A recent news article highlighted a lawsuit by a law school professor at the University of Kentucky. He wants a former Federal District Judge precluded from serving as the law school dean. He and other faculty members believe the former judge, Van Tatenhove, "lacks qualifications to be dean."
More broadly, the professor contends that the appointment of this judge as dean "violated (the professor's) employee contract and that the appointment put the college's accreditation at risk." He contends that hiring Judge Tatenhove “was an arbitrary exercise of government power.” The institution, in deciding who it would hire for a job, was arbitrary in the view of the law professor.
Does an employee have a protected property interest in the status of the employer? In a broad context, might an employee sue the retailer they work for because some business decision might impair that business' legal standing or licensure? Or is that the business' problem? Is the employee entitled only to a paycheck, or somehow to the persistence of the employer?
In the realm of the employer/employee relationship writ large, that is an intriguing discussion. Who is in charge? Who is responsible for the business' viability? My business law students might ask viable questions about things like contract parties, intended third-party beneficiaries, standing, and more. There are great foundations here for an essay question.
The accreditation issue here essentially comes down to criteria set forth by the "American Bar Association, a voluntary organization to which many lawyers belong." That club started doing law school accreditation in 1923.* It is inextricably intertwined with the whole idea of an admission exam in various jurisdictions, and that idea has both waxed and waned over the last 100 years.
Many are surprised to learn that the whole idea of law schools is not some ancient tradition or mandate. Law schools have existed in this country since its founding. But some have conferred degrees in different forms. In fact, the idea of law schools providing a doctorate instead of a bachelor's degree was mid-20th century.
There have been various periods in some jurisdictions when merely graduating from law school was enough to be licensed by the state (called "diploma privilege"). During the pandemic, there were various responses to licensing requirements. See Is there Repair (April 2021). More recently, Washington reinstituted a diploma waiver in response to its own ineptitude in conducting an examination.
Some will see this as an indictment of bar examinations. If examination is important and relevant, how is a waiver rational in any setting? If it is important, how is it less so when there is a virus, ineptitude, or even a whim?
Beyond that, does a student have a property right in licensure? In a particular path to licensure? Does a professor? Is there some reason law school itself could not be simply eliminated from state licensure?
As the law school trend developed in Florida, so did the state's constitutional separation of powers. In 1955, the Florida Supreme Court created the Florida Board of Bar Examiners. Faced with the burden of deciding who could take the bar exam, and thus who could practice, the Court delegated. Florida history before that time included various paths, including a diploma privilege era.
In the mid-1950s, the Court required that applicants for admission to the bar must be "graduates of law schools approved by the American Bar Association or members of the Association of American Law Schools." I am periodically surprised by how obscure the AALS reference has become. It is known in academia, but I find few lawyers conversant in that alternative.
In rendering that delegation decision, "the Court candidly admitted it was simply 'unequipped to make such a determination (of school's sufficiency) ourselves because of financial limitations and the press of judicial business." Some would argue that the delegation to the ABA and AALS was an expediency or convenience.
Does it matter what a lawyer's association thinks of a particular law school? Well, it matters a great deal when a state's authority places imprimatur on that accreditation. Through the licensing authority delegation, there is reliance on the standards established by that organization of lawyers or organization of schools.
None of those lawyers or schools, or their groups, need to be elected by or answerable to the people of Florida. In fairness, there is similarly no need for the justices of the Supreme Court to be elected or answerable to the people except in the context of standing for retention election periodically. Nonetheless, the state constitution vests in the court exclusive authority to decide who may practice law. That judicial authority, and any delegation that follows from it, is the power of the people granted to the court.
In its accreditation path, the ABA dictates that a school must be collaborative. Standard 201. Beyond just a law school, any university policies "shall be consistent with the (ABA) Standards." The school shall have a dean, and the dean must usually "also hold appointment as a member of the faculty with tenure." The selection of a dean shall be through a process "that assures meaningful involvement by the faculty." Standard 203.
An "interpretation" (203-1) says that this means "a dean should not be appointed or reappointed to a new term over the stated objection of a substantial majority of the faculty." Thus, the state might decide who can practice law, the lawyers' club might decide what schools satisfy standards, and the professors might collectively decide (or influence) how any particular school is run.
The Pennsylvania Supreme Court concluded that the state's workers' compensation statute could not delegate permanent impairment rating calculation to the American Medical Association prospectively. See Pennsylvania High Court Magnifies Protz (June 2017).
The Court there explained that a legislature could not adopt or incorporate "sight unseen, subsequent modifications to such standards." Essentially, it concluded that the legislature is free to adopt a private organization's standard, such as the AMA Guides, but only those standards that exist at that moment of adoption.
