (CAADE/ADA)
14. Engineering: Accreditation Board for Engineering and Technology,
Inc. (ABET)
15. Forestry: Society of American Foresters
16. Health Education: Accrediting Bureau of Health Education Schools
(ABHES)
17. Home Economics: American Association of Family and Consumer
Science
18. Interior Design: Foundation for Interior Design Education
Research (FIDER)
19. Journalism: Accrediting Council--Journalism and Mass
Communication (ACEJMC)
20. Landscape Architecture: American Society of Landscape Architects
21. Librarianship: American Library Association (ALA)
22. Music: National Association of Schools of Music (NASM)
23. Nuclear Medicine: Joint Review Committee (JRC) in Nuclear
Medicine Technology
24. Nurse Anesthesia: Council on Accreditation of Nurse Anesthesia
25. Nursing: National League for Nursing, Inc. (NLN)
26. Occupational Therapy: American Occupational Therapy Association
(AOTA)
27. Optometry: Council on Optometric Education, American Optometric
Association
28. Pharmacy: American Council of Pharmaceutical Education (ACPE)
29. Physical Therapy: American Physical Therapy Association (APTA)
30. Planning (City & Regional): Planning Accreditation Board
31. Podiatry: Council on Podiatric Medical Education, American
Podiatric Medical Association (APMA)
32. Psychology: American Psychological Association (APA)
33. Public Health: Council of Education for Public Health
34. Public Affairs: National Association of Schools of Public
Affairs and Administration
35. Radiology: Joint Review Committee (JRC) in Education in
Radiologic Technology
36. Recreation & Parks: Council on Accreditation, National
Recreation and Park Association (NRPA/AALR)
37. Rehabilitation Counseling: Council on Rehabilitation Education
(CORE)
38. Speech-Language-Hearing: American Speech-Language-Hearing
Association (ASHA)
39. Teacher Education: National Council for Accreditation of Teacher
Education (NCATE)
40. Theatre: National Association of Schools of Theatre (NAST)
DEPARTMENT OF EDUCATION
34 CFR Part 602
RIN 1840-AB82
Secretary's Procedures and Criteria for Recognition of Accrediting
Agencies
AGENCY: Department of Education.
ACTION: Final regulations.
SUMMARY: The Secretary amends the regulations governing the
Secretary's recognition of accrediting agencies in order to
implement provisions added to the Higher Education Act of 1965 (HEA)
by the Higher Education Amendments of 1992, and the Higher Education
Technical Amendments of 1993. The purpose of the Secretary's
recognition of accrediting agencies is to assure that those agencies
are, for HEA and other Federal purposes, reliable authorities as to
the quality of education or training offered by the institutions of
higher education or higher education programs they accredit.
Note: ``Separate and Independent'' issues are addressed in
Section 602.3 below. See the specific definition in subsection (b).
Sec. 602.3 Organization and membership.
(a) The Secretary recognizes only the following categories of
accrediting agencies:
(1) A State agency that--
(i) Has as a principal purpose the accrediting of institutions
of higher education, higher education programs, or both; and
(ii) Has been listed by the Secretary as a nationally recognized
accrediting agency on or before October 1, 1991;
(2) An accrediting agency that--
(i) Has a voluntary membership of institutions of higher
education;
(ii) Has as a principal purpose the accrediting of institutions
of higher education and that accreditation is a required element in
enabling those institutions to participate in programs authorized
under this Act; and
(iii) Satisfies the ``separate and independent'' requirements
contained in paragraph (b) of this section;
(3) An accrediting agency that--
(i) Has a voluntary membership; and
(ii) Has as its principal purpose the accrediting of higher
education programs, or higher education programs and institutions of
higher education, and that accreditation is a required element in
enabling those institutions or programs, or both, to participate in
Federal programs not authorized under this Act; and
(4) An accrediting agency that, for purposes of determining
eligibility for Title IV, HEA programs--
(i)(A) Has a voluntary membership of individuals participating
in a profession; or
(B) Has as its principal purpose the accrediting of programs
within institutions that are accredited by another nationally
recognized accrediting agency; and
(ii)(A) Satisfies the ``separate and independent'' requirements
contained in paragraph (b) of this section; or
(B) Obtains a waiver from the Secretary under paragraph (d) of
this section of the ``separate and independent'' requirements
contained in paragraph (b) of this section.
