The American Bar Association agreed to change its accrediting practices last month to end an antitrust lawsuit. But other accreditors are just beginning to wrestle with what the case means.
Accreditors and their lawyers are studying the 12-page consent decree between the A.B.A. and the U.S. Justice Department to see whether it applies more broadly. The department expects to issue a statement explaining the decree soon. But already one thing is clear: No accreditor is immune from antitrust scrutiny.
That’s no surprise to Thane D. Scott, an antitrust lawyer who defended the Massachusetts Institute of Technology against a Justice Department case in 1989. “This has been a looming issue in higher education for a while,” he says.
Still, the A.B.A. decision “has to heighten sensitivity,” says Mark L. Pelesh, a lawyer who represents various accrediting groups. That’s not a bad thing since accreditors probably will have to deal with more antitrust concerns in the future, he says. In fact, one of his clients sought guidance from the Federal Trade Commission on how to meet a requirement of the 1992 reauthorization of the Higher Education Amendments without violating the Sherman Antitrust Act.
“The Justice Department has shown a willingness to take on big, powerful accreditors, and this antitrust division is not shy about seeking relief that may inhibit the way you go about doing your business,” Mr. Pelesh says.
In the agreement, the A.B.A. promised to change the way its accrediting arm does business.
After an 18-month inquiry, the Justice Department found the bar association was collecting salary data from law schools to come up with median pay scales. Then the A.B.A. was demanding that schools meet and exceed those scales or risk losing their accredited status. The department said the practice had the effect of “ratcheting up” salaries for law professors.
The department’s investigation began after the Massachusetts School of Law at Andover filed an antitrust suit against the A.B.A., which had denied the school accreditation. The law school has refused to release the A.B.A’s assessment of the institution but says it was affected by many of the practices cited by the Justice Department. The case is pending.
Some law-school deans criticized the Justice Department for not going farther to rein in the bar association. Still, the department prohibited the A.B.A. from making a law school’s accreditation conditional on the compensation paid to professors and administrators. The department also prohibited the bar association from collecting and disseminating information about salaries paid at law schools, and from denying accreditation to an institution simply on the basis of its for-profit status. And it limited to 50 per cent the proportion of law deans and professors sitting on the accrediting committee.
While the agreement doesn’t mention other accrediting groups, some officials at the Justice Department have. In announcing the decree, Joel I. Klein, a Deputy Assistant Attorney General in the antitrust division, said, “I hope today’s action has consequences throughout the accreditation communities, so that people take a hard look at their processes.”
Along with the nation’s six college accreditors, more than 40 groups exist to accredit academic programs ranging from architecture to acupuncture.
Standards and the composition of committees vary among accreditors. Most accreditors of specific programs say they do not base accrediting decisions on salary information, as the A.B.A. was accused of doing. But many follow other practices similar to those of the bar association. For example, some of their accrediting committees are made up primarily of professors and administrators in the field being accredited. Many of the groups collect and disseminate salary information. Most states require students to graduate from an A.B.A.-accredited school to take the bar exam, and other accrediting groups have links to state licensure.
So long as the groups do not use salary data for accrediting decisions, they should not run into antitrust problems, says D. Bruce Pearson, lead counsel for the Justice Department in the A.B.A. case. But if he were a lawyer for an accrediting agency, he says, he might advise his client to hire a third party to collect the salary data, “to avoid the appearance and possibility of misuse of information.”
Darryl L. DePriest, the bar association’s general counsel, says its accrediting practices were in line with those of other groups.
Milton Blood, chairman of the Association of Specialized and Professional Accreditors, which represents about 40 agencies, welcomes the new scrutiny of accreditation. “What they may underestimate is how much other accreditors have already changed what they’re doing,” says Mr. Blood, who is also director of accreditation for the American Assembly of Collegiate Schools of Business.
Nonetheless, he has compiled newspaper clippings on the consent decree and is sending them to his members along with a memorandum urging them to review their standards in light of antitrust laws.
Accreditors that have had brushes with antitrust complaints in the past seemed the surest that they were now on firm ground with their standards. For example, the Liaison Committee on Medical Education was investigated in 1988 by the Federal Trade Commission after being accused of unfairly restricting trade through the accreditation process. “We have been through this,” says Donald G. Kassebaum, a secretary to the committee. The complaints were found to lack merit, he says. He also points out differences between accrediting practices for medical schools and law schools. For example, fewer than half of the members of the medical-school-accrediting committee are professors or administrators.
That’s also the case with the National Architectural Accrediting Board, says John M. Maudlin-Jeronimo, its executive director. The board has its standards reviewed periodically by a lawyer, and he assumes that other groups linked to state licensure do the same, he says. “That’s the restraint-of-trade issue. The Justice Department could care less how many business schools there are, because you don’t have to graduate from an accredited school to be a businessman.”