Accreditation Reconsidered

• Author: Judith Areen
• Position: Paul Regis Dean Professor of Law, Georgetown University
• Pages: 1471-1494

1471

Accreditation Reconsidered

Judith Areen

I.ACCREDITATION IN HIGHER EDUCATION ............................................. 1472

A.DRIVERS OF EXCELLENCE IN AMERICAN HIGHER EDUCATION ............. 1472

1.Citizen Governing Boards .................................................... 1474

2.Shared Governance ............................................................... 1475

3.Accreditation ......................................................................... 1477

a.Accrediting Bodies Are Nongovernmental ............................ 1480

b.Accreditation Is Conducted Primarily by Volunteers ............. 1480

c.Accreditation Is Repeated at Regular Intervals .................... 1481

d.The Accreditation Process Is Based on Self-Studies and

Peer Evaluation ................................................................. 1481

e.The Mission of Accreditation Is Quality Enhancement as

Well as Assurance .............................................................. 1482

f.The Accreditation Process Takes into Account the Mission

of the Institution Being Accredited ...................................... 1483

B.CHALLENGES TO THE STRUCTURE, GOVERNANCE, AND MISSION OF

ACCREDITATION .............................................................................. 1483

II.LAW-SCHOOL ACCREDITATION ............................................................. 1485

A.THE EARLY YEARS ........................................................................... 1485

B.THE DEPARTMENT OF JUSTICE ANTITRUST SUIT ................................ 1487

C.RECONCEPTUALIZING LAW-SCHOOL ACCREDITATION ........................ 1491

III.CONCLUSION ........................................................................................ 1493

 Paul Regis Dean Professor of Law, Georgetown University. From 2001 to 2005, I

served as a member of the Council of the Section on Legal Edu cation and Admissions to the

Bar of the American Bar Association. I am grateful to Caroline Van Wie for her research

assistance.

1472 IOWA LAW REVIEW [Vol. 96:1471

Accreditation, like tenure and academic freedom, is a term of art widely

used in higher education, yet often misunderstood. To evaluate the way

American law schools are accredited, therefore, it is necessary first to

understand what constitutes accreditation in higher education generally.

The first Part of this Paper reviews the praxis of accreditation as it has

developed in American higher education and considers recent challenges to

its structure, governance, and mission. The second Part compares the

process for accrediting law schools with higher education accreditation and

identifies three major conceptual deficiencies with the former. The Paper

suggests two particular reforms for legal accreditation. First, to strengthen

peer review, which is central to effective accreditation, arbitrary limits on the

participation of legal educators should be removed. Second, in applying

accreditation standards, the process should enhance (and not merely assess)

the quality of legal education, while respecting institutional diversity among

law schools.

I. ACCREDITATION IN HIGHER EDUCATION

A. DRIVERS OF EXCELLENCE IN AMERICAN HIGHER EDUCATION

It is widely recognized that the K–12 system of education in the United

States has serious problems. At the same time, the nation’s system of higher

education is the envy of the world—whether measured by international

rankings (forty of the fifty top universities in the world are American

according to some rankings), the number of Nobel Prize winners educated

in America, or the number of students from other nations who attend an

American college or university.1 How can one part of America’s system of

education be so much more successful than the other?

Part of the explanation is a tradition of investment. The United States

has devoted more resources, public and private, to education for a longer

period of time than any other nation. As early as 1785, the Continental

Congress set aside land in the Northwest Territory for the benefit of public

education, including higher education.2 In 1862, President Lincoln gave a

1. JONATHAN R. COLE, THE GREAT AMERICAN UNIVERSITY 3–4 (2009).

2. See 28 JOURNALS OF THE CONTINENTAL CONGRESS 375–78 (Worthington Chauncey

Ford et al. eds., 1933). For more on the national investment in higher education, see generally

ARTHUR M. COHEN & CARRIE B. KISKER, THE SHAPING OF AMERICAN HIGHER EDUCATION (2d. ed.

2009); HAROLD M. HYMAN, AMERICAN SINGULARITY: THE 1787 NORTHWEST ORDINANCE, THE

1862 HOMESTEAD AND MORRILL ACTS, AND THE 1944 G.I. BILL (1986); and ALICE M. RIVLIN, THE

ROLE OF THE FEDERAL GOVERNMENT IN FINANCING HIGHER EDUCATION (1961). The best source

on the history of higher education remains RICHARD HOFSTADTER, AMERICAN HIGHER

EDUCATION: A DOCUMENTARY HISTORY (Richard Hofstadter & Wilson Smith eds., 1961)

[hereinafter AMERICAN HIGHER EDUCATION]. It has been supplemented by AMERICAN HIGHER

EDUCATION TRANSFORMED, 1940–2005 (Wilson Smith & Thomas Bender eds., 2008). Other

good histories include BERNARD BAILYN, EDUCATION IN THE FORMING OF AMERICAN SOCIETY

(1960); JOHN S. BRUBACHER & WILLIS RUDY, HIGHER EDUCATION IN TRANSI TION: A HISTORY OF

AMERICAN COLLEGES AND UNIVERSITIES (4th ed. 1997); THE HISTORY OF HIGHER EDUCATION