The First Amendment — or the Eighth and Fifth?

California is endlessly entertaining. Consider the Southern California Institute of Law, which, in February, filed a lawsuit in federal court against its accreditor, which requires as a condition of accreditation that, on its website, SCIL provide a link to a page indicating the bar-passage rate of its graduates.

Now, you cannot blame the SCIL for fighting this requirement. In 2012, not one of the 43 graduates of the school who took the California bar examination managed to pass; and, in the years stretching from 2007 to 2012, the failure rate was 93%. According to Jonathan Adler at the Volokh Conspiracy,

The school argues — in a federal lawsuit filed February — that the rule infringes on its speech rights. It claims that it forces them to endorse the notion that a school’s exam passage rate reflects the quality of its legal education. SCIL thinks one has nothing to do with the other.

“[D]efendants have no right to foist their ideology onto SCIL and compel it to refer or disclose bar passage rates of its graduates,” the school stated in a legal brief last week. . . .

“There are good years, and there are bad years when it comes to bar passage,” said SCIL’s attorney, George Shohet. “It’s not something that the school can control.” He said going to law school and passing the bar require “different skill sets.”

Now, I am not a lawyer. So, I will readily confess that I lack the sophistication to understand this argument. If truth be told, I glory in this particular lack of sophistication.

Methinks, however, that SCIL would be on stronger grounds were it to appeal to the Fifth and Eighth Amendments. It really is cruel and unusual punishment to expect such an institution to incriminate itself.

But, perhaps, the lawyers in our midst can correct my misapprehension.

  1. ctlaw
    Skyler: Pretty good example of why their graduates don’t pass the bar, if you ask me.  The accreditor is not a government entity, and it has an interest in keeping certain standards for those schools it is asked to endorse.   · 7 hours ago

    The accreditor is a government entity, the state bar.

  2. FloppyDisk90

    Based on this you would, of course, be in favor of your students’ performance on standardized history tests also being made public, correct?  

  3. Skyler

    Pretty good example of why their graduates don’t pass the bar, if you ask me.  The accreditor is not a government entity, and it has an interest in keeping certain standards for those schools it is asked to endorse.  

  4. Western Chauvinist
    FloppyDisk90: Based on this you would, of course, be in favor of your students’ performance on standardized history tests also being made public, correct?   · 0 minutes ago

    Snort! Seriously?

    I think Doc Rahe’s students would do just fine — unless the test was written by California’s GLBTQQ lobby with questions focused on the history of transgressives’ participation in the agriculture industry of California’s Central Valley… That’s probably not on the good professor’s syllabus.

    I explained to my kids the provisions of California’s new Timmy is a Girl law tonight. Even they were entertained… and grateful we’ll never live in California and be subject to the particular PC tyrants sitting in the California legislative chamber. 

    I think you’ll enjoy your year, Professor. And then I think you’ll be glad to leave. Makes Michigan look positively sane!

  5. Scarlet Pimpernel

    Note the implicit admission that law school is not about preparing men and women to be lawyers.

    Why is it mandatory in so many states? And why is it three years?

    On the other hand, perhaps SCIL will start to complain about the abuse of mandates on institutions receiving public funds.

  6. Cato Rand

    Even assuming an accreditor is an agent of the state (a question I don’t know the answer to but which might be closer then you think) this isn’t a case if compelled speech and therefore isn’t a first amendment issue.  SCIL has every right to keep silent and accept the consequences — non-accreditation.

  7. Percival
    Paul A. Rahe:

    It claims that it forces them to endorse the notion that a school’s exam passage rate reflects the quality of its legal education. SCIL thinks one has nothing to do with the other.

    What standard would SCIL rather see used?  Good intentions?  Purity of heart?  A sharply dressed faculty?

    Maybe part of SCIL’s problem is that they have students who don’t appear to be particularly discerning.

  8. Shane McGuire

    This is pretty funny, actually. In Texas the bar is graded on somewhat of a bell curve. (I did a lot of research into how this mysterious test was graded before I took it.) It’s basically geared so that x-ish% of students pass.

    Questions that virtually no one gets right are kicked, for example.

    It is true that bar passage and test passage are different skill sets. 

    In the end, though, bar passage is about minimum competence. There are plenty of morons in Texas who are lawyers, and I’m willing to be that the same is true in California. 

    Looking back, I think I could’ve taken the 6 week bar prep course after the first year and passed the bar, but I wouldn’t have had a solid education at that point.

  9. Paul A. Rahe
    C
    FloppyDisk90: Based on this you would, of course, be in favor of your students’ performance on standardized history tests also being made public, correct?   · 1 hour ago

    Were this done generally, it would improve history education.

  10. FloppyDisk90
    Paul A. Rahe

    FloppyDisk90: Based on this you would, of course, be in favor of your students’ performance on standardized history tests also being made public, correct?   · 1 hour ago

    Were this done generally, it would improve history education. · 16 minutes ago

    Agreed.  Product transparency in higher education is sorely lacking in general.

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