complaint 2 amended

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Second Amended Complaint - Page 1

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ANITA L. STAVER, SCOTT BLAUE, )

CESERY L. BULLARD, TERRY )COVERT, DARYLAINE HERNANDEZ, )

TIMMY MCCLAIN, STEPHANIE )

PAPOULIS, SHANNON KEITH )

TURNER, individually, and on behalf of )

all others similarly situated; )

MICHAEL M. OBRIEN, and )

ARMANDO R. PAYAS, individually and )on behalf of all others similarly situated, )

)

Plaintiffs, )

)vs. ) Case No.: 6:01-CV-873-0RL-31-KRS

) Judge Gregory A. Presnell

) Magistrate Judge Karla R. Spaulding

)

AMERICAN BAR ASSOCIATION, ) DEMAND FOR JURY TRIAL

) CLASS ACTION COMPLAINT

Defendant. )

____________________________________)

SECOND AMENDED COMPLAINT

COME NOW, the individual and representative plaintiffs, ANITA L. STAVER, SCOTT

BLAUE, CESERY L. BULLARD, TERRY COVERT, DARYLAINE HERNANDEZ, TIMMY

MCCLAIN, STEPHANIE PAPOULIS and SHANNON KEITH TURNER, (hereinafter

Representative Plaintiffs), MICHAEL M. OBRIEN and ARMANDO R. PAYAS (hereinafter

Representative Plaintiffs OBrien and Payas) (collectively referred to hereinafter as Plaintiffs),

by and through their undersigned counsel, and respectfully request this Court to issue Declaratory

Judgment, Preliminary and Permanent Injunctive Relief and Damages. In support thereof, Plaintiffs

show unto the Court as follows:

This is a civil action whereby Plaintiffs seek Preliminary and Permanent Injunctive Relief


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enjoining Defendant, the AMERICAN BAR ASSOCIATION, (hereafter ABA), and other

conspirators, agents, servants and employees and those acting in active concert and with actual notice

thereof, from engaging in further violations of Sections 1 and 2 of the Sherman Act (15 U.S.C. 1

et. seq.), the Florida Antitrust Act of 1980, and Section 108.40 of the General Not for Profit

Corporation Act of 1986 (805 Ill. Comp. Stat. Ann. 105/101.01 et seq. (West 2001)) (hereafter

Illinois Not for Profit Act). An actual controversy exists between the parties, in that the challenged

actions of the ABA have caused and will continue to cause Plaintiffs substantial harm unless the

requested relief is granted. Plaintiffs further pray for treble damages under 15 U.S.C. 15.

JURISDICTION AND VENUE

1. The Plaintiffs bring this class action against the ABA pursuant to15 U.S.C. 15, 26,

and Section 542.22 of the Florida Statutes, for treble damages and injunctive relief as a result of

violations by the ABA of the Sherman Act and the Florida Antitrust Act, and pursuant to 805 Ill.

Comp. Stat. 105/101.01 et seq.

2. Exclusive jurisdiction exists in this Court over the federal claims herein pursuant to

the 15 U.S.C. 4 and 28 U.S.C. 1331.

3. Venue is proper in this Court pursuant to 15 U.S.C. 22, and 28 U.S.C. 1391, in

that the ABA transacts business and is found in Orlando, Florida through its accrediting and other

business activities.

4. This Court is authorized to issue the Injunctive Relief requested by Plaintiff under

Rule 65 of the Federal Rules of Procedure and pursuant to 15 U.S.C. 26 and Section 542.23 of the

Florida Statutes.

5. This Court is authorized to award damages, including a reasonable attorneys fee

under 15 U.S.C. 15 and Fla. Stat. Ann. 542.22.

6. This Court has subject matter jurisdiction under 15 U.S.C. 4 to prevent and restrain


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violations by the ABA of Sections 1 and 2 of the Sherman Act.

7. This Court has jurisdiction of any and all state law claims by virtue of 28 U.S.C.

1367.

8. This Court has diversity jurisdiction pursuant to 28 U.S.C. 1332. The amount in

controversy in this action exceeds $75,000.00.

9. The ABA is headquartered in Chicago, Illinois, and transacts business and is found

within the State of Florida. Representative Plaintiffs are students or graduates of Barry University

School of Law (hereafter Barry) located in Orlando, Florida, or were former students of Barry that

have withdrawn until Barry receives accreditation.

10. Representative Plaintiff OBrien is an ABA member and a resident of Orange County,

Florida.

PARTIES

11. Defendant, the ABA is a national association of lawyers. It is the worlds largest

professional trade association.

12. The ABA is organized as an Illinois not for profit corporation with its principal place

of business in Chicago, Illinois.

13. The ABAs major functions are to provide law school accreditation, continuing legal

education, information about the law, programs to assist lawyers and judges in their work, and

initiatives to improve the legal system for the public. See http://www.abanet.org/about/home.html.

14. The ABA sends Site Teams to visit law schools throughout the United States and in

the state of Florida and performs other accrediting activities within all the states, including Florida.

15. Representative Plaintiffs reside in Florida, but some members of the Class reside

outside the State of Florida.

16. The ABA engaged in any act, deed, or transaction through its officers, directors,


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employees, agents, or other representatives while they were actively engaged in the management,

direction, control, or transaction of its business or affairs.

17. Various others, not named as defendants, have participated as conspirators with the

ABA in the violations alleged in this Complaint, and have performed acts and made statements to

further the agreement.

18. The ABAs accrediting activities and operations have a substantial effect on, or

involve or affect the flow of, interstate commerce.

19. The ABAs accrediting activities and operations have a substantial effect on, or

involve or affect the ability of, law schools seeking to provide legal education services and such

activities and operations affect the supply of attorneys in many states, including Florida.

20. Plaintiff Anita L. Staver, a resident of Seminole County, Florida, graduatedsumma

cum laude from Barry University School of Law in June 2000, and sat for the Florida Bar Exam in

July, 2000. While in law school, she was on the law review Editorial Board and served as Note and

Comment Editor. She is employed as a law clerk for Liberty Counsel, a not-for-profit civil liberties

organization.

21. Plaintiff Scott Blaue, a resident of Brevard County, Florida, graduated cum laude

from Barry in June 2000, and sat for the Florida Bar Exam in July, 2000. While in law school, Mr.

Blaue was Editor of the Barry Law Review. Mr. Blaue is employed as a law clerk for the law firm

of Markey & Fowler, P.A.

22. Plaintiff Cesery Bullard, a resident of Orange County, Florida, graduatedmagna cum

laude from Barry in June 2000, and sat for the Florida Bar Exam in July 2000. Ms. Bullard is

employed as a law clerk with the law firm of Fishback, Dominick, Bennett, Stepter, Ardaman,

Ahlers, Sikes & Bonus.

23. Plaintiff Terry Covert, a resident of Orange County, Florida, is a student at Barry,

with an anticipated graduation date of December 2001. Mr. Covert is employed as the Vice


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President of Compliance for a broker/dealer and a proprietary mutual fund.

24. Plaintiff Darylaine Hernandez, a resident of Orange County, Florida, is a June 2000

graduate of Barry, and sat for the Florida Bar Exam in February 2001. Ms. Hernandez is employed

as a legal assistant for the law firm of Billings, Cunningham, Morgan and Boatwright.

25. Plaintiff Timothy McClain, a resident of Orange County, Florida, is a law student at

Barry, with an anticipated graduation date of December 2001. Mr. McClain is employed as a law

clerk by Dennis Savagio, P.A.

26. Plaintiff Stephanie Papoulis, a resident of Palm Beach County, Florida, graduated

second in her class from Barry in January 2000, and sat for the Florida Bar Exam in July, 2000. Ms.

Papoulis is employed as a law clerk for the General Counsel of U.S. Industries.

27. Plaintiff Shannon Keith Turner, a resident of Orange County, Florida, is a law student

at Barry, with an anticipated graduation date of December 2001. Mr. Turner is a case manager at

the law firm of Best & Anderson, P.A.

28. Plaintiff Michael M. OBrien, a resident of Orange County, Florida, has been an

attorney for approximately 20 years. Mr. OBrien is a member of the ABA. Mr. OBrien employs

graduates of Barry.

