Legal Ed council adds diversity and inclusion language back into law school standard proposal
At its quarterly meeting in Seattle on Friday, the council of the ABA Section of Legal Education and Admissions to the Bar approved updated revisions to Standard 206 to include a list of identity characteristics. (Image from Shutterstock)
The council of the ABA Section of Legal Education and Admissions to the Bar is reversing course, adding specific language regarding diversity and inclusion back into a contentious accreditation standard after an earlier attempt to broaden it drew criticism that it “could send the wrong message” and “threaten the legitimacy of the judicial system and weaken the rule of law.”
At its quarterly meeting in Seattle on Friday, the council approved updated revisions to Standard 206 to include a list of identity characteristics. It will then be sent out for a second 45-day notice and comment period.
“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. “So we have added the words diversity and inclusion back.”
The proposal now offers specifics on identity characteristics of underrepresented groups, but “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,” she added. “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.”
Law schools would not be required to report data on these characteristics, she added.
The section’s 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 need to revise the standard was prompted by the U.S. Supreme Court’s 2023 decision eliminating race-based admissions. What that exactly means for law school admissions and hiring to meet ABA accreditation standards has been up for debate since then.
In August, the council approved revised language to the standard focused on achieving access for all qualified aspiring lawyers instead of on diversity, and sent it out for notice and comment.
Then came the backlash. Of the 15 comments it received, only two supported those proposed revisions while the rest strongly opposed.
Concerns came from a variety of groups.
“Weakening Standard 206 would send the wrong message about the value of diversity in legal education and the profession at large,” wrote representatives of the Law School Admissions Council. “The proposed changes threaten the legitimacy of the judicial system and weaken the rule of law.”
Ninety-two law school faculty members stated the August proposal went “further than the law requires and create the very real risk that law schools will abandon commitments to promoting the diversity of a profession with a unique role in achieving a pluralistic democracy.” A letter similar in tone was signed by 44 deans.
Other comments in opposition came from the ABA Diversity, Equity and Inclusion Center, 19 state attorneys general and the NAACP Legal Defense and Educational Fund, among others.
In response, the Standards Committee, which handles the recommendations, issued a memo recognizing that concerns that the revisions “went too beyond the scope what is required U.S. Supreme Court’s holding in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College,” and potentially could stymie attempts at creating a diverse student body and faculty.
As a result, “the Standards Committee decided that several important changes to Standard 206 were needed in light of the comments received,” the Nov. 1 memo states.
The memo also added that “particular concerns about exceeding the limits of [Students for Fair Admissions v. Harvard] included that the holding does not preclude law schools from continuing to pursue diversity as an objective.” Instead, the case just places limits on the methods used in pursuing racial diversity and “does not require elimination of the term ‘race’ or require complete color blindness.”
The new proposal aims to articulate “that we’re not requiring any school to violate the law in you,” Pratt says, “and schools should look for legal ways to comply with the standard. You can still engage in and we hope you will engage in, holistic admissions and targeted recruitment.”
The skirmish over these revisions is the latest instance of Standard 206 being a lightning rod.
In June, attorneys general of 21 conservative states, led by Tennessee Attorney General Jonathan Skrmetti, wrote the council, urging a rework to previous suggested changes to Standard 206 to comply with the Supreme Court’s ruling.
In response, a group of 19 AGs from more liberal states, led by Illinois Attorney General Kwame Raoul, fired back, signing a letter calling on the American Bar Association, Fortune 100 CEOs and other organizations to retain “their commitment to diversity, equity and inclusion.”
