Lincoln Memorial University Duncan School of Law v. American Bar Association (TV1)

Filing 20

AFFIDAVIT in Opposition re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Permanent Injunction filed by American Bar Association. (Thompson, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION

LINCOLN MEMORIAL UNIVERSITY,
DUNCAN SCHOOL OF LAW,
Plaintiff,
v.
THE AMERICAN BAR ASSOCIATION,
Defendant.

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Case No. 3:11-CV-608
Honorable Thomas A. Varlan
Magistrate C. Clifford Shirley

DECLARATION OF HULETT H. ASKEW

Patricia J. Larson*
Stephanie Giggetts*
American Bar Association
321 N. Clark Street
Chicago, IL 60654
[phone]

Howard H. Vogel
TN BPR # 001015
O’Neil, Parker & Williamson, PLLC
7610 Gleason Drive, Suite 200
Knoxville, TN 37919
[phone]
Anne E. Rea*
Michael P. Doss*
Linda R. Friedlieb*
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
[phone]
Attorneys for Defendant
American Bar Association

*Pro hac vice applications pending

TABLE OF CONTENTS
I.

Introduction ..........................................................................................................................1

II.

Accreditation ........................................................................................................................1

III.

The Section, Council, and Accreditation Committee ..........................................................3

IV.

Standards, Interpretations, and Rules...................................................................................3

V.

Provisional Approval of Law Schools .................................................................................4

VI.

Appeal of a Council Decision ..............................................................................................8

VII.

The Founding of Duncan and Events Leading to
Its Application for Provisional Approval .............................................................................9

VIII.

The March 2011 Site Visit and Site Report .......................................................................12

IX.

Duncan’s Response to the Site Report and Updated Data .................................................15

X.

The September 2011 Accreditation Committee Meeting ..................................................17

XI.

The October 12, 2011 Report and Recommendation of the
Accreditation Committee ...................................................................................................18

XII.

Duncan’s Response to the Accreditation Committee’s Recommendation ........................28

XIII.

The December 2, 2011 Council Meeting ...........................................................................33

XV.

Subsequent Events .............................................................................................................40

XIV. Exhibits ..............................................................................................................................41

i

I, Hulett H. Askew, hereby state and declare as follows:

I.

Introduction
1.

My name is Hulett H. Askew. I am the Consultant on Legal Education

(“Consultant”) to the American Bar Association (“ABA”). In that capacity, I am the director of
the ABA’s Section of Legal Education and Admissions to the Bar Accreditation Project
(“Section”). I assumed this position on September 1, 2006. Prior to being named Consultant, I
served as Director of Bar Admissions for the Supreme Court of Georgia from 1990 through June
2006.
2.

From 1990-96, I concurrently served as Executive Director of the Georgia Chief

Justice’s Commission on Professionalism. From 1983-90, I served as the Director of the Civil
Division of the National Legal Aid & Defender Association in Washington, DC. Prior to that, I
worked for the Legal Services Corporation in Washington, D.C. and Atlanta, Georgia, from 1976
to 1983. From 1972-75, I served as Deputy Regional Director and then Regional Director of
Legal Services for the Office of Economic Opportunity in Atlanta, Georgia.
3.

The facts set forth in this Declaration are based on my personal knowledge, my

review of records of the regularly conducted activities of the Section, and my review of publicly
available information. If called to testify as a witness, I can testify competently to the matters
and facts set forth in this Declaration. This Declaration is submitted in support of Defendant
American Bar Association’s Brief in Opposition to Plaintiff’s Motion for Temporary Restraining
Order in the above-captioned case.
II.

Accreditation
4.

A law school’s decision to seek accreditation (known as “approval”) from the

Section is entirely voluntary. Although the Section provides the results of its accreditation
1

process to bar admission authorities, the Section’s recommendations on accreditation are not
binding on these authorities. While many state authorities consider graduation from a law school
approved by the Section to be a way of satisfying the legal education requirement for taking the
bar examination, the decision whether to consider Section approval and the weight to be
accorded such approval always rests with the state authorities, not the Section. The Section’s
accreditation decisions make determinations about the quality of legal education programs and
choices available in law school education, so that current and prospective law students, as well as
the public that uses the services of law school graduates, can make better informed decisions.
5.

The Tennessee Board of Law Examiners (“TBLE”) does not require that law

students graduate from a Section-accredited school in order to be eligible to take the Tennessee
bar examination. Instead, the TBLE permits applicants to take the bar examination if they have
graduated from a law school in Tennessee that the TBLE has accredited or from a law school
accredited by the Section. See Ex. 21 at ABA493, available online at
http://www.state.tn.us/lawexaminers/BLERequi.html (last visited Jan. 2, 2012).1
6.

There are presently six law schools in Tennessee. The other five in addition to

Duncan are the University of Tennessee College of Law, University of Memphis School of Law,
Vanderbilt University Law School, Nashville School of Law, and Belmont University College of
Law. Although Duncan, the Nashville School of Law, and Belmont University College of Law
are not currently accredited by the Section, they are accredited by the TBLE and their graduates
are therefore eligible to take the Tennessee bar examination. The Nashville School of Law has
been in operation for a century and has never been accredited by the Section. See Ex. 16 at

1

Unless otherwise stated, all exhibits referenced in this Declaration are contained in Defendant
American Bar Association’s Appendix to Brief in Opposition to Plaintiff’s Motion for
Temporary Restraining Order, filed concurrently herewith.
2

ABA477, ABA481, available online at http://nashvilleschooloflaw.net/?page_id=6 (last visited
Jan. 2, 2012).
7.

In addition to Tennessee, other states including Alabama, New York, West

Virginia, and California permit applicants to take the bar examination without graduating from a
Section-accredited law school.
III.

The Section, Council, and Accreditation Committee
8.

Since 1952, the U.S. government — first through the U.S. Department of Health,

Education, and Welfare and since 1972 through the U.S. Department of Education — has
recognized the Council (“Council”) of the Section as the national accrediting agency for
programs that lead to the first professional degree in law. In this function, the Council and the
Section are “separate and independent” from the ABA, as required by Department of Education
regulations. 34 C.F.R. § 602.14(b).
9.

The Council comprises 21 members, including judges, practicing attorneys, law

school deans and faculty, at least three public members, and a law student. Current members of
the Council include The Honorable Charles R. Wilson, U.S. Court of Appeals for the Eleventh
Circuit; The Honorable Solomon Oliver, Jr., Chief Judge, U.S. District Court for the Northern
District of Ohio; The Honorable Christine M. Durham, Chief Justice, Supreme Court of Utah;
The Honorable Rebecca White Berch, Chief Justice, Arizona Supreme Court; and retired United
States Army General Leo A. Brooks, Sr. The Accreditation Committee (“Committee”) has 19
members, also comprising judges, practicing attorneys, law school deans and faculty, and public
members.
IV.

Standards, Interpretations, and Rules
10.

The Section’s Standards for Approval of Law Schools (“Standards”) describe the

requirements a law school must meet to obtain and retain provisional and full approval by the
3

Section. A true and correct copy of the current version of the Standards is Exhibit 1 at ABA160. In applying the Standards, the Council and the Accreditation Committee are guided by
interpretations (“Interpretations”), which accompany the Standards in Exhibit 1.
11.

A true and correct copy of the Section’s Rules of Procedure for Approval of Law

Schools (“Rules”), which implement the Standards, is Exhibit 2 at ABA 61-89.
12.

The Standards, Interpretations, and Rules are adopted only after undergoing an

extensive public comment and review process and being concurred in by the ABA’s House of
Delegates (the “House”). As part of this process, the Section has a committee, the Standards
Review Committee, which is responsible for reviewing the Standards, Interpretations, and Rules
and drafting proposed revisions. The Section then circulates these proposed revisions to the
chief judge of every state supreme court, the deans of every Section-approved law school, the
chairs of the board of bar examiners of every state, and members of the Section. After notice and
comment, the Standards Review Committee forwards its recommendations to the Council. The
Council reviews the recommendations of the Standards Review Committee, publishes them for
notice and comment, and holds a public hearing on each recommended change before adopting
final revisions to the Standards, Interpretations, and Rules. The adopted revisions are then put
before the House of Delegates of the ABA, which may either concur in the Standards,
Interpretations, and Rules or refer them back to the Council for reconsideration.
V.

Provisional Approval of Law Schools
13.

A law school may not apply for provisional approval by the Council until it has

been in operation for at least one year. See Ex. 2, Rule 4(c) at ABA65. To receive provisional
approval, a law school must both (i) establish that it is in substantial compliance with each of the
Standards and (ii) present a reliable plan for bringing itself into full compliance with the
Standards within three years after receiving provisional approval. Ex. 1, Standard 102(a) at
4

ABA12. Regarding the first requirement of substantial compliance, Interpretation 102-1
provides that “[s]ubstantial compliance with each Standard is measured at the time a law school
seeks provisional approval.” Id., Interpretation 102-1 at ABA13.
14.