The delegations to the ABA over the years may not follow similar criteria or constraints. Instead, state authorities may seemingly delegate state bar standards to the ABA accreditation broadly. As that private organization's standards fluctuate, the delegation persists despite the concerns or constraints discussed in Protz and a variety of other similar delegation decisions.
The legislature cannot delegate authority, even to the AMA, to make non-governmental, committee decisions that impact people through the regulatory power of the state. Is it somehow different for the judicial branch? Can the judicial branch constitutionally delegate to the ABA regarding who can or cannot take a bar exam, subject to whatever future changes the ABA makes in its criteria?
In other words, when a state defers to ABA accreditation as the primary qualifier for bar exam eligibility, does that delegation mean those accreditation standards as they existed when the delegation occurred, or may the ABA change its various standards and conclusions thereafter with conclusive effect?
The Florida Supreme Court rectified this challenge significantly in 2026, concluding that the "more than three-decade dependence on the American Bar Association" was not necessarily appropriate. Following the October 1 effective date of that change, Florida will look to additional criteria for determining bar exam eligibility.
In Re: Amendments to Rules Regulating The Florida Bar, 426 So. 3d 457 (Fla. 2026). See also Adams,
UM Law Review Insights, March 2026. That also discusses the involvement of the federal government and thus potential federalism issues.
This Court decision does not eliminate the ABA as "an accrediting" authority. Nonetheless, it prospectively eliminates the ABA's role as "the sole gatekeeper deciding which law schools' graduates are eligible." The graduates from ABA-accredited schools remain eligible, but the ABA loses its constricting and exclusive delegated authority. With that, is there impact on the role of faculty, universities, and more as regards school leadership?
This all implicates a variety of complications. Might a law school in one state qualify students for that state's bar exam but not another state's? Imagine that different states adopt significantly distinct standards, instead of the present ABA coincidence. Will various states have different standards? Is that really different than various states randomly requiring or waiving bar exams?
It may not be dissimilar from the trend in which states have adopted the
Uniform Bar Exam (UBE), yielded their own exam standards, and adopted a national and uniform product. Are those states adopting each such exam as it is drafted, or have states delegated authority prospectively, a la Protz? Will there be distinctions for students who project or predict certain licensure paths or procedures?
There is anticipation that the Florida Court itself will accredit law schools or will delegate its authority in that regard. The
In Re: Amendments opinion describes its goals with focus on "the quality of legal education and successful student outcomes." And there is a pointed reference to affordability, "free exchange of ideas," and "the principle of non-discrimination," all admirable. Perhaps there is also reaffirmation of federalism and state authority.
The reader will note that this analysis ignores various broader issues. For example, does any employee have a property right in the status quo of a business? If a lawyer is hired by a firm listed by "Best Lawyers" or "Law Firm of the Year," can that employee sue to somehow force firm management to maintain that accolade? Is there a property right in accreditation or even reputation?
Or is the employee essentially hired to perform a function in exchange for some reward? Whether that is practicing law or educating students. Is this an economic exchange or a collaborative cooperative? Imagine a production line worker suing Ford over the Pinto design. Or a line cook suing Cracker Barrel over the CEO's recent decision to rebrand. Who charts the course of the institution and answers to the owner(s)?
Some will see a distinction between a line cook, production line worker, and law professor. But in the end, economic exchange in the world of work is a value exchange. Certainly, the employee may be inspired and make suggestions like the janitor who claims he invented Flamin' Hot Cheetos. Certainly, the employee has a vested interest in the employer's survival and even prestige.
But, ultimately, the company leadership chooses the course. The cooks and waitresses are at work today at Cracker Barrel even as Julie Masino departed; the line is still rolling at Ford even after Lee Iacocca departed just before the Pinto recall. Leadership is responsible, though the workers may ultimately pay the price of poor decisions.
Leadership decisions affect leaders and certainly affect entire organizations. But a collaborative effort to gain consensus on a gas tank design or a restaurant rebranding would be unwieldy and unwarranted.
Is it feasible for a business to chart its course through collaborative decisions? Can a company choose its leadership through employee election? Certainly, companies do so through shareholder elections. Is that different? Should it be so in higher education?
Should an entity's course be determined by collaborative consensus? If it is, and law school appears to be under the ABA mandate, should all the contributors be held responsible for the outcomes? In the end, there are many questions worthy of consideration. With the Florida Court's decision, change may come here. Possibly, that will answer questions about who is in charge.
*Langham, Floridiana and the Workers' Compensation Adjudicators, 2024.
