Legal education is about to undergo a revolutionary change, with the American Bar Association poised to mandate race-focused study as a prerequisite to graduating from law school. It’s another instance of woke ideology being forced on the nation, and may necessitate that states revisit the ABA’s government-granted near-monopoly accrediting power.
This race-focused educational mandate is being forced on law schools through the American Bar Association’s Council of the Section of Legal Education and Admissions to the Bar (ABA). Much of ABA’s power stems from the federal government. Law students must attend schools whose accreditor is recognized by the U.S. Department of Education to receive federal student loans. The ABA is the only federally recognized law school accreditor.
Yet, ABA’s accreditation power doesn’t depend only on federal law. Graduating from a law school accredited by ABA is required in almost every state for applicants seeking admission to the bar. All 50 states recognize ABA accreditation. With only a small number of exceptions, most accept only ABA accreditation.
Why governments gave the ABA near-monopoly power is disputed. Some say the purpose was to guarantee quality legal training. Others argue that, like any guild, the ABA’s primary motivation was to limit competition.
Whether or not ABA accreditation previously ensured quality, the ABA has become partisan, using its power to promote an ideological agenda.
The liberal bias of the ABA itself is not new. A study of ABA evaluations of judicial nominees from 1977-2008 found “strong evidence of systematic bias in favor of Democratic nominees,” who were likelier to be rated “well-qualified” than similarly qualified Republicans. Republicans have long recognized this. That’s why President George W. Bush discontinued ABA pre-screening of judicial nominees. Most Senate Judiciary Committee Republicans now treat the ABA merely as an advocacy group.
That may explain why ABA membership dropped from 300,000 (over 50% of the bar) in 1980 to 194,000 (14.4%) in 2017. ABA may once have been a proxy for the American legal community, but now it’s just a proxy for the left wing of the American legal community. Yet its accrediting power continues.
For example, in 2016, the ABA amended Model Rule of Professional Conduct 8.4 to impose a “heckler’s veto,” barring lawyers from saying or doing anything someone else could consider harassing or discriminatory. As law professor Eugene Volokh wrote at the time, “My inference is that the ABA wants to … limit lawyers’ expression of viewpoints that it disapproves of.”
Now, the ABA wants to limit law student and faculty freedom of expression. Its proposed revision to Standard 303 (which will be presented to the ABA House of Delegates in mid-February 2022) mandates “educati[ng] law students on bias, cross-cultural competency, and racism.” Proposed Interpretation 303-7(3) suggests satisfying the new requirement with “[c]ourses on racism and bias in the law.” Proposed Interpretation 303-6 converts the existing professional responsibility requirement into teaching lawyers’ “obligation … to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law.”
Without saying so openly, the revised standard in reality dictates that law schools should “institutionalize dogma,” as a group of Yale Law School professors objected. The obsessive focus on systemic racism, a subject of scholarly dispute, reveals the new standard’s Critical Race Theory underpinnings.
The ABA pretended to address the problem by adding Interpretation 303-8: “Standard 303 does not prescribe the form or content” of the required education. This doesn’t fix the problem, because law school faculties overwhelmingly lean hard left. Only the naïve or dishonest would expect schools to teach anything other than CRT and a “systemic racism” approach.
This all reflects a politicized sea change. Existing ABA legal education standards stick to general principles of legal education. The ABA requires schools to inculcate “knowledge and understanding of substantive and procedural law,” “legal analysis and reasoning, legal research,” and legal writing (Standard 302). The only specific requirements are a professional responsibility course (added post-Watergate), an experiential course, and two legal writing experiences (current Standard 303).
By contrast, the proposed “bias” education requires specific and non-legal content. As the Yale professors observed, “mandating the content of [required courses] misconstrues the accreditation function.”
The other problematic proposal concerns Standard 206, regarding diversity. The ABA’s original proposed revision met with so much pushback that ABA delayed moving forward with it. The recently revised proposal (which likely won’t be adopted before August) aims to increase student admissions and faculty-staff hires of members of groups underrepresented in law compared to the U.S. population overall. Although the ABA Council has denied seeking to impose quotas, its effort to guarantee a proportional share of admissions/hires is likely unlawful.
The current federal administration will not rein in the ABA. But states, which helped create the ABA monopoly, are not helpless. They should act.
The most important action that states can take is to stop requiring bar applicants to graduate from an ABA-accredited school. Because state structures vary, in some states this may require changes implemented through state supreme courts or quasi-independent bar agencies. States also can substitute state licensing, as already takes place in Alabama, California, Massachusetts, and Tennessee, which allow graduates of local non-ABA law schools take their bar exams. States also should consider whether a law school degree is needed, by revisiting self-study and apprenticeship in lieu of increasingly politicized law school curriculum and related student debt.
Whatever the reform approach, action is needed. States enabled the ABA’s near-monopoly accrediting power, which now is being abused for ideological purposes. What the states gave the ABA, the states can and should take away.