(b) For purposes of this section, ``separate and independent''
means that--
(1) The members of the agency's decision-making body--who make
its accrediting decisions, establish its accreditation policies, or
both--are not elected or selected by the board or chief executive
officer of any related, associated, or affiliated trade association
or membership organization;
(2) At least one member of the agency's decision-making body is
a representative of the public, with no less than one-seventh of the
body consisting of representatives of the public;
(3) The agency has established and implemented guidelines for
each member of the decision-making body to avoid conflicts of
interest in making decisions;
(4) The agency's dues are paid separately from any dues paid to
any related, associated, or affiliated trade association or
membership organization; and
(5) The agency's budget is developed and determined by the
agency without review by or consultation with any other entity or
organization.
(c) The Secretary considers that any joint use of personnel,
services, equipment, or facilities by an accrediting agency and a
related, associated, or affiliated trade association or membership
organization does
[[Page 63784]]
not violate the provisions of paragraph (b) of this section if--
(1) The agency pays the fair market value for its proportionate
share of the joint use; and
(2) The joint use does not compromise the independence and
confidentiality of the accreditation process.
National Office for Arts Accreditation in Higher Education
11250 Roger Bacon Drive, Suite 21, Reston, Virginia 22090, 703-437-0700
September 29, 1995.
John F. Greaney, Chief,
Computers and Finance Section, U.S. Department of Justice, Antitrust
Division, 555 4th Street, N.W.--Room 9903, Washington, DC 20001
Dear Mr. Greaney: I write on behalf of the National Association
of Schools of Music, National Association of Schools of Art and
Design, National Association of Schools of Theatre, and National
Association of Schools of Dance. These organizations represent over
850 programs and institutions concerned with professional education
and training in the arts. Each is recognized by the United States
Secretary of Education, and each has a distinguished history of
accreditation service.
We appreciate the opportunity to comment on the proposed
settlement of the antitrust suit of the United States of America
against the American Bar Association filed June 27, 1995, in Civil
Action No. 95-1211(CR). The four associations wish to support and
endorse positions and ideas contained in the letter about this
action from the Association of Specialized and Professional
Accreditors (ASPA) to you dated September 25, 1995.
Since each of the above arts accreditors has voluntary
membership, and since there are no connections in the arts between
accreditation and licensure, we are traditionally supportive of free
market principles in higher education. We appreciate the role the
Justice Department has played in raising antitrust policy issues for
the accreditation community. We look forward to a positive and
productive result from the continuation of your deliberations.
However, without presuming to enter into legal questions beyond our
expertise, we urge you and your colleagues to heed the warnings
contained in the ASPA letter and to be especially sure that in
pursuing issues and concerns with a particular accrediting body, the
Justice Department does not set inappropriate precedents or provide
loopholes that will preclude accrediting bodies from working
effectively in their most difficult situations with problem
institutions. By following the recommendations of the ASPA letter,
the Justice Department should be able to create clarity on pure
antitrust issues without unintended counterproductive results.
Please do not hesitate to contact us if we may provide any
additional clarification or information.
With best regards, I remain
Sincerely yours,
Samuel Hope,
Executive Director.
SH:ck
cc: Cynthia Davenport, Executive Director, Association of
Specialized and Professional Accreditors
Association of Collegiate Business Schools and Programs
July 27, 1995.
Anne K. Kingaman,
Assistant Attorney General, United States Department of Justice,
Antitrust Division, 10th and Constitution Avenue NW., Washington,
D.C. 20530
Dear Ms. Bingaman: I am writing this letter in reaction to the
recent ruling by the U.S. Justice Department on the American Bar
Association accreditation activities.
