ABA proposes constructive change in diversity mandate for law schools

The ABA Section on Legal Education and Admissions to the Board (abbreviated for the rest of this post as simply the ABA) is proposing a revision of its diversity mandate to something that speaks of “access to legal education and the profession.”  Karen Sloan gives a crisp overview in Reuters here.  This is both more and less than meets the eye.  “More,” in that it disavows the longstanding, and not uncontroversial, mandates of diversity requirements in faculty and student body composition.  Even though on its own terms this did not describe a diversity quota in any quantitative terms, counting the number of faculty and students from diverse racial and ethnic backgrounds has become a de facto requirement under interpretations of the rule.  And so the practice for teams evaluating law schools and submitting reports to the accreditation bodies of the ABA, not to mention specific questions on the ABA’s omnibus questionnaire, have focused squarely on numbers.  In sum, law schools were expected to have a suitably diverse student body and faculty and evaluation of numbers. If, upon initial review, results were inadequate, there would be sustained interrogation into reasons for the diversity deficit, along with clear explanations of how they might improve on these quantitative dimensions.  The revised standard makes it much harder to continue to implement these numbers-based goals, and we can only speculate about how, if at all, the ABA accreditors could and would operationalize the objectives of “access.”  So it would seem that the new protocol, if adopted, would reflect a meaningful change.  There is, too, “less” than meets the eye, insofar as the ABA continues to require meaningful action by law schools.  The continuing insistence that law schools provide access and opportunity reveals that the SFAA v. Harvard, et al decision does not drive the ABA from imposing standards on law schools that speak to the need for ensuring that individuals of traditionally disadvantaged groups can access legal education and, further, that law schools have a responsibility to the profession to ensure that there is sufficient access and opportunity. 

A critical mass of law school deans are currently reading this proposed change as a major retrenchment in its equality commitments.  Forty-four deans, from a fairly wide cross-section of law school, have penned a letter objecting to this change.  They object to what they see as a crabbed reading of the Supreme Court’s recent affirmative action decision and view the ABA as succumbing to an interpretation that would in effect withdraw the depth and breadth of scrutiny that this accrediting body had given to law schools who failed to achieve adequate diversity goals (read numbers).  To quote from the letter: “The current version of ABA Standard 206 is right in expressing a commitment to diversity, which is integral to the education of all of our students and in preparing them to be lawyers. The ABA thus should continue to insist that law schools take steps to ensure a diverse student body and a diverse faculty, consistent with the Constitution.”

The gist of the letter, that the SFAA decision does not mean essentially “equality game over,” is something about which I can enthusiastically agree with, given the strong and proud tradition of seeking and securing diversity in American law schools, and I commend these deans for pushing our accreditor to preserve that tradition as they continue to carry out their oversight function.  What is problematic in the letter, however, is the element that is missing – the elephant in the room, as it were – and that is that these deans well know (or certainly should know) that the ABA has long been treating this commitment as much more than an expression of equality goals, but as a mandate for measurable diversity results.  Moreover, it would strain credulity to suppose that the ABA does not understand that the realization of such goals requires some adjustment in both the admissions and faculty hiring standards that would be imposed in the absence of such mandates.  This is what law schools said directly to the Court in the Grutter v. Bolinger litigation in 2003, and what undergirded similar efforts, although here unsuccessful, to move the Court in SFAA.  To put the point more plainly, realizing these objectives has meant that the vast majority of law schools, as a practical matter, have had to engage in some amount of racial preferences in order to meet their diversity objectives.  We can best understand the ABA’s diversity mandate as essentially saying:  “Y’all got to do what you got to do, with respect to admissions and faculty hiring, and we are telling you to implement any particular method, so long as the outcomes of your processes meet the diversity mandates of this accrediting body.” 

