Several prominent legal scholars have recently weighed in against the American Bar Association’s pending proposal to alter the responsibilities of law schools to achieve "diverse" and "equitable" environments. The ABA proposals would, if adopted, substantially restructure, expand, and toughen the diversity obligations of ABA-accredited law schools. They would, for example, require that law schools “take effective actions that, in their totality, demonstrate progress” in diversifying their student bodies, faculty, and staff and creating an “inclusive and equitable environment.” In a series of submissions, legal scholars have explained why the proposed changes would be ill-advised.
Brian Leiter, of the University of Chicago, intervened early, charging that the proposed changes were ambiguous, costly, burdensome, ineffective, risky, and counter-productive. Leiter argued, moreover, that certain changes would be “bizarre”:
Proposed changes would replace previous language requiring "concrete action" and "reasonable efforts" related to diversity, to a standard that demands "demonstrat[ing] progress." What does "progress" mean? If a very diverse law school becomes slightly less diverse after a few years (but is still extremely diverse), does that mean it is in violation of the standard? That would seem bizarre.
Leiter especially criticized proposed curricular reforms that would require law schools to "provide training and education to law students on bias, cross-cultural competency, and racism." Leiter questioned why the ABA, which lacks requisite scholarly competence, is “mandating a particular position about which features of identity demand curricular attention,” i.e., race but not class.
A number of Yale Law School’s most eminent legal scholars added their collective voices to Leiter’s criticisms. Yale’s current and former Sterling Professors of Law submitted a notable letter that raised three important objections. First, they chastised the ABA proposal for being “ambiguous, lacking in the precision appropriate to good legal drafting.” Worse, they admonished that the “substantive soundness” of certain proposals is “dubious.” Finally, they argued that the proposed changes constitute “unwarranted intrusions” into the independence of law schools and professors, particularly with respect to course content:
We find particularly disturbing the proposed change to Standard 303, mandating two new course requirements and attempting to dictate the course content for these offerings. One is a course on professional identity that requires instructing students that their obligation is to eliminate racism in the legal profession, and the other is a course presupposing that some students are biased and racist and therefore need instruction euphemistically referenced as “cross-cultural competency.”
The Sterling Professors observe that “[m]andating the specific content of courses for accreditation is an overreach by the ABA accreditation committee.” The ABA should give their objections significant weight, both for the force of their arguments and also because they include some of the most respected names in legal scholarship, e.g., Bruce A. Ackerman, Akhil R. Amar, Mirjan R. Damaška, Owen M. Fiss, Anthony T. Kronman, John H. Langbein, Jerry L. Mashaw, Robert C. Post, Roberta Romano, and Alan Schwartz.
The Foundation for Individual Rights in Education further explained, in its submission to the ABA, why the proposal’s ambiguity is dangerous:
The proposal does not attempt to define “the skill of cross-cultural competency,” for example, despite requiring law schools to prove that their students “participate in a substantial activity to reinforce” it. In practice, this vagueness will invite subjective interpretation, and increases the likelihood of mandatory trainings that require students to voice certain political or ideological views in order to graduate.
Cornell’s William Jacobson went further, arguing that the proposed provision’s vague addition of “equity” language arguably imports controversial aspects of Critical Race Theory:
Standard 206 adds the word “Equity” to the title and substance, without definition. “Equity” is a relatively recent buzzword associated with various Critical Race Theory offshoots, particularly that espoused by Prof. Ibram X. Kendi. It is hotly contested whether equality of results, rather than equality of opportunity, is an appropriate goal, particularly where discrimination is used to achieve equal results.
Jacobson objects that incorporating such contested political positions into ABA accreditation standards would “take ‘equity’ off the table for debate” – an arguable violation of academic freedom and, Jacobson argued, “an abuse of power” by the ABA.
Finally, several legal scholars argue that the proposed standards are illegal or could foreseeably lead to unlawful actions. Scalia Law School’s David Bernstein, for example, argues that the ABA standards could create legal jeopardy for institutions that base racially preferential admissions decisions on ABA’s determinations rather than exercising their own independent judgment:
I would add that under the Grutter opinion, law schools may only engage in racial and ethnic preferences if the law school faculty and others involved in the school's academic mission have determined that such preferences would add diversity to the school in a way that would be educationally beneficial. By seeming to mandate such preferences, the ABA would be taking the decision out of the hands of the individual schools, and instead making it a requirement of accreditation. If a particular law school disagreed with the ABA’s views on diversity, the ABA would nevertheless require that school to act illegally lest its accreditation be threatened.
Similarly, Berkeley Law’s Steven Davidoff Solomon argues that the proposal would amount to unlawful viewpoint discrimination. Solomon predicts that the new rules, if adopted, would lead to an immediate lawsuit. He also notes that they are likely to provoke lawsuits involving disparate impact, due process, and reasonableness claims. Finally, four professors – Eugene Volokh, Richard Sander, Robert Steinbuch, and Richard Peltz-Steele – argue, inter alia, that the proposed standards could set law schools in certain states, such as California, on a collision course with state laws that prohibit racial preferences that the new standards might force them to adopt.
To be sure, the ABA’s proposal has considerable support in legal academia. Numerous law school deans, for example, have endorsed it. The dissenters nevertheless have provided a considerable basis for the ABA to rethink its proposal. While some comments could be addressed with technical changes, tightening language, or eliminating ambiguities, others strike at the heart of the proposal and require the ABA to rethink or abandon its proposal altogether.