In addition to establishing that it is in substantial compliance, a law school must

establish that it has a reliable plan to come into full compliance with each of the Standards within
three years. Ex. 1, Standard 102(a) at ABA12. To satisfy this requirement, “a law school must
clearly state the specific steps that it plans to take to bring itself into full compliance and must
show that there is a reasonable probability that such steps will be successful.” Id., Interpretation
102-2 at ABA13. The burden of proof is on the school to establish that it meets these
requirements.
15.

Once a school is granted provisional approval, it has up to five years to qualify for

full approval, which requires “full compliance” with all of the Standards. Id., Standards 102(b),
103(a) at ABA12, ABA14. A law school that is provisionally or fully approved must be
“operated in compliance with the Standards.” Id., Standard 101 at ABA11.
16.

To apply for provisional approval, a law school must complete an application and

submit a self-study and other materials to the Consultant. See generally Ex. 2, Rules 2(b),
4(b)(1)-(9) at ABA 63-65. The Consultant then appoints a site evaluation team to visit the
school and prepare an informational report. The law school is given an opportunity to respond to
the site report, and the site report and any response by the school are then provided to the
Accreditation Committee, along with other materials submitted by the school.
17.

The site team members do not make factual findings or conclusions for the

Section. Instead, these are made by the Accreditation Committee and the Council of the Section,
which are the bodies officially recognized by the Department of Education for law school

5

accreditation. The site team’s role is to “report facts and observations that will enable the
Committee and Council to determine compliance.” See Ex. 2, Rule 2(d) at ABA63. However,
the facts reported by the site team are not the factual findings of the Section. That is, in part,
because each site team is different and, as such, the impressions of different site teams are
inherently non-comparable. Instead, the site report is one of the inputs considered by the
Accreditation Committee in making its factual findings, along with documents and materials
submitted by the school before and after the site report and statements of the school
representatives at the Committee hearing. It is the Accreditation Committee, which has
extensive experience in reviewing different site reports and a full understanding of the
accreditation process, that is responsible for placing the site team’s observations and report in
context and for making the factual findings for the Section. Id., Rule 3(b) at ABA63-64.
18.

After receiving the site report and the school’s submissions, the Accreditation

Committee holds a hearing at which representatives of the school, including legal counsel, have
the right to appear. Ex. 2, Rule 6 at ABA66. The hearing is transcribed and representatives of
the school are permitted to make both opening and closing remarks and to answer questions
posed by members of the Accreditation Committee.
19.

Following the hearing, the Accreditation Committee makes findings of fact and

states conclusions regarding whether the school is in substantial compliance with each of the
Standards and has presented a reliable plan for coming into full compliance within three years.
Based upon its findings and conclusions, the Committee makes a recommendation to the Council
as to whether the school should be granted provisional approval. See Ex. 2, Rule 3(b) at ABA63
(“The Committee shall make findings of fact and state conclusions with respect to the law
school’s compliance with the Standards. If the matter falls within the provisions of Rule 5(a)

6

[which includes granting provisional approval, see id., Rule 5(a)(1) at ABA65], the Committee
also shall make recommendations to the Council.”). The Committee’s findings of fact,
conclusions, and recommendations are set forth in writing and are provided to the school, which
has an opportunity to submit a written response.
20.

The Council then considers the Accreditation Committee’s recommendation

regarding provisional approval. The Council has available to it the full record that was before
the Committee; the Committee’s letter reporting its findings of fact, conclusions, and
recommendations; the transcript of the Committee hearing; and any response by the school. Ex.
2, Rule 8(c) at ABA66-67. The Council holds a hearing, which is transcribed, and
representatives of the school including legal counsel have the right to appear. Id., Rule 6(a) at
ABA66.
21.

Under Rule 8(a), the Council shall adopt the Committee’s findings of fact unless

the Council determines that they are not supported by substantial evidence in the record. Ex. 2,
Rule 8(a) at ABA66. However, the Council is not bound by the Committee’s conclusions or
recommendations. Instead, the Council “may adopt, modify or reject the Committee’s
conclusions or recommendations, or it may refer the matter back to the Committee for further
consideration.” Id., Rule 8(b) at ABA66.
22.

The conclusions and action of the Council are set forth in writing and are

provided to the school. Ex. 2, Rule 8(e) at ABA67. As required by Internal Operating Practice
5, and consistent with the DOE regulations, 34 C.F.R. § 602.26, the Council notifies the public
of its decision regarding an application for provisional approval within 24 hours of notifying the
school by posting this information on the ABA’s web site and issuing a memorandum. Ex. 3,
Internal Operating Practice 5(a), (c) at ABA92-93.

7

23.

A decision of the Council regarding provisional approval does not take effect until

the period for appeal has expired. If an appeal is filed, the decision of the Council is stayed
pending the outcome of the appeal. Ex. 2, Rule 10 at ABA68-70; see also Ex. 4 at ABA107.
24.

A law school that has been denied provisional approval may reapply for

provisional approval 10 months after the date of the letter from the Consultant reporting the
Council’s conclusions, and the Chair of the Council may authorize an earlier reapplication for
good cause shown. Ex. 2, Rule 11(b) at ABA71.
VI.

Appeal of a Council Decision
25.

The Higher Education Opportunity Act (Public Law 110-315), enacted August 14,

2008, requires accreditation agencies such as the Council to provide an opportunity for
institutions or programs “to appeal any adverse action under this section, including denial,
withdrawal, suspension, or termination of accreditation, taken against the institution or program,
prior to such action becoming final at a hearing before an appeals panel….” 20 U.S.C. §
1099b(a)(6)(C). The Department of Education regulations implementing this appeals
requirement provide, inter alia, that the appeals panel shall have “the authority . . . to affirm,
amend, or reverse” the adverse actions. 34 C.F.R. § 602.25(f)(1)(iii).
26.

In response to these legislative and regulatory requirements, the Section modified

its appeals process in 2010.2 Utilizing the public comment and review process described above,
the Council adopted Rule 10 of the Section’s Rules of Procedure, which was concurred in by the
ABA House of Delegates. Rule 10 specifically provides for appeal of a decision of the Council
denying provisional approval. Ex. 2, Rule 10(a)(1) at ABA68. The newly formed Appeals Panel
has not yet heard any appeals.
2

Previously, a school could appeal the decision of the Council to the ABA House of Delegates.
Ex. 1, Preface at ABA6.
8

27.

Under Rule 10, an appeal must be submitted within 30 days after the date of the

letter reporting the adverse decision of the Council. Ex. 2, Rule 10(b) at ABA68. The law
school has the burden of demonstrating “that the Council’s decision was arbitrary and capricious
and not supported by the evidence on record, or inconsistent with the Rules of Procedure and that
inconsistency prejudiced its decision.” Id., Rule 10(e) at ABA68.
28.

The appeal is referred to the Appeals Panel, which consists of three persons

experienced and knowledgeable in the Standards, Interpretations, and Rules, who serve a oneyear term and are subject to a conflict-of-interest policy. Ex. 2, Rule 10(g) at ABA68-69; Ex. 3,
Internal Operating Practice 19 at ABA100-02.
29.

The Appeals Panel holds a hearing within 45 days of its receipt of the appeal.

The law school is informed of the time, date, and place of the hearing, and it has a right to have
representatives of the school, including legal counsel, appear and present written and/or oral
statements to the Appeals Panel. Ex. 2, Rule 10(h) at ABA69. The hearing is transcribed by a
court reporter.
30.

The Appeals Panel issues a written decision within 30 days of the hearing. The

Appeals Panel can take one of four actions: (1) affirm the adverse decision of the Council; (2)
reverse the adverse decision of the Council; (3) amend the adverse decision of the Council; or (4)
remand the adverse decision of the Council for further consideration. Ex. 2, Rule 10(i) at
ABA69-70. Unless the Appeals Panel remands for further consideration by the Council, the
decision of the Appeals Panel is effective upon issuance. Id., Rule 10(i) at ABA70.
VII.

The Founding of Duncan and Events Leading to Its Application for Provisional
Approval
31.

Lincoln Memorial University is a private university with its main campus in

Harrogate, Tennessee, approximately 55 miles north of Knoxville. In November 2007, the
9

University formed a preliminary steering committee to explore conceptual development of a
proposed law school. Ex. 6, Findings of Fact 1-2 at ABA209.
32.

In November 2008, LMU completed a 29-page feasibility study regarding a new

law school (“the Study”). Ex. 14 at ABA446-74. The Study posited that the question of whether
more lawyers were needed could not be answered without research “to determine need, demand,
impact on the area, and other related issues.” Id. at ABA447. The Study examined the need for
legal services based on a number of projections for increases in Tennessee’s population and
GDP, the retirement of lawyers, and the need among poor and low income residents in Eastern
Tennessee. Id. at ABA447-49.
33.

