How can law schools comply with faculty diversity accreditation standards? Some deans have questions
It’s been almost a month since ABA notice was posted that the University of Oregon School of Law was out of compliance for a diversity accreditation standard, and Marcilynn Burke, the dean, still hasn’t figured out why. She’s in the process of finding out, and in the meantime, is getting a report ready to demonstrate compliance.
The March 13 notice was regarding Standard 206, which requires law schools to demonstrate a commitment to having a diverse faculty and staff. Prior to a May 2021 change, noncompliance with the standard did not require public notice. Oregon is one of three law schools in the past four months found to be out of compliance with the standard, and various deans have said its current version lacks guidance. There are also concerns from deans in towns that are mostly white.
The standard takes gender, race and ethnicity into consideration. At most ABA-accredited law schools, women comprise 30% or more of the full- and part-time faculty; people of color have lower percentages. The standard also addresses having a diverse student body, but so far no law schools received public notice for that.
Oregon’s notice was regarding part-time or adjunct faculty. The law school’s 509 Report shows that 17.31% of the non-full-time faculty are people of color. According to February 2023 data from the Oregon State Bar, 5.8% of its active members identify as people of color.
“The demographics of which we speak are particularly important when you’re talking about part-time faculty because we draw lawyers from our own community, which is not very diverse,” Burke says.
The Maurice A. Deane School of Law at Hofstra University received public notice for noncompliance with Standard 206(b) in December, regarding full and part-time faculty. The council of the ABA’s Section of Legal Education and Admissions to the Bar determined the law school demonstrated compliance in March.
At the Long Island, New York, school, 14% of its full-time faculty are people of color, as are 6.49% of the part-time faculty, according to its most recent 509 Report. For the previous year, the data showed people of color representing 10.64% of the full-time faculty, and 8.64% of the part-time faculty.
Also, Baylor University School of Law received public notice for noncompliance in March.
According to ABA data, at least 15 law schools that have not received public notice on Standard 206 have lower percentages of full or part-time faculty of color than the three schools that did. The data can be seen here.
“We don’t have a lot of clear guidance on what the standard means. It is all brand new, and I think schools are trying to figure out what specifically Standard 206 requires,” says Meera Deo, a professor at Los Angeles’ Southwestern Law School. Her scholarship includes racial representation and diversity, equity and inclusion in law schools.
The council considers a number of factors for Standard 206 decisions, according to Bill Adams, managing director of ABA Accreditation and Legal Education.
Determinations are part of the site visit process but can also result from complaints made to his office, Adams told the ABA Journal in an email. Site visits generally take place every 10 years for fully approved schools and are meant to be comprehensive examinations of the programs, according to the ABA Standards and Rules of Procedure for Approval of Law Schools.
Brad Toben, the dean of Baylor University Law School, told the ABA Journal that like Burke, he was surprised by his school’s 206 finding. They had a virtual site visit in December 2020. At the same time there was a visit from the Association of American Law Schools, which found that the Waco, Texas, school was in compliance with membership rules, including for diversity, Toben says.
He adds that he has not been notified of any individual complaints.
According to the notice, the council in February 2022 concluded the law school was not in compliance with the standard regarding part-time faculty. A hearing was held in February 2023, and it was determined the law school remained out of compliance with the standard. The law school was instructed to write a reliable plan, with measurable goals to come into compliance with the standard.
Toben told the ABA Journal that in 2023, 16.67% of the law school’s full-time faculty and lecturers are people of color, compared to 10% in 2022.
Regarding part-time faculty, 9.59% are people of color, according to the law school’s most recent 509 Report. Based on data from the prior year’s report, 9.52% of the part-time faculty were people of color.
In 2022, the Council of Legal Ed voted in favor of some proposed revisions to Standard 206 following two notice and comment periods. When the vote took place, potential language changes included cutting “concrete action” from the standard’s wording and replacing the phrase with taking “effective actions that lead to progress.”