29. Plaintiff Armando R. Payas, a resident of Seminole County, Florida, has been an

attorney for approximately 18 years. Mr. Payas is a member of the ABA. Mr. Payas employs

students and graduates of Barry.

CLASS ACTION ALLEGATIONS

30. Plaintiffs bring this class action on behalf of themselves and all others similarly

situated, as members of a proposed plaintiff class pursuant to Rule 23(a), 23(b)(1), 23(b)(2) and/or

23(b)(3) of the Federal Rules of Civil Procedure. The first proposed plaintiff class (Class I) is

composed of and is defined as all persons who have graduated from Barry, or who are currently

enrolled as students at Barry. The second proposed plaintiff class (Class II) is composed of and


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is defined as all attorneys who have employed graduates of Barry. The second proposed plaintiff

class (Class II) is also composed of and is defined as all attorneys who are members of the

American Bar Association who employ or wish to employ graduates of Barry.

31. This class action has been brought and may properly be maintained as a class action

satisfying the numerosity, commonality, typicality, adequacy, superiority, and impairment

requirements because:

(a) There are over 400 members of Class I residing in various parts of the United

States and they are so numerous that their individual joinder would be

impractical. There are numerous members of Class II residing in various

parts of the United States and they are so numerous that their individual

joinder would be impractical.

(b) Common questions of law and fact that exist as to all members of Class I and

Class II predominate over any questions that only affect individual Class

members. These questions of law and fact include without limitation:

(1) whether Rule 6(b)(4) of the ABAs Rules of Procedure for the

Approval of Law Schools, and Article I, section 2(b), Article IV,

section (b) and Article X of the Section Bylaws, which give the

Council of the Section of Legal Education and Bar Admission (which

was created by the ABA as an advisory body) final authority over

accreditation decisions, violates the Illinois Not for Profit Act and

Article 6.1 of the ABA Constitution;

(2) whether the ABA violated Sections 1 and 2 of the Sherman Act and

the Florida Antitrust Act of 1980, by denying accreditation to Barry

University School of Law because of the ABAs intent to preventcompetition to state-sponsored law schools, at least one of which is

to be located in Orlando;

(3) whether the ABA violated Sections 1 and 2 of the Sherman Act, and

the Florida Antitrust Act of 1980, by denying accreditation to Barry

because of the ABAs intent to prevent Barry from competing with

non-religious schools such as the Appalachian School of Law, theWilliam S. Boyd School of Law of the University of Nevada-Las

Vegas (hereafter UNLV), and others, notwithstanding the favorable

recommendation regarding Barry from the ABAs Accreditation

Committee of the Section of Legal Education and Admissions to the

Bar (hereafter Accreditation Committee), and the fact that Barry


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substantially complied with or exceeded the ABAs provisional

accreditation Standards;

(4) whether the ABA should be enjoined from enforcing Rule 6(b)(4) of

the ABAs Rules of Procedure for the Approval of Law Schools,

Article IV;

(5) whether the ABA should be required to grant provisional

accreditation to Barry because the ABA applied accreditation

Standards in a discriminatory manner to protect other law schools

from competition and for other anti-competitive purposes; and thus

effectively engaged in an illegal boycott of Barry;

(6) whether the ABA violated Rule 5 by reviewing de novo the favorable

recommendation by the Accreditation Committee to approve Barry;

and

(7) whether members of Class I and Class II have sustained damages as

a consequence of the ABAs actions.

(c) The Representative Plaintiffs claims are typical of those of the proposed

Class, since each of the Representative Plaintiffs is, or during the relevant

time frame has been, a student or graduate of Barry. All of the

Representative Plaintiffs, like all members of Class I, have sustained

monetary damages arising out of the ABAs actions in violation of Sections

1 and 2 of the Sherman Act, the Florida Antitrust Act of 1980, and the Illinois

Not for Profit Act.

(d) Representative Plaintiffs OBriens and Payas claims are typical of those of

the proposed Class II, since they have employed graduates of Barry.

Representative Plaintiffs OBrien and Payas, like all members of Class II,

have sustained monetary damages arising out of the ABAs actions in

violation of Sections 1 and 2 of the Sherman Act, the Florida Antitrust Act

of 1980, and the Illinois Not for Profit Act.

(e) Plaintiffs are adequate representatives of Class I and Class II because they

share the same interests with all Class members and because their claims and

losses are typical of those of the other Class members. Plaintiffs have

retained competent counsel who are experienced in civil litigation and

specifically in antitrust litigation, and they will fairly and adequately protect

the interests of the Class.

(f) The ABA has acted on grounds generally applicable to the members of both

Classes, thereby making appropriate preliminary and permanent injunctive


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relief as to Class I and Class II as a whole.

(g) A class action is superior to other available methods for the fair and efficient

adjudication of this matter, since individual joinder of all affected individuals

is impracticable. It would be virtually impossible for individual Class

members effectively to redress their wrongs on an individual basis.Individualized litigation would present the potential for inconsistent and

contradictory judgments, and would magnify the potential for delay and

expense for all parties and to the judicial system. The class action proposed

prevents far fewer management difficulties and is the most appropriate forum

for litigating the claims made herein and provides the benefits of unitary

adjudication and comprehensive adjudication of a single court.

FACTS

32. Barry University School of Law (hereafter Barry) is a law school located in

Orlando, Florida, that does not have ABA accreditation.

33. Barry is associated with the largest Dominican institution of higher learning in the

world, and is the only law school in the history of the United States to be affiliated with a university

founded by and continually administered by women.

34. Barrys mission in part is to benefit the community, which includes the education of

minorities. Thirty-seven percent of Barry students are minorities.

35. Barry has applied for and received regional accreditation from the Southern

Association of Colleges and Schools.

36. Barry filed an application with the ABA for provisional accreditation.

37. The ABA sent an ABA Site Team (hereafter Site Team) to Barrys campus and the

Site Team prepared an exhaustive report which was submitted to the ABA Accreditation Committee.

Upon consideration of the report, the Accreditation Committee recommended that Barry receive

provisional accreditation.

38. According to Rule 5 of the Rules for Approval of Law Schools by the American Bar

Association (hereafter Rule or Rules), the Council of the Section of Legal Education and


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Admissions to the Bar (hereafter Council), is required to give deference to a favorable

recommendation from the Accreditation Committee and may only undertake a de novo review if the

Accreditation Committee recommends against provisional accreditation.

39. Violating its own Rule, the Council undertook a de novo review, reversed the

recommendation, and denied Barry accreditation.

40. The Council, in denying Barry accreditation, impermissibly took into consideration

anti-competitive concerns with regards to other competing law schools.

41. Approval of the ABA is a critical factor to the continued operation of any law school.

The ABA is the only accrediting agency for law schools that is recognized by the United States

Department of Education (hereafter DOE).

42. Graduation from an ABA approved school is a requirement for admission to the bar

in Florida.

43. Obtaining a Juris Doctorate degree from an ABA approved school is a prerequisite

to enrolling at most law schools to pursue a speciality degree in law, such as an L.L.M. degree. Law

schools offering an L.L.M. degree require not only the J.D. degree, but most further require that the

degree be conferred by an ABA accredited school. A law license is not required to pursue an L.L.M.

degree.

44. Standard 401(a) requires that a law school shall have a faculty that possess a high

degree of competence, as demonstrated by its education, . . . To conform with this Standard, ABA

approved schools offer employment to teach only to those applicants who have graduated from an

ABA approved school. However, a law license is not required to be a legal educator in order to teach

at law schools.

45. Some of the Plaintiffs desire to teach law in a law school environment, to teach law

outside the law school environment, to pursue employment outside of the legal profession and some

have political aspirations (hereafter collectively non-licensed job opportunities). None of these


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areas of pursuit require a law license. Yet, Plaintiffs ability to pursue non-licensed job opportunities

have been either precluded or severely restricted because the ABA wrongfully withheld

accreditation of Barry.

46. Some of the Plaintiffs desire to offer their legal representation and other legal services

pro bono or at below market prices.

47. A requirement of joining the Orange County Bar Association is the provision of pro

bono legal representation.

48. If Barry does not receive provisional accreditation from the ABA, graduates of Barry

may be precluded from being licensed to practice law in any state or territory. (See State-By-State

Educational Requirements, (Exhibit 1).

