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December 22, 2011

New Law School Sues Bar Association


The New York Times
December 23, 2011

A law school in Tennessee that was denied accreditation by the American Bar Association sued the organization on Thursday, accusing it of antitrust violations and of depriving the school of due process.

The Duncan School of Law in Knoxville, Tenn., whose quest for A.B.A. approval was the subject of an article in The New York Times on Sunday, learned on Tuesday that its application had been turned down. It filed its case in the United States District Court for the Eastern District of Tennessee.

The A.B.A.’s decision was a major blow to Duncan, which is two years old and has 190 students. The association is the government-endorsed regulator of law schools and without the group’s blessing, Duncan students face severely limited career options. All but a handful of states require a diploma from an A.B.A.-accredited school in order to sit for the bar and practice.

“It was not our goal to be adversarial with the A.B.A.,” said Duncan’s dean, Sydney A. Beckman, “but we felt as though we had to do this to obtain a fair review. All we want is what we think we’ve earned: provisional accreditation.”

John O’Brien, chairman of the association’s council that oversees accreditation, said Duncan had been denied approval because it did not measure up in essential areas.

“We followed all our procedures,” Mr. O’Brien said, “and as is the case with any school that receives an adverse result, it’s because standards weren’t met in one way or another.”

Specifically, the council found that Duncan, which is part of Lincoln Memorial University, fell short of a standard that prohibited the school from enrolling students who did not appear “capable of satisfactorily completing its educational program and being admitted to the bar.” The standard, say legal scholars, is to protect students from schools that are trying to cover their costs by admitting people who are unlikely to succeed.

“What is critical to understand here is that the council has a duty to prospective students when it grants a seal of approval,” said Stephen Gillers, a New York University law professor and expert on legal ethics. “Their interests may not always align with the interests of the school in winning approval. The people who run the school and the students they want to attract are two different constituencies. The council’s primary duty is to the students.”

Mr. Beckman countered that the median Law School Admission Test score of Duncan’s incoming students is 147 (out of a possible 180), which he said met or exceeded the scores of eight accredited schools. He added that the grade-point average of incoming students met or exceeded roughly 30 A.B.A.-approved schools.

But as supporters of the standards note, A.B.A.-approved law schools are reviewed every seven years and a school whose incoming students have subpar test and grade-point averages may get a warning or face the possibility of losing accreditation — though losing accreditation seems unlikely. The A.B.A. has never revoked accreditation from a fully accredited law school.

The Times used the story of Duncan’s four-year pursuit of A.B.A. accreditation to look at the costs of starting a new law school, and in particular, a school that was hoping to keep tuition to a minimum. The main benefactor of the school, a retired entrepreneur named Pete DeBusk, said that tuition could have been half of the eventual price — which is $28,000 a year — except for the expense of meeting the association’s standards.

He and Mr. Beckman cited the expense of the faculty, which is about half of the entire school budget. The association’s standards limit the use of adjunct instructors, which cost far less than the full-time, tenured professors found at most A.B.A.-approved law schools.

What are the odds of Duncan prevailing with this lawsuit? Worse than dim, predicted Professor Gillers.

“The lawsuit is doomed,” he said. “The antitrust argument seems to be that the A.B.A. is limiting the number of law schools. But there are 200 A.B.A.-approved law schools, so if the council’s secret agenda is to limit competition, it’s doing a lousy job.”

Mr. DeBusk, Duncan’s principal backer, appears undaunted. Mr. DeBusk, the founder of a medical device company who was raised in a trailer home in Kentucky, said the school was part of his mission to bring education to the people from the Appalachian Mountains. On Thursday, he was in no mood to retreat.

“We’ll be accounted for,” he said, “We go at this hard.”