American Bar Association.

It will be easier for the American Bar Association to waive its distance education limits in the fall, should classes remain online because of the COVID-19 pandemic.

The ABA's Council of the Section of Legal Education and Admissions to the Bar on May 15 approved a rule change that expands its ability to suspend specific accreditation standards in times of emergency. The change is not final—it still requires approval by the ABA's House of Delegates—but the proposal has been fast-tracked and could be formally adopted when the House of Delegates convenes virtually in August.

That, in turn, should ease the minds of law school administrators who have been worried that their online offerings in the fall could run into accreditation hurdles.

Under the ABA's current rules, distance education courses may comprise no more than a third of the credits a law students earns. And first-year law students may take no more than 10 credits in distance education classes. (Classes count as distance education when a third or more of the instruction is delivered remotely.) But the move to online classes amid the coronavirus has threatened to push many law students over those limits.

The ABA in March gave schools leeway to temporarily exceed those limits, but it was unclear whether the accreditor would have the ability to do so again in the fall without clear guidance from the U.S. Department of Education. As a result, the council moved to modify the rules to stipulate that specific accreditation standards may be suspended amid regional and national emergencies. That ability to waive standards won't be used to aid individual schools; rather, it is intended to give broad relief to schools when the need arises.

No law school has yet announced that it will be fully online in the fall, though a growing number of universities without law schools have already made that determination. Administrators are contemplating different scenarios that will enable social distancing, such as holding large lectures courses online but allowing small seminars to meet in person, among other possibilities.

The council also voted to eliminate Standard 306—a standalone standard that lays out the rules governing distance education courses. Those rules and limits remain in effect, but are being added into other existing standards. Under the change, however, the process to gain approval of an online or hybrid J.D. program that relies heavily on distance education has been moved from the "variance" process to that of the "substantive change" process. (There are nine such online and hybrid programs currently in operation in the U.S.)

William Adams, the ABA's managing director of accreditation and legal education, has said that the process of launching an online program will essentially remain the same despite the new approval process. Some observers, however, have said they think it will prompt more law schools to pursue online J.D. programs because they perceive the substantive change process as involving less red tape than the variance process.