With respect to the demand for legal education, the Study concluded that an

“indicator” of “whether there is an unmet need for additional legal education” was the number of
LSAT test takers. It cited data showing that during the aggregate three-year period from 20052007 there were more than 5,000 LSAT takers from Tennessee colleges. Ex. 14 at ABA450,
ABA451-54 (Table I). The Study concluded that this was a time of “great demand” for legal
education:
Should today’s “seller’s market” for law schools continue, even before gaining
ABA approval LMU should be able to fill its classes with students whose
academic credentials surpass those of many ABA-approved law schools in times
of low demand.
Id. at ABA460-61.
34.

The Study briefly acknowledged “the economic slowdown that has taken place,”

but concluded that “[l]aw school applications generally increase during recessions,” and “the
easy availability of student loans may encourage” students to apply to law schools, “particularly
during a recession.” Ex. 14 at ABA460-61. The Study concluded that “it is very likely that the
number of LSAT takers will go up in December 2008 and February 2009.” Id. at ABA461.
10

35.

On a national basis that prediction was initially correct, but the trend has already

reversed itself and the number of LSATs takers has decreased significantly. For example, during
the 2010-2011 school year alone, the number of LSAT tests taken decreased by 9.6%. See Ex.
18 at ABA486, available online at http://www.lsac.org/LSACResources/Data/LSAC-volumesummary.asp (last visited Jan. 2, 2012). In addition, in 2011, the number of applicants to
Section-accredited law schools was the lowest since the Law School Admissions Council started
keeping data in this form in 2002. In 2011, according to preliminary numbers, there were only
78,900 applicants, a 9.9 percent decrease over 2010. Id.
36.

In August 2009, Duncan School of Law (“Duncan”) enrolled its first class in a

part-time program. In the fall of 2010, Duncan began a full-time program in addition to its parttime program.
37.

About 75-85% of Duncan’s students are from Tennessee. Ex. 5 at ABA178. The

Dean expects that most of the School’s graduates will remain in Tennessee. Id. Graduates of
Duncan are permitted to take the Tennessee bar because Duncan has been accredited by the
TBLE. Ex. 22 at ABA495; Ex. 13 at ABA444. They also can take the bar examination in West
Virginia, another state central to the Appalachian region, which allows applicants to take the bar
if they can take the bar in the state where their law school is located. Ex. 27 at ABA571 (Rule
3.0(b)(2)(a)), available online at http://www.state.wv.us/wvsca/bd%20of%20law/lawprac.htm#
Rule%202.0.%20General%20requirements%20for%20admission (last visited Jan. 2, 2012).
38.

Duncan charged its full-time students $28,665 tuition for the 2011-2012 school

year. The estimated total cost for attending Duncan (including books, a room and board
allowance, fees, etc.) as a full-time student for the 2011-2012 school year was $49,975. Ex. 15
at ABA475, available online at http://www.lmunet.edu/law/financialaid/cost.shtml (last visited

11

Jan. 2, 2012).3 Duncan projects that its graduates will have an educational debt load between
$80,000 and $100,000. Ex. 6, Finding of Fact 7 at ABA 210-11; see also Ex. 5 at ABA143.
39.

The University of Tennessee also has a law school located in Knoxville,

Tennessee, approximately one mile from Duncan. Ex. 7 at ABA309. The in-state tuition
charged by UT-Knoxville for the 2011-2012 school year was $14,044. Ex. 20 at ABA492,
available online at http://www.law.utk.edu/administration/expenses.shtml (last visited Jan. 2,
2012).
VIII. The March 2011 Site Visit and Site Report
40.

On January 2, 2011, Duncan applied for provisional approval. Ex. 10 at ABA416.

As part of the application, Duncan included its 2008 feasibility study, which at the time was
more than two years old and reflected assumptions that were out-of-date and had not been
realized. Ex. 14 at ABA446-74.
41.

In March 2011 a site team visited Duncan and prepared a report. Duncan had

projected that it would have 100 new full-time students and 60 new part-time students for the
2010-2011 academic year. Ex. 9 at ABA355. However, the site team reported that Duncan
enrolled just 55 new full-time students and 36 new part-time students during this period — a
shortfall of 45% in full-time and 40% in part-time student enrollment. Id. Duncan then scaled
back its projections for the 2011-2012 academic year to 55 full-time and 20 part-time students.
Id. Again, according to supplemental material Duncan submitted after receving the site report, it
failed to meet its full-time target, enrolling just 42 full-time students and 20 part-time students in
the fall of 2011. Ex. 8 at ABA326.
3

For part-time students, tuition depends upon the number of credits. For part-time students in
the 2011-2012 academic year, tuition for a first-year student taking 9 credit hours was $17,856
and total costs were $36,716. Ex. 15 at ABA475, available online at
http://www.lmunet.edu/law/financialaid/cost.shtml (last visited Jan. 2, 2012).
12

42.

In short, in both years of operation with full- and part-time classes, Duncan had

failed to meet its enrollment projections, even after reducing its projections substantially for its
operations for 2011-2012. Notwithstanding these declining figures, the site team reported that
Duncan was still projecting 2012-2013 enrollment of 80 full-time students. Ex. 9 at ABA355.
43.

Regarding the credentials of the students who attended Duncan, the site team

commented that “it is apparent that the qualitative aspects of the admission profiles for its first
two entering classes are somewhat low.” Ex. 9 at ABA387. The site team provided a chart
showing that, from 2009 to 2010, applications were down slightly but Duncan’s rate of
acceptance of new applications rose dramatically from 51% to 71%. Id. at ABA386-87. At the
same time, Duncan’s yield (the percentage of acceptances compared to offers) had dropped from
64.8% to 53.3%, leaving Duncan with only 90 entering students compared to the 160 originally
projected (100 full-time + 60 part-time). Id. The LSAT scores and UGPA numbers of the
entering classes also had dropped. Id. Quoting from Duncan’s own Site Evaluation
Questionnaire (SEQ), the site team cautioned:
[Duncan’s] SEQ acknowledges that there is concern “that the 2010-2011 data
indicates the median admission LSAT scores for the academic program declined
from the 2009-2010 academic year” and that “the Administration believes its
recruitment efforts need to be more proactive.” In fact LSAT scores not only
declined at the median but at the 75th (152 to 151) and 25th (146 to 144) quartiles
as well. UGPAs also declined at each quartile. Accordingly, the progress, or lack
thereof, in these efforts needs to be monitored in order to ensure that DSOL is
only admitting students who can complete the educational program and be
admitted to the bar.
Id. at ABA388 (quoting Duncan Site Evaluation Questionnaire) (emphasis added).4

4

Standard 501 provides that “[a] law school shall not admit applicants who do not appear
capable of satisfactorily completing its educational program and being admitted to the bar.” Ex.
1 at ABA45.
13

44.

The site team also reported on Duncan’s programs for academic support, noting

that the faculty member who had been its Director of Academic Success was leaving and the new
Director of Academic Success was a law librarian admitted to practice in 2005. Ex. 9 at
ABA371; see also Ex. 8 at ABA328, ABA34-46. There was no indication that this person had
any training or experience in the field of academic support.
45.

Regarding the readmission of students who had failed academically and been

dismissed, the site team reported that Duncan “has not readmitted any of its own students who
have been previously disqualified for academic reasons.” Ex. 9 at ABA388. However, Duncan
subsequently acknowledged that the School readmitted fully one-third of all students who had
been academically dismissed (6 of 18). See ¶ 50, infra; Ex. 6 (Accreditation Committee Finding
of Fact 63) at ABA222-23; Ex. 8 at ABA324, ABA343. The site team’s comments regarding the
readmission of students appear to have been made without this additional data.
46.

Duncan asserts that the “ABA Site Team found DSOL to be in compliance with

all ABA Standards.” Complaint ¶ 30. That is incorrect. Rule 2(d) makes clear that the site team
does “not determine compliance or non-compliance with the Standards.” Ex. 2 at ABA63.
47.

Duncan also asserts that the site team was the “fact finder” for the Section. This

also is incorrect. As I explained, while the site team reports its observations, it does not make
factual findings for the Section. Supra ¶ 17. Under Rule 3(b), that responsibility is vested in the
Accreditation Committee, which has experience reviewing many site reports and is charged with
assuring that the Standards are applied appropriately to the schools. Ex. 2 at ABA63-64.
Duncan was specifically informed of this on the cover page of the Site Report, which
prominently states in underlined italicized type:

14

The site evaluators do not make the official findings or conclusions for the Section of
Legal Education and Admissions to the Bar of the American Bar Association. These are
made by the Accreditation Committee and the Council of the Section.
Ex. 9 at ABA347 (emphasis in original).
IX.

