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The U.S. Department of Education recognizes the Council of the ABA Section of Legal Education and Admissions to Bar as the accrediting agency for programs that lead to the J.D. degree. For the past four years, the Council has been struggling with what it should do with its Standard 206, which addresses what law schools seeking to become accredited or maintain their accreditation must do with respect to “Diversity and Inclusion” in admissions and faculty hiring.

At the Council’s meeting on February 21, the Council decided to suspend enforcement of the current version of this standard, which has been in effect since 2014, until August 31. As the Council noted in its announcement, it took this action in response to President Trump’s executive orders and the Department of Education’s “Dear Colleague” letter of February 14. That letter, issued by Acting Assistant Secretary Craig Trainor, expressed the desire “to clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance from the Department.” Invoking the Supreme Court’s decision in Students for Fair Admissions v. Harvard, the letter directed all educational institutions to “(1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.”

As the basis for the suspension, the Council invoked its authority under its Rule 2d, which allows it “to adopt emergency policies and procedures in response to extraordinary circumstances in which compliance with the Standards would create or constitute extreme hardship for multiple law schools.” This is a tacit acknowledgment that the current standard could put law schools between a rock and a hard place, risking either their accreditation or their federal funding. To be sure, the Department of Education’s Dear Colleague letter is styled as a mere guidance document that “provide[s] clarity to the public regarding existing legal requirements” and does not create new legal standards or have the force and effect of law. But regulated entities ignore such guidance at their peril. For example, failure to comply with federal civil rights law could result in the loss of federal funding—a setback that would likely force almost any U.S.-based institution of higher education to close its doors.

That said, the suspension of current Standard 206 does not mean that the Council is giving up on its years-long effort to revise that section. To the contrary: the reason the end-date of the suspension of the Standard is August 31, according to the Council’s statement on the matter, is that the Council still intends to submit its latest revised draft of Standard 206 to the ABA House of Delegates for approval at the end of August 2025—albeit with further as yet unspecified revisions “to integrate legal developments and forthcoming guidance from the Department” and “to ensure that the schools can comply with this standard consistent with applicable law.”

It remains to be seen what all this will actually mean. As discussed below, there is little reason to think that anything short of an overhaul of the Council’s current draft revision will enable the ABA to meet its stated goal of “ensur[ing] that the schools can comply with this standard consistent with applicable law” as laid out by the Department of Education. In addition, the Council makes no mention of whether or when it might make the revised draft available for public comment before submitting it to the House of Delegates, which raises major transparency questions. Still, suspending the current standard’s enforcement is the most serious step the Council has taken to date in recognizing the magnitude of the problem it is facing.

The remainder of this post describes the recent history of the Council’s efforts to revise this standard and lays out where those efforts currently stand.

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The current—and presently suspended—Standard 206 requires that law schools “(a) 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”; and (b) 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.” Revisions proposed over the past four years have gone back and forth on virtually all the key questions raised by this standard. Some want to clarify that it requires even more movement by law schools toward proportional representation of various demographic groups in their student admissions and faculty hiring; others insist that it needs to be clarified in the opposite direction for both legal and policy reasons.

The effort to revise Standard 206 dates back to May 2021. After the killing of George Floyd and a series of ABA sponsored roundtables, the Section’s Standards Review Committee first proposed revising Standard 206 1) to further elevate consideration of identity characteristics in law school admissions and hiring, 2) to emphasize the importance of law schools creating an “inclusive” environment, and 3) to add “Equity” to the title and to the relevant considerations. These efforts seemed legally dubious even under then-governing Supreme Court precedents and state laws. This endeavor attracted intense opposition from a cross-section of law professors and academic organizations, resulting in multiple rounds of revisions. The Council ended up deciding to withdraw the proposal before it was considered by the full ABA in August 2022. Subsequent rounds of revision have come to resemble a seesaw, with proponents and skeptics of identity-oriented diversification taking turns modifying the draft in one or the other direction:

On February 21, 2024—less than a year after SFFA was decided—the Standards Review Committee of the ABA Section put forward a further-revised version of Standard 206 (renamed “Access to Legal Education and the Profession” rather than “Diversity and Inclusion”) that purported to account for the effect of the Supreme Court’s SFFA decisions. The revisions focused on requiring law schools to demonstrate a commitment to “access to the study of law and entry into the profession to all persons, including those with identity characteristics that have led to disadvantages in or exclusion from the legal profession on the basis of race, color, ethnicity, religion, national origin, gender, gender identity, gender expression, sexual orientation, age, disability, military status, Native American tribal citizenship, or socioeconomic background” (emphasis added). A similar commitment “to diversity and inclusion by having a faculty and staff that are diverse with respect to” these listed characteristics would likewise be required. When the Council of the ABA Section convened the next day, however, it delayed sending these proposed changes out for notice and comment, pending review by outside counsel “to ensure [the potential revision] complies with the law before being approved by the Council for Notice and Comment.”

This delay was followed by dueling missives from collections of state attorneys general. On June 3, attorneys general from 21 (mostly red) states sent a letter to the Council objecting that the revision was inadequate to conform Standard 206 to the SFFA decisions. They argued that, “[w]hatever the intent behind Standard 206 might be, it cannot lawfully be implemented in its current or revised forms. The Supreme Court has made clear that well-intentioned racial discrimination is just as illegal as invidious discrimination.” Later that month, attorneys general from 19 (mostly blue) states issued their own letter defending the potential revision to Section 206 and arguing that SFFA did not impede diversity efforts “outside of the narrow practices prohibited in admissions.”

At the end of August, the Council issued and sent out for notice and comment a new rewrite of its proposed revisions to Sections 206. This version removed entirely the laundry list of identity characteristics. It also removed the requirement that schools “hav[e] a faculty and staff that are diverse” according to these characteristics and replaced it with a requirement that schools “provide access” to faculty and staff positions for all persons, including people with “historically [] disadvantaged or excluded” identities.

Alongside the proposed revision to Section 206 was a proposed revised Interpretation 206-2, which provided in full: “Compliance with Standard 206(b) does not require a law school to take race or any other identity characteristic into account in making an individual employment decision.” The deadline for comments on these revisions passed on September 30, and a compilation of the fifteen comments received was posted on the Council’s website.

On November 18, however, the Council proposed yet another rewrite of Standard 206 with a new 30-day comment period. The Council noted that most commenters thought its previous rewrite had “gone too far” beyond the requirements of SFFA’s holding. Accordingly, the Council felt obliged “to clarify that [it] is not abandoning the values of diversity and inclusion.” And “[f]or clarity,” the Council’s new redraft “included a list of fifteen identity characteristics for consideration by law schools when adopting and implementing concrete actions to demonstrate their commitment [to diversity and inclusion].” It also revised the faculty section so that it was no longer simply about access, but about “working to achieve a faculty and staff that are diverse” according to the same list of identity characteristics. The result is a draft that is considerably closer to the earlier draft that was run by counsel and apparently found wanting, as well as to the pre-SFFA Standard 206 whose questionable legality prompted the review in the first place (emphasis added):

Standard 206. Access to Legal Education and the Profession

For purposes of promoting the legitimacy of the justice system, a law school shall demonstrate by concrete actions, a commitment to:

(a) diversity, inclusion, and access to the study of law and entry into the legal profession for all persons including those with identities that historically have been disadvantaged or excluded from the legal profession due to race, color, ethnicity, religion, national origin, gender, gender identity, gender expression, sexual orientation, age, disability, military status, Native American tribal citizenship, and/or socioeconomic background.

