DEI Comes to Legal Education

David Acevedo

CounterCurrent: Week of 7/25

Far-left social justice ideology—“wokeism,” as many are calling it—is now so widespread within American higher education that its presence is the norm, not the exception. We must assume that, at every level (undergraduate, graduate, professoriate) wokeism has infected the very core of every department (humanities, STEM, arts, professional studies, etc.), not only in admissions and hiring but also in the research product of the fields themselves. It’s become increasingly apparent in recent times that law schools are no different.

In May, the American Bar Association (ABA) proposed a new set of accreditation standards, which if put into effect would require American law schools to include “gender identity and expression” in its non-discrimination policies (mirroring a move by the Biden Education Department last month) and to actively work toward creating an “inclusive and equitable environment,” among other things. As we know, though, the now-ubiquitous phrase “diversity, equity, and inclusion” (DEI) means nothing of the sort.

Many law schools don’t need the ABA to make them pursue a DEI utopia. Just last March, University of Texas Law School alum Louis K. Bonham investigated his alma mater’s new Law and Religion Clinic, which stated that it would “not engage in litigation that can succeed only at the expense of the rights of groups represented in our community.” He found that this referred specifically to the LGBT community and that it would bar a Masterpiece Cakeshop-type case from being taken by the Clinic. In the pursuit of a more “inclusive” and “equitable” environment, the school has essentially forbidden an entire sector of civil rights litigation crucial to the American public—religious liberty.

But for those law schools who would actually teach students to study and practice law with integrity rather than twisting the field into a social justice campaign, the proposed ABA standards will present some real challenges. In this week’s featured article, National Association of Scholars President Peter Wood examines just what these challenges may be, as well as the effect they will have on legal education and practice in the long run.

As Dr. Wood explains, the ABA has been in charge of law school accreditation since 1965, when the Higher Education Act granted it that authority. The ABA’s record in this role is spotty, to say the least, resulting in multiple lawsuits in the over 50 years since. These new mandates, though, take educational malfeasance to the next level, as they would require law schools to engage in illegal discrimination in admissions and hiring. What’s worse, they know that it’s illegal and are encouraging schools to sidestep existing anti-discrimination law. See this quote from the proposed standards:

The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s noncompliance with Standard 206. A law school that is subject to such constitutional or statutory provisions would have to demonstrate the effective actions and progress required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions. [emphasis added]

So don’t do what your state law prohibits, but also find a way to do what it prohibits. Makes sense, right? The ABA’s message to law schools is effectively: “Discriminate in pursuit of DEI. If your state forbids this, find another way to do it—or lose your ability to grant degrees.” How ironic that the ABA, ostensibly created to promote and preserve integrity in legal education, is proposing to require that schools sidestep state prohibitions of race and sex discrimination. There’s no telling what sort of consequences this will have on American legal education, which, of course, does not exist in a bubble. Today’s law students are tomorrow’s attorneys, judges, and legal scholars, and if they are underqualified and lack any experience with diverse arguments and viewpoints, the American people will pay the price.

To combat what may become official ABA policy, Dr. Wood proposes two solutions: 1) introduce alternative law school accreditors, such as the Federalist Society, to compete with the ABA; and 2) allow graduates of non-accredited law schools to sit for the bar exam, as the state of California already does. The ABA should not have a monopoly on legal education standards. We must work to reform law schools from tangents in identitarianism to truly diverse institutions.

CounterCurrent is the National Association of Scholars’ weekly newsletter, written by Communications & Research Associate David Acevedo. To subscribe, update your email preferences here.

Image: Towfiqu barbhuiya, Public Domain

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