49. Since the ABA refused to accredit Barry within twelve months of the 2000 Site Team

visit, many of the graduates will be precluded from pursuing L.L.M. degrees at a school of their

choice and from pursuing non-licensed job opportunities. The ABAs actions have created a stigma

separate and distinct from obtaining a law license which will hinder the current students from

pursuing L.L.M. degrees at a school of their choice and from pursuing non-licensed job

opportunities.

50. Under the ABAs recently revised procedure, the Council, an advisory body of the

ABA, has been vested with final authority over accreditation decisions as the ABAs House of

Delegates (hereafter House) no longer has the authority to overrule a Council decision.

51. The ABAs action in vesting an advisory body with the power to bind the corporation

on a central concern of the ABA (namely accreditation), is an illegal, ultra vires act in violation of

the Illinois Not For Profit Act and violates Article 6.1 of the ABA Constitution.

The History and Structure of the ABA

52. The ABA was founded in 1878, and is the largest voluntary professional association

in the world. Established in 1936, the House meets twice per year, at the ABA annual and mid-year


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meetings. This year the annual meeting is August 7-8, 2001. The control and administration of the

ABA is vested in the House, which consists of 532 members.

53. At the mid-year meeting, a nominating committee nominates officers and members

of the Board of Governors, and at the annual meeting, the full House votes on these nominees. The

Board of Governors consists of 37 members and has authority to act and speak for the ABA when

the House is not in session. The Board of Governors usually meets five times per year and oversees

the general operation of the ABA.

54. In 1973, the House adopted the Standards for Approval of Law Schools

(Standards), which set forth the requirements that law schools must meet in order to be approved.

The Standards and Interpretations of the Standards that are adopted relate to many aspects of the

operation of law schools, including admissions, educational requirements, faculty, placement

programs, funding and facilities.

55. Legal educators have historically dominated and have continued to dominate the law

school approval standard-setting and law school approval process.

56. Since 1921, the ABA has accredited law schools.

57. Law school accreditation is a central and integral part of the ABAs operation.

58. The ABAs Section of Legal Education and Admissions to the Bar was created in

1893 as the ABAsfirstsection (hereafter Section).

59. The ABA has sections, divisions, and commissions, standing and special committees,

forums and task forces that are part of the ABA and are not separately incorporated.

60. Each section has Bylaws, but amendments to the Bylaws become effective only upon

approval of the Board of Governors or the House of Delegates.

61. The Council established the Accreditation Committee to recommend provisional or

full approval of new law schools and to oversee and reinspect currently approved law schools.

62. A Site Team, as fact-finder, is assigned by the Accreditation Committee to visit a law


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school that has applied for accreditation.

63. The law school is charged for every Site Team that visits the school.

64. The Site Team prepares a detailed report for the Accreditation Committee, but makes

no conclusions or recommendations.

65. After reviewing the Site Teams report, the Accreditation Committee makes

conclusions based on the facts in the report and makes a recommendation to the Council for or

against approving the schools application for accreditation.

66. If the Accreditation Committee recommends denial of accreditation, Rule 5(b)

requires the Council to review the schools application de novo.

67. If the Accreditation Committee recommends approval of a school, there is no

provision for a de novo review of the schools application.

68. The Councils review of a favorable accreditation recommendation must give the

Accreditation Committee deference.

69. Rule 5(a), pertaining to Council consideration of a Committee Recommendation,

states as follows:

(a) Accreditation Committee Recommendation to Approve. In the event thatthe Accreditation Committee shall determine to recommend to the Council that

provisional or full approval be granted, the Consultant shall place the Committee

recommendation on the agenda of the meeting.

70. Rule 5(b), pertaining to Council consideration of a Committee Recommendation,

states as follows:

(b) Accreditation Committee Recommendation to Disapprove. In the eventthat Accreditation Committee shall determine not to recommend to the Council that

provisional or full approval be granted and if the Consultant receives a timely noticeof appeal to the Council from that decision, the Consultant shall place the schools

appeal on the agenda of a Council meeting. The appeal to the Council shall

constitute a de novo proceeding. (emphasis added).

71. The Section has been charged with overseeing accreditation activities. From 1921


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to August 1999, the House had final authority over accreditation decisions, but in August 1999, the

ABA amended the Section Bylaws to vest final authority over accreditation in the Council.

72. In response to federal law that was enacted in 1992, and federal regulations adopted

in 1994, the DOE began reviewing the ABA accreditation procedure in 1997.

73. In determining that the ABA was not in compliance with the federal law, the ABA

revised the bylaws governing the section of Legal Education and Admissions to the Bar (hereafter

Section) in August of 1999.

74. Article IV, section (b) of the Section Bylaws now states as follows:

The Council shall develop separate budgets for the Accreditation of Law Schools

Project and for its other activities. Both budgets shall be prepared pursuant to the

generally established accounting principles used by the Sections and entities within

the Association. The Accreditation of Law Schools Project budget itself, however,

will not be subject to review or consultation by the Board of Governors or any other

entity outside the Section. The budget for the other activities of the Section will be

subject to the Associations regular budget process. With respect to those other

activities, the Council shall not authorize committees for expenditures in a fiscal year

that would exceed the income and reserves of the Section for that fiscal year without

approval of the Board of Governors.

American Bar Association Section of Legal Education and Admissions to the Bar Bylaws.

75. Article X of the Section Bylaws states that while any action of the Section must be

approved by the House or by the Board of Governors of the ABA before the action can be effective,

actions relating to the accreditation of law schools do not need approval by these governing bodies.

Any action by this Section must be approvedby the House of Delegates or by the

Board of Governors of the American Bar Association before the action can be

effective as the action of the American Bar Association. Actions taken pursuant to

Article I, Sections 2(a-b) of these Bylaws shall become effective after review by the

House of Delegates, as set forth in the Rules of Procedure for the Approval of Law

Schools. Any resolution or recommendation adopted or action taken by the Sectionshall, on request of the Council of the Section, be reported by the Chairperson or

Section Delegate to the House of Delegates or to the Board of Governors for action

by the Association.

76. Actions pursuant to Article I, section 2(a-d) of the Section Bylaws pertain to the


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accreditation of law schools.

77. Rule 6 sets forth a new procedure regarding an appeal to the House, but limits the

Houses authority solely to a remand.

78. In response to concerns raised by the DOE pursuant to the 1992 amendment to the

Higher Education Act, in August 1999, the ABA amended Article X of the Section Bylaws to state:

Any action by this Section must be approved by the House of Delegates or by the

Board of Governors of the American Bar Association before the action can be

effective as the action of the American Bar Association. Actions taken pursuant to

Article I, Sections 2(a-b) of these Bylaws shall become effective after review by the

House of Delegates, as set forth in the Rules of Procedure for the Approval of Law

Schools.

79. Article I, Sections 2(a) of the Section Bylaws provide that the Section through its

Council and subject to the review of the House of Delegates shall have the power (a) To establish

standards and procedures to be met and observed by law schools in obtaining and retaining the

approval of the Association. Such standards and procedures shall become effective after review of

the House of Delegates.

80. Article I, Section 2(b) of the Section Bylaws provide that the Council may receive

and process applications of law schools for provision or full approval, to grant or deny such

applications, and to withdraw, suspend or terminate approval of law schools. Such decision

concerning the approval of law schools shall become effective after review of the House of

Delegates.

81. The ABA Rules of Procedure of the House of Delegates under Article 45.9 now

provides that the House may only agree or refer back to the Council a Council decision to grant

or deny provisional or full accreditation but does not allow the House to overrule a Council decision

regarding accreditation.

82. Rule 6(b) explains the new procedure for review by the House of the Councils

decision to deny provisional or full accreditation to law schools. Subsection (4) of the Rule states:


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A decision by the Council to deny an application for provision or full approval, if

appealed by the law school, is subject to a maximum of two referrals back to the

Council by the House. If the House refers a Council decision back to the Council

twice, then the decision of the Council following the second referral will be final

and will not be subject to further review by the House. (emphasis added).

83. The Council decision after a second remand is final and binding on the corporation.

Neither the House nor the Board of Governors may veto the Councils decision.

84. Despite the amendments to the Section Bylaws and the Rules, the ABA never

amended Article 6.1 of the ABA Constitution, which states in relevant part:

The House of Delegates shall control, formulate policy for, and administer the

Association. It has all the powers necessary or incidental to performing those

functions. It shall supervise and direct the Board of Governors, officers, sections,

committees, and employees and agents of the Association. (emphasis added).

