Janet Reno, for-profit law schools, and a reversal at the New York Times

Recent stories, from commentary in the Atlantic to the opinion pages of the New York Times, lament the current state of legal education. The current target of their ire? For-profit law schools operating in the United States. Note one takeaway from the Times:

If this sounds like a scam, that’s because it is. Florida Coastal, in Jacksonville, is one of six for-profit law schools in the country that have been vacuuming up hordes of young people, charging them outrageously high tuition and, after many of the students fail to become lawyers, sticking taxpayers with the tab for their loan defaults.

There is a great irony, of course. These institution exist solely because of the decision of the Department of Justice in the mid-1990s to compel the American Bar Association to accredit these institutions--a move that the Gray Lady herself once praised.

(Let me confess at the outset that I know almost nothing about antitrust law.) In 1995, the Department of Justice and the American Bar Association entered a consent decree on the heels of DOJ antitrust allegations.

The Janet Reno-led DOJ believed that law school tuition was too high, and that it was too high largely because of cartel-like practices by the ABA that drove up the cost of faculty salaries. The ABA's exclusion of for-profit law schools from receiving accreditation was also deemed a culprit. Breathless reports from DOJ officials responsible for brokering a settlement anticipated an end to practices leading to "artificially inflated levels" of faculty salaries and "other costly accreditation requirements that had little to do with the quality of the legal education they provided."

The 10-year consent decree was renewed recently, and the ABA has been found on a previous occasion to have violated provisions of the decree. But these are the small details that arose out of the settlement; what of two larger points, cost and for-profit institutions?

First, there is no evidence that this consent decree did anything to improve the affordability of legal education, despite DOJ assurances to the contrary. Indeed, student indebtedness rose dramatically after 1995. One ABA report in the early 2000s noted that about 74.8% of students borrowed money to attend law school in 1992-1993, and the average amount borrowed was $37,637. In 1995-1996, the percentage rose 84.5%, and the amount borrowed rose to $49,415. And just a few years later, by 1999-2000, the percentage borrowing stood at 86.4%, and the average amount borrowed stood at $77,300. Slightly different statistics from the ABA reveal that in 2011-2012, the average amount borrowed was $84,600 at public schools and $122,158 at private schools.

My point is not whether these figures are too high, too low, or just right, or even to include some inflation-adjusted evaluation of the change in cost over time. (While I imagine most find these debt loads high, claims have been made suggesting that the whole-career value of a law degree is quite worth such debt loads, at least generally and historically.) Rather, it is to suggest that the DOJ's projection that its consent decree would help alleviate the costliness of legal education has never come to fruition. (Although, I suppose, one could claim that the indebtedness would have been far worse but for the consent decree, which is, perhaps, to take the rather bold promise of the DOJ and turn it into a quite modest claim.)

Furthermore, the ABA had categorically prohibited accrediting for-profit law schools. Today, there are six such schools, precisely the schools that the New York Times et al. critique so harshly. My point is not to target any particular institution or type of institution, but simply to note that for-profit law schools were once deemed something good that should be pursued! Indeed, it was the very same opinion pages of the New York Times that, without a hint of irony, the editors penned the following words twenty years ago:

The A.B.A. refused, for example, to accredit law schools that earned profit, paid low salaries or failed to provide paid leaves for faculty.

These rules have nothing to do with guaranteeing students that they are gaining professional training, and everything to do with guaranteeing faculty that they will be paid top dollar. The losers are students, who are forced to pay higher tuition than would otherwise be charged.

Yes, it was the Times twenty years ago praising the potential future influx of for-profit law schools as a means of providing education at a better cost to law students. History, I suppose, can be lost in a given moment. But providing a bit of perspective is useful to recognize that the very problems identified in legal education today were the direct result of DOJ decisions that were, at one time, lauded as the solution.