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MASSACHUSETTS SCH. OF LAW AT ANDOVER, INC. v. ABA

July 20, 1994

MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC.
v.
AMERICAN BAR ASSOCIATION, et al.



The opinion of the court was delivered by: J. WILLIAM DITTER, JR.

 Ditter, J.

 This case involving alleged violations of the federal antitrust laws arising out of the American Bar Association's ("ABA") failure to grant accreditation to the Massachusetts School of Law ("MSL") is before me, again -- this time on discovery disputes. *fn1" In my order of May 20, 1994, I denied plaintiff's motion to compel far-reaching discovery and specified its initial scope and focus was to address a rule of reason analysis. Both plaintiff and the ABA seek alterations of the order. *fn2" For the reasons discussed below, both motions are granted in part and denied in part.

 I. The Order of May 20, 1994

 In its complaint and subsequent filings, plaintiff alleged that the ABA's accreditation standards encompassed in the following six criteria are anticompetitive: salary levels (Standard 405); student-faculty ratio, limits on teaching hours and sabbatical requirement (Standards 201 and 401-405); use of the Law School Admission Test or other test (Standard 503); guidelines for law libraries (Standards 602, 603, and 704); prohibition of for-credit bar review courses (Standard 302(b)); and limits on the hours that students may be employed (Standard 305). In holding that a rule of reason analysis is the appropriate inquiry to conduct on the challenged criteria, I ordered that discovery focus on the following areas for each of the challenged criteria and standards: (1) does the standard have an anticompetitive effect; (2) are redeeming virtues claimed for the standard; and (3) is there a way to achieve the redeeming virtue that would be less restrictive of competition?

 The order was not intended to limit discovery within the rule of reason analysis, but rather to preclude at this time discovery outside of, or irrelevant to, that analysis. Therefore, I held that plaintiff was not entitled, as it sought, to obtain ABA files and documents of all ABA-accredited law schools, because the rule of reason considers whether a restraint on competition is unreasonable, not whether the restraint has been uniformly and systematically applied. An unreasonable restraint will not be saved by virtue of its having affected all competitors equally; a reasonable restraint will not be condemned because it affected some competitors more than others. So that MSL would have the clearest possible picture of how the accreditation process was carried out as far as MSL was concerned, the order stated that MSL is entitled to the ABA's accreditation files and all information maintained on MSL.

 II. The ABA's Motion for Reconsideration

 In its complaint, MSL alleges that because it publicly and actively opposed ABA's anticompetitive accreditation criteria, MSL asked ABA for accreditation through a variance, that is, asked ABA not to apply its criteria to MSL but to accredit it anyway.

 MSL goes on to allege that following its application for accreditation, an ABA site review team inspected MSL and wrote a highly critical report. There followed, according to the complaint, a recommendation by the Accreditation Committee of the ABA's Section of Legal Education that provisional accreditation not be granted. Acting on MSL's appeal, the Council of the Section on Legal Education recommended, on the same grounds stated by the committee, that accreditation not be granted. The Board of Governors of the ABA declined to act on MSL's appeal from the council decision and although MSL has appealed to the ABA's House of Delegates, such an appeal will be futile. *fn3"

 The council stated these reasons for its refusal to recommend accreditation:

 
(a) The School's very high student/faculty ratio [Standards 201 and 401-405 and adopted Interpretations thereof].
 
(b) The School's substantial reliance upon instruction by part-time faculty ...

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