Aaron Sibarium, Washington Free Beacon, August 19, 2021
The American Bar Association is poised to mandate diversity training and affirmative action at all of its accredited law schools, a move top legal scholars say could jeopardize academic freedom and force schools to violate federal law.
The association, which accredits nearly every law school in the United States, is mulling a plan that would require schools to “provide education to law students on bias, cross-cultural competency, and racism,” including a mandatory ethics course instructing students that they have an obligation to fight “racism in the law.” Schools would also be required to “take effective actions” to “diversify” their student bodies—even when doing so risks violating a law that “purports to prohibit consideration of” race or ethnicity.
The proposal has sparked fierce blowback from legal scholars across the country, including 10 emeritus professors at Yale Law School, who called it a “problematic” and “disturbing” attempt to “institutionalize dogma” through the accreditation process. Violating federal law is “not legally defensible conduct for any institution,” they wrote in a public comment on the plan in June, nor is it “a legally defensible requirement by an organization certifying law schools.”
Those arguments have so far fallen on deaf ears: When the plan was submitted for final review on Aug. 16, it contained all of the provisions to which the Yale professors had objected.
The proposed standards would institutionalize that indifference throughout legal academia. Laws prohibiting schools from considering race in admissions are “not a justification for a school’s non-compliance” with the diversity requirement, one standard reads. According to the Yale professors, “It would appear that [this language] instructs schools to risk violating state or federal law in order to retain certification.” Though the plan does tell schools to pursue diversity “by means other than those prohibited,” it never specifies what those means are, an omission the Yale professors say could encourage legally dubious activities.
Such activities might include using “personal ratings” to establish unofficial racial quotas, a practice that has landed Harvard in the Supreme Court. Though universities can use race as a “plus factor” in admissions, they cannot set hard floors or ceilings for any particular racial group. The ABA’s accreditation plan would encourage law schools to set those ceilings anyway, through the same sort of chicanery Harvard allegedly employs.
It would also encourage students to see existing law as illegitimate. The plan mandates a course on “professional responsibility” that stresses lawyers’ “obligation” to fight racism in the legal system—implying the legal system is racist—and requires students to learn about “bias, cross-cultural competency, and racism” at least two other times before graduating. “Courses on racism and bias in the law” are one way of satisfying that second requirement. Insofar as this curriculum assumes the law is unjust, it supplies a justification for disobeying it.