We can argue, respectfully, about the merits of such numbers-focused mandates, but I suggest that the argument for maintain the current diversity mandate needs to honestly account for two facts on the ground.  The first fact, which I have labored to describe above, is that no matter how aspirational sounding the ABA is in the text of their current diversity mandates, it has long been read by the ABA and law schools alike as a numerical floor; and, further to that point, the ABA council working on accreditation and the teams assembled to review law schools know that they are asking law schools to make meaningful tradeoffs and adjustments in realizing the simultaneously important goals of meeting numerical measures in admissions (I will temporarily leave aside faculty hiring as a more complex and, for that reason, fraught process where folks quarrel about how exactly “quality” and “fit” is measured), for rankings and other purposes and the goals of ensuring that the law school is suitably diverse.  No one should mistake this mandate for flexibility in assessing results; nor should we think of the ABA as fomenting a vision of American law schools as true laboratories of experimentation.  That’s not the way it works; not for many decades.  The other fact on the ground is more complicated, and that is the ultimate interpretation of the Court’s decision in SFAA.  In their letter, the deans argue plausibly that “rather than requiring ignorance of race in admissions decisions, the majority approved race-consciousness in the context of evaluating applicants' essays. In doing so, the majority made clear that schools may continue to pursue diversity among students and faculty – and may even account for racialized experiences in admissions essays and the like– so long as they do so in a constitutionally permissible manner.”  However, this begs the question of what the opinion means for a policy that is designed by the ABA to ensure that certain numerical diversity goals are met.  I would suggest that if we take the first fact on the ground as true – that is, this mandate has long been viewed as a numerical requirement of sorts – then it is implausible to believe that the federal courts would assent to admissions processes that have the clear effect, if not the intent, to ensure that numerical goals are met by any means necessary.  Not being a sitting dean, I have not been in the room where conversations involving deans, admissions administrators, and perhaps University lawyers are discussing how diversity goals can be realized with changes to admission policies as required by the Court’s decision and without risking further scrutiny that would put their policies at risk. I do not at all envy law school leaders making these difficult decisions.  Nonetheless, to the point of this post, the reading of the Court’s decision as ultimately agnostic on the question of how precisely the ABA goes about in ensuring that law schools have a suitably diverse student body and faculty seems, as we say in our classrooms, a fairly strained reading of the contemporary legal tea leaves.  As Brian Leiter persuasively summarizes the point:  “[The deans reading] is a plausible, but it seems to me optimistic, reading of the import of the SFFA decision.  Given the current composition of SCOTUS, I will be surprised if, when asked to clarify this import, this reading will be vindicated.”

For all that, can we something more cheerful about the ABA’s proposed revision?  The focus on access and opportunity may well be designed, as the deans’ letter insists, to thread the constitutional needle constructed by SFAA.  But if understood as not a retreat, as the forty-four deans maintain, but as a renewed focus on goals that are congruent with the larger and quite worthy goals of the profession, and that is that our law schools should be committed to access to their programs by all talented and committed individuals, than the ABA’s reshaping of its basic requirement is indeed quite compelling.  Access to the profession supplements what is a growing emphasis in the legal profession more generally on access to justice.  We need law students and faculty of diverse backgrounds and perspectives, including those from traditionally disadvantaged groups, because we want a profession that can implement as one its critical missions service to justice and to the rule of law.  Diversity in our teaching and learning functions does not ensure on its own that these missions will be furthered, but it at the very least gives the public greater confidence that the legal profession is attentive to the needs, wants, and problems of ordinary Americans. 

Access to legal education and the profession will be difficult to measure quantitatively and this is not necessarily a bad thing.  So long as the ABA is in the accreditation mandate business, we can envision creative requirements, evidence-based and fairly administered, that enable law schools to improve access and likewise enable the ABA to evaluate progress.  Overreliance on mere numbers, and, worse yet, numbers that are habitually decoupled from more nuanced considerations such as the demographics of the region, the conditions of the legal marketplace, including seemingly prosaic matters such as cost and length of the program, have proved problematic.  And this is aside from potential legal obstacles reflected in the Court’s SFAA decision and its aftermath.  Credit the ABA for designing a new requirement that will lead to alternative ways of measuring access and opportunity.  Law schools will experiment; visiting teams will kick the tires and look under the hood; and hopefully some best practices will emerge.

There is a “gotcha” moment in the deans’ letter, wherein they claim to see through the ABA’s stated rationale for the reform and view the organization as succumbing to the “political agenda” of “opponents of racial equality.”  To be sure, there are indeed such groups and they have pressed hard against diversity mandates and all the elements of what they see as the misguided DEI woke agenda.  But this is hardly gotcha when we broaden our perspective to see the ABA as reexamining the merits of their manifestly numbers-focused diversity agenda in light of practical considerations (Has it worked in the ways intended? Has it created unnecessary burdens on law schools in constructing and implementing their programs under complex financial and political realities).  Moreover, the effort to accommodate political realities in a deeply fractured polity can be seem as commendable rather than a capitulation to what the deans explicitly see as the baleful influence of folks who lack any commitment to redressing racial wrongs and addressing inequalities in legal education and the profession.  It is notable that a large group of state attorneys general, led by my own AG in deep-blue Illinois, Kwame Raoul have publicly supported these revisions.  Whether the ABA continues to impose meaningful access and opportunity requirements on law schools remain to be seen, although the prediction that it will is supported by practices over the course of many years, not to mention the resolve to do good and to do better, which, in my experience, is shared by every leader in legal education.