I thought that the ABA's new reporting requirements had effectively ended the debate over law school employment numbers. However, Michael Simkovic's recent defense of the old reporting standards has sparked much commentary.
I do not read Simkovic to be defending the aggressive recruiting of students using highly selective employment data, let alone outright fabrication. Rather he argues that the mere presentation of summary information (e.g., counting students employed in any capacity as "employed" or reporting the median salary of a class) is not misleading and is consistent with the federal government's own reporting of employment data. Using the federal government's methodology also allows for comparisons between individuals who graduated law schools and those who did not.
Andrew Perlman and others have analogized from Model Rule 7.1 to assess law schools' dissemination of summary employment numbers in this space. If MR 7.1 is the correct framework, the key question is whether a reasonable prospective student would misunderstand the summary numbers or form an unjustified expectation based on them. Simkovic would say no. His detractors would say yes.
I'd advise against strictly applying MR 7.1 or other advertising rules to the reporting of employment outcomes. This is not because law schools should be held to lower standards than lawyers. Rather, just as honest reporting of results obtained for former clients can be misleading, so can honest reporting of employment numbers. The question we need to ask is whether it is nevertheless worthwhile to encourage the reporting of more data, even if it might mislead some prospective students.
Prospective law students who applied in 2014-2015 and may enroll in 2015-2016 likely examined class of 2013 employment numbers (2014 numbers will be available very soon). But a great deal will change by the time this cohort enrolls and graduates. The national and local economy could be significantly stronger or weaker. There may be more or less demand for legal assistance. The law school in question could gain or lose prestige, and its career services office could have more or less resources. Presumably none of the foregoing considerations should lead the ABA to prohibit law schools from reporting employment outcomes for fear that they will not predict future outcomes.
Moreover, the more specific the data, the higher the risk that some prospective student will unwisely rely upon it. Knowing the likelihood of obtaining some type of employment may not be particularly helpful, but at least the number will not vary much from year to year and will allow a student to have a rough sense of his or her odds of obtaining some employment. Compare this to law schools reporting the number of their graduates employed by large law firms. If a law school honestly reports in 2013 that 10 out of 100 graduates went on to work in BigLaw, a prospective student might reasonably assume that he or she has a very good chance of working in BigLaw if he or she is at the top of his or her graduating class. But what if three of the 2013 BigLaw lawyers obtained their positions largely on the basis of connections, and another two had PHds in the hard sciences that made them more attractive to large law firms? If we take the analogy to MR 7.1 seriously, shouldn't law schools, at minimum, provide additional information about the individuals who obtained these desirable positions? Would law schools even know which characteristics allowed these individuals (and the five others) to obtain these positions?
Commentators have begun to levy charges of shoddy ethics merely because they disagree with how some individual or organization has presented the available employment data. Even assuming a particular presentation makes employment prospects seem brighter than they are, prospective law students can now easily find corrective information. Indeed, I suspect that the obsession with short-term employment numbers has made a legal career seem riskier than it actually is (the 2015 and 2016 employment numbers may have the opposite effect). Unfortunately, one of the inevitable consequences of disseminating more information is that it can confuse as well as clarify. We should not pretend otherwise while reserving our ire for those who act in bad faith.
Update: Read this for a sense of how ugly the debate over law school employment has become.