85. Article I, Sections 2(a) and 2(b), Article IV, Section (b) and Article X of the Section

Bylaws along with Rule 6(b) conflict with and are prohibited by the ABA Constitution under Article

6.1 in that the Constitution requires the House of Delegates to supervise and direct the Section but

the Section Bylaws and Rules prohibit the House of Delegates from supervising and directing the

Section with respect to law school accreditation and the Accreditation of Law Schools Project

budget.

86. From the inception of the ABA until 1992, the ABA was an unincorporated

association. In December 1992, the ABA incorporated in Illinois as a not for profit corporation.

See 805 Ill. Comp. Stat. 105/101.10 et seq.

87. Members of the Board of Governors were listed as the incorporators on the ABAs

Articles of Incorporation filed with the State of Illinois.

88. The ABA has been granted 501(c)(6) status as a business league by the IRS.

89. Pursuant to Illinois law, the Board of Directors (referred to by the ABA as the Board

of Governors) may create and appoint persons to a commission, advisory body or other such body

which may or may not have directors as members, which body may not act on behalf of the


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corporation or bind it to any action but may make recommendations to the Board of Directors or

to the officers. 805 Ill. Comp. Stat. 105/108.40(d) (emphasis added).

90. Pursuant to the Illinois Not for Profit Act, a corporation may establish a committee.

Each committee shall have two or more directors, a majority of its membership shall be directors,

and all committee members shall serve at the pleasure of the board. 805 Ill. Comp. Stat.

105/108.40(a).

91. A majority of the Councils membership does not consist of members of the Board.

92. A majority of the Councils membership does not consist of members of the House.

93. An advisory body an Illinois not for profit corporation may or may not have directors

as members, and may not act on behalf of the corporation nor bind the corporation to any action, but

merely makes recommendations to the board or to the officers. See 805 Ill. Comp. Stat.

105/108.40(d).

94. Council members are not appointed by the ABA president, nor by the Board of

Governors or House.

95. ABA Committees are either standing or special, depending upon the probable

duration. Standing committees consist of the Executive Committee, the Operations and

Communications Committee and the Finance Committee.

96. The Council is not a committee, but instead is an advisory body.

97. Until August 1999, the Council has always operated as an advisory body consistent

with the Illinois Not for Profit Act.

98. Outside of the function of accrediting law schools, the Council continues to operate

as an advisory body.

99. With respect to the function of accrediting law schools, the Council now makes

binding decisions on the corporation which neither the House nor the Board of Governors may veto.

100. The Accreditation of Law Schools Project budget is no longer subject to review or


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consultation by the Board or any other entity outside of the Section.

101. The Council operates as an autonomous entity with respect to budgetary matters

pertaining to accreditation and with respect to decision-making authority regarding accreditation of

law schools.

102. Barry, and the Plaintiffs herein, are the first to be subject to this binding authority of

the Council, in that the Council decisions may not be vetoed by the House.

103. This newly-established procedure violates the Illinois Not for Profit Act and is

unlawful ultra vires action in that, contrary to Illinois law, an advisory body (the Council) is seeking

to bind the entire corporation.

The Department Of Justice Antitrust Consent Decree.

104. On November 23, 1993, the Massachusetts School of Law at Andover filed a federal

suit against the ABA, complaining that the ABA and others combined and conspired to organize and

enforce a group boycott, and conspired to monopolize legal education, law school accreditation, and

the licensing of lawyers, in violation of the Sherman Act.

105. In January, 1994, the Antitrust Division of the United States Department of Justice

(hereafter DOJ) began an investigation of ABA accreditation of law schools .

106. On June 27, 1995, the DOJ filed a federal antitrust action against the ABA under

Section 1 of the Sherman Act.

107. The federal court for the District of Columbia approved a Consent Decree between

the ABA and the DOJ on June 25, 1996.

108. The DOJs Complaint alleged that the ABA restrained competition among

professional personnel at ABA-approved law schools by fixing their compensation levels and

working conditions, and by limiting competition from non-ABA-approved schools. The Complaint

also alleged that the ABA allowed its accreditation process to be captured by those with a direct

interest in the outcome, and as a result, the ABA sometimes acted as a guild, protecting the interests


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of professional law school personnel, rather than as a legitimate accreditation agency setting

minimum standards for law school quality. The Complaint also alleged a number of other

accreditation standards and practices which had been applied inappropriately to enhance

compensation and working conditions for professional staff.

109. The parties reached an agreement on a proposed Consent Decree with the remedial

measures falling into three categories.

110. The agreement contained structural measures to ensure that the accreditation process

is governed by persons other than those with a direct economic interest in its outcome, and that the

process is brought more into the public view.

111. These measures included enhancing the Boards involvement in the Councils

decisions on accreditation, restricting the role of legal education professionals in the accreditation

standard-setting processes, and providing an enhanced voice for the public and for law schools

receiving adverse results from the process.

112. The agreement contained prohibitions on plainly anti-competitive conduct designed

to eliminate the adoption or enforcement of any rules, or the taking of any action imposing

requirements, related to the base salary, stipend, fringe benefits, or other compensation paid to those

who work at law schools, and to end the collection and dissemination of compensation data.

113. The Consent Decree eliminated rules that prohibit enrolling Bar members or

graduates of state-accredited (but non-ABA-accredited) law schools, or accepting transfer credits

from state-accredited law schools.

114. The Consent Decree calls for the ABA to establish a Special Commission To

Review The Substance And Process Of The ABAs Accreditation Of American Law Schools to

review the issues and report to the ABAs Board of Governors in order to begin a process to

eliminate anti-competitive objectives.

115. The Consent Decree required, inter alia, that the Council revise its membership so


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that, in part, no more than fifty percent of the members consisted of law school deans or faculty.

116. The DOJ determined that the application of certain ABA standards unreasonably

restricted competition and the market for the services of professional law school personnel.

117. The DOJ explained that the Consent Decree was necessary because most of the

process, as it applied to individual law schools, was carried out by the Accreditation Committee and

the Consultants office and was kept from public view and the supervision of the ABA Board of

Governors and House of Delegates.

118. The DOJ concluded that a mere amendment to the ABA standards and practices

would not provide adequate or permanent relief in that reform of the entire accreditation process

is needed.

119. The provisions were designed to address allegations that the ABA had allowed the

accreditation process to be misused by law school personnel with a direct interest in its outcome.

120. The federal court for the District of Columbia approved a Consent Decree between

the ABA and the DOJ on June 25, 1996.

121. The Consent Decree did not address the issues in the complaint regarding the

application and enforcement of the Standards and Rules pertaining to Barrys application for

accreditation.

122. The DOJ represented to the federal court that the Consent Decree does not prevent

individually aggrieved parties from having a private cause of action against the ABA.

The Department Of Educations Review Of The ABA And The DOJ Modified Consent Decree.

123. In 1992, Congress passed a requirement in the Higher Education Act that required

a DOE-recognized accrediting agency to be separate and independent from an affiliated trade

association. See 20 U.S.C. 1099b(a)(3), 1099b(b). In 1994, the DOE promulgated regulations to

implement the federal law. See 34 C.F.R 602.3(d) (1994-1999), recodified effective July 1, 2000,


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at34 C.F.R. 602.14(a), (b), 64 Fed. Reg. 56612, 56618-19 (Oct. 20, 1999) (hereinafter 34 C.F.R.

602.14(a), (b)).

124. After 1994, the DOE began a thorough review of between 80-100 accrediting

agencies to determine whether each met the new requirements.

125. The ABA sent a letter stating that, in its opinion, it complied with the new federal law

regulations.

126. Based on that assurance, the DOE did not schedule the ABA for review until 1997,

the year after the federal court approved the DOJ Consent Decree in June 1996.

127. Under DOE regulations, 34 C.F.R. 602.14(d), a waiver of the separate and

independent requirement may not be granted if the trade association plays any role in the making

or ratifying of accreditation decisions, or engages in sharing of the accrediting agencys non-public

information, both of which the ABA did.

128. The DOE informed the ABA that it was not entitled to a waiver based on the Houses

role in approving accreditation policies, making final accrediting decisions, and hearing appeals, and

on the sharing of non-public accrediting information between the Council and the ABAs governing

board.

