As a lawyer with over 15 years of litigation experience, I must confess I am a bit biased towards resolving disputes in court. There is nothing quite like the feeling of vindication that comes when an impartial judge or jury tells your clients that they were right.
Yet even I was left scratching my head at one law school’s recent decision to sue its accreditor in federal court. The law school sought to stop the accreditor from publishing an adverse finding about the school’s compliance with accreditation standards. The law school doubled down by seeking an early court order silencing the accreditor while the parties litigated their dispute to conclusion. This gambit resulted in an early loss in court. Worse yet, it resulted in tremendous publicity of the accreditor’s decision and left the school with a black eye. Ironically, the school’s litigation strategy may have done more damage to its reputation than the accreditor’s web posting ever could have.
A bit of background is required to understand this saga. In order to practice law in the United States, lawyers must meet certain requirements set by the state in which they wish to practice. Most states require lawyers to have graduated from an accredited law school. The American Bar Association (ABA) is the nationally-recognized agency for accrediting law schools. Thus, accreditation is a critical issue for most students in choosing a law school, particularly those who want the flexibility to practice anywhere in the country.
Here, the Thomas M. Cooley Law School is ABA accredited and has been for over 40 years. But in the fall of 2017, the ABA questioned Cooley’s compliance with certain accreditation standards. Specifically, the ABA looked at whether Cooley admitted only “applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar.” Ultimately, the ABA determined that Cooley failed this test and gave it three months to submit a plan to return to compliance. The school ordinarily will have two years to come into compliance.
The ABA notified Cooley of its decision—and its intent to publish its decision—by letter dated November 13, 2017. In response, Cooley sued the ABA in federal court the next day. Chief among Cooley’s complaints was its claim for injunctive relief. Cooley sought an early ruling barring the ABA from publishing its finding of noncompliance while the parties litigated.
In support of its request, Cooley argued that it was a critical time for students deciding where they wanted to go to school and that publication of the ABA’s findings would irreparably harm its reputation. Conversely, Cooley asserted, the ABA would suffer no harm if silenced while the parties litigated. Curiously absent from Cooley’s papers, however, was any analysis of what impact its request would have on current and prospective students if granted. This was a critical omission where the applicable legal standard required the court to consider the public’s interest before granting the relief Cooley sought.
It certainly appears as though the judge took a dim view of Cooley’s request. In denying Cooley’s motion, the court described the case as “a law school’s attempt to prevent current and prospective students from having access to accurate information about its accreditation status.” Ouch. It found that the ABA’s decision “certainly implicates the School’s integrity” and that future students “should have access to reliable information to enable them to make informed decisions on where to attend law school.” Double ouch.
Not surprisingly, the ABA also reacted negatively to Cooley’s poke in the eye. Now on the defensive, the ABA isn’t holding any punches. It recently asked the court to toss Cooley’s claims, baldly stating: “Cooley Law School is admitting applicants who are unlikely to graduate from law school.” The ABA provided a detailed description of the opportunities Cooley had to prove its compliance with its standards and how it had repeatedly fallen short. It provided chapter-and-verse detail about the unacceptably low bar passage rates of Cooley gradates and their decline over time.
In comparison to the ABA’s legal missiles, the letter precipitating this whole dispute was weak tea. It made only oblique references to the standards Cooley allegedly failed to meet and it outlined a path for Cooley to come back into compliance. Now, those standards—and Cooley’s alleged failure to meet them—are fully aired. Ironically, what started as a mission to preserve its reputation has only muddied its reputation further. As the court noted: “Cooley’s decision to institute, and proceed with, this action is the primary cause for the reputational harm alleged.”
There could be any number of legitimate strategic reasons Cooley picked the path it’s on. Perhaps it wanted to get an early read on whether the judge viewed the ABA’s decision as final or subject to further appeal. Perhaps it deemed it necessary to make a strong show of force against its adversary. And at the end of the day, it may even prove that the ABA was mistaken all along and enjoy that sweet taste of vindication. But whatever its aim, the means seem hard to justify from this vantage point.
A common piece of advice to trial lawyers is to describe your case to a buddy at the bar. If your buddy doesn’t understand it over a beer, you’ve made your case too complicated and need to simplify it. I’d rephrase that advice for lawyers representing educational institutions: describe your case to the institution’s communications department. If you wind up with vomit on your shoes, go back to the drawing board.
Written by Therese King Nohos