Law School Accreditation Wars: The ABA tries to be Clever

So this week the ABA House of Delegates tried earnestly to thread a political needle. They voted no on the ABA Council of the Section on Legal Education’s proposed repeal of Standard 206 (the DEI standard). The supporters beat down the pragmatists who implored the HoD to accept the Council’s options, as a Hail Mary to fend off the looming decision of U.S. Dep’t of Education to supplant the ABA Section as the law school accreditor. Their gambit was to vote quickly afterward to streamline the process of acquiescence, by essentially agreeing that the Council could go back and renew their proposed repeal and the big ABA wouldn’t stand in the way.

Daniel Thies, the current Chair of the Council, captured the pragmatic point, telling the HoD: “As lawyers, we have all had to tell our clients that the path they want to take, no matter how principled, may be a disaster.” But this plea fell on deaf ears.

If this description of this episode is a bit head-scratching to you, you are not alone. It is highly unlikely that this smoke screen will fool conservatives pushing to disrupt the present system of accreditation by ending the ABA’s hegemony. More to the point, what will be remembered is the ABA’s stubbornness and refusal to adapt to the changing ideological landscape and political pressures. To be fair, the big ABA is not the only recalcitrant institution in this regard. Way back in October of 2024, I suggested that the Council stand pat with a constructive change to the diversity standard. Vocal deans pushed back hard and the Council basically folded. New times have brought new strategies, but I cannot help but think that prudence before the election of Donald Trump, taking account and acknowledgment of the ways in which the way Standard 206 was mis-implemented in the real world of law school accreditation, would have put the ABA’s Council in a better position this fall. But, hey, water is wet, and it is under the bridge in any event.

Despite the yeoman-like efforts of Council members, present and former, allies in the legal education space, and the rare journalist who endeavors to get the story right, virtually no one really, truly gets their head around the fundamental role and authority separation between the big ABA and the Section on Legal Education. Indeed, the peculiar decision of a Congressional committee last month to convene a hearing on accreditation in which the president of the ABA, and not anyone from the Council, appeared underscores the brute fact that the “sins” of the ABA are associated in the minds of lawmakers and others squarely and stickily with the Council. Was, is, and will be, I am fairly confident. And so when the big ABA doubles down, as it just has, on DEI mandates, this surely will not help the cause of reupping the ABA Council as the accreditor.

Alas, the House of Delegates seems to seldom miss an opportunity to miss an opportunity. For years they have dug in with resolutions and statements maintaining barriers to access to justice initiatives, by limiting efforts to relax Rule 5.4 and facilitate legal services by non-barred para-professionals. They have given lip service to innovation, while passing resolutions insisting that lawyers and only lawyers should help underserved individuals in areas such as debt collection, evictions, and family law where lawyers simply cannot meet the need. (If anyone thinks I am mischaracterizing the ill-conceived Resolution 115, read the fine print here, and email me for the backstory). They have pressed for policies that take clear sides in matters about which there is substantial disagreement among the very large population of lawyers (and clients), this all the more striking given the fact that the ABA’s membership is in decline and so it doesn’t really speak clearly for all or even most lawyers (Less than 20% of lawyers are members of the association).

There is perhaps a certain nobility in standing on principle in a world of turbulence. And give credit where credit is due for the ABA speaking loudly and strongly in favor of the rule of law and democracy, where such historic commitments are in peril in our 251st year as a nation. But there is a certain self-destructiveness in their approach to the accreditation matter. Nothing in its most recent gambit corrects that. And it is too bad, and not necessarily because the objective of maintaining the ABA’s role in accreditation is of essential value that ought not be disturbed under any circumstances. Rather, it is too bad because in its too-clever effort at trying to thread a political needle, those rejecting pragmatism are really missing the point that this is all about improving legal education and thinking constructively and self-critically about what is truly in the best interests of our students and the public that they will ultimately serve as they become lawyers, and guardians of the rule of law.