129. The DOE informed the ABA that any affiliated trade association may not make final

accreditation policies or decisions.

130. The body that makes the accreditation decisions may not be elected or selected by the

board or Chief Executive Officer of the related trade association under 20 U.S.C. 1099b(b)(1); 34

C.F.R. 602.14(b)(1).

131. One-seventh of the accrediting agencys decision-making body must be members of

the general public, not members of the trade association.

132. Pursuant to Illinois law, the House, an elected body of delegates from the trade

association membership, had the final decision-making authority on accreditation matters.


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133. Because the House consisted of only ABA members with no public, non-attorney

members, it was not able to meet the one-seventh public membership requirement without

significantly changing its composition.

134. The DOE recommended to the ABA that either the Council must be the final

decision-making authority, or that the composition of the House must be changed, so the ABA

decided to make the Council the final decision-making authority.

135. The DOJ consented to the DOEs recommended modification to the Consent Decree.

136. The district courts only consideration regarding the Consent Decree was limited to

determining whether the proposed modification was within the zone of settlements.

137. In the United States Memorandum in Support of the Joint Motion for Modification

of the Final Judgment, the DOJ and the ABA in response to the DOE

agreed to modify the Final Judgment to specifically provide for the House of

Delegates to have a House of Lords advisory role in accrediting individual law

schools. At the time the Final Judgment was entered, the House of Delegates had

been the final decision-maker on accrediting individual law schools for more than

half a century, and, therefore, the Justice Department did not need to seek relief on

this issue. Because the DOE has now determined that the House may not make these

decisions, the parties have agreed to add this provision to mandate the House of

Lords oversight role that the DOE has approved. Moreover, adding this provision tothe Final Judgment will prevent further dilution of the role of the House of Delegates

without the courts permission.

138. The DOJ and ABA agreed to modify Section VI(A) of the Final Judgment, which now

states as follows:

The ABA shall:

(A) Require

1. that the adoption of amendment of all Standards, Interpretations, and Rules

be subject to the same public comment process before the Standards Review

Committee and Council in the same review process, including approval by the

Council; and

2. that following notification by the Council of the Councils action to adopt

or amend any Standard, Interpretation, or Rule, the House of Delegates shall vote


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either to agree with the Councils action, or refer it back to the Council for

consideration based on reasons specified by the House;provided that the House shall

be limited to referring an action back to the Council a maximum of two times, and

that the decision of the Council will be final following its consideration of the last

permitted referral; Id. (emphasis added). A further modification to VI(N) of the

Final Judgment now requires that the ABA shall:(N) permit appeals to the House of Delegates from a Council decision

granting or denying provisional or full approval to a law school or withdrawing,

suspending or terminating approval to a law school. The House shall vote either to

agree with the Councils action or to refer it back to the Council for a reconsideration based on the reasons specified by the House. An action granting or denying

provisional or full approval may be referred back to the Council a maximum of two

times. An action withdrawing, suspending or terminating approval may be referred

back to the Council one time. The decision of the Council will be final following its

consideration of the last permitted referral. (emphasis added).

139. Tom Leahy, a past president of the Illinois State Bar Association and member of the

House, filed a public objection to the proposed modification, stating that if the House no longer had

authority over the Council, the Council could make independent decisions and not be swayed at all

by the corporation.

140. While the approval of the Consent Decree was pending, the House amended Article

IV of the Councils bylaws to divest oversight by the House or the governing board of the

Accreditation of Law Schools Project budget, over which now the Council has sole authority

because, according to Article VI, Section I(b), ABA Section of Legal Education and Admissions to

the Bar Bylaws, the budget may no longer be subject to review or consultation by the Board of

Governors or any other entity outside the Section.

141. Article X of the Bylaws was amended so that actions taken by the Council regarding

law school accreditation decisions are effective after review, rather than approval, by the House,

pursuant to the Rules.

142. Rule 6 now conforms with the modified Consent Decree so that both the House and

the Board of Governors are divested of final decision-making authority over the Councils

accreditation decisions.


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143. The amendment to the Bylaws and Rules regarding the Councils ability to make the

final decision on accreditation was ultra vires, as is prohibited by the Illinois Not for Profit Act and

Article 6.1 of the ABA Constitution.

The History of Barry University School of Law

144. Barry University of Miami Shores, Florida was founded in 1940 by the Dominican

sisters of Adrian, Michigan. The primary purpose of Barry University is to offer students a quality

education while offering a religious dimension and providing community service and presence

within a caring environment.

145. The entity that would eventually become Barry University School of Law (hereafter

Barry), started as a law school of the University of Orlando, which was incorporated and organized

in 1993 as a not-for profit Florida corporation.

146. The University of Orlando was granted provisional licensure in 1995 and full

licensure in April 1998, by the State of Florida.

147. The University of Orlando became a dual division school, offering programs for full-

time and extended division students. The University of Orlando offered graduate degrees in

education and business in addition to the juris doctorate degree.

148. The University of Orlando School of Law began enrolling students in the part-time

division in the fall of 1995. In 1996, a full-time class was added.

149. In October 1997, the law school applied for provisional ABA accreditation, and had

the first ABA Site Team visit on February 16-18, 1998.

150. The school decided to withdraw the application and reapply at a later date.

151. Barry University acquired the University of Orlando School of Law in March 1999.

152. In 1999 SACS approved the merger between Barry University and the University of

Orlando School of Law. Having been successful in obtaining SACS accreditation, the law school

began offering federal financial aid to its students in the second semester of the 1999-2000 academic


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year.

Barry Applies for ABA Accreditation

153. Barry University School of Law (hereafter Barry) applied for provisional

accreditation (what the ABA calls provisional approval) by the ABA in September 1999. On

October 24-27, 1999, an ABA Site Team visited Barry to determine whether to recommend

accreditation.

154. The Accreditation Committee met on April 27-29, 2000, to consider Barrys

application.

155. An Action Letter was issued by the Accreditation Committee on May 16, 2000,

recommending denial of the Barrys application, but waiving the normal ten-month waiting period

typically required for reapplication.

156. The Action Letter stated that Barry has made considerable progress toward coming

into substantial compliance with the Standards since its last appearance before the Committee.

157. The Action Letter listed four Standards and three Findings of Fact that indicated that

Barry must address in order to be in substantial compliance: Standard 301(a), Standard 303(a) and

(c), and Standards 501 and 505.

158. The basis for finding noncompliance was Findings 10, 11 and 12 in the Accreditation

Committees report.

159. Finding of Fact (10) states:

Students enrolling for the first time in the Fall 1999 had LSAT scores ranging from

131 - 154 and UGPAs of 2.03 - 3.80. Eight L1s had LSAT scores below 140. Ten

students starting in 1998 had scores below 140. The 25th percentile levels for

admittees were 141/2.38 for full-time students and 141/2.49 for part-time. In 1999

the School accepted two transfer students with LGPAs of 1.6 and 1.7 but no transfer

credit was given. In 1998 a transferee with a 1.86 LGPA was given 19 hours of

credit and another with a 1.75 LGPA was given 18 hours. The school is addressing

the admissions problems with additional scholarship funds; a new, more

experienced admissions director; and a goal of increasing the 25th percentile levels

by one point each year for the next three. School officials also believe that the


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eligibility of students to participate in federal loan programs in light of the SACS

approval will assist them in attracting higher quality students. (emphasis added)


The teams review of selected academic records reveals that the School is retainingstudents after they fall into grave academic difficulty. The report adds that [t]here

have not been serious efforts at remediation . . . nor has the [S]chool academically

dismissed students on a consistent basis. The team found one enrolled student who

had attempted 62 credits and earned 54, for an LGPA of 1.37, and another with 50

earned credits with a 1.54. The School failure until recently to timely calculate GPA

certainly contributed to this problem. The School reports that by the end of the

1999-2000 academic year, students in academic difficulty received prompt

notification. (emphasis added)


The grading and examination process had not been standardized prior to the site

evaluation visit. One consequence was substantial grade inflation, which the

evaluation team found anomalous in light of the student bodys entering credentials.

The School has been addressing the problem this academic year, and found only

three instances of unrealistically high grading of last semesters examinations.

