ABA Shelves Update to Expanded Law School Diversity Policy for Now

ABA Shelves Update to Expanded Law School Diversity Policy for Now

The American Bar Association had planned to update its law school diversity accreditation standards in light of the U.S. Supreme Court’s Students for Fair Admissions v. Harvard case, which struck down affirmative action, or considerations of race, in college admissions.

The current standards, which are published by the ABA’s “Legal Education and Admissions to the Bar” Section, are available here. The diversity standards are contained in Standard 206:

Standard 206. DIVERSITY AND INCLUSION

(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

(b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.

So law schools, to be accredited, basically have to engage in race-based admissions and hiring. But race-based hiring has been unlawful since the passage of Title VII in 1964, and race-based school admissions were recently outlawed by the SCOTUS Students for Fair Admissions decision.

So the ABA decided to review its diversity standards to ensure they comport with current law, but now is delaying the implementation of any new standards.

TaxProf Blog has the story: ABA May Revise Diversity Accreditation Standard To Increase ‘Identity Characteristics’ From Three (Gender, Race & Ethnicity) To 14:

Under a current proposal, the focus of Standard 206 would shift away from “diversity and inclusion” and toward access for “all persons,” expanding number of “identity characteristics” from three—gender, race and ethnicity—to 14.

The American Bar Association has decided to continue mulling over potential revisions to Standard 206, which governs diversity and inclusion within law schools, in response to the U.S. Supreme Court’s ruling on affirmative action.

Under the proposal recommended by the Standards 205/206 Working Group, amendments to Standard 206 would include changing the standard title from “Diversity and Inclusion” to “Access to Legal Education and the Profession,” and shifting the overall focus of the verbiage away from underrepresented groups and more toward providing access to “all persons.”

Proposed “identity characteristics” would include—replacing “gender, race, and ethnicity”—“race, color, ethnicity, religion, national origin, gender, gender identity, gender expression, sexual orientation, age, disability, military status, Native American tribal citizenship, or socioeconomic background.”

“The revisions make clear that a law school must demonstrate by concrete actions a commitment to access to all persons, including those with identity characteristics that have led to disadvantages in or exclusion from the legal profession,” according to a Wednesday memo to the council from the Standards Committee….

Under the proposal recommended by the Standards 205/206 Working Group, amendments to Standard 206 from the ABA Standards Committee on Wednesday, the Council of the ABA’s Section of Legal Education and Admissions to the Bar voted during its Thursday meeting in Louisiana to further consider the revisions at this time.

[Note: the link to the in-use Standard 206 in Tax Prof’s post is incorrect – I have fixed it above to reflect the current ABA Section 206 Standard]

As law.com explains, the Standards 205/206 Working Group submitted their memo to the Standards Committee’s governing Council, but at the Council’s Thursday meeting, they decided to shelve the recommendations contained in the memo for further consideration in light of two issues [Note: the law.com article is only available through an impenetrable paywall, although you can view one law.com article per month by establishing a free account, which I did].

Professor Jacobson is quoted in Just the News:

“The ABA seems to be suggesting that law schools find creative ways to evade the Supreme Court’s ruling in the SFFA case,” Cornell law professor William Jacobson, who runs the Legal Insurrection website, told Just the News.

“This reflects how the ABA is abusing its accreditation power to push its social agenda,” he wrote, calling on Congress to “strip the ABA of its accreditation near-monopoly” given that it “no longer represents the broader legal community unlike decades ago when it was handed this power.”

First, the Committee wants the proposed changes to be reviewed by outside counsel in light of the SCOTUS Students for Fair Admissions case. Second, the ABA’s Section of Legal Education and Admissions to the Bar’s Vice-Chair, Daniel Thies, said that “we are going to be developing another alternative set of revisions to 206 that would do more to preserve the diversity and inclusion language that is in there currently.”

My take on this situation is that the Working Group’s recommended changes did too much to move law schools AWAY from DEI and specifically race-based diversity efforts, or at least the language concerning it, so as to accord with Students for Fair Admissions as much as it could, but the ABA wants to see how much it can MAINTAIN that focus going forward. So it is going to get an outside look at the proposed changes and see what they can add back in diversity-wise.

Interestingly, a prior round of changes in 2021, available here, that would have center-pieced the term “equity” along with diversity and inclusion was objected to here at Legal Insurrection, Send A Letter: American Bar Assoc. Proposed Mandated Law School Race Curriculum Will Restrict Academic Freedom and Debate, and Professor Jacobson had also protested adoption of the suggested 2021 law school diversity standard revisions in June of 2021 and January of 2022.

From Professor Jacobson’s June 2021 letter:

Standard 206 adds the word “Equity” to the title and substance, without definition. “Equity” is a relatively recent buzzword associated with various Critical Race Theory offshoots, particularly that espoused by Prof. Ibram X. Kendi. It is hotly contested whether equality of results, rather than equality of opportunity, is an appropriate goal, particularly where discrimination is used to achieve equal results. Regardless, by injecting “equity” as a concept into accreditation process, the ABA uses its accreditation power to make what will be understood to be an ideological point and will take “equity” off the table for debate. That is not the role of ABA accreditation, and it is an abuse of power….

For the reasons set forth in the incorporated comments, and above, I urge the ABA to go back to the drawing board on these proposals, and not to use its accreditation power to advance an ideological result.

And from Professor Jacobson’s January 2022 letter:

Like the prior proposal, the latest proposed revision also eliminates references to diversity efforts being consistent with “sound legal education policy” and “sound educational policy” found in the current version of Standard 206. The ABA seems to be signaling to schools that any negative impact the proposed changes may have on educational quality is irrelevant.

To prove compliance with the proposed standard revision, under Standard 206(b) of the proposed revision, each school would be required to publish data reflecting its “performance” in “satisfying” the new diversity standards. In other words, success in “diversity” is measured by a law school’s increasing the proportion of its students, faculty, and staff from underrepresented groups to a percentage that’s at least as high as the underrepresented groups ’overall percentage of the country’s population. This is just a round-about way of imposing quotas.

The standard the ABA seeks to impose would require schools to show that the percentage of students they admit and faculty/staff they hire from “underrepresented groups” is at least as high as those groups ’percentage in the U.S. population as a whole. To wit, a quota.

In part, due to Professor Jacobson’s and others’ advocacy, the ABA’s prior changes injecting the term “equity” into its diversity standards were not adopted.

We will keep you updated on this latest revision to the law school accreditation diversity standards.

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