A coalition of State Attorneys General previously wrote to raise concerns about your Standards and Rules of Procedure for Approval of Law Schools. … We pointed out that Standard 206, Diversity and Inclusion, fails to account for the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 600 U.S. 181 (2023) and, by all appearances, directs law-school administrators to violate both the Constitution and Title VII. In the months that followed our letter, you proposed revisions to the standard that remedied many of our concerns. But when those revisions received pushback, the Council retreated and once again proposed a Standard that appears to perpetuate unlawful racial discrimination. The proposed revisions, much like the current Standard, impermissibly impose race-based admissions and hiring requirements as a condition of accreditation while leaving law schools in the dark about how to reconcile the Standard’s dictates with their legal obligations. We appreciate that the Council has endeavored to make improvements to the current version of the Standard and attempted to harmonize feedback from a variety of groups. But the law is clear, even as the new proposed Standard is not. We thus once again urge the Council to bring Standard 206 in line with federal law and with the ABA’s purported commitment to set the legal and ethical foundation for the nation’s attorneys and educational institutions. No law school should be confused about whether it should engage in race-based decisionmaking. …
The Current ABA Standards
Our previous letter detailed how Standard 206 seemingly asks law schools to defy the Court’s clear no-race-discrimination directive. In its current form, the Standard all but compels law schools to consider race in both the admissions and employment contexts. … ABA standards cannot shield schools from governing federal law, nor does the ABA enjoy immunity from following the laws binding it as an accreditor. By requiring explicitly illegal consideration of race, the ABA risks exposing America’s law schools to disruptive and potentially expensive civil rights litigation. The current standard creates tremendous risk for every law school, and its inconsistency with the Constitution and laws of the United States is particularly egregious given the context of legal education.
The Proposed Revisions …
The Proposed Revisions soften some of the problematic language in the current Standard. Yet as proposed, just as now, the revised Standard would require law schools to take “concrete actions” based—at least in part—on race with respect to both its student body and its faculty.
Start with the student body. Revised Interpretation 206-1 sets out a range of ways that schools “typically” show their “commitment to providing access to the study of law and entry into the profession.” Proposed Revisions at 5. The list includes: “admissions policies, processes, and practices aimed at evaluating each applicant’s potential holistically”; “recruitment efforts targeted at groups that have been disadvantaged in or excluded from the legal profession”; “programs aimed at meeting the academic and financial needs of all students”; and “efforts aimed at creating a supportive learning environment for all students in the law school.” Id. Finally, the Interpretation assures law schools that “[c]ompliance with Standard 206(a) does not require [them] to take race or any other identity characteristic into account in making an individual admissions decision.” Id. And rightly so, since the Supreme Court has made it abundantly clear that this would violate the Constitution. See SFFA, 600 U.S. at 204. But while Interpretation 206-1 includes this caveat for admissions, it says nothing about the other “concrete actions” that Standard 206(a) “typically” entails. That silence is a problem. Because the Supreme Court has unambiguously declared that achieving racial diversity is not a “compelling interest” that authorizes race-based admissions, see id. at 214, it follows that this interest cannot support race-based recruitment or financial-aid decisions either.
Now consider employment. Revised Interpretation 206-2 notes that “[c]ompliance with 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.” Proposed Revisions at 5. Moving away from the current Standard’s quota-like approach to composing faculties is a step in the right direction. But the revised Standard’s race-directed language would still leave law school administrators in a bind. On the one hand, they are required to “work[] to achieve a faculty and staff that are diverse with respect to race.” Id. But on the other, they need not—and per constitutional and statutory law, cannot—consider race when hiring faculty or staff in any individual case. Absent is any explanation from the ABA about how schools can both aim to achieve racial diversity of faculty in the aggregate and disregard race when considering faculty. Schools deserve sound and lawful guidance from the ABA, not vague standards that conflict with themselves and the law. …
The Need for Clarity
Standard 206, in both current and revised forms, forces law schools to play a guessing game about how to pass ABA muster without violating the law. … Anyone with an interest in the legal profession and students’ well-being should be concerned that accreditation rests—and seemingly will continue to rest—on a tightrope walk between federal law, on one hand, and Section 206’s vague demands on the other. These concerns are all the more justified because schools’ balancing acts will be judged behind closed doors, according to uncertain criteria, by a Council that has not been shy about enforcing Standard 206 in the past. See, e.g., ABA, Notice of Finding of Significant Noncompliance with Standard 206 (Dec. 14, 2022) (Hofstra University); ABA, Notice of Finding of Significant Noncompliance with Standard 206 (Dec. 14, 2022) (University of Oregon).
The Council’s continued refusal to simply and explicitly abandon race-based decisionmaking in light of SFFA threatens to further undermine the ABA’s authority as an institution that purports to support the rule of law. At some point, too, it becomes difficult to square the federal government’s trust in the Council to serve as the exclusive accreditor of law schools with the Standards’ ambiguous posture toward compliance with federal law. We understand that many vocal and influential actors do not like the SFFA decision and would prefer to see continued race-based admissions and employment policies. But SFFA is the law, and it makes clear that race-based policies are illegal. If the Council continues to prevaricate, it will burn the ABA’s credibility, jeopardize the educational institutions it evaluates, and diminish the legitimacy of the law and the legal profession.
The bottom line: Whatever the intent behind Standard 206, 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. The “argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, and has been repeatedly rejected.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 742 (2007) (citations omitted); see also SFFA, 600 U.S. at 213–14. We thus urge the Council to revise Standard 206 to unambiguously reflect federal law’s prohibition of race-based admissions and hiring. Doing so will provide much-needed clarity for the law-school administrators who work hard to train future members of our profession.
- ABA Journal, Latest Try at Rewriting ABA Diversity Standard for Law Schools Gets Pushback From GOP Attorneys General
- Law360, Republican AGs Rebuke Proposed ABA Diversity Rule Change
- Reuters, Republican State AGs Oppose American Bar Association’s Revised Diversity Rule
Prior TaxProf Blog coverage::
- 21 State AGs Urge ABA To Remove Race-Based Criteria From Law School Accreditation (June 5, 2024)
- 19 State AGs Refute Effort By 21 State AGs To Eliminate ABA’s Race-Based Accreditation Standard (June 21, 2024)
- In Response To Criticism, ABA Legal Ed Council Changes Proposed Accreditation Standards On Diversity, Rights Of Non-Tenure-Track Faculty (Aug. 19, 2024)
- ABA Walks Back Plan To Remove ‘Race And Ethnicity’ From Law School Diversity Accreditation Standard (Nov. 5, 2024)
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