Is More Transparency about Law Schools Desirable?
Don LeDuc, President and Dean | September 24, 2012
Do you favor transparency? Should there be more transparency in our society? Should law schools be more transparent? What is transparency anyway? Is transparency always good? What should be disclosed? What should not? And what about privacy? Do public and private institutions have a right to privacy? Do their rights, if they have any, differ? Do concerns about transparency conflict with concerns about privacy? Who should decide the answer to these questions?
Put me down as favoring disclosure and increasing the level of transparency. But please put the debate, or controversy, over transparency in context.
Much of the current discussion is premised on the basis that transparency and disclosure are good and that privacy and non-disclosure are bad. With the adoption of freedom of information acts and open meetings acts across the nation in the 1970s, our legislative bodies seemed to embrace something akin to transparency, but those acts contain many limiting definitions restricting their application to specific bodies doing specific things, and they provide many exceptions from disclosure. And they triggered a privacy concern, leading to more legislation protecting against improper disclosure, meaning less transparency.
So, it is safe to say that transparency is not always good, and disclosure is not always consistent with public policy or sentiment. Of late, the approach of those favoring transparency and disclosure has been to assert that law schools that don't disclose whatever it is that they desire to have disclosed are engaged in deceptive practices or worse. They assert, with impunity, that the unrevealed information would favor their point of view and show the law schools as bad. According to this critical view, if the law schools do not disclose, they have something to hide.
This debate, of course, delights the media and incites the bloggers, because they benefit from the debate more than they would from the information that is sought. It sells copy, invites hits on websites, and raises advertising rates or egos. Others are simply what we have long referred to as officious intermeddlers with no real stake in the outcome. Some are just disaffected people with too much time on their hands. Very little of the current drumbeat for disclosure is the work of disinterested and objective observers. This all tends to diminish the quality of the debate about transparency, mainly because it is totally one-sided and poorly argued.
We need fair and uniform disclosure
Law schools are competitors, whatever collegiality they might assert. We compete for students, tuition dollars, rankings, and jobs for our students and graduates. While we share the enterprise of legal education, we do so in different ways and with different missions. We have our own versions of trade secrets. We have both internal and external reasons to keep information confidential, some of which relate to protecting the privacy of our employees and our students.
For law schools, I submit that the proper focus for debate is that we all exist, whether public or private, because we have been granted some form of government permission to operate and are covered by some form of government regulation. The public universities and schools operate with direct government sanction, including even status as constitutional entities. The private universities and independent law schools all have undergone some form of government permission, including licensing. They have corporate status and most have non-profit status, both of which are forms of government permission and approval. Proprietary institutions likewise exist by government sanction. Because of this government involvement, we should be publicly accountable.
The Department of Education regulates colleges and universities and authorizes other bodies to accredit them. Currently 201 law schools are accredited by the American Bar Association's Council of the Section of Legal Education and Admissions to the Bar. Many of these law schools are indirectly accredited by regional accrediting bodies, because their universities are directly accredited, while a few of the independent law schools also have regional accreditation. And the federal government now directly loans money to law students and depends on the law schools to assist them in their lending function. All of this led one court to describe the accrediting bodies as proxies for the Department of Education.
Most law school data is treated by the ABA as confidential
All of this generates a demand for reports. They are demanded by the United States Department of Education, by some state executive and legislative bodies, by the various licensing bodies, by courts, and by accrediting agencies. These are required reports submitted by all law schools. Although the requirements vary and the quality of the reporting systems varies, they are done by all law schools. And they contain standardized information that would lend itself to comparisons of law schools.
The common denominator for law schools is the annual questionnaire each is required to submit. In addition, the schools submit additional questionnaires regarding their creation, any significant changes that they wish to undertake, and any programs they wish to add. They also undergo periodic inspections by accrediting agencies to assure that they remain in compliance with whatever governing standards are then applicable, generating even more questionnaires.
The ABA publishes an Official Guide to ABA-Approved Law Schools that includes some of the information included in the annual questionnaires. That body also requires that the individual schools publish certain information. Based on these annual questionnaires, the ABA also distributes reports it calls "take-offs" that compile much of the information provided by the schools in comparative lists or in summaries. However, the ABA treats all of this take-off information as confidential and prohibits each school from publicly disclosing any of that information except that which is about itself that it may choose to disclose. Thus, schools cannot provide context to that information by comparing themselves to other schools.
The ABA does not disclose important accreditation decisions
The ABA also enforces uniform standards and interpretations as part of its accreditation duties. Apparently, that body has granted an increasing number of variances from these requirements. These departures create a degree of inconsistency, of course, but they also provide an unfair advantage to the schools that received them. Disclosure of the variances would permit the other schools to learn about and perhaps seek similar favorable treatment. Other than avoiding similar requests from others, there is no reason to treat these decisions as confidential. To the contrary, disclosure would make the public and the other schools aware that some schools are allowed to avoid complying with the standards that presumably all accredited schools meet.
Broader disclosure is warranted
Cooley has a long tradition of openness and disclosure, including disclosure of the reports produced by the accrediting bodies that are adverse or critical. We have done that so that our students are aware of what is occurring in the accreditation process. Where we have access to information about other schools, particularly through the ABA Official Guide, we provide detailed comparisons of Cooley to the other schools. We would like to be able to compare other aspects based on the information in the ABA take-offs, but cannot do so because of the ABA confidentiality policy. Very little of that information is sensitive, including the financial information. For example, we are now prohibited from comparing physical plant size because that item is no longer included in the Official Guide. And, because 40% of the law schools are public and already subject to state FOIA and OMA laws, much of that information could be obtained, but only with difficulty.
We would like to see the presumption of non-disclosure removed, to be replaced by a presumption that all information required in the ABA questionnaires is public information. The only exceptions would be to protect from disclosure anything that would reveal information about individual students, staff members, or faculty members and or violate privacy laws. The simplest way to do this would be for the ABA to publish the take-offs on its website, making them available to anyone who wanted the information. They could charge a fee to those who seek this information.
In our view, the situation regarding transparency has deteriorated to the point that suspicion now overrides reality. Precisely because the schools have nothing to hide, disclosure should occur. With the Internet now capable of turning every perceived fault in a school into a matter of widespread discussion and every misperception into a media, and even Congressional, reality, we have reached the point where full disclosure is the lesser of the evils and the greater of the choices.
The schools that favor candor and embrace transparency are at a competitive disadvantage when they provide information that others withhold. By disclosing all ABA-required information and allowing all law schools to use the information, we would keep the playing field level and raise the quality of debate. If there arose a demand for specific information not currently compiled by the ABA, the ABA could respond to that directly, rather than putting that burden on the individual law schools. We would change the focus from the need for transparency to the substance of what is disclosed. Indeed, we would change the nature of the debate from perception to reality. How harmful can that be?