The American Bar Association (the ABA) has recommended new accreditation standards for law schools that would require schools to include “gender identity and expression” in their non-discrimination policies, replace the term “minority” with “people of color” in school materials, and take “effective actions” to create an “inclusive and equitable environment,” defining such an environment in terms of race, color, ethnicity, gender, gender expression, and sexual orientation.
The ABA effectively sets the conditions under which all law schools in the U.S. operate. Through its powers of accreditation, it exerts control over what nearly every American law student must study on the way to becoming a practicing attorney. Imposing ideological conditions on law schools is nothing new for the ABA, but it has become much more blatant in recent years, and the newly proposed standards position the ABA as an advocate for conceits originating in the radical identitarian left.
The ABA would like the nation’s already-radicalized law schools to become even more so.
The National Association of Scholars, along with Ohio law professor Scott Gerber, Northwestern University sociologist James Lindgren, Chapman University’s James Phillips, and many others have long documented how leftwing the upper echelon of the legal profession is, with likely trickle-down effects for rank-and-file practicing attorneys and judges. The ABA’s new action attracted the critical attention of Northwestern University law professor John McGinnis in the Wall Street Journal, “Why the Lawyers Cartel Is Pushing for Woke Law Schools.”
The ABA is aware that its new rules would run afoul of laws in many states that prohibit public universities from discriminating in hiring and admissions on the basis of race and sex. What should a law school do when it finds itself between a public law prohibiting such discrimination and an accreditor demanding it? The ABA’s astonishing answer is that the university should ignore the law. In the august language of the ABA, that edict appears as follows:
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]
Nor is this all. At a time when graduates of law schools are often burdened with extraordinary debts from paying sky-high tuitions, the ABA’s new accreditation proposals would impose additional costs on law schools. These will have to be paid by students or by state governments, which then must divert resources from other needs.
The ABA’s proposal should be rejected, but it also should prompt increased scrutiny of the ABA and of American legal education in general, which have abandoned their roles as disinterested educators of the nation’s future attorneys to become partisan actors in the effort to impose progressive dogma on the American people through our system of justice.
The new focus on “equity and inclusion” involves some words that serve as light camouflage for this radical intent. “Equity” is a substitute for the ideal of equality. In progressive cant, “equity” means the redistribution of social goods to favor social groups that the equity-advocates judge to have been short-changed by meritocratic standards. “Inclusion” means judging the members of various ethnic groups by “standards” that supposedly reflect that group’s “culture.” It is a relativistic concept that asserts that achievement can never be fairly assessed by a single yardstick.
Just as the term “diversity” has been inverted to mean conformity to the intellectual and political outlook of the left, the ABA’s use of “equity” and “inclusion” turns the ordinary English-language meaning of these words inside out. They do not mean “fairness,” but rather the arbitrary and frequently unfair award of privilege through the decisions of elite administrators who practice ethnic and sexual favoritism.
This relatively recent ideological overlay has displaced the “practice readiness” that law firms once expected law schools to inculcate among their graduates. Law firms these days routinely complain that they, not law schools, must educate new JDs on how to practice law. Students may spend three years and tens of thousands of dollars in law school for little more than a superficial understanding of the law coupled with indoctrination in social justice theory.
Law school accreditation used to be a voluntary function, performed also by state bar associations, but the ABA has covered the field since the 1965 Higher Education Act tied federal funding to such accreditation. It would be a welcome reform to restore the old system. An alternative might be to authorize competition among accreditors. The Federalist Society, for example, could serve as a model alternative accreditor. Additionally, California allows graduates of unaccredited law schools to sit for its bar examination. Other states could do the same, or could at least allow a law school’s graduates to sit for the bar if a law school lost its ABA accreditation because it failed to meet the ABA’s diversity, inclusion, and equity requirements. State legislatures and bar associations also could tackle the anti-trust issues raised by the ABA’s appropriation of new powers that injure the public interest.
In the 1990s, the Anti-Trust Division of the Justice Department sued the ABA for using the accreditation process to fix faculty and administrator salaries and to unlawfully exclude from competition other types of law schools, including those structured on the for-profit model. The Justice Department claimed legal educators had captured the accreditation process. The litigation spanned more than 10 years, including findings that the ABA violated final stipulations and judgments.
More recently, the ABA was criticized for not ensuring, through the accreditation process, the accuracy of employment data issued by its accredited law schools, such that applicants and graduates were grossly misled about their employment prospects.
The ABA, in other words, has a spotty record of looking out for the public interest and the professional interest of students and future attorneys. And it has neglected its primary responsibility of ensuring professional and intellectual integrity in favor of imposing ideological conformity. Imposing these requirements will also favor the further distortion of law school faculty by favoring the hiring and promotion of faculty members who embrace far-left partisan views and by shutting out those who question or reject those views. This tilt in the faculty, which is already far-advanced, damages the breadth and quality of education that law students receive.
The ABA’s proposed new standards show how far it has wandered from its legitimate role. The ABA should withdraw those proposals, and the public along with the Department of Education should look seriously at deeper reform of this compromised institution. I would also suggest pushback from state legislatures and state bar associations. Indeed, many kinds of reform ought to be pursued, as the rot within the ABA runs deep.
Peter Wood is president of the National Association of Scholars.