In the professional field of business there are two accrediting
bodies: (1) The Association of Collegiate Business Schools and
Programs (ACBSP) which is seven years old, and (2) The American
Assembly of Collegiate Schools of Business (AACSB) which was
established more than 70 years ago. For many years the AACSB
accrediting body dominated the professional field of business in
terms of accreditation with stringent requirements for faculty
research and faculty release time to conduct research. Our
association, ACBSP, was created to provide an opportunity to
institutions with a primary mission of teaching to have an
opportunity to become accredited without having a heavy research
emphasis.
ACBSP has maintained, since its inception, that it should
complement AACSB. The association would exist to address the unmet
needs of institutions which were not served by AACSB. Thus, ACBSP
views its market niche as business schools and programs offered by
the mid-sized and small institutions, as well as the community and
junior colleges.
There are approximately 2400 institutions that conduct business
programs in American higher education. About \1/2\ of these are two
year colleges and the other half are four year colleges, some of
which have graduate programs. Business education as a professional
field of study is four times as large as the next largest
professional field which is teacher education. AACSB does not allow
the two year colleges to be members of its association and of its
657 members only 293 are accredited by AACSB. Our association,
ACBSP, has approximately 500 members and 175 of these are
accredited. In addition, our association allows two year colleges to
be members as well as four year colleges. Take A and B summarize
some of the differences between the two organizations.
Table A.--Differences in AACSB and ACBSP
----------------------------------------------------------------------------------------------------------------
AACSB ACBSP
----------------------------------------------------------------------------------------------------------------
Mission............................ Fosters excellence in research....... Advances excellence in teaching;
stresses articulation/transfer
policy statements and agreements.
Organization....................... 657 U.S. Colleges and Universities, 475 U.S. Colleges, 9 Int'l.
293 accredited. Only accredited institutions, 175 accredited. All
schools vote on standards. member schools vote on standards.
Accreditation Philosophy........... Mission-based: (new) encourages Mission-based: encourages creativity
diversity. and innovation.
Types of Accreditation............. Bachelors, Masters, Doctorate........ Associate, Bachelors, Masters.
Evaluation......................... Process of review and evaluation Outcomes assessment program with
required. results used for improvement
required.
Costs.............................. See Table B.......................... See Table B.
----------------------------------------------------------------------------------------------------------------
Table B presents a comparison of membership and accreditation
expenses.
Table B.--A Comparison of Membership and Accreditation Expenses
------------------------------------------------------------------------
AACSB ACBSP
------------------------------------------------------------------------
Annual Dues................................ *$2,000-$3,400 $800
Non-accredited Institutions................ **800
Initial Accreditation:
Application............................ ***3,000-5,000 1,350
Continuing Analysis.................... ***3,000-5,000 100
Reaccreditation............................ ***4,000-6,500 1,350
[[Page 63785]]
Candidacy:
Application............................ ***2,000-3,000 350
Maintenance............................ 1,000-1,500 0
----------------------------
Total................................ 15,000-24,400 3,600
------------------------------------------------------------------------
* The annual dues of $2,100 are for business administration
accreditation; the annual dues of an additional $1,300 are required
for Accounting accreditation for a total of $3,400. ACBSP does not
have a differential fee for accredited institutions.
** Non-accredited AACSB institutions pay an annual fee of $800.
*** Initial accreditation fee is $3,000 for Business or Accounting;
$5,000 for Business and Accounting. Reaccreditation fee of $4,000 for
Business or Accounting and $6,500 for Business and Accounting.
Candidacy fee is $2,000 for Business or Accounting and $3,000 for
Business and Accounting.
Some states have taken the position that their public
institutions must obtain AACSB accreditation and these schools are
prohibited from obtaining accreditation from our association. The
reason for this is partly because AACSB as an organization and its
membership (which represents the large doctoral granting
universities) have been very jealous of our existence and they try
numerous schemes to prevent us from obtaining additional membership.
One scheme is to form a ``lock-out'' in state systems of higher
education which forces the public institutions to seek accreditation
from AACSB. Where licensing is involved, such as accountants sitting
for the CPA exam, some states have used the ``lock-out'' system to
require individuals that sit for the CPA exam to have attended an
AACSB accredited institution.
We feel that the above practices represent restraint to trade
and are in direct opposition to the antitrust laws of this country.
To add to our dilemma, ACBSP is currently recognized by the U.S.