Duncan’s Response to the Site Report and Updated Data
48.

A copy of the site report was sent to Duncan, which was invited to comment and

asked to submit updated data on the 2011 entering class and academic dismissals/readmissions.
Ex. 9 at ABA414-15. On August 6, 2011, Duncan submitted voluminous information and
provided line-by-line responses and clarifications to various points in the site report. Ex. 8 at
ABA322-346 (excerpts).
49.

As part of its August 2011 response, Duncan provided updated admissions data

on the 2011 entering class. It showed that the number of applications Duncan had received had
decreased 27%, from 239 in 2010 to 174 in 2011. Ex. 8 at ABA326. From 2010 to 2011, the
size of the entering class also had dropped by almost one-third, from 90 to 62 students. Id. In
conjunction with Duncan’s earlier failures to meet its enrollment projections, these significant
decreases in the number of applications and entering students raised questions about whether
Duncan was realizing it goals and assumptions and pointed to a need for re-assessment of
Duncan’s planning. See Ex. 1, Standard 203 at ABA20. Although Duncan has engaged in
strategic planning and considered ways to improve the school on a variety of fronts, Duncan has
failed to present evidence that it has done more than simply adjust its budgets in response to the
substantially lower-than-projected enrollment.
50.

Duncan also reported in its August 2011 response that it had readmitted 6 of 18

students who were academically dismissed. Ex. 8 at ABA324, ABA343. The readmission of
one-third of the academically dismissed students raised serious questions about Duncan’s
adherence to its policies. Duncan requires that students be academically dismissed when their
15

cumulative GPA falls below 1.25 (below a “D+” grade), but students may also be academically
dismissed under other circumstances, including, for example, where the student is placed on
academic probation for a semester and fails to improve his or her GPA to above a 2.0. A student
who has been academically dismissed may re-enroll only by successfully petitioning Duncan’s
Academic Standards Committee, which must affirmatively find all of the following:
1. Extraordinary circumstances contributed to the student’s inability to meet the academic
requirements of the law school;
2. The student’s failure to meet the standards for continuing his or her studies does not
indicate a lack of capacity to complete the program of study and, in fact, the student
possesses that capacity; and
3. The circumstances resulting in the student’s academic disqualification have been
remedied or no longer exist.
Ex. 9 at ABA367.
51.

In sum, Duncan’s Academic Standards Committee is permitted to overlook the

academic failure of students only for “extraordinary” circumstances which will not recur. That
Duncan found such “extraordinary” circumstances to be present (and resolved) for fully onethird of its academically dismissed students raised questions as to whether Duncan was applying
its written standards properly.
52.

Once re-enrolled, the student must achieve a 2.0 GPA in the next semester or be

dismissed again, and to be in good standing a student at Duncan must maintain a cumulative
GPA of at least 2.0. Students who were academically dismissed with cumulative GPAs below
1.25 would have to perform at a superior level (earning “A” and “B” grades) after being
readmitted to meet the cumulative 2.0 standard. Even students who were academically
dismissed with cumulative GPAs between 1.25 and 2.0 would have to perform at a superior level
in order to continue enrollment. The uncertainty as to whether students would be able to
improve their performance so substantially following readmission raised questions about whether

16

Duncan had “sound academic standards” and whether Duncan was not complying with the
Standards by continuing to enroll students whose inability to do satisfactory work was
sufficiently manifest. See Ex. 1, Standard 303(a), (c) at ABA30.
X.

The September 2011 Accreditation Committee Meeting
53.

On September 29, 2011, the Accreditation Committee held a hearing on Duncan’s

application for provisional approval. Six representatives of LMU/Duncan attended. The hearing
was chaired by Diane Bosse, Chair of the Board of Law Examiners for the State of New York.
54.

Duncan was given 15 minutes for its opening and closing remarks. Dean

Beckman used his opening remarks to describe his time practicing as a lawyer in Texas and to
show the Accreditation Committee photographs of Duncan’s building and its classrooms. Ex. 7
at ABA239-46. In his opening remarks, he did not address the issues on which Duncan had been
asked to submit updated information, including the significant declines in student enrollment, the
drop in credentials of the entering classes, or Duncan’s readmission of a large percentage of
academically dismissed students. The members of the Accreditation Committee raised these
issues with Duncan’s representatives in a question-and-answer session that lasted almost two
hours. Id. at ABA247-317.
55.

Failure to Reassess Plans. In response to the Committee’s questions, Duncan’s

representative agreed that “the world has changed a lot since [LMU’s] original Feasibility Study
was done.” Ex. 7 at ABA248. Duncan’s representative further admitted that it had not done any
formal re-evaluation of the data projecting population growth, retirement of lawyers, rising GNP,
median income of lawyers in Eastern Tennessee and other factors contained in the Feasibility
Study. Id. at ABA250-51, ABA315-16. These concerns went to the strategic planning for
Duncan as a law school and its goals, assessments, and plans for the future.

17

56.

Duncan’s representative projected that students would carry a debt load of

$80,000-$100,000 upon graduation. Ex. 7 at ABA316-17. One committee member expressed
concern as to whether Duncan’s graduates could obtain employment that would allow them to
repay their law school debt. Id. at ABA315-17. Duncan’s representative offered an anecdote
about Legal Aid of East Tennessee laying off seven staff people including lawyers due to budget
cuts. Id. at ABA249-50. Rather than demonstrating employment opportunities for Duncan’s
graduates, this story suggested that there might be fewer paying positions for lawyers furthering
Duncan’s mission of providing low cost or free legal services. Duncan’s representative also
conceded that he had no data suggesting there would be increased public funding for legal
services during the next 5-10 years in Eastern Tennessee. Id. at ABA315.
57.

Readmission of Academically Dismissed Students and Academic Support.

The Committee and Duncan’s representatives discussed the readmission of 6 of 18 students who
had been academically dismissed. Ex. 7 at ABA274-77. According to Duncan, all students are
required to take an initial academic support course in their first semester, and all first-year
students who do not achieve a 2.33 in their first semester are required to take a second course in
their second semester. Id. at ABA270-271. Aside from the second academic support course,
once a student is on academic probation there are no additional support programs or initiatives,
other than meeting more frequently with the Director of Academic Success and faculty advisors.
Id. at ABA273-74. Duncan’s representative confirmed that the new Director of Academic
Success had no prior experience heading up an academic support program. Id. at ABA286-87.
XI.

The October 12, 2011 Report and Recommendation of the Accreditation Committee
58.

On October 12, 2011, I sent a letter to Dr. Dawson and Dean Beckman enclosing

the 23-page Recommendation of the Accreditation Committee. That letter and Recommendation
are attached as Exhibit 6 at ABA207-31.
18

59.

The Accreditation Committee’s Recommendation contained 96 separate and

detailed Findings of Fact addressing a range of topics from the history and organization of LMU
and Duncan to faculty, students, and finances. Ex. 6 at ABA209-30. Based on these Findings of
Fact, the Committee concluded that Duncan was not in substantial compliance with each of the
Standards and had not presented a reliable plan for bringing itself into full compliance within
three years. Id. at ABA230-31. Specifically, the Committee concluded that Duncan had not
established substantial compliance with four separate Standards and, in some cases,
accompanying Interpretations.
60.

Standard 203—Strategic Planning and Assessment. The Committee

concluded that Duncan had failed to establish substantial compliance with Standard 203, which
provides that
a law school shall demonstrate that it regularly identifies specific goals for
improving the law school’s program, identifies means to achieve the established
goals, assesses its success in realizing the established goals and periodically reexamines and appropriately revises its established goals.
Ex. 1, Standard 203 at ABA20; see Ex. 6 at ABA230.
61.

The Committee’s recommendation was based upon six specific Findings of Fact

(Nos. 6-8, 10-11, and 13), which related to Duncan’s failure to present evidence that it had reexamined its projections and assumptions on a number of issues and whether any changes to
them might affect Duncan’s strategic planning and success in realizing its goals.
62.

Feasibility Study. The 2008 feasibility study Duncan submitted with its January

2011 provisional approval application was more than two years out-of-date and contained
assumptions and forecasts, some of which did not reflect the reality of Duncan’s experiences and
environment. The Dean admitted “that there has not been any formal revisiting of the findings
and assumptions in the original Feasibility Study.” Ex. 6, Finding of Fact 7 at ABA211; see also
19

Ex. 7 at ABA250-51, ABA315-16. Duncan argues that it was only required under Rule 4(b)(4)
to produce one feasibility study, but the Committee did not find that Duncan was required to
prepare more than one feasibility study. Instead, the Committee’s findings were based on
Standard 203, which requires ongoing strategic planning and reassessment of the School’s ability
to realize established goals.
63.

