Bar Associations

21 state AGs sign letter demanding changes to ABA diversity standard for law schools

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The ABA logo on ABA headquarters in Chicago

The ABA headquarters in Chicago. (Photo by John O'Brien/ABA Journal)

The attorneys general of 21 states are urging the council for the ABA Section of Legal Education and Admissions to the Bar to change a law school accreditation standard that encourages diversity in admissions and hiring.

In a letter, sent Monday by Tennessee Attorney General and Reporter Jonathan Skrmetti, they contend that Standard 206 cannot be squared with last year’s U.S. Supreme Court decision in Students for Fair Admissions v. President and Fellows of Harvard College, which ruled against affirmative action policies.

“If the standards continue to insist on treating students and faculty differently based on the color of their skin, they will burden every law school in America with punitive civil rights litigation,” Skrmetti wrote.

“The rule of law cannot long survive if the organization that accredits legal education requires every American law school to ignore the Constitution and civil rights law,” Skrmetti continued. “The American Bar Association has long pursued the high calling of promoting respect for the law and the integrity of the legal profession, and we call on the organization to recommit to those ideals and ensure that its standards for law schools comport with federal law.”

The ABA council is recognized by the U.S. Department of Education as the sole accrediting body for U.S. law schools and serves as an independent arm of the ABA for that function. The current full text of Standard 206 is as follows:

(a) Consistent with sound legal education policy and the standards, a law school shall 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.
(b) Consistent with sound educational policy and the standards, a law school shall 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.

The council is considering proposed revisions that would change the title from “Diversity and Inclusion” to “Access to Legal Education and the Profession.” Among the proposed changes would be broadening the listed characteristics of diversity and inclusion to also include color, religion, national origin, gender identity, gender expression, sexual orientation, age, disability, military status, socioeconomic status and Native American tribal citizenship. It would also require law schools to “adopt, publish and adhere to a policy that promotes professionalism, mutual respect and belonging for everyone in the law school community.”

Smiling man in a suitJonathan Skrmetti, attorney general of Tennessee, wrote the letter. (Photo from the Office of the Tennessee Attorney General)

As part of the revisions, an interpretation would be added addressing religiously affiliated schools with the guidance that “Standard 206 does not prohibit a religiously affiliated school from adopting and applying policies for admission of students and employment of faculty and staff that directly relate to its religious mission so long as notice of these policies has been given to applicants, students, faculty and staff before their affiliation with the law school.”

Outside counsel must first review the recommended changes to ensure that it complies with the law.

“In February at its quarterly meeting, the council of the ABA Section of Legal Education and Admissions to the Bar delayed further consideration of proposed changes to Standard 206 in light of the June 2023 decision by the U.S. Supreme Court that struck down the use of race in higher education admissions,” said Jennifer Rosato Perea, managing director of ABA Accreditation and Legal Education, in a statement to the ABA Journal.

“The council is now considering revisions to Standard 206, with the intent to adopt recommendations at its August meeting,” Rosato Perea said. “Recommendations adopted by the council are subject to a notice and comment period, and this input will be reviewed consistent with the process in which the council considers any change in legal education standards.”

The council can choose to take it to the ABA House of Delegates for a final decision.

“The proposed revisions to Standard 206 do little to solve” a conflict with the Supreme Court’s ruling, Skrmetti argues. “Diversity is not without benefit, but the Constitution squarely rejects racial diversity as a legally sufficient justification for treating people differently because of the color of their skin.”

The letter is co-signed by attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, Utah and Virginia.

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