Department of Education and the other association; AACSB is not.
AACSB is recognized by a fairly new organization called the
Commission on Recognition of Postsecondary Accreditation (CORPA).
The accreditation process of ACBSP is very rigorous and requires
that institutions meet 26 standards of quality and integrity.
Despite the fact that these standards are more rigorous than those
imposed by AACSB, some states continue to give AACSB an unfair
advantage by granting this organization a virtual monopoly in their
jurisdiction.
We would like very much to have a ruling from you concerning the
legality of states locking out our nationally recognized accrediting
body from being used to accredit business programs in public
institutions. With such a ruling we will be able to deal with states
such as Louisiana, Tennessee, Maryland, Florida, etc.
Thank you for your assistance in this matter.
Sincerely,
Harold W. Lundy, Ph.D.,
Executive Director.
cc: ACBSP Board of Directors
American Library Association, Office for Accreditation
50 East Huron Street, Chicago, Illinois 60611-2795, U.S.A., 312-280-
2432, 800-545-2433, Ext. 2432, Fax: 312-280-2433
September 29, 1995.
John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of Justice,
Antitrust Division, 555 4th Street, NW., Room 9903, Washington, D.C.
20001
Dear Mr. Greaney: On behalf of the Committee on Accreditation of
the American Library Association, I would like to comment on the
following issues related to Civil Action No. 95-1211(CR) against the
American Bar Association. We do so from a desire to preserve the
values inherent in the voluntary accreditation process now in place
in American higher education, and to ensure that the practices
undertaken by accrediting agencies are of the highest quality and
benefit both to the American public and to the educational
institutions themselves.
The integrity of accreditation rests in part on the values
inherent in peer review; that is, each peer must take responsibility
to ensure that others' behavior does not compromise the process.
This is a self-regulatory process and each member must encourage the
entire community to meet the standards and expectations for good
practice. Thus, we welcome vigilance that results in improved
practice.
We strongly endorse self-regulation and express our concern that
the proposed settlement may promote a bureaucratic and regulatory
environment that his antithetical to achieving excellence in higher
education.
Specifically, we wish to comment on two points: directives
relating to the size and composition of accrediting teams and the
degree to which the competitive impact statement may unintentionally
affect the ability of accrediting agencies to perform their function
in a free and open environment.
The American Library Association recently revised its
accreditation standards and practices. The revisions were prompted
not by external pressures from outside regulators, but by a real
desire for self-improvement. As a result of these revisions, we
believe that our current procedures reflect best practices. Our
procedures stipulate that size and composition of the external
review panels who evaluate the programs may vary according to the
complexity and focus of the program. Our panels consist of both
visiting and non-visiting members, and have historically included
both practicing professionals and faculty. Each member of a panel
represents a financial investment on the part of the program, and an
investment of time, energy and expertise on the part of the
panelist. Most of our panel members have a broad range of experience
and a single individual may be both a practitioner and a faculty
member (adjunct faculty, for example, represent the practitioner and
educator perspective) or they may be veterans of careers that have
included both practice and teaching at various times. Setting quotas
for certain types of individuals seems to us to set a dangerous
precedent and introduce unnecessarily regulatory practices that
serve the best interests of no one.
Similarly, the overall aim of accreditation as we see it is to
produce a diagnostic accreditation report and to provide incentives
to address the identified problems. We expect programs to comply
with our standards, but we do not presume to dictate solutions. We
believe the solutions must arise from the particular context of the
program within its institution, its region, and its identified
constituency. This is a fundamental principle and one that we
believe applies to problems identified through the peer review of
accrediting agencies themselves. Therefore, we cannot support
prescriptive solutions such as the one proposed in the case of the
American Bar Association.
We appreciate the opportunity to comment on these issues.
Sincerely yours,
Prudence W. Dairymple, Ph.D.,
Director, Office for Accreditation.
cc:
Brooke Sheldon, Ph.D. Chair, ALA Committee on Accreditation
Elizabeth Martinez, Executive Director,American Library
Association
Bernard Fryshman, Ph.D.
1016 East Second Street. Brooklyn, N.Y. 11230, (718) 253-4857
October 2, 1995.