For example, Duncan’s feasibility study was based in part on an estimate of the

number of Tennessee LSAT takers between 2005 and 2007 and a projection that those numbers
would increase for the December 2008 and February 2009 LSAT. However, the Committee
found that Duncan “did not present any evidence that it has revisited the predicted growth in
LSAT takers beyond February 2009, and whether any decreases in LSAT takers for 2010, 2011,
and beyond may affect strategic planning and the Law School’s success in realizing its
established goals.” Ex. 6, Finding of Fact 6 at ABA210 (emphasis added). Similarly, the
Committee found that Duncan failed to revisit its assumptions pertaining to the demand for
lawyers and legal services. As discussed above, see Paragraph 35, on a national basis the
number of LSAT test takers dropped by almost 10% in 2011.
64.

As another example, the Committee found that “[p]art of the mission of the Law

School is to prepare young lawyers to serve a population that cannot afford legal services,” but
Duncan’s representative “noted at the hearing that Legal Aid of Eastern Tennessee has had to lay
off lawyers, due to budget cuts” and he was “unaware of any anticipated increase in public
funding for legal services.” Ex. 6, Finding of Fact 7 at ABA210; see also Ex. 7 at ABA249-50,
ABA315. Moreover, students were expected to graduate from Duncan with an education debt
load of about $80,000 to $100,000. Ex. 6, Finding of Fact 7 at ABA210-11. The Committee
found that the School had not presented evidence that it had reassessed these assumptions and

20

“and whether such reassessment may affect strategic planning and the Law School’s success in
realizing its established goals.” Ex. 6, Finding of Fact 8 at ABA211 (emphasis added).
65.

Enrollment Projections and Criteria. Further, as discussed above (¶ 41) and

found by the Committee, Duncan’s original projections assumed enrollment of 100 new full-time
students and 60 new part-time students for the 2010-2011 school year. However, only 55 new
full-time students and 36 new part-time students enrolled. Duncan further failed to meet its
scaled-back projection of 55 new full-time and 20 new part-time students for 2011-2012,
enrolling only 42 new full-time students. Nevertheless, at the time of the site visit, Duncan was
predicting a new entering class of 80 full-time students and 25 part-time students. Ex. 6, Finding
of Fact 10 at ABA211.
66.

The Committee further found that the “Law School’s inability to reach projected

enrollment targets has caused the Law School to revise projected enrollments downward, and
appears to have caused a drop in the LSAT of the entering classes, negatively affecting student
selectivity.” Ex. 6, Finding of Fact 13 at ABA212; see also id., Finding of Fact 59 at ABA221
(chart of Admissions and First Year Class Profiles showing decline in LSAT and UGPA). The
Committee found: “This poses strategic planning challenges that the record does not establish
the Law School has sufficiently addressed at this time.” Id., Finding of Fact 13 at ABA212
(emphasis added).
67.

Standards 303(a) and (c) and Interpretation 303-3—Academic Standards

and Achievement. The Committee concluded that Duncan had failed to establish substantial
compliance with Standards 303(a) and (c) and Interpretation 303-3. Ex. 6 at ABA230. Standard
303(a) provides that “[a] law school shall have and adhere to sound academic standards,

21

including clearly defined standards for good standing and graduation.” Ex. 1 at ABA30.
Standard 303(c) provides:
A law school shall not continue the enrollment of a student whose inability to do
satisfactory work is sufficiently manifest so that the student’s continuation in
school would inculcate false hopes, constitute economic exploitation, or
detrimentally affect the education of other students.
Id. Interpretation 303-3 provides:
A law school shall provide the academic support necessary to assure each student
a satisfactory opportunity to complete the program, graduate, and become a
member of the legal profession. This obligation may require a school to create
and maintain a formal academic support program.
Id. at ABA31.
68.

The Committee’s conclusion was based upon five specific Findings of Fact (Nos.

40-42, 59, and 63), which pertained to Duncan’s (i) low standards for continuing enrollment of
students in academic distress, (ii) failure to demonstrate adequate academic support for such
students, and (iii) readmission of a high percentage of students who were dismissed for academic
failure.
69.

Enrollment Standards. The Committee found that even though Duncan requires a

2.0 cumulative GPA to remain in good standing, students may be allowed to continue their
enrollment until their cumulative GPA falls below a 1.25, which requires automatic dismissal.
Ex 6, Finding of Fact 40 at ABA217. In other words, a student is not automatically dismissed
until his or her cumulative GPA is between a “D” and “D+” level. See id., Finding of Fact 39 at
ABA217. To increase a cumulative GPA as low as 1.25 – or even a GPA between 1.25 and 2.0,
which requires academic probation – to a cumulative 2.0 GPA requires a student to obtain “A”
and “B” grades, which Duncan had not demonstrated was likely to occur.

22

70.

Academic Support. The Committee found that the Director of Academic Success

has “no prior academic support experience.” Ex. 6, Finding of Fact 42 at ABA217. The
Committee further found that Duncan “has limited data on which to assess the effectiveness of
its Academic Success Program.” Id. at ABA218. The findings with respect to academic support
were relevant both in light of the low qualifications of the students admitted by Duncan and
Duncan’s low standards for continuing enrollment of students.
71.

Academic Dismissals. The Committee cited Duncan’s “extraordinary

circumstances” standard for readmission (Ex. 6, Finding of Fact 41 at ABA217), but found that
the Academic Standards Committee at Duncan had readmitted six of 18 previously dismissed
students. Id., Finding of Fact 63 at ABA222-23.
72.

Standard 501(b) and Interpretation 501-3—The Committee concluded that

Duncan had failed to establish substantial compliance with Standard 501(b) and Interpretation
501-3, which pertain to admission policies and practices. Ex. 6 at ABA230-31. Standard 501(b)
provides: “A law school shall not admit applicants who do not appear capable of satisfactorily
completing its educational program and being admitted to the bar.” Ex. 1 at ABA45.
Interpretation 501-3 provides:
Among the factors to consider in assessing compliance with Standard 501(b) are
the academic and admission test credentials of the law school’s entering students,
the academic attrition rate of the law school’s students, the bar passage rate of its
graduates, and the effectiveness of the law school’s academic support program.
Id. at ABA45.
73.

The Committee’s conclusion was based upon specific Findings of Fact (Nos. 59

and 63). Finding of Fact 59 discussed the admissions and first-year class profiles, including
LSAT scores and undergraduate GPA, as summarized in a chart reproduced here:

23

Ex. 6, Finding of Fact 59 at ABA221. Duncan asserts that this chart misrepresents the statistics
because it compares 2009, when Duncan had only a part-time program, with 2010 and 2011
when it had both full-time and part-time students. Complaint, Ex. A at 27. However, there is no
basis for treating full-time and part-time students differently when it comes to admissions
criteria. Further, even when those statistics are examined separately, the statistics of the parttime class admitted in the fall of 2010 are below those of the 2009 part-time class:

24

Part-Time Class Comparison – 2009-2010

LSAT – 75th Percentile

Part-Time Class Admitted
2009
152

Part-Time Class Admitted
2010
150

LSAT – 50th Percentile

149

146

LSAT – 25th Percentile

146

142

UGPA – 75th Percentile

3.5

3.41

UGPA – 50th Percentile

3.05

3.06

UGPA – 25th Percentile

2.8

2.71

Ex. 6, Finding of Fact 59 at ABA221; Ex. 25 at ABA566.
74.

Duncan complains that the Committee inappropriately relied upon the low and

declining LSAT scores of Duncan’s students in concluding that Duncan had not demonstrated
compliance with Standard 501(b). Complaint ¶¶ 60-62. However, as the site report noted, the
results for Duncan’s entering classes went down in every quartile (75th percentile, median and
25th percentile) for both LSAT scores and UGPA. Ex. 9 at ABA388. Further, this occurred at a
time when the acceptance rate was increasing to an extremely high level (71%). Id. at ABA386.
All of these trends were in the same direction—less selective admissions criteria resulting in the
admission of a less-qualified pool of admitted applicants. These facts raised a serious concern as
to whether Duncan was lowering its admissions standards to compensate for the decrease in
applicants, and enrolling students who were not capable of completing the educational program
and passing the bar.
75.

Indeed, in its own assessment Duncan acknowledged that

the Administration and Faculty are concerned that the 2010-2011 data indicates
the median admission LSAT scores for the academic program declined from the
25

2009-2010 academic year compared to the 2010-2011 academic year in
contravention of the proposed movement toward higher LSAT medians.
Ex. 25 at ABA567 (emphasis added).
76.

Duncan argues that a one-point decline in LSAT scores was insignificant.