Additionally, the proposed revisions suggested adding more language to the standard, clarifying that it did not allow schools to engage in “racial balancing” or limit representation of individuals from any group.
The council withdrew the proposed revisions for ABA House of Delegates consideration in August 2022, on the basis that more discussion was needed. Under ABA rules, proposed revisions to the standards are sent to the House for concurrence up to two times, but the council has the final decision on law school education matters.
With the current version of the standard, being in a state that prohibits consideration of gender, race, ethnicity and national origin in employment decisions is not a justification for noncompliance, and commitment to diversity can be demonstrated by other means.
At the University of Idaho, there’s a prohibition on asking or reporting about faculty members’ race, to comply with state law, says Johanna Kalb, the law school’s dean. According to its 509 Report, there are no people of color working as full- or part-time faculty there, but Kalb says that is untrue.
“We report all faculty members as race/ethnicity unknown. Unfortunately, the 509 doesn’t make that clear,” she told the ABA Journal in an email.
At the University of South Dakota Law School, state law limits factors to consider in hiring, says Neil Fulton, its dean. According to him, they work hard to find diverse faculty. He’d like to see recognition that a commitment to having a diverse faculty does not always yield results. At his law school, 5% of the full-time faculty are people of color, as are 15% of the part-time faculty, according to its 509 Report.
“Is the standard going to be evaluated in the reality that presents itself to individual law schools? Because those realities are very different,” Fulton says. “We work very hard to diversify our community, and we’re swimming against political tides.”
At Boston University School of Law, when the most recent 509 Reports were released in December 2022, the law school’s data showed that 16.44% of its full-time faculty were people of color, as were 4.88% of the part-time faculty. Angela Onwuachi-Willig, the school’s dean, expects that three more faculty of color will join the school during the 2023-2024 academic school year.
She is one of five deans who in 2020 founded the Law Deans Antiracist Clearinghouse Project, with the Association of American Law Schools. According to her, requiring public notice for Standard 206 compliance is helpful.
“If nothing else, schools with less of a core commitment to diversifying their community may be more likely to take action because they are worried about getting dinged,” adds Onwuachi-Willig.
Some law schools that appeared to have few diverse faculty, based on recent 509 Report numbers, told the ABA Journal their percentages increased since the data was released. That includes the University of Arkansas Fayetteville. According to its 509 Report, 3.85% of its part-time faculty were people of color. That category is now at 29%, according to Cynthia Nance, the school’s dean. Also, the number of full-time professors of color has gone from 13.89% to 15%, she told the Journal.
Law Schools With 206(b) Diversity Scores Below 6.49%
|Law School||Faculty of Color (Full-time)||Faculty of Color (Part-time)||Female Faculty (Full-time)||Female Faculty (Part-time)|
|University of Akron School of Law||13.04%||2.94%||34.78%||35.29%|
|Albany Law School||25.00%||6.38%||52.27%||36.17%|
|Appalachian School of Law||0.00%||18.18%||38.46%||18.18%|
|Brigham Young University Law School||13.16%||5.66%||36.84%||33.96%|
|Catholic University School of Law||20.83%||5.33%||62.50%||32%|
|Hofstra University School of Law||14.00%||6.49%||54.00%||35.6%|
|University of Idaho College of Law||0.00%||0.00%||44.74%||46.58%|
|University of New Hampshire School of Law||3.70%||4.00%||55.56%||40%|
|University of North Dakota School of Law*||15%||7.41%||55.00%||35%|
|Ohio Northern University College of Law||11.11%||0.00%||33.33%||20%|
|University of South Dakota School of Law||5.00%||15.00%||45.00%||55%|
|Syracuse University College of Law||19.61%||5.41%||49.02%||27.03%|
|Texas Tech University School of Law||16.67%||4.55%||38.89%||31.82%|
|University at Buffalo School of Law||15.00%||5.26%||47.50%||43.86%|
|West Virginia University College of Law||13.79%||5.71%||48.28%||40%|
* indicates numbers have changed since 509 Report released