The American Bar Association (ABA) is on the verge of a significant change in its approach to law school diversity and inclusion standards. Following the U.S. Supreme Court’s 2023 ruling that effectively prohibits the consideration of race in college admissions, the ABA is considering eliminating references to “race and ethnicity” from its law school accreditation guidelines. This move has sparked a national debate about the future of diversity in legal education and the legal profession.
A Response to the Supreme Court Ruling
The proposed changes to the ABA’s standards come in direct response to the Supreme Court’s decision, which has had widespread implications for institutions of higher education across the United States. The ruling, which found that race-based admissions policies violate the Constitution, has forced many institutions to reconsider their diversity strategies. The ABA, which accredits law schools, is now facing pressure to ensure that its standards comply with the new legal landscape.
Currently, the ABA’s diversity standard requires law schools to provide “full opportunities” for “racial and ethnic minorities” and maintain a student body that is diverse “with respect to gender, race, and ethnicity.” However, under the new proposal, this language would be replaced with a requirement that law schools provide access to “all persons, including those with identities that historically have been disadvantaged or excluded from the legal profession.”
Political and Legal Controversy
The proposed revision has already attracted significant attention and controversy. In June 2023, a group of Republican attorneys general from 21 states urged the ABA to amend its standards, arguing that the current language violates the Supreme Court’s ruling by requiring law schools to consider race in their admissions processes. They claimed that maintaining the current diversity and inclusion standard would amount to “explicitly illegal consideration of race.”
In response, a coalition of 19 Democratic attorneys general defended the current standard, asserting that it remains lawful and essential for promoting diversity in the legal profession. They argued that diversity is crucial for ensuring that the legal profession reflects the society it serves and that it enhances the quality of legal education by exposing students to a wide range of perspectives.
Despite these dueling opinions, the ABA was already in the process of revising its standards when the letters were received. The current proposal, however, marks a significant shift by eliminating specific references to race, ethnicity, and gender. The revised rule would instead focus on the broader goal of providing access to legal education and the profession for historically disadvantaged groups.
A Shift in Focus
University of Oklahoma law professor Carla Pratt, who serves on the ABA’s Council of the Section of Legal Education and Admission to the Bar, described the proposed change as a shift away from a “laundry list of identities” toward a broader emphasis on access. Pratt noted that the new rule aims to maintain the overarching goal of inclusivity while ensuring compliance with the Supreme Court’s decision.
The proposal also includes a renaming of the “diversity and inclusion” standard to the “access to legal education and the profession” standard. The only reference to race in the new guidance appears in a clarification that the rules do not require law schools to consider race or other identity characteristics in admissions or hiring decisions.
Broader Implications for Diversity Initiatives
The ABA’s proposal comes at a time when diversity and inclusion initiatives are increasingly under scrutiny. In addition to the Supreme Court ruling, several states have adopted anti-diversity and inclusion laws that further complicate efforts to promote diversity in education and the workplace.
Critics of the proposed changes argue that removing references to race and ethnicity from the ABA’s standards could undermine efforts to address longstanding inequities in the legal profession. They warn that without explicit language supporting diversity, law schools may be less motivated to take proactive steps to ensure that their student bodies reflect the diversity of the nation.
Proponents of the changes, however, contend that the revised standards are a necessary adaptation to the current legal environment. They argue that the new language still encourages law schools to promote access and inclusion without running afoul of the Supreme Court’s ruling.
Next Steps
The ABA will circulate the proposed changes for public comment, with a potential approval as early as its November meeting. If approved by the Council of the Section of Legal Education and Admission to the Bar, the changes would then require final approval by the ABA’s House of Delegates, which is scheduled to meet in February.
.As the debate over the role of race in education continues, the ABA’s decision will likely have far-reaching implications for law schools and the legal profession. The outcome of this debate will not only shape the future of legal education but also influence the broader conversation about diversity and inclusion in American society.