On February 14, 2022 the House of Delegates (HOD) of the American Bar Association (ABA) approved a series of changes in its Standards for Approval of Law Schools (ABA Standards). Both the standards and the changes that were promulgated are significant. It is an almost universal requirement that an individual wishing to sit for the bar examination in the United States must be a graduate of an accredited law school. Passing that examination is a prerequisite to securing a license to practice law. The new requirements regarding diversity, equity, and inclusion accordingly pose a series of opportunities and challenges for all law schools.
HOD approval was the final step in a process initiated in March, 2021 by the ABA Council of the Section of Legal Education and Admissions to the Bar (Section Council). It issued notice of and request for comments on proposed changes to Standard 303, Curriculum, which details the requirements governing a law school’s program of studies. The recommendation was that there be “substantial opportunities” for students to develop a “professional identity,” defined as “includ[ing] but not limited to, the knowledge, skills, values and morals, foals, and personality traits considered foundational to successful legal practice.”
This rather general suggestion underwent significant changes in its next iteration, which broadened its scope to include matters of “nondiscrimination” and “diversity, inclusion, and equity.” Three general sets of changes were proposed: expanding the class of individuals that would be protected; clarification of and general requirements regarding the sorts of “concrete actions” that law schools would be required to undertake to show “effective actions that lead to progress”; and requirements for “training and education on bias, cross-cultural competency, and racism”.
Two of the three proved controversial: the measures required to achieve and document “progress” measured on the basis of the “totality of the law school’s actions and results achieved”; and those requiring “training and education” that would prepare future lawyers to “promote a justice system that provides equal access and eliminates bias, discrimination, and racism in law.
A substantial number of comments and critiques were submitted. The changes in Standard 206, for example, were deemed incomplete and vague, with “‘progress’ . . . nowhere defined” and “not even a hint of what it means to fully satisfy this standard.” The curriculum reforms in Standard 303, in turn, were characterized as “ambiguous, lacking in the precision appropriate to good legal drafting.” The “goals” were “unspecified, and may be a euphemism for quotas, about the appropriateness of which there is considerable controversy.”
The changes in Standard 303 were, in turn, viewed as an “overreach by the ABA accreditation committee” that both “misconstrues the accreditation function” departing from a proper focus on the acquiring skills and “requir[ing] students to adopt a specific world view.” One commentator strongly criticized the overall proposal as an example of the “Woke” movement that would require law schools to become “more race-conscious, more politically correct and less intellectually diverse.” The then-President of the ABA took issue with this, characterizing the proposal as consistent with the goal of “eliminating bias and enhancing inclusion in the legal profession” and expressing her confidence that the final result would be crafted in the light of “all views” expressed and made “in the best interest of legal education and its many stakeholders.”
A second set of proposed changes was approved by the Section Council on November 19, 2021 and a new Matters for Notice and Comment was issued on December 16, 2021. The Chair of the Section Council, Professor Leo Martinez, stated that “[b]ased on the notice and comment process, we went back to the drawing board” and that “[a]ll in all, it will make for a better product.” But many of the proposed changes to Standard 206 that were previously criticized remained, with the Council stressing that “enforcement will be through analysis of public data collected by the law school” and “requires an annual assessment of the inclusion and equity of a law school educational environment.”
The proposal presented to the HOD in February eliminated the amendments to Standard 206 and focused solely on the expansion of the number of groups protected and the need for certain types of training and education. The Resolution presented to the HOD did not include any request for changes in Standard 206 and the Report accompanying the Resolution was strangely silent in this regard. The description of Council actions in May, 2021, for example, did not mention Standard 206. If all one had was that summary you would not know that Standard 206 was ever discussed.
Only two sets of change were accordingly considered and approved.
The first was the expansion of Standard 205. The formal recommendation was that the categories of “military status and gender expression” and “ethnicity” be added as protected classes, that is, “as bases for non-discrimination.” Law schools are now required to “adopt, publish, and adhere to a policy of non-discrimination that prohibits the use of admission policies or other actions to preclude admission or retention of students on the basis of race, color, ethnicity, religion, national origin, gender, gender identity or expression,, sexual orientation, age, or disability, or military status.” Notably, given the addition of “gender identity or expression” as a protected class, the Interpretations accompanying the change preserved the prior assurance the standard “does not require a religiously affiliated school to act inconsistently with the essential elements of its religious values and beliefs.”
The revision to Standard 303, governing a law school’s curriculum, in turn, added a new requirement regarding “the development of a professional identity.” This was defined as “what it means to be a lawyer and the special obligations lawyers have to their clients and society.” Law schools must now provide education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education; and (2) at least once again before graduation. Given that certain types of courses and educational activities involve active client contact and/or work in the community, the standard stressed that “[f]or students engaged in law clinics or field placements, the second educational occasion will take place before, concurrently with, or as part of their enrollment in clinical and field placement courses.” The accompanying Interpretation made it clear, however, that this did not require any particular approach. Rather, it may be satisfied by, among other things, the following: (1) Orientation sessions for incoming students; (2) Lectures on these topics; (3) Courses incorporating these topics; or (4) Other educational experiences incorporating these topics. This leeway was arguably undercut somewhat by the additional demand that “all law students [be] required to participate in a substantial activity” towards these ends, albeit not specifying what level of instruction and engagement might be deemed “substantial.”
It remains to be seen how law schools will implement these requirements. Some may well emulate the University of California Berkeley Law School, which has announced that “[s]tarting with the J.D. class in August 2023, Berkeley Law students will be required to take at least one course on race and the law in order to graduate.” The process leading to that decision began in 2021, well before the ABA actions were initiated, and “‘was not at all based on the ABA’s rules, though [it] is consistent with them.’” Others, especially those with limited resources or small faculties, may take a less rigid approach.
It is unclear if, and when, the ABA may return to the issues and questions posed by possible revisions to Standard 206. In the interim, the changes in the other standards now in place have significant implications for all law schools.
List of Citations
American Bar Association, 2021-2022 Standards and Rules of Procedure for Approval of Law Schools
Richard Peltz-Steele, Robert Steinbuch, Richard Sander, & Eugene Volokh, June 27, 2021 Letter
Yale Law Professors, Response to May 25, 2021 Notice, June 23, 2021
Affirmative Action Debate 