142 F.3d 26 (1st Cir. 1998), 97-1926, Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n

Docket Nº:97-1926.
Citation:142 F.3d 26
Party Name:MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC., Plaintiff, Appellant, v. AMERICAN BAR ASSOCIATION, et al., Defendants, Appellees.
Case Date:April 24, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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142 F.3d 26 (1st Cir. 1998)



AMERICAN BAR ASSOCIATION, et al., Defendants, Appellees.

No. 97-1926.

United States Court of Appeals, First Circuit

April 24, 1998

Heard Jan. 8, 1998.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Michael L. Coyne, with whom Peter M. Malaguti was on brief, for appellant.

Joseph L. Kociubes, with whom Peter J. Mancusi, Bingham, Dana LLP, David T. Pritikin, David R. Stewart, Sidley & Austin, Darryl L. DePriest, and Catherine A. Daubard were on brief, for appellees American Bar Association and affiliated individuals.

Vincent M. Amoroso, with whom Peabody & Arnold, Robert A. Burgoyne, and Fulbright & Jaworski L.L.P. were on brief, for appellee Association of American Law Schools.

James R. DeGiacomo, with whom Judith K. Wyman and Roche, Carens & DeGiacomo, P.C. were on brief, for appellee New England School of Law.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

The lawsuit that undergirds this appeal pits a fledgling law school, built on a foundation of unconventional premises, against the legal establishment. The gargantuan record, capable of inducing tapephobia in even the hardiest appellate panel, is forbidding, but sheer bulk rarely is an accurate proxy for complexity. Having scaled the mountain of papers and obtained a clear view of the legal landscape, we conclude that the lower court correctly apprehended both the issues and the answers. Consequently, we uphold the several rulings that the appellant so vigorously contests.


In late 1995, Massachusetts School of Law (MSL) sued the American Bar Association (the ABA), the American Association of Law Schools (the AALS), New England School of Law (NESL), and fourteen individual defendants. The facts that inform MSL's wide-ranging allegations are too diffuse to shed much light at this juncture, so we leave them shuttered until they can illuminate the specific issues raised by this appeal. We deem it helpful, however, to describe at the outset

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the institutions and individuals involved in the litigation.

We begin with MSL, a non-profit institution that opened its doors in 1988. The school's self-proclaimed mission is to provide high-quality, affordable legal education to capable persons who traditionally have been shut out of the legal profession, including members of disadvantaged demographic populations and persons turning to the law in search of a second career. To this end, MSL does not require applicants to take the Law School Aptitude Test (LSAT) because it considers the test biased. Moreover, MSL's curriculum features a higher-than-usual percentage of adjunct instructors and a concentrated focus on professional skills courses. MSL is not a fully accredited law school, but in 1990, the Massachusetts Board of Regents authorized the school to award the J.D. degree and thereby enabled MSL graduates to sit for the Massachusetts bar.

The ABA is the largest national organization of the legal profession. It has a membership of more than 380,000, composed principally of practicing lawyers (including lawyers in government and corporate America), judges, court administrators, and legal educators. Though the ABA does not have the power to discipline lawyers, it promulgates model rules, develops guidelines, and strives to function as the national voice of the legal profession. In that capacity, it long has served as the chief accreditor of law schools.

The AALS is a non-profit association of 160 law schools. Its stated objective is "the improvement of the legal profession through legal education." It serves as a trade organization for law professors and, with reference to legal education, acts as the academy's principal representative to the federal government and to national higher education organizations. The AALS is separate from the ABA, but the two informally interlock in various ways. Many individuals are active in both organizations and many AALS members participate in the ABA accreditation process.

The fourteen individual defendants divide into two groups. One group (the Eight Individual Defendants) comprises the seven members of the ABA's Accreditation Committee (the Committee) plus the immediate past chair of the ABA's Section of Legal Education and Admissions to the Bar (the Section). The other group (the Six Individual Defendants) comprises the five members of the ABA team that visited MSL during its unsuccessful effort to obtain accreditation, plus a consultant who advised the ABA during that process. All fourteen individual defendants are active participants in accreditation-related matters.

