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U.S. v. AMERICAN BAR ASSOCIATION
February 6, 2001
UNITED STATES OF AMERICA, PLAINTIFF,
AMERICAN BAR ASSOCIATION, DEFENDANT.
The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Now before the Court are two motions to modify the Final Judgment
entered in this case on June 25, 1996. Both parties, the United States
and the American Bar Association, agree on the modification. Finding
that the modification is in the public interest, the Court GRANTS the
plaintiff's and the defendant's motions.
In 1995, the Antitrust Division of the United States Department of
Justice filed a civil suit in this Court against the American Bar
Association ("ABA"). The complaint alleged that the ABA had restrained
competition by fixing compensation levels of professional personnel at
ABA-approved schools and by acting in ways to limit competition from
non-ABA-approved schools. The Final Judgment*fn1 in the case enjoined
the ABA from engaging in certain anticompetitive practices and
promulgated new procedures which the ABA must follow in its accreditation
process. One of these procedures dealt with the ABA's final accreditation
Prior to the Final Judgment, accreditation decisions at the ABA were
made by a Council which was composed of, inter alia, an Accreditation
Committee and a Standards Review Committee. The Accreditation Committee
would evaluate individual applications and make recommendations regarding
whether or not to accredit a particular school. The Standards Review
Committee reviewed current accreditation standards and proposed new
standards, as well as interpretations of those standards. While new
standards were forwarded to the ABA House of Delegates for final
interpretations of those standards were not similarly treated.
The Antitrust Division regarded the House of Delegates lack of
supervision over standard interpretations as problematic. According to
the government's findings, the members of the Standards Review Committee
had a direct economic interest in the outcome of their interpretations.
The 1996 Final Judgment attempted to correct this by ordering that
interpretations of standards made by the Standards Review Committee be
reviewed by the ABA's full House of Delegates. This new arrangement
appeared successful until the following year.
In 1997, the ABA applied to the Department of Education ("DOEd") for a
renewal of its status as a nationally-recognized accrediting agency. The
DOEd evaluated the ABA's accreditation procedures, particularly in light
of 20 U.S.C. § 1099(a)(3), (b) and 34 C.F.R. § 602.14(a), (b).
These laws require a trade association wishing to retain its status as an
accrediting agency to follow, inter alia, three standards in
administering its accreditation program. First, the trade association
may not make its own accreditation decisions, but rather must see to it
that they are made by a "separate and independent" body. Second, the
members of the accrediting body may not be selected by the trade
association's president or board of directors. Third, 1/7 of the
accrediting body's members must come from the general public, not the
trade association's membership.
The DOEd, after concluding its evaluation of the ABA's accreditation
program in February 2000, determined that the practice of having the ABA's
full House of Delegates approve the accreditation decision violated the
above accreditation rules. With an interest in complying with applicable
laws, but also retaining some independent oversight of the accreditation
process, the Antitrust Division and the ABA sought advice from the DOEd on
how to restructure the ABA's accreditation process.
Based on the DOEd's suggestions, the Antitrust Division and the ABA
devised a process whereby final accreditation-related decisions would be
made according to a review and remand process. Under the new process, the
ABA House of Delegates would review accreditation-related decisions made
by the Council, and, if found to be questionable, remand the decision to
the Council for further consideration. The House of Delegates may remand
a Council decision twice, but must accept it the third time it is
submitted for review.*fn2 Under no circumstances may the House reverse
a Council decision on accreditation. The DOEd has indicated that these
new procedures will not violate any applicable laws.
These new procedures, upon which the government and the ABA are in full
agreement, are what the government proposes as modifications to the 1996
Final Judgment. The Court now considers whether these modifications are
When, as here, all parties to a final judgment assent to its
modification, a court is "bound to accept any modification that the
[Antitrust Division] . . . reasonably regard[s] as advancing the public
interest." United States v. Western Elec. Co., 993 F.2d 1572, 1576
(D.C. Cir. 1993). It should be stressed that the court's function is not
to undertake its own evaluation of what is in the public interest, but
rather just to ensure that the proposed modification
is within the "zone of settlements consonant with the public
interest." United States v. Western Elec. Co, 900 F.2d 283,
309 (D.C. Cir. 1990) (emphasis in original). See also Western Elec.,
993 F.2d at 1576. Put more fully, "the court's function is not to
determine whether the resulting array of rights and liabilities is the one
that will best serve society, but ...
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