Tuesday, October 26, 2021

Colbert and Diversity Changes to the ABA's Standards and Rules

Jason Mazzone

Every fair-minded person who heard the recording of the meeting between the Yale Law School diversity administrators and Trent Colbert over his Constitution Day invitation has concluded that something was seriously amiss in the way the administrators handled the incident. Indeed, the administrators’ views and urgings are so astonishing that without the recording it would be hard to believe the meeting even happened in the way it did.
However things now shake out at Yale (an assessment is underway), there is a larger concern: it’s quite possible that the