(emphasis added)

162. Barry decided not to request an appearance before the Council, but chose to address

the Councils concerns, and reapply for accreditation in the Fall of 2000.

163. Another Site Team was sent to Barry from October 29 through November 1, 2000.

164. The Site Team prepared a 39 page, single-spaced report (hereafter Barry Site

Report, Exhibit 2).

165. After conducting a thorough on-site examination of Barry, the Site Team summarized

its findings as follows:

Barry University and its Law School have proceeded with getting all the

pieces into place for the operation of an institution that will produce qualifiedlawyers. There have been marked and observable changes since the prior site visit

in 1999, and the University has shown good faith in its delivery of support and

encouragement. The law school is maturing.

Many obstacles have been overcome during the process. Over a relatively

short period of time, the acquisition of the Law School by the University, the


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eventual merger of the Law School into the University, the sale of the property

housing the Law School to the University, and the recent successful bond issue have

drastically improved the prospects of the Law School.

The Law School has been hampered, to some degree, by its early history and

its legacy of problems. Nevertheless, while overcoming the problems associated with

the earlier incarnation of the School may have yielded challenges beyond those facedby an altogether new law school, meeting those challenges, and experiencing before

and after, may have granted wisdom and insight that will ultimately strengthen the

Law School as it moves forward.

The team that visited the Law School in October 2000 found an institutionthat has the components in place for continued growth and development. The faculty

is generally competent and committed to teaching and scholarship. The environment

is nurturing for students. The physical facilities are adequate for the present. The

library and other information services are good. The curriculum is basic and

otherwise appropriate for a student body of this size and composition at this stage of

the Schools development.

The students are remarkably enthusiastic. Those who weathered the earlierpre-Barry year cite stability to describe what the University has brought to the Law

School. The University administration has been supportive and appears to be

understanding of the need for strong continuing support as the Law School gets on

its feet.

The future is not without its challenges. The addition of more students will

heighten the demand for appropriate space and for additional curricular opportunities.

The output measures for those first graduates who pioneered at the Law School may

fall well below what the Law School, the University, or the American Bar

Association should tolerate over the course of the next year or two, and a special

effort directed at students who are currently enrolled will be necessary if the period

of unacceptable output measures is to be kept to a minimum. Also in this regard, thedevelopment of broader academic support will be essential if students are enrolled

with risky predictors, and it is essential that the Law School adhere to its newly

adopted attrition and retention policies. The competition for students can be

expected to intensify with the planned addition of a publicly supported law school in

the Orlando area. And finally, the institution will need to prepare itself for the

growing pains that often occur after a school achieves provisional approval, if indeed

provisional approval is attained, since matters that have been deferred during the

common pursuit of accreditation may begin to surface.

In sum, however, the Law School is poised and ready for the next steps in its

development.

See Barry Site Report at 38-39 (emphasis added).

166. On January 26 through 27, 2001, the Accreditation Committee voted to recommend

that Barry be provisionally approved. The Accreditation Committees report (hereafter


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Accreditation Committee Report) concluded that the Law School was in substantial compliance

with each of the ABA Standards for approval and recommended that the Law School be

provisionally approved.

167. The Accreditation Committee recommendation was reached after an exhaustive

review of the Barry Site Report and other supporting documentation.

168. The Accreditation Committee always lists items in their report that indicates where

a law school must improve before receivingfullaccreditation.

169. The Accreditation Committee issued a report that stated: In accordance with

Standard 102(b), the Accreditation Committee concludes that Barry . . . needs to address several

areas in order to establish that it is in full compliance with the Standards within the required

timetable for provisionally approved schools of law. (Emphasis added).

170. The Accreditation Committee Report listed four Standards that Barry needed to

address in order to showfullcompliance with the Standards.

171. Full compliance with the Standards is not necessary for provisional approval.

172. According Standard 102(a) and Interpretation 102-1 of the Standard, to receive

provisional approval, the school need only show that it is in substantial compliance with the

Standards and must present a reliable plan for being in full compliance within three years.

173. At the February 17, 2001, Council meeting, Council member Jeffrey Lewis

questioned Barrys Dean Talcott regarding the impact of the law school affiliated with Florida A &

M University (hereafter FAMU): Have you made any assessment of the need for legal

education in Florida in light of the two public law schools that have been authorized by the

legislature in the state of Florida? One will be in north Dade County and the other one I believe

will be in Orange County. (emphasis added). See Transcript of Counsel Meeting Executive

Session (hereafter Council Transcript), p. 41, lines 17-22, (Exhibit 3).


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174. Mr. Lewis was Dean of the University of Florida College of Law for eight years and

was a faculty member at the same law school for 27 years. He previously recused himself from a

decision regarding Barrys accreditation when he served on the Accreditation Committee.

175. Mr. Lewis did not recuse himself from the February 17, 2001 Council meeting.

176. Mr. Lewis should have recused himself from voting on Barrys application because

he had already determined to do everything in his power so that Barry would not receive approval.

177. The Council is supposed to act impartially and avoid even the appearance of

impropriety. See Statement of Ethical Practices in the Process of Law School Accreditation, 1

at http://www.abanet.org.

178. While he was on serving the Accreditation Committee, Mr. Lewis told a class of

students at the University of Florida that he would make sure that Barry would not be accredited.

See Kelley Affidavit, (Exhibit 4).

179. Pursuant to 34 C.F.R.602.15(a)(6), an accrediting agency must have: clear and

effective controls against conflicts of interest, or the appearance of conflicts of interest . . . .

180. 34 C.F.R. 602.18 states that an accrediting agency recognized by the DOE must

consistently apply and enforce its standards. An accrediting agency meets this requirement only

if the accrediting agency (a) has effective controls against the inconsistent application of the

agencys standards; (b) bases decisions regarding accreditation and pre-accreditation on the agencys

public standards; and (c) has a reasonable basis for determining that the information the agency relies

on for making accrediting decisions is accurate.

181. Mr. Lewis, in his capacity as member of the Council, and for anti-competitive

purposes, has conspired with the ABA and others, to keep Barry from receiving ABA approval.

182. At the February 17, 2001, Council meeting, Mr. Lewis represented to the Council that

Barry did not have a plan to achieve full compliance with the Standards within three years.

183. When Dean Talcott discussed feasibility studies that showed that Orlando could


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support a new law school, Mr. Lewis asked whether these studies take into consideration the

public schools [in Florida]. . . . See Council Transcript at 67, lines 18-20.

184. The Council has no information to support any concerns that FAMU and Barry cannot

co-exist in Central Florida.

185. The Council has no information to indicate that Florida does not need more law

schools.

186. Virginia has eight ABA approved law schools, including Appalachian School of Law

that received ABA approval by the Council in February 2001, at the same time Barry was denied.

The 2000 Census shows that the population of Virginia is 7,078,515. Although the population of

Florida was 15,982,378 in 2000 (more than twice that of Virginia) Florida has just seven ABA

approved law schools.

187. By the Councils own admission, it engaged in a de novo, rather than a deferential

review. See Report by Diane C. Yu at 2, (Exhibit 5).

188. The Council reviewed Barrys application de novo, although the Council is only

permitted a de novo review if the Accreditation Committee recommends denial.

189. On February 17, 2001 the Council voted not to accept the recommendation of the

Accreditation Committee, and denied provisional approval to Barry.

190. The Councils Action Letter Barry outlining the reason for the Councils denying of

the application for provisional approval stated:

(a) The School has not established that its educational program prepares its graduates

for admission to the bar and to participate effectively and responsibly in the legal

profession [Standard 301(a)] because (1) examinations vary substantially in degree

of difficulty and there has been little progress since the October 1999 site visit in thedevelopment of challenging evaluation measures [Finding 10 of Accreditation

Committee Report); (2) some student upper-class writing papers were of average or

less-than-average quality and did not appear to meet the Schools own policies that

the paper must reflect original research and analysis and be suitable for publication

(Finding 11); and (3) the Schools academic support program has only been


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implemented in Fall 2000 and its plans for support during the second semester of the

first year were still under development (Finding 21).

See Council Action Letter, (Exhibit 6)

191. Reason (a) was previously rebutted by Barry, and is not supported by a review of the

examinations administered since the fall 1999 site visits.

192. Six of the exams given in 27 classes during 1999 contained some multiple-choice

questions, five of 24 exams contained multiple-choice questions in 2000, and no open book

examinations were given.