NESL is an ABA-accredited law school located in Boston, Massachusetts. MSL regards itself as a competitor of NESL--and one which, if accredited, would be all the more formidable.


For more than 70 years, the ABA has promulgated the standards for law school accreditation (the Standards). It is widely believed among legal educators and regulatory organizations that compliance with the Standards enhances the quality of legal education. MSL disputes this conventional wisdom but, since 1952, the United States Department of Education (the DOE) has recognized the ABA as a "reliable authority" anent the quality of legal education and has designated it as the relevant accrediting body. 20 U.S.C. § 1099b(a). 1 As a result of this recognition, ABA-accredited schools are eligible to participate in federal student loan programs. See 20 U.S.C. § 1141(a)(5). Accredited institutions also receive various state-based benefits, not the least of which is that all fifty states, the District of Columbia, and the Commonwealth of Puerto Rico deem graduation from an ABA-accredited institution sufficient to satisfy the legal

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education requirement for admission to the bar.

The accreditation process works something like this. A law school may apply for ABA accreditation after three years of operation. Its application must include a self-study, delineating its perception of its present and projected compliance with the Standards and explaining any deviations from them. The Committee reviews each application and appoints a site-visit team to conduct interviews and inspect the applicant's physical plant. This team reports its findings to the Committee. If the Committee determines that the school is in compliance with the Standards, the accreditation process moves forward. If a school is found not to be in compliance with the Standards, the Committee nonetheless may recommend provisional accreditation if it receives satisfactory assurances that the applicant will achieve compliance within three years. See Standard 104(a).

In the absence of compliance (actual or anticipated), there is another potential route to accreditation: the applicant may request a variance from the Standards, and the body that oversees the accreditation process, the Council of the Section (the Council), may choose to grant it as a matter of discretion. Standard 802 governs the variance procedure. Because this Standard is central to MSL's accreditation effort, we reprint it in full:

A law school proposing to offer a program of legal education contrary to the terms of the Standards may apply to the Council for a variance. The variance may be granted if the Council finds that the proposal is consistent with the general purpose of the Standards. The Council may impose such conditions or qualifications as it deems appropriate.


MSL applied for ABA accreditation in 1992. From the outset, MSL recognized that its practices were discordant with the Standards, yet remained steadfast in its deliberately contrarian mission. 2 At no time did MSL argue present compliance with the Standards or promise future compliance. Instead, it confessed in its self-study that "[t]o the considerable extent MSL's goals and methods are innovative, sometimes they deliberately run counter to conventional ABA criteria of accreditation." Not surprisingly, MSL invoked Standard 802 by letter dated January 27, 1993, and requested "a waiver of each and every Standard that ... might bar accreditation" on the ground that, despite its admitted lack of conformity, "MSL provides a high quality legal education that meets the underlying objectives of the accreditation process."

An ABA team visited MSL's campus in April 1993. The next month, the site-visit team recommended that the Committee deny accreditation because MSL was in default of myriad Standards. 3 The Committee accepted the recommendation and rejected the application. MSL successively appealed to the Council and to the ABA's House of Delegates,

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both of which upheld the denial of accreditation.


Although the instant litigation has all the hurly-burly of a major engagement, it is in point of fact a rear-guard action. In November 1993, MSL brought an antitrust suit against the ABA, the AALS, and twenty-one individual defendants (including twelve of the fourteen persons sued here) in the United States District Court for the Eastern District of Pennsylvania. The Third Circuit subsequently characterized MSL's complaint as alleging that the named defendants conspired "to enforce the ABA's anticompetitive accreditation standards [and thus violated the Sherman Act] by: (1) fixing the price of faculty salaries; (2) requiring reduced teaching hours and non-teaching duties; (3) requiring paid sabbaticals; (4) forcing the hiring of more professors in order to lower student/faculty ratios; (5) limiting the use of adjunct professors; (6) prohibiting the...

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