However, for the 75th percentile, the drop in scores from 152 to 151 was a drop of 4 percentage
points (from 51.7% to 47.7% of test-takers scoring below that base). Ex. 19 at ABA491
(reflecting aggregate score distribution 2008-2011), available online at
http://www.lsacnet.com/members/AdmissionResources/PDFs/admission-reference-manual.pdf
(last visited Jan. 2, 2012). For the median or 50th percentile, the drop in scores from 149 to 147
was 7.2 percentage points (from 40.3% to 33.1% of test takers scoring below that score). Id. For
the 25th percentile, a drop in scores from 146 to 144 represented a 6.4 percentage point drop
(from 29.5% to 23.1% percent of test takers scoring below that level). Id. For the 2010 parttime class, the 25th percentile LSAT score was 142, indicating that only around 17.9% of test
takers scored below that mark. Id.
77.

Duncan also complains that eight other schools may have LSAT scores at or

below Duncan’s, but the Council and Committee evaluate law schools based on the totality of the
circumstances.5 A law school that enrolls students with low LSATs and UGPAs can adequately
prepare them to complete the academic program and pass the bar examination by providing
superior academic support and rigorously enforcing standards for academic dismissal of
underperforming students. As discussed above, Duncan took neither of these steps. Duncan

5

Pursuant to Rule of Procedure 25, with limited exceptions, “all matters relating to the
accreditation of a law school shall be confidential. This shall include proceedings and
deliberations of the Accreditation Committee and Council.” Ex. 2, Rule of Procedure 25(a) at
ABA86. For this reason, I cannot discuss any confidential matters of other law schools
pertaining to accreditation.
26

failed to present evidence that its academic support programs were effective. Its Director of
Academic Success was a former law librarian who had no background in the area of academic
support. Ex. 8 at ABA344-46.
78.

Finding of Fact 63 pertained to the academic dismissal of 18 students and

readmission of 6, and the number of students on academic probation. Ex. 6 at ABA222-23. All
of these facts raised questions as to whether Duncan was admitting students who were capable of
completing Duncan’s program and being admitted to the bar.
79.

Standard 511—Student Support Services. The Committee further concluded

that Duncan had failed to establish substantial compliance with the career counseling component
of Standard 511. Ex. 6 at ABA231. Standard 511 provides:
A law school shall provide all its students, regardless of enrollment or scheduling
option, with basic student services, including maintenance of accurate student
records, academic advising and counseling, financial aid counseling, and an active
career counseling service to assist students in making sound career choices and
obtaining employment. If a law school does not provide these types of student
services directly, it must demonstrate that its students have reasonable access to
such services from the university of which it is a part or from other sources.
Ex. 1 at ABA50.
80.

The Committee’s conclusion was based upon specific Findings of Fact (Nos. 7

and 67). As discussed above (Paragraphs 62 and 64), Finding of Fact 7 discussed predictions
with respect to the future need for attorneys in the Knoxville area, the recognition that public
funding for attorneys was not known to be increasing, and the Dean’s expectation that graduates
would have between $80,000 and $100,000 in debt. Ex. 6, Finding of Fact 7 at ABA210-11.
Finding of Fact 67 recognized that there was only one professional working in the Career
Services office, with the expectation of hiring a career counselor, and there was no data

27

regarding whether “the career services … are effective in assisting students to make sound career
choices.” Id., Finding of Fact 67 at ABA223.
81.

My October 12, 2011 letter notified Duncan of the Council meeting set for

December 2011, invited Duncan’s appearance, and explained the format of the meeting. Ex. 6 at
ABA207.
XII.

Duncan’s Response to the Accreditation Committee’s Recommendation
82.

A school faced with a recommendation by the Committee not to grant provisional

approval may withdraw its application, address the deficiencies identified, and resubmit a new
application for provisional approval. Following the Committee’s recommendation, on or about
October 27, 2011, I met with Dean Beckman and laid out that option. Duncan did not pursue
that course.
83.

Instead, Duncan submitted a 48-page “hearing brief” arguing that the

Committee’s Recommendation was not supported by substantial evidence and was contradicted
by the site report as well as by the decisions of two other accrediting agencies — the TBLE and
the Southern Association of Colleges and Schools—Commission on Colleges (“SACS-COC”).
Complaint, Ex. A.
84.

In its hearing brief and in this litigation, Duncan asserts that the site report is “the

opposite” of the Accreditation Committee’s conclusions and that the Committee’s conclusions
are therefore “arbitrary, capricious and irrational.” Complaint ¶ 35 & Ex. A at 1-4. However,
the site team identified key facts that the Accreditation Committee (and later the Council)
focused on in their review. The Accreditation Committee’s recommendation was based on
extensive materials in addition to the site report, including Duncan’s appearance at the
Committee hearing. Ex. 6 at ABA209. Rather than being inconsistent, the site report supports
the Committee’s Findings of Fact and the Committee’s and Council’s conclusions.
28

•

Failure to Reassess Plans. Duncan points to a handful of general statements in the site
report about Duncan’s focus on goals and assessments. Complaint ¶ 35(a). However,
none of those statements addressed the specific issues identified by the Accreditation
Committee and the Council relating to the School’s ongoing strategic planning and
reassessment of its ability to realize established goals, including with respect to the
decrease in LSAT takers, the loss of sources of employment for graduates and their debt
load, the significant declines in enrollment and the impact of enrolling students with
lower selectivity (including lower LSAT scores). Ex. 6, Findings of Fact 6, 7, 8, 13 at
ABA210-12. Duncan conceded at its appearance before the Committee that it had not
done any such re-examination. See, e.g., Ex. 7 at ABA 249, ABA251. These factual
findings were supported by substantial evidence and provided the basis for the Council’s
expressed concerns about Duncan’s failure “to establish that it has re-examined its goals
and the means to achieve them in light of unanticipated economic conditions” and the
impact of its “failure to meet its enrollment projections on its ability to meet its mission
or to ultimately succeed as an institution.” Ex. 4 at ABA105 ¶ 1.

•

Failure to Adhere to Academic Standards. Duncan points to the following statement
in the site report: “DSOL adheres to clearly defined academic standards for good
standing.” Complaint ¶ 35(b). However, Standard 303(a) also requires that a law school
adhere to “sound academic standards.” In this regard, the Council concluded that
“although the Law School has adopted and adheres to clearly defined academic
standards, the Law School has not demonstrated that the standards are sound.” Ex. 9,
ABA367. This was based on specific information from the site team about Duncan’s
standards for academic dismissal and the fact that, while Duncan had created programs

29

for academic support, assessment of those programs was only “planned or ongoing.” Id.
at ABA367, ABA369. It also was based on information not presented to the site team,
which raised serious questions as to whether Duncan adheres to its standards which
permit readmission only for “extraordinary circumstances.” Ex. 8 at ABA324, ABA343;
see also Ex. 9 at ABA414-15. These observations were consistent with and supported the
Committee’s specific Findings of Fact and the Council’s conclusions.
•

Decline in Admissions Standards. Duncan also quotes the portion of the site report that
noted that “the qualitative aspects of the admissions profiles for [Duncan’s] first two
entering classes are somewhat low.” Complaint ¶ 35(c). The site team reported that “the
progress, or lack thereof, in these efforts needs to be monitored in order to ensure that
DSOL is only admitting students who can complete the educational program and be
admitted to the bar.” Ex. 9 at ABA388. All three entities — the Site Team, the
Committee, and subsequently the Council — consistently raised concerns about the fact
that when faced with applications below projected levels, Duncan increased its
acceptance rate and enrolled students whose credentials were low, raising questions as to
whether they could succeed particularly given the lack of experience of Duncan’s
academic support director and the lack of measurable academic support results
documented by the site team. Compare Ex. 9 at ABA387-88 with Ex. 6, Finding of Fact
59 at ABA221 with Ex. 4 at ABA106 (applying Standard 501(b) and Interpretations 5013); compare Ex. 9 at ABA369 with Ex. 6, Finding of Fact 42 at ABA217-18 with Ex. 4 at
ABA105-06 (applying Standards 303(a) and (c) and Interpretation 303-3, and Standard
501(b) and Interpretation 501-3).

30

85.

Other Agencies’ Accreditation Decisions. Pursuant to Internal Operating

Practice 6(c) (Ex. 3 at ABA94), the Council takes into account actions by recognized accrediting
agencies that have denied accreditation or pre-accreditation to a law school or its parent
institution. However, nowhere in the Section’s Rules, Internal Operating Practices or Standards
is the Council or Committee required to defer to accreditation by state or regional accrediting
agencies. To do so would be contrary to their role as the Department of Education’s designated
national accrediting agency for law schools.
86.

Tennessee Board of Examiners Approval. The TBLE accredits law schools

separately from the Section. The TBLE applies standards are set forth in Rule 7, Article II,
Section 2.03 of the Rules of the Supreme Court of the State of Tennessee, Ex. 22 at ABA495-97,
available online at http://www.tncourts.gov/rules/supreme-court/7 (last visited Jan. 2, 2012).
87.