193. A committee of senior faculty and the Dean read all examinations prior to

administration.

194. Dean Talcott pointed out the improvements in exam composition during the Council

meeting. See Council Transcript at 39, (Exhibit 3).

195. Other ABA approved law schools regularly give exams consisting of a combination

of essay and multiple choice questions.

196. Standard 302(a)(2) requires at least one (1) rigorous writing experience which is

usually met by an introductory research and writing course.

197. Barry not only complies with that Standard but has imposed an additional substantial

writing requirement. It is this additional substantial writing requirement to which the Accreditation

Committee referred in Finding 11, which the Council cited in order to deny Barry provisional

accreditation.

198. At the time of the site visit, Barry had only a few papers on hand because the

remaining papers were sent back to the students. Since these papers were not required for ABA

accreditation, the papers were not kept at Barry but returned to the students.

199. A previous Site Team report from the earlier 1999 visit, praised Barrys writing

program:


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Barrys program of legal writing and analysis is unusually strong. In additional to six

units of required legal writing and research in the first year, including a first year

moot court experience, several upper division writing and research elective courses

are offered. Advanced Legal Writing is a prerequisite for all skills course and

clinical placements.

See 1999 Site Team Report at 9, (Exhibit 7).

200. The Council should not have considered these few papers as representative of the

writing skills of Barry students, because the fact that the additional papers did not meet Barrys

requirements does not support the conclusion that the school does not substantially comply with the

existing ABA standard, which does not require students to submit an upper level paper.

201. Contrary to the Accreditation Committees Report, Barrys academic support program

was implemented in 1998, and the Accreditation Committee had a detailed description of the

program.

202. Even the 1999 Site Team report recognized that there was an academic support

program and indicated that [t]wo faculty members assist in the academic support program. Almost

all the students identified as at risk who participated in the program are in school and appear to be

much stronger academically. See 1999 Site Team Report at 9-10 (Exhibit 7).

203. The Council Action Letter stated another reason for denial:

(b) The School has not established that it adheres to sound standards of scholastic

achievement and that it does not continue to enroll students whose inability to do

satisfactory work is manifest [Standards 303(a) and (c)] because of concerns

expressed in (a) supra and because of the very high percentage of high grades and

uncertain implementation of the Schools new academic retention policy [Findings

10 and 20].

204. The Council expressed concerns over high grades and noted that Finding 10

indicated that in the spring of 2000, there were 12% As, 36.5% Bs, 46.2% C, 4.5% D, and .6% F

grades.

205. Reason (b) in the Council Action Letter, regarding the alleged high grades and


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uncertain implementation of Barrys new academic retention policy was previously rebutted by

Barry, and was discussed by Dean Talcott in the Council meeting.

206. Other law schools, including a school provisionally approved by the ABA in 200l,

had similar grade ranges.

207. The Council unreasonably and arbitrarily applied Standard 303 to Barry, which is

apparent when comparing Barry to UNLV.

208. A May 2000 letter from the Accreditation Committee regarding UNLV noted that of

1185 grades given to UNLV students during 1998-99, only 35 were C- or lower (.03%) and only 10

were Ds (.8%) and only one was an F (.08%), yet UNLV was approved. See UNLV Report (Exhibit

8), Finding (14)).

209. Although the Accreditation Committee noted that UNLV was not in full

compliance with seven different Standards, the Council approved UNLV in 2000.

210. Barry had in fact, imposed a new mandatory grade distribution curve requested by the

ABA to meet the ABAs concerns.

211. The Council Action Letter listed Finding 20 as a reason for denial of Barrys

application, but Finding 20 does not support the Counsels conclusion that there is any uncertain

implementation of the Schools new academic retention policy.

212. Finding 20 indicates that no students were enrolled with law school grade point

averages (LGPAs) below 2.0 except for three students who were as a result, on probation in the fall

2000.

213. Effective in the fall of 2000, changes were made to ensure that the academic retention

policy met the concerns expressed by the Site Team.

214. There is nothing in the Barry Site Report to indicate the lack of application of the

retention policy.

215. Reason (c) in the Council Action Letter, regarding the credentials of the fall 1999 and


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1The letter incorrectly listed 501(a), but should have cited Standard 501(b) which states:

A law school shall not admit applicants who do not appear capable of satisfactorily completing

its educational program and being admitted to the bar.


2000 classes and other admissions, were rebutted by Barry, and the issues were previously

successfully addressed.

216. The Action Letter stated:

(c) The School has not established that it is not admitting applicantswho do not appear capable of satisfactorily completing its educational

program and being admitted to the bar [Standard 501(a)1, because of

the credentials of the Fall 2000 and Fall 1999 entering classes and the

admission of a number of transfer students having law school grade

point averages of less than 2.0 (Findings 15, 16 and 18).

217. The Council indicated that their concern was over the credentials of the Fall 2000

and Fall 1999 entering classes, and because transfer students had LGPAs below 2.0. The 25th

percentile of the 2000 LSAT/UGPA was 143/2.44 for full-time students and 142/2.38 for part-time

students, while the 1999 LSAT/UGPA was 141/2.38 and 141/2.49 for the full-time and part-time

classes respectively.

218. No students were admitted with LSAT scores below 140 after Barry received a letter

from the Accreditation Committee dated May 16, 2000, wherein the Accreditation Committee

complained about the lower scores.

219. Barrys admission decisions were made in accordance with ABA Standards and the

assertions of the ABA that admission decisions should not be based solely on the Law School

Admission Test (LSAT) scores.

220. The Council Action Letter pointed to Finding 16 regarding four 2000 admissions in

the Accreditation Committees Findings: (1) LSAT of 138 and UGPA of 2.39; (2) LSAT of 140 and

UGPA of 2.09; (3) LSAT of 145 and UGPA of 1.53; and (4) LSAT of 139 and UGPA of 2.47.

221. The student who was admitted with a LSAT/UGPA of 138/2.39 was a minority


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student who had shown exceptional leadership and success in graduate programs. The student who

was listed with the 145/1.53 LSAT/UGPA, actually earned a 2.0 from his degree-granting school

and had paralegal work experience.

222. Another student who was mentioned in Finding 16 only learned English after moving

to the United States after completing college, and had excellent letters of recommendation as a

paralegal.

223. The student with the LSAT/UGPA listed in Finding 16 actually had a UGPA of 3.54,

not 2.47, when discounting graduate level courses taken.

224. Contrary to Finding 18, Barry did not admit any transfer students with LGPAs

below 2.0.

225. Only one transfer student was admitted, and that student was in good standing at a

prior law school.

226. Some other students were admitted as new students with no transfer credit after the

Barry admissions committee determined the students were likely to succeed and the reason for

difficulty several years earlier in their prior law school experience was related to physical illness or

other reasons unrelated to scholastic aptitude.

227. One of those students admitted by Barry as a new student was dismissed from her

prior law school after medical problems related to her being a kidney donor for her father.

228. According to the 2002 Edition of the ABA/LSAC Official Guide to ABA-Approved

Law Schools (hereafter ABA Guide), many other ABA approved schools have admitted students

with the same LSAT and GPA scores as those for which the Council now faults Barry.

http://www.abanet.org/legaled/home.html.

229. When searching the ABA Guide for schools that have admitted a student with an

LSAT/UGPA combination of 138 and 2.39, one retrieves the names of twenty-two ABA approved

law schools, including the University of Denver, Loyola University, Rutgers, and Stetson University.


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A similar search finds that 13 ABA approved law schools have admitted at least one student with

and LSAT/UGPA of 140/2.09; one law school admitted a student with an LSAT/UGPA of 145/1.53;

and 33 schools, including Pepperdine, Widener, Stetson and Nova Southeastern, admitted students

with an LSAT/GPA combination of 139/2.47. See ABA-LSAC Official Guide (Exhibit 9).

230. The final statement from the Council Action Letter was:

(d) The School has not presented a reliable plan for bringing it into

fullcompliance with the Standards within three years (Findings 4, 5,

and 29). (emphasis added)

231. The reasons given for denial, (a), (b) and (c) show that the Council is holding Barry

to the standard forfullapproval rather thanprovisionalapproval.

