Law schools are holding remote classes this fall, but will the ABA approve?

Earlier this month Harvard Law School announced that its 2020 Fall Term would be taking place entirely online, and it’s unlikely to be the only school making such an announcement.

While law firms have started reopening around the country and states are relaxing their protective measures, the next few months are uncharted territory – as the COVID-19 pandemic persists the number of cases could continue to decrease, but without a vaccine or cure there is a chance that cases could surge again. Colleges and universities particularly have the potential to be epicenters of disease transmission due to large amounts of students living, eating, and attending classes together.

The shift to remote classes makes sense from a public health perspective, but may create an issue for law students hoping to take the bar exam upon graduation.

Under ABA Standard 306, “A law school may grant a student up to one-third of the credit hours required for the J.D. degree for distance education courses qualifying under this Standard. A law school may grant up to 10 of those credits during the first one-third of a student’s program of legal education.”

At this time, no programs offering a completely remote J.D. are approved by the ABA. Ultimately each state sets its own requirements regarding who qualifies to sit for the bar exam, but many avoid the financial and clerical work of accrediting law schools throughout the country by simply depending on whether or not they are ABA approved.

And according to the ABA, “…the vast majority of bar admission authorities in the United States rely upon ABA approval to determine whether their legal education requirement for admission to the bar is satisfied. Education at an ABA-approved law school meets the requirements in every jurisdiction in the United States.”

Obviously, this could be a problem for law students facing (at least) one term of distance learning.

There is, however, evidence that the ABA may be willing to temporarily bend the rules. According to a guidance memo published in February, distance learning “may be a good solution to emergencies or disasters that make the law school facilities unavailable,” but the memo also noted that both students and faculty may not have access to the technology needed to fully support a distance learning environment, and that faculty may not have the experience or training needed to successfully teach remotely. In August, the ABA is set to vote on a proposal that would allow temporary reprieve from standards like 306 during extraordinary circumstances such as the current pandemic.

In the meantime, schools will have to make their plans for the Fall semester while grappling with the unknown. Even without the uncertainty of maintaining ABA approval, the choice to offer in-person classes or not, the question of whether students would feel safe attending an in-person class, and how to ensure an equitable experience if classes are held remotely are all questions that law school faculty and leadership will struggle with this summer.