A Michigan law school suing the American Bar Association over its uncertain accreditation status wants access to years of internal records pertaining to how the ABA evaluates law schools.

But the ABA is pushing back, arguing in court papers that releasing such an extensive array of confidential records is unwarranted and will undermine its accreditation efforts and complicate its law school oversight.

The ABA has asked a federal judge in Michigan for a protective order limiting discovery in Western Michigan University Cooley Law School's suit against it, which stems from the ABA's November finding that Cooley is out of compliance with rules meant to ensure law schools admit only students who “appear capable” of graduating and passing the bar.

Cooley on Jan 5. asked the ABA's counsel for all tapes and transcripts of meetings of the ABA's Council of the Section of Legal Education and Admissions to the Bar, its accreditation committee, and its standards review committee dating back to 2010 when the monitoring of law schools was discussed or when schools were found to be out of compliance with the ABA's admissions rules, according to the ABA's motion for protective order, filed Feb. 5 in U.S. District Court for the Eastern District of Michigan.

Cooley also wants records for any meeting in which those ABA bodies discussed rules pertaining to law school resources, objectives, academic advising, bar passage, admissions, and disclosure requirements.

Put another way, Cooley wants access to a trove of information about the ABA's internal accreditation discussions pertaining not only to its own campus, but every law school that has come up for accreditation or been flagged since 2010.

Cooley general counsel James Robb said Thursday that the discovery request falls within the scope of the lawsuit.

“The law school's request for production of documents is proper because it bears on a number of significant issues in the litigation,” he said.

The ABA maintains in court papers that Cooley's request is an overreach. Cooley is entitled only to the administrative record at issue in its own accreditation case—not those of other schools, the ABA's motion argues. Information about accreditation decisions pertaining to other schools is “irrelevant to the legal question at issue,” the ABA's motion reads.

An ABA spokesman declined to comment, citing the pending litigation.

Cooley argues in court papers that the ABA's accreditation decision-making is cloaked in secrecy and that its admission standard is unlawfully vague. Cooley's amended complaint, filed Jan. 31, asserts that the ABA has unwritten guidelines for enforcing its standards. Moreover, its “monitoring process is entirely done in secret,” internal reviews are not made available to schools, and the ABA offers no definition of the meaning of the “appears capable” language of its admission standard, according to the amended complaint.

Regarding the recent discovery request, “I think [Cooley] would be looking for a few things. One would be unwritten rules,” said David Frakt, an Orlando lawyer who has written about Cooley's lawsuit on the Faculty Lounge blog. “Two would be changes in their interpretation of those rules over time, which have not been publicly shared. And three would be uneven enforcement of the rules. If they could find a similarly situated school which was not found out of compliance on the same standards they were, then that would be helpful to them.”

Unfortunately for Cooley, no other school has a bar pass and admissions track record as poor as its own, Frakt said. Most all other similarly situated law schools have already been sanctioned by the ABA, he added.

Cooley lost the first round of litigation in December when a federal judge declined to restrain the ABA from publicly posting a letter that the law school had been found out of compliance with the admission standards. (Cooley remains fully accredited for now.) The ABA fired back in its Jan. 8 motion to dismiss, highlighting multiple shortcomings from the school's plummeting bar pass rate to an increase in students coming in with Law School Admission Test scores of 143 or lower.

In its latest filing, the ABA alleges that the confidentiality of its accreditation process protects schools from the disclosure of sensitive information and helps ensure schools are candid in their dealings with the ABA.

“Schools have an expectation that their accreditation information will be kept confidential and will not be spread in litigation they do not bring,” reads the ABA's motion for protective order. “If the ABA's files were regularly thrown open in cases like this one, the Council and Committee would face needless complications in performing their monitoring and oversight functions.”