232. Reasons (a), (b) and (c) in the Action Letter are not sufficient reasons to deny

provisional accreditation to Barry because other law schools that the ABA has recently accredited

have not performed any better on those Standards.

233. The Council has held Barry to a more stringent standard of approval than for-profit

schools, non-religious, and state-supported institutions and law schools in states that have permitted

graduates from those schools to sit for the Bar exam and receive a license to practice.

234. The Findings referred to in the Action Letter are factual determinations made by

the Accreditation Committee upon which the Council relies in part to make their decision.

235. The Council relied upon Finding 4 as the basis to reject Barrys application for

accreditation.

236. Finding 4 relates solely to the fact that the Florida legislature has approved two

additional law schools in Florida, one of which is FAMU, to be located in Orlando.

237. Finding 4 states as follows:

Neither the 1995 feasibility study nor any document subsequently prepared by the

University has explicitly considered the expansion of publicly funded legal education

in Florida. After the October 2000 site visit took place, the Florida legislature

determined that one of the two additional publicly funded law schools it had


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decided to establish would be located in Orlando, as part of Florida A & M

University. Officials of the University predict that Barrys identity as a religiously

based university and its ability to recruit regionally and nationally based on its

Catholic mission will enable the Law School to meet enrollment goals in numbers

and quality, despite the presence of a state-funded law school in the area. (emphasis

added) See Accreditation Committee Report (Exhibit 10).

238. The Councils reliance on Finding 4 is evidence that the Council has anti-

competitive purposes in the denial of approval to Barry.

239. Barry had previously addressed the issues raised by the Council regarding the

difficulty of examinations, the upper-class writing requirement, the academic support program,

retention policy, and the admission of certain students.

240. Since Barry is in substantial compliance the ABA Standards, the only reason the

Council relies on to deny Barry approval is the plan of a new law school in Orlando and other

schools in Florida.

241. The Council has no solid, objective evidence to deny Barry provisional accreditation.

242. Barry requested the Council reconsider the application at the Councils May 2001

meeting, but the Council voted not to reconsider.

243. On April 2, 2001, Barry received a letter from ABA Consultant John Sebert on behalf

of the Council, acknowledging receipt of Barrys petition for reconsideration.

244. The letter indicated that the ABA has no process for reconsideration by the Council.

245. The letter also stated that at its June 2001, meeting the Council would consider only

whether to reconsider its February 2001 decision and that in the event that the Council adopts a

motion to reconsider its decision, the reconsideration would occur at the Councils August 2001

meeting.

246. On June 5, 2001, Barry was notified that the Council denied its petition for

reconsideration. The purported reason for the denial was that the Council did not want to set a

procedural precedent for appeal and/or reconsideration.


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247. Barry filed an appeal with the House, requesting a remand, which would have been

considered at the annual ABA meeting during the first week of August 2001.

248. Barrys appeal to the House outlined Barrys position, and rebutted a number of

statements made in the Councils report.

249. On or about the week of July 13, 2001, the ABA agreed to send another Site Team

to Barry in September if Barry would drop the appeal to the House.

250. The Council negotiated the change because they did not want to take the chance of

having their decision remanded by the House for further consideration.

251. Because of the history of the Councils actions, Barry administration was

understandably concerned about offending the Council by continuing with the appeal.

252. Barry agreed to drop the appeal.

253. The Site Team will generate a supplemental report that will be considered by the

Accreditation Committee in November, along with the 2000 Site Team report.

254. The Accreditation Committee will make a recommendation to the Council.

255. The Council will review the Site Team reports and the Accreditation Committees

recommendation and will vote for or against Barrys provisional approval in February 2002.

256. If the Council gives provisional approval, the House will review that decision at their

February 2002 meeting.

257. After two remands by the House, the Councils decision is final.

258. Although the Council is supposed to be purely an advisory body, neither the Board

of Governors nor the House is able to overrule the Councils decision.

Barry is in Substantial Compliance with ABA Standards and Provides a High Quality Education

259. At the February 17, 2001, Council meeting, member Dorothy Ridings expressed

concern about the fact that Barry did not have a history of Bar exam scores, stating: One of our

responsibilities is to look at a schools ability to educate students so they could pass the bar. And


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if we dont know whether they passed the bar, how do we know. See Council Transcript at 56, lines

19-23 (Exhibit 3).

260. The Florida Bar exam scores of Barry students are sealed until Barry achieves

accreditation.

261. The ABA has ignored the only indicators of success that are available to show that

Barry graduates are prepared to be competent members of the legal profession: the opinions of those

who employ Barry students and graduates, and how well Barry students have performed in Moot

Court and Trial Team competitions.

262. Numerous law firms and government agencies that employ Barry students and

alumni, wrote to the ABA in support of Barrys application for accreditation. The letters indicate

that the students and alumni are succeeding in the legal field, and are expected to succeed as

attorneys. See Attorney Letters (Exhibit 11).

263. In addition to the successfully employed students and alumni, Barry has been

extremely successful competing in Moot Court and Trial Team competitions against students from

ABA approved schools.

264. In every competition in which Barrys Trial Team has participated, it has faced only

ABA approved schools.

265. The Trial Team has a tenure-track faculty member as faculty advisor and coach, who

is a board certified trial lawyer in Florida.

266. The Trial Team has regularly competed and has excelled in statewide competitions

and also Southeast regional competitions of the American Trial Lawyers of America (ATLA). See

Barry Competitions (Exhibit 12).

267. In Moot Court Competitions, Barrys teams have advanced against teams from each

Florida law school with which they have gone head-to-head. Id.

268. Success in such prestigious competitions as those where Barry has excelled against


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ABA accredited schools indicates that Barry is effectively preparing for the legal profession.

269. Although the Florida Supreme Court has issued several orders permitting Barry

graduates to take the Florida Bar Exam, pursuant to the orders, the exam scores must remain sealed

and cannot be released until Barry receives ABA accreditation.

270. The last order that applies to the June 2000 Barry graduates (entered February 23,

2001) states that the General Bar Exam results shall be impounded and released only if Barry

University School of Law achieves accreditation for its law school from the American Bar

Association at or before the American Bar Association August 7-8 meeting. See February 2001

Order (Exhibit 13).

271. The same order states that the scores of the January 2001 graduates who sat for the

Florida Bar Exam in February 2001 are to be impounded and released only if Barry [is accredited]

within twelve (12) months from graduation.

272. Another order entered on June 29, 2001, permits the June and July 2001 graduates

to take the July 2001 Florida Bar Exam, but those scores will only be released if Barry is accredited

within twelve months of graduation. See June 2001 Order (Exhibit 14).

273. Without this Courts intervention, it is likely that the bar scores of the June 2000 and

January 2001 graduates will never be released.

274. Barry substantially complies with ABA Standard 301(a) which states: A law school

shall maintain an educational program that prepares its graduates for admission to the bar and to

participate effectively and responsibly in the legal profession.

The Council Has Inconsistently Applied ABA Standards and Holds Barry to a Higher Standard

275. Barry is in substantial compliance with ABA Standards, and in fact, more thoroughly

prepares its students for the practice of law than many of the recently-approved ABA law schools.

276. The Standards cited as concerns by the Council are all non-qualitative Standards, so

that compliance is determined subjectively by the Council.


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277. Standard 301(a) states: A law school shall maintain an educational program that

prepares its graduates for admission to the bar and to participate effectively and responsibly in the

legal profession.

278. Standard 303(a) states: A law school shall have and adhere to sound standards of

scholastic achievement, including clearly defined standards for good standing, advancement, and

graduation.

279. Standard 303(c) states: A law school shall not continue the enrollment of a student

whose inability to do satisfactory work is sufficiently manifest so that the students continuation in

school would inculcate false hopes, constitute economic exploitation, or detrimentally affect the

education of other students.

280. Standard 501(b) states: A law school shall not admit applicants who do not appear

capable of satisfactorily completing its educational program and being admitted to the bar.

281. The ABA has used its Standards to discriminate against Barry students, while

approving other law schools such as Appalachian School of Law, Florida Coast School of Law, and

UNLV.

Council Approved Appalachian School of Law in February, 2001

282. The Council voted in February, 2001, to approve Appalachians application for

accreditation, while denying Barrys application.

283. Appalachian School of Law (hereafter Appalachian) is located in Grundy,

Bu

Documents

complaint 2 amended