The TBLE examined Duncan in 2008 and granted its approval on February 24,

2009. Ex. 13 at ABA444-45. This was six months prior to the admission of the first class of
students at Duncan. See also Ex. 14 at ABA470 (LMU acknowledging that “The [TBLE]
accredits a new law school before it opens.”). The TBLE’s approval was not based on any
evidence about the actual operation of Duncan such as the actual applicant pools, the credentials
and academic performance of the students admitted, the academic and career support services,
and the application of the standards for academic dismissal and readmission of students. In
short, the TBLE’s accreditation was based on plans and projections that Duncan presented and
did not include any evaluation of the school’s operation or whether the school has realized its
plans and projections and adhered to its standards for admission and academic achievement.
88.

TBLE’s approval also was explicitly “based upon the representations of LMU that

the College of Law will seek accreditation by the American Bar Association.” Ex. 13 at

31

ABA444. Further, the TBLE stated that if LMU failed to obtain provisional accreditation from
the Section by December 31, 2012, then TBLE “may withdraw and rescind the approval
granted.” Id. Thus, TBLE’s approval was predicated on Duncan seeking and obtaining
provisional approval from the Section.
89.

The SACS-COC Approval. SACS-COC is a regional body for the accreditation

of degree-granting higher education institutions in the Southern states. SACS-COC accreditation
is not specific to law schools but rather encompasses institutions of higher education that award
associate, baccalaureate, master’s, or doctoral degrees. See Ex. 23 at ABA516, available online
at http://www.sacscoc.org/about.asp (last visited Jan. 2, 2012). SACS-COC governs its
accreditation processes by a set of “Principles of Accreditation.” Ex. 24 at ABA517-64,
available online at http://www.sacscoc.org/pdf/2010principlesofacreditation.pdf (last visited Jan.
2, 2012).
90.

On April 27, 2009, based on a letter and submission of a prospectus, SACS-COC

approved offering a JD program at LMU. Ex. 12 at ABA442-43. As with TBLE’s accreditation,
this approval occurred months before any students began studying at LMU and was based on
information about LMU’s plans, not about the actual operation of the law school (which is
required for Section approval). Further, the accreditation was also based in part on TBLE’s
accreditation.
91.

In 2010, SACS-COC had a substantive change committee visit Duncan to

examine the school, and that committee produced a report. Ex. 11 at ABA417-41. At the time
of this visit, Duncan had only a part-time class in its second semester. In many cases, the site
report merely commented on how Duncan fit into the larger LMU framework (see Ex. 11 at
ABA420-21, ABA425-26 (Principles 2.4, 2.5, 2.11.1)) or on its future plans (id. at ABA422,

32

ABA428 (Principles 2.7.2, 3.2.8)). However, in its limited comments, SACS-COC expressed
certain concerns that are similar to those expressed by the Council. For example, SACS-COC
noted that at the time of its site visit Duncan had a dean, an associate dean for academics, an
associate dean and director of the law library, and an assistant dean for assessment, all of whom
were lawyers but only two of whom had “extensive experience in legal education.” Id. at
ABA427, Principle 3.2.8. SACS-COC “encouraged” Duncan “to provide support for those
faculty members who have or will assume administrative responsibilities but who do not have
extensive experience in legal education.” Id. Further, SACS-COC noted that its review was
based on limited information because Duncan had only been in operation for one completed
semester and “final outcomes of student success are basically 2 1/2 years away.” Id. at ABA439,
Principle 4.1.
92.

With respect to both TBLE and SACS-COC, the accreditation was based largely

on Duncan’s proposals for its law school, not on its implementation of those proposals or its
condition when it applied for provisional approval by the Section. See Ex. 2, Rule 4(c) at
ABA65, Ex. 1, Interpretation 102-1 at ABA13. It would be inappropriate for the Council or the
Accreditation Committee to defer to these accreditation decisions for this additional reason.
XIII. The December 2, 2011 Council Meeting
93.

On December 2, 2011, the Council considered Duncan’s application for

provisional approval. At the hearing, Duncan was represented by eight representatives,
including Dean Sydney Beckman and Dr. James Dawson, the president of Lincoln Memorial
University. Ex. 5 at ABA114. The Chair and Vice Chair of the Accreditation Committee were
also present, but did not participate in the Council’s discussion with the School or in the
Council’s deliberations and vote.

33

94.

Typically, a meeting to consider a school’s application for provisional approval

lasts one hour. The meeting with Duncan lasted two hours and the transcript comprised 94
pages. Ex. 5 at ABA116, ABA205. Duncan says it was “given only 15 minutes to make its
presentation.” Complaint ¶ 37. That is not correct. Duncan had 15 minutes to make opening
and closing remarks. Ex. 5 at ABA120. Throughout Duncan’s two-hour appearance,
representatives of Duncan responded to questions and comments of the Council by making
presentations on numerous issues relating to the School.
95.

Standard 203. Duncan addressed the Committee’s findings regarding Duncan’s

non-compliance with Standard 203. Citing broad generalizations from the Site Report about
Duncan’s focus on assessment through LMU’s strategic planning process, Duncan argued that
the specific concerns of the Committee were “irrelevant” and outside the scope of Standard 203.
Ex. 5 at ABA123-124. Duncan also argued that it had considered the impact of its decreased
enrollment figures in the context of its budget. Id. at ABA125. One Council member
acknowledged that Duncan had adjusted its budget but wanted to know what other steps Duncan
had taken “apart from simply adjustment of the budget,” asking
how you’ve adjusted the strategic plan in light of trends in the economy, trends in
the legal profession, and trends in application numbers and how that connects up
with the mission of the school. In particular, it wasn’t clear to me how, if students
are coming out with 80 to 100,000 dollars in debt, that they would actually be
able to be employed in the way that you would hope that they would be
employed.
Id. at ABA133-34. Duncan’s response focused on the financial adjustments the University was
making but gave no specifics as to whether Duncan had re-examined the impact that these
factors would have on Duncan’s goals and its ability to meet them. Id. at ABA134-40.
96.

Another Council member questioned Duncan regarding its student application

yields, which for two consecutive years were significantly lower than predicted even though
34

Duncan was continuing to predict higher numbers, and asked what Duncan had learned from
these errors and what changes it had made. Ex. 5 at ABA146-47; see also id. at ABA150-51.
Duncan’s representatives responded with a description of marketing initiatives. Id. at ABA14750. The Council member questioned whether Duncan “can turn it around that fast,” particularly
in “a declining world of applicants and changes in potential applicants dealing with debt-related
income,” and questioned whether Duncan should alter its planning. Id. at ABA150-51.
97.

Another Council member, The Honorable Christine Durham, Chief Justice of the

State of Utah, commented “it troubles me that given the nature of the impact on our profession
and, particularly, since you have identified your mission to be services to a very particular
community, both educational services and legal services, that you haven’t undertaken any steps
to get some empirical data that would suggest that the conditions exist in your market to justify
the establishment of the new law school.” Id. at ABA156. In particular, “your stated mission is
to produce graduates who will go back to the underserved communities in East Tennessee and
serve them, and yet the documentation suggests that paid employment that would support such a
service has shrunk in the region rather than even been maintained and stabilized.” Id. at
ABA159. In response, Duncan’s representative talked about potential work opportunities
“shifting” around Appalachia and discussions with the School’s Advisory Board who “have a lot
of work.” Id. at ABA159-60. However, Duncan did not show that it had engaged in any
systematic re-assessment of employment opportunities for its graduates in the region.
98.

Standard 303(a) and (c) and Interpretation 303-3. The Council asked about

Duncan’s practice of retaining students with low GPAs between 1.25 and 2.0 and of readmitting
6 of 18 students who had previously been dismissed for academic failure. Ex. 5 at ABA194-95.
A Council member noted “there’s so much data on what or how successful a student is at certain

35

levels of performance” and questioned whether Duncan should be “willing to accept or readmit
or allow the student to remain at 1.25 [GPA] when the chances are extraordinary that they will be
able to succeed.” Id. at ABA201.
99.

The Council member added that Duncan’s students are “probably incurring debt

along the way and so it’s sort of a burden, an additional burden you’re putting on the student
because if they get dismissed, … [t]hey have failed out of school and they have the burden of
debt, and you’re telling me they’re in Appalachia and their prospects for employment are very
difficult.” Ex. 5 at ABA201. Duncan’s representative asserted that the $80,000-$100,000 of
student debt that Duncan projected was a “meaningless” number. Id. at ABA143. Rather than
focusing on the amount of debt a student would graduate with, Duncan urged that the focus
should be on whether the student makes “enough money to service that debt on a monthly basis.”
Id. at ABA143-44.
100.