Re: Civil Action No. 95-1211 (CR) [United States of America vs.
American Bar Association]
John F. Greaney,
Chief, Computers and Finance Section, U.S. Department of
Justice, AntiTrust Division; Room 9903, 555 4th Street, NW.,
Washington, DC 20001
[[Page 63786]]
Dear Mr. Greaney: I have headed a nationally recognized
accrediting body since 1973, and served for two terms on the
National Advisory Committee on Accreditation and Institutional
Eligibility (now the National Advisory Committee on Institutional
Quality and Integrity). In addition, I have been teaching at the
university level since 1962. I believe I have a perspective which
you may find helpful in reviewing your personal Final Judgment in
the above named case. I very much appreciate this opportunity to
comment.
I. The Focus of My Comments
It would be presumptuous of me to enter into the debate between
the Department of Justice and the ABA. Where I do address ABA
issues, it is only to be able to react to Department of Justice
contentions, which, by extrapolation, can be applied to other
accrediting agencies.
II. Are Anti-Trust Considerations Relevant To Higher Education?
Higher education is characterized by a sense of mission against
which all considerations of commerce and competition must be
weighed. Higher education in America traces its antecedents to a
culture of service which pervades Academe and influences day to day
policy. Two examples will suffice to illustrate my point.
(I) Most colleges and universities survive on the basis of
student tuition and research. Consider a student who is doing poorly
in his studies and enrolls in the class of a professor who opens up
the excitement of learning. At the end of the term, in consultation
with this professor, the student concludes that his career would be
better served by transferring to another institution.
The professor does everything possible to facilitator this move,
including contacting colleagues, writing letters of recommendation
and helping the student search for applicable scholarships and
fellowships. The professor knows full well that her classes will be
the poorer for the student having transferred, and the student's
tuition dollars will now help pay someone else's salary. Yet,
everyone associated with the school recognizes the welfare of the
student and his ultimate contribution to knowledge as the true goals
of the institution.
(II) A senior research professor at a university works with his
graduate students in an area of current research, helps them attain
their Ph.D.'s and then moves heaven and earth to try to place them
in tenure track positions at other universities. Knowing full well
that these students will now be competing with him for research
dollars and for quality graduate students.
In a word, postsecondary institutions have a bottom line which
is quite different from that of commercial enterprises.
III. Accreditation is an Integral Part of the Culture of Higher
Education
Accreditation agencies emanate from the community of schools
they sever, and are guided by the same sense of mission. Accrediting
bodies have an uninterrupted record of opening their doors to ever
increasing number of schools. Highly paid professionals give gladly
of their time to serve on site visiting teams, on committees and
commissions, for little or no recompense.
Accreditation professionals spend untold hours working with
applicant institutions to help them meet standards. Visitors are
encouraged to make helpful suggestions to institutions which they
visit. The fact that so few institutions are turned down in
petitions for renewal of recognition, even in this period of service
competition for students, is inconsistent with accusations that
accreditors have been stifling competition.
IV. Accreditation Involves the Application of Standards
Whenever standards are applied, there will be those who fail to
meet those standards. Where judgement is involved, there will always
be questions.
Scholarly journals publish only refereed papers. If I, a
physicist, submit a research paper to a journal, it will be reviewed
by someone working in the same field and therefore competing with me
for recognition and research grants. If my paper is not accepted for
publication, the outside observer might conclude that there was a
desire to stifle competition. Yet, no one in the world of science,
no matter how aggrieved, would come to this conclusion.
Accreditation, like all of higher education, is not an exact
science. Judgement plays a large role in the decision making
process, and disagreement is inevitable. But the honest application
of standards is a far cry from an intent to stifle competition.
V. States Determine Eligibility for Bar Exams
ABA standards are universally recognized as establishing the
quality of a law school; and any seeming restrictions on competition
are a function of those who use the ABA list of accredited schools--
not of the ABA itself! Thus, the fact that 40 states open the bar
exams only to ABA graduates is not the fault of the ABA. Rather the
states should be asked to open the bar exam process. Can an
accrediting body be blamed for the misuse of its acc
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