ABA Responds to AG Bondi on Standard 206

As noted in a previous post, on February 22, the Council of the ABA Section of Legal Education and Admissions to the Bar (which the Department of Education recognizes as the accrediting agency for programs that lead to the J.D. degree) suspended its accreditation Standard 206 (Diversity and Inclusion) until August 31, 2025. After that date, it hopes to submit to the ABA House of Delegates a new revised version of that Standard. Roughly one week after it announced the suspension, Attorney General Pamela Bondi sent the Council a letter welcoming the suspension—but opining that rather than continuing to attempt to revise Standard 206, the Council should simply repeal it, and do so “immediately.” AG Bondi noted that the Section’s status as a federally recognized accreditor is a “privilege . . . subject to revocation,” and she further admonished the Council that if it does not repeal Standard 206, state bars that continue to require attendance at an ABA-accredited law school as a condition of taking the bar would themselves likely be in violation of the civil rights laws.

On March 10, Council Chair David Brennan replied to Attorney General Bondi’s letter, reiterating that Standard 206 is suspended and not being enforced. He acknowledged that the Council is reviewing a “possible new standard concerning access to legal education that conforms with all applicable laws,” and he declared that “[t]he Council has not and will not require a law school to violate the law in order to comply with its accreditation standards. I assure you that this remains our goal as we deliberate and consider a revised Standard 206.” Noting that the Council next meets this coming May, he advised that it “do[es] not currently plan to take any action on this standard before that time.” Brennan also emphasized the Council’s awareness that “recognition as a DOE accreditor is a privilege and a great responsibility, which we take seriously . . . .”

It is worth noting that these assurances follow upon not only the AG’s missive, but also a February 18, 2025, letter from Commissioners Gail Heriot and Peter Kirsanow of the U.S. Commission on Civil Rights to Dr. Bill Cassidy, Chair of the U.S. Senate Committee on Health, Education, Labor & Pensions, urging passage of legislation to address “accreditation abuses.” The letter characterizes the ABA as “[a]mong the most aggressive accreditors who threaten schools that they view as insufficiently diverse,” and it details at length various communications and actions by ABA personnel relating to accreditation of the law school at George Mason University between 2000 and 2008. The commissioners say all this amounted to “[u]ndue [p]ressure” on the law school, based on the diversity accreditation standards, to engage in racially preferential admissions and hiring decisions. The letter also states that since George Mason’s reaccreditation, the ABA has become, if anything, even more aggressive. Indeed, Ohio Northern’s law school is currently undergoing a reaccreditation process that may be similar to GMU’s—including pressure to engage in result-focused “diverse” faculty hiring.

Heriot and Kirsanow “do not contend that accreditors are the only source of pressure on colleges and universities to ignore the Supreme Court’s decision in SFFA,” noting that “complex webs of state and federal oversight and grant-making authority combined with outside funding sources, all of which insist on ‘diversity,’ all contribute to the difficulty.” Even so, they emphasize, “accreditors are perhaps the most powerful of these. . . . If accreditor pressure were removed, we believe that the level of compliance with the law would increase significantly.”