A Council member questioned Duncan about what evidence it has that its

academic success program is effective. Ex. 5 at ABA161. Duncan’s representative talked about
the use of interactive technology and grade assessment, but did not point to specific evidence
showing that its programs are effective. Id. at ABA161-70. A Council member questioned
whether Duncan could really expect its faculty to provide academic support given that they
seemed “overloaded” with multiple burdens and numerous responsibilities, and expressed
concern that faculty were being used in lieu of hiring adequate support in other areas, such as
academic success and career services. Id. at ABA188-90. In response, Duncan’s representative
said it would be up to the faculty to assess whether this situation proved to be too burdensome
and did not address whether the resources dedicated to academic support were sufficient. Id.

36

101.

Standard 501 and Interpretation 501-3. The Council asked Duncan about its

criteria for admissions, noting that it admitted about 70 percent of applicants. Ex. 5 at ABA18081. During the meeting, Duncan’s representative referred several times to an “uptick” in
applications. However, when asked by a Council member, Duncan said that it had revised its
2012 entering class projections from 80 to 40 full-time students (a 50% drop), with 55 full-time
students in subsequent years. Id. at ABA184-85.
102.

Standard 511. The Council also inquired about Duncan’s career services office.

Ex. 5 at ABA189-90. Duncan explained that it hired an additional career services professional to
focus on externships. Id. at ABA190-93.
XIV. The Council’s December 20, 2011 Decision Letter
103.

On December 20, 2011, I sent a letter to Dr. Dawson and Dean Beckman

reporting the Council’s action. Ex. 4 at ABA103-11. The letter specifically set forth the record
that was considered by the Council and then summarized the conclusions reached by the
Accreditation Committee and set forth the conclusions of the Council.
104.

The Council concluded that Duncan “has not established that it is in substantial

compliance” with each of the Standards and “has not presented a reliable plan for bringing the
School into full compliance with the Standards within three years after receiving provisional
approval.” Ex. 4 at ABA105. Specifically, the Council concluded that Duncan failed to
establish substantial compliance with Standard 203; Standards 303(a) and (c) and Interpretation
303-3; and Standard 501(b) and Interpretation 501-3.
105.

With respect to Standard 203, the Council concluded that Duncan “has not

demonstrated that it regularly identifies specific goals for improving the Law School’s program,
identifies means to achieve the established goals, assesses its success in realizing the established

37

goals, and periodically re-examines and appropriately revises the established goals.” Ex. 4 at
ABA105. “Specifically, the Law School has failed to establish that it has re-examined its goals
and the means to achieve them in light of unanticipated economic conditions, affecting the
assumptions in its feasibility study.” Id. The Council also concluded: “The Law School has not
established that it has determined the cause or evaluated the impact of the failure to meet its
enrollment projections on its ability to meet its mission or to ultimately succeed as an
institution.” Id. The Council further concluded, “Although the Law School has recalculated its
pro forma budgets, the Law School has failed to establish that it has re-evaluated and revised its
goals given that, as currently appears based on past enrollment and present projections, it may be
a significantly smaller law school than anticipated when it was founded.” Id.
106.

With respect to Standards 303(a) and (c) and Interpretation 303-3, the Council

concluded that Duncan had not “demonstrated that it has and adheres to sound academic
standards.” Ex. 4 at ABA105. This includes “the obligation not to continue the enrollment of a
student whose inability to do satisfactory work is sufficiently manifest so that the student’s
continuation in school would inculcate false hopes, constitute economic exploitation, or
detrimentally affect the education of other students.” Id. It further includes “the obligation to
provide the academic support necessary to assure each student a satisfactory opportunity to
complete the program, graduate, and become a member of the legal profession.” Id. at ABA10506. Specifically, the Council concluded that
although the Law School has adopted and adheres to clearly defined academic
standards, the Law School has not demonstrated that the standards are sound. The
Law School has not demonstrated that its standards for academic dismissal and
readmission are sufficiently rigorous as to ensure that the Law School does not
continue the enrollment of students whose inability to do satisfactory work is
manifest. While the Law School has established an academic support program, it
has not established that the program is effective. The program is not currently
directed by a person with specific experience in academic support, and thus,
38

without a demonstration of effectiveness of the program, it cannot be concluded
that the Law School has demonstrated that it provides the academic support
necessary to assure each student a satisfactory opportunity to complete the
program, graduate, and become a member of the legal profession.
Id. at ABA106.
107.

With respect to Standard 501(b) and Interpretation 501-3, the Council concluded

that Duncan had not demonstrated “that it is not admitting applicants who do not appear capable
of completing the educational program and being admitted to the bar.” Ex. 4 at ABA106. This
was based on a totality of the circumstances, including but not limited to the “comparatively low
entering academic and admission test credentials of a significant percentage of the Law School’s
students, the attrition rates of its inaugural classes, the failure of the School to establish the
effectiveness of the academic support program, and the fact that the Law School’s graduates
have yet to sit for a bar examination.” Id.
108.

With respect to the fourth Standard at issue, Standard 511, the Council did not

adopt the Committee’s recommendation. After the Accreditation Committee hearing, Duncan
hired an additional career services professional (Ex. 5 at ABA192), and the Council concluded
“based on information provided during the hearing before the Council, including the fact that the
School has hired an additional professional in the Career Services Office and experienced
success placing students in summer placements in 2011, that the School has established it is in
substantial compliance with Standard 511, with respect to the School’s obligation to provide all
students with an active career counseling service to assist them in making sound career choices
and obtaining employment.” Ex. 4 at ABA105.
109.

Thus, the Council accepted the Committee’s Report and Recommendation

(excluding the Committee’s conclusion regarding Standard 511) and denied provisional approval
to Duncan.
39

XV.

Subsequent Events
110.

The Council’s December 20, 2011 letter notified Duncan of its right to appeal the

Council’s decision and enclosed a copy of Rule 10. Duncan has until January 19, 2012 (thirty
days after the December 20, 2011 Council decision letter) to appeal. If Duncan appeals, the
decision of the Council will be stayed pending the appeal.
111.

The Section’s rules also ensure that such review would be completed in a timely

fashion. The Appeals Panel must issue a final decision within 105 days from a school’s appeal.
See Ex. 2, Rule 10(f) at ABA68 (Consultant must refer appeal within 30 days); Rule 10(i) at
ABA69 (hearing occurs within 45 days of such charge and decision issues within 30 days
thereafter). If Duncan had appealed December 22, 2011, instead of filing suit, the Appeals Panel
would have issued a decision no later than April 5, 2012.
112.

Alternatively, if Duncan elects not to appeal, the Council’s decision would take

effect as of January 19, 2012. Pursuant to Rule 11(b), Duncan may reapply for provisional
approval within the time period specified in the Rules.
113.

As required by Internal Operating Practice 5 of the Section of Legal Education

and Admissions to the Bar (Ex. 3 at ABA92-93), and consistent with 34 C.F.R. § 602.26(b),(c),
the Council notified the public of its decision regarding Duncan’s application for provisional
approval within 24 hours of Duncan’s receipt of the Council’s letter by posting a memorandum
on the Section’s web site and sending it to various authorities. Dkt. No. 2, Ex. A. The
memorandum stated that the Council had denied Duncan’s application for provisional approval
and that Duncan has a right to appeal, and it provided a brief summary of the procedures for
appeal. Id.

40

114.

As required by Interpretation 102-7 (Ex. 1 at ABA13-14), throughout the process

Duncan has published and continues to publish the fact that is not accredited at this time on its
website:
The Law School makes no representation to any applicant that it
will be approved by the American Bar Association prior to the
graduation of any matriculating student.
Ex. 26 at ABA 568 (emphasis in original), available online at
http://www.lmunet.edu/law/accreditation.shtml (last visited Jan. 2, 2012).
XIV. Exhibits
115.

I certify that the documents contained in Defendant American Bar Association’s

Appendix to Brief in Opposition to Plaintiff’s Motion for Temporary Restraining Order are true
and correct copies of the Standards, Rules, Internal Operating Practices, correspondence to and
from Duncan, materials submitted by Duncan as part of its application for provisional approval,
reports and transcripts of proceedings involving Duncan, and printouts from the identified
websites of the identified entities.

41

CERTIFICATE OF SERVICE
I hereby certify that on the 3rd day of January, 2012, I caused to be filed electronically a
copy of the foregoing pleading. The Court’s electronic filing system will send notice of this
filing to all parties indicated on the electronic filing receipt. I will cause all other parties to be
served by regular U.S. mail. Parties may access this filing through the Court’s electronic filing
system.

s/ Jeff R. Thompson
HOWARD H. VOGEL, BPR NO. 1015
JEFFREY R. THOMPSON, BPR NO. 20310
P. ALEXANDER VOGEL, BPR NO. 23944
O’NEIL, PARKER & WILLIAMSON, PLLC
7610 Gleason Drive, Suite 200
Knoxville, Tennessee 37919
[phone] (telephone)
[phone] (facsimile)
[e-mail]
[e-mail]
[e-mail]

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