Legal Education: Does the ABA Respect Rule of Law?

Jason Mazzone

The ABA Section of Legal Education and Admissions has published some proposed revisions to its accreditation standards. The revisions concern some issues of student and faculty diversity. Most of the proposals won't matter to most law schools, which already do most of the things that would be required: having and publishing a non-discrimination statement; working to broaden access to the legal profession; requiring anti-bias training; and so on. As was likely inevitable, a few things in the proposed revisions don't make much sense. One is this: "A law school shall take effective actions that, in their totality, demonstrate progress in (1) Diversifying the student body, faculty, and staff; and (2) Creating an inclusive and equitable environment for students, faculty, and staff." Progress is not a useful benchmark: surely, at some point (notions of the permanent revolution aside), further progress is no longer possible or desirable. Some things look unwise: in the marked up version of the ABA document, the phrase "consistent with sound educational policy" has big lines through it. And other things skate close to directing unlawful employment and admissions practices, notably quota-close requirements that law schools identify and meet specific racial, etc. "goals" and maintain racial, etc.-specific "data" to track achievements and shortfalls.  Perhaps these missteps will be sorted out in the notice and comment period. 

I was mostly struck, though, by this provision: "The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s non-compliance." To describe a law as "purporting" to do something is to suggest it isn't really law. One possibility is that the law is being challenged as inconsistent with higher law (such as, in the case of a state constitutional provision, the federal Constitution). A second possibility (and there is a whiff of this in the ABA language I have quoted) is that the law is valid but it doesn't deserve compliance. Here, possibility one isn't available because it is clear that government can bar all consideration of race and other designated demographic characteristics in university admissions and employment just as Michigan did after the Supreme Court's Grutter decision. See Schuette v. Coalition to Defend Affirmative Action (2014). So that seems to leave possibility two, and the ABA Legal Education Section in the position of not caring what the law mandates. If so, law schools would be wise to ignore the ABA's purported requirement.