Latest try at rewriting ABA diversity standard for law schools gets pushback from GOP attorneys general
The ABA headquarters in Chicago. (Photo by John O'Brien/ABA Journal)
The ABA section that accredits law schools is once again facing pushback by attorneys general in Republican-controlled states over a diversity standard governing legal education.
Twenty-one attorneys general expressed concern about the latest proposal to change Standard 206 in a Jan. 6 letter to the ABA Section of Legal Education and Admissions to the Bar. The letter was among several public comments submitted to the section, both pro and con, on the latest proposal.
The proposed revision “appears to perpetuate unlawful racial discrimination,” according to the letter from the attorneys general, published by Reuters in its story on the controversy.
At issue is Standard 206, which requires law schools to demonstrate a commitment to a having a diverse student body and staff “with respect to gender, race and ethnicity.” The section council is considering revisions after the U.S. Supreme Court’s June 2023 decision striking down race-conscious admissions programs at universities in Students for Fair Admissions v. President and Fellows of Harvard College.
It’s the second time that the section proposed changes to Standard 206.
The first proposed revision, which emphasized access to law school and the profession, rather than diversity, “remedied many of our concerns,” the attorneys general said. But “when those revisions received pushback,” the section council came up with a new proposal that “attempted to harmonize feedback from a variety of groups,” the letter said.
The second proposed revision requires a commitment to diversity for all people, including listed members of historically disadvantaged groups. According to the 21 attorneys general, the proposed changes “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.”
Among those supporting the second proposed revision are the ABA Center for Diversity, Equity and Inclusion, saying the changes are “a positive improvement,” and the Law School Admission Council, saying the changes represent “a thoughtful, balanced approach that reinforces the importance of diversity while adhering to the law.”
One commenter suggested a new title for the standard (along the lines of “Commitment to Holistic Admissions Processes in Legal Education in furtherance of Access to Justice”). Another suggested a broader definition of the type of diversity commitment law schools should make (including a commitment to value every person “as a unique individual with inherent value separate from their immutable characteristics”).
All comments on proposed revisions will be considered, according to Jennifer Rosato Perea, managing director of ABA accreditation and legal education.
“The council will consider the AGs’ letter and all the other comments received on the proposed revisions to Standard 206 before it determines how to proceed, consistent with the process in which the council considers any change in its standards,” Rosato Perea said in a statement.
The U.S. Department of Education has recognized the section’s governing council as the only accrediting group for JD programs. The council and the section operate independently of the ABA in their accrediting role.
Here are summaries of the current standard and the revisions:
• Standard 206, titled “Diversity and Inclusion,” as currently written. The standard says law schools “shall demonstrate by concrete action” a commitment to having a student body, faculty and staff who are “diverse with respect to gender, race and ethnicity.” Law schools shall demonstrate a diversity commitment by providing “full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities.” (A slightly different group of state attorneys general in conservative states expressed concern about this current standard in June 2024.)
• The first proposed revision (August 2024). The reference to gender, race and ethnicity was replaced with a reference to those who have been historically disadvantaged or excluded from the legal profession. Rather than requiring law schools to demonstrate a commitment to diversity, the revision said law schools should demonstrate a commitment to access to law school and to the legal profession. The Standard 206 title was also changed. “Diversity and Inclusion” was out. “Access to Legal Education and the Profession” was in.
• The second proposed revision (November 2024), made after commenters expressed concern that the first revision went beyond the requirements of the June 2023 Supreme Court decision. Some references to diversity are back in, although the title remains “Access to Legal Education and the Profession.” Language about historically disadvantaged people remains, but a list of identity characteristics of those groups has been added.
More specifically, the second proposal says law schools shall demonstrate a commitment to “diversity, inclusion and access to the study of law and entry into the legal profession for all persons, including those with identities that historically have been disadvantaged or excluded from the legal profession due to race, color, ethnicity, religion, national origin, gender, gender identity, gender expression, sexual orientation, age, disability, military status, Native American tribal citizenship and/or socioeconomic background.”
The second proposal also requires a commitment to provide a supportive learning environment, in part by “working to achieve a faculty and staff that are diverse” with respect to the same 14 identity characteristics. The proposal also says a supportive learning environment “promotes professionalism, mutual respect and belonging.”
“We wanted to make it clear that we were not seeking to abandon the values of diversity and inclusion,” said Carla D. Pratt, a council member, in comments to the ABA Journal about the second revision in November 2024. “So we have added the words diversity and inclusion back.”
“That list of identity characteristics does not mean that you have to have people from every identity characteristic among your staff and faculty and students,” Pratt told the Journal. “It is a reminder that these groups of people exist and that schools should be taking an assessment of whether they have created structural barriers to access for these groups.”
The attorneys general who objected to the second proposal are from Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and West Virginia.