(b) providing a supportive learning environment for all students, in part by working to achieve a faculty and staff that are diverse with respect to race, color, ethnicity, religion, national origin, gender, gender identity, gender expression, sexual orientation, age, disability, military status, Native American tribal citizenship, and/or socioeconomic background. A supportive learning environment is one that promotes professionalism, mutual respect, and belonging for everyone in the law school community.

The interpretive notes also indicate that a law school is “permitted under this Standard, within the bounds of the law, to use concrete actions to diversify its student body,” but that “Standard 206(a) does not require a law school to take race or any other identity characteristic into account in making an individual admissions decision.” And “Standard 206(b) does not require a law school to have faculty and staff members from every identity category listed in the Standard, nor does it require law schools to take race or any other identity characteristic into account in making individual employment decisions” (all emphases added).

Comments on this latest round of revisions were set to be considered by the Council at its February 2025 meeting. The twelve comments made available online reflect a variety of strongly divergent views. Several non-profit organizations, such as the Buckeye Institute, strongly criticized the latest redraft for violating SFFA, as did Tennessee AG Jonathan Skrmetti’s coalition of 21 red(ish) state AGs. A variety of ABA-related entities took a more supportive stance, including (unsurprisingly) the ABA’s own DEI Center—though it felt the interpretive notes should be modified to indicate that schools are expressly permitted to use race (or any other identity characteristic) in any given “individual admissions decision.” Attorney/mediator Charles Crumpton and professor emeritus Benjamin Davis of Toledo Law felt the draft did not go nearly far enough to support diversity and inclusion, stating among other things: “Trying to hide the ‘D’ word is incompatible with the language of ABA Goal III. These are word games in my opinion and are done only to bend the knee to extreme right bigotry coming to power and done out of fear.” Crumpton and Davis likewise objected to an interpretive note providing that Standard 206 does not prohibit law schools with a religious affiliation or purpose from adopting or applying policies that directly relate to a law school’s affiliation or purpose, so long as the school gives notice: “What if a law school has a religious affiliation that considers women to be subordinate or that the races should be segregated. Is notice good enough? I do not think that is enough and tethering this to applicable law is the least the comment could do. I do not trust any good faith as religion was and is used to justify oppression slavery and genocide.”

These comments indicate the magnitude of the challenge the Council is facing. In short: the Council suspended enforcement of current Standard 206 pending approval of a new version to ensure, in the face of the Department of Education’s guidance letter, that law schools need not risk running afoul of federal civil rights law to remain in compliance with ABA accreditation standards. This is the most serious step the Council has taken yet in recognizing and trying to address the problem it is confronting with this Standard. But it remains very much an open question whether the Council will be able to produce a new draft of the Standard that avoids re-creating this dilemma—let alone approve it and transmit it to the ABA House of Delegates by August 31.

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Addendum: On February 28, roughly one week after one meeting in which the Council suspended Standard 206, the Attorney General of the United States issued a letter to the Council welcoming the suspension—but also opining that the Standard in both its current and draft revised forms encourages unlawful discrimination, and that rather than continuing to attempt to revise it the Council must simply repeal it. "[W]hen the Council revisits the issue," Attorney General Bondi stated, "there is just one appropriate course: The Standard must be repealed in its entirety. And there is no reason to wait; the Council should repeal the Standard immediately."   
 
Attorney General Bondi also suggested that continuation of the ABA Council as accreditor of law schools is likely linked to repeal of the standard. Arguing that "if diversity is defined in terms of race and sex outcomes, universities cannot lawfully pursue diversity by any means," Bondi described "mandatory diversity objectives" as an abuse of the "privilege" the Council holds as the "sole accrediting body of American law schools"—a privilege that is "subject to revocation."  
 
Finally, the Attorney General suggested that if the Council did not repeal the standard, 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: "it is unclear how state bars can lawfully continue to require prospective lawyers to attend ABA-accredited law schools if the Council continues to abuse its privilege in this way. The Department of Justice stands ready to take every action necessary to prevent further abuse."