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The accrediting arm of the American Bar Association’s proposed revision to its diversity and inclusion standard requires law schools to demonstrate a commitment to access, including for racially disadvantaged groups.
The independent accrediting arm of the American Bar Association is in the process of rewriting its diversity and equity standard. The move comes in response to last year’s U.S. Supreme Court decision ruling race-conscious college admissions policies unconstitutional.
When the standards committee of the ABA’s Section of Legal Education and Admissions to the Bar, which is the sole accrediting body for all U.S. law schools, issued the proposed revisions in a memo back in February, it struck out the words “diversity and inclusion” related to admissions and hiring and replaced them with “access,” among other changes to the standard, which was adopted years before the federal affirmative action ban.
However, that doesn’t mean the accreditor has abandoned its commitment to recruiting students and faculty reflective of the diverse population lawyers serve, it says.
The February memo states that “the revisions make clear that a law school must demonstrate by concrete actions a commitment to access to all persons, including those with identity characteristics that have led to disadvantages in or exclusion from the legal profession,” including 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.
An interpretation the council provided of the proposed standard notes that the standard doesn’t specify how a law school must satisfy those requirements but instead says evaluation would be “based on the totality of the law school’s actions.”
Jennifer Rosato Perea, managing director of accreditation and legal education for the ABA, said the council is now considering the revisions “with the intent to adopt recommendations at its August meeting.”
In the interim, 19 attorneys general from Democratic-led states—and at least one independent legal expert Inside Higher Ed interviewed—said the proposed standards appear to comply with the high court’s decision; the narrow ruling doesn’t apply to hiring practices and doesn’t bar higher education institutions from generally seeking a diverse applicant pool.
Nonetheless, the proposed revisions have generated pushback from a coalition of top Republican lawyers, including those who have previously supported a push to dismantle broader diversity, equity and inclusion structures across all levels of higher education.
‘An Impossible Order’?
Earlier this month, Tennessee attorney general Jonathan Skrmetti wrote a letter endorsed by 20 other attorneys general from Republican-led states, including Florida, Texas and Virginia, to the accreditor. It argued that the proposed revisions are out of compliance with the Supreme Court’s decision and made a point to “re-emphasize” the existing standard’s “problematic requirement that law schools engage in race-based admissions and hiring.”
Over the past year, Skrmetti has cited the Students for Fair Admissions v. Harvard (SFFA) decision to challenge DEI efforts at Fortune 100 companies and the U.S. Department of Commerce, arguing that such policies promote “illicit racial discrimination and fundamentally anti-American principles.”
In the letter he sent to the ABA’s accrediting arm this month, he deployed similar arguments, claiming that requiring law schools to demonstrate a commitment to advancing access for historically marginalized groups violates the SFFA ruling.
The proposed directive, Skrmetti’s letter claims, is “an impossible order when race is both the first identity characteristic listed for consideration by the Standard and flatly prohibited from consideration by the law.”
The council clarified that “any law that purports to prohibit consideration of any of the identity characteristics listed in [the standard] in admissions or employment decisions is not a justification for a school’s non-compliance with Standard.” It added that law schools must meet those requirements using “means other than those prohibited by law.”
Skrmetti’s office did not respond to a phone call or email requesting comment about his motivations for writing the letter.
‘A Hard Case to Make’
But in a letter a sent to the ABA last week, a group of 19 attorneys general from Democratic-led states offered their interpretation of Skrmetti and his co-signers’ motivations, arguing that they “are willfully misinterpreting the law in attacking various DEI efforts that are not impacted by the holding of” the Supreme Court’s decision, which has “unduly emboldened” groups “interested in reversing racial progress.”
Skrmetti’s letter “attempts to expand the reach of SFFA, stretching its holding far beyond its own reasoning, and it should be ignored,” concluded the Democratic attorneys general.
Sonja Starr, a professor at the University of Chicago Law School, said she can’t speculate on what’s motivating the partisan criticism of the ABA proposal, but the argument that the proposed revisions, which she characterized as “pretty milquetoast,” violate the law seems “like a hard case to make.”
“I read the revised standard as an expressive pro-diversity signal,” she said. “As to student body admissions, the area that’s directly governed by SFFA, it not only doesn’t endorse affirmative action, but it doesn’t even mention student body diversity as a goal. It only says schools should make sure they’re accessible to historically disadvantaged groups, including racial groups.”
Diversity Post–Affirmative Action
Law students who matriculated in 2023 were the most racially diverse class ever.
And while this year’s law school applicant pool was also the most racially diverse on record—43 percent were people of color, according to the Law School Admission Council (LSAC)—it’s not yet clear how a federal affirmative action ban will influence the racial diversity of law students who start school this fall.
A recent paper published by the Northwestern University Pritzker School of Law may offer some predictors: while the racial makeup of law students across the country has become increasingly diverse since 1980 (it still lags compared to the general population), it declined by 20 percent in the states that had already enacted affirmative action bans over the past 28 years, and all of that decrease came from fewer Black and Hispanic students.
The Supreme Court’s affirmative action ban may require law schools to change their approach, but it still leaves room to recruit diverse students and faculty, said Angela Winfield, vice president and chief diversity officer for the LSAC.
“Law schools have to absolutely follow the law and shouldn’t be using identity to make decisions about who gets access,” she said. “But what they should be looking at is how identity may impact access. Law schools should correct that and reduce structural barriers so that everyone has access and [is] able to apply to law schools and enter the profession.”
That doesn’t mean lowering standards, Winfield added, but it does mean “providing support and access and thinking about the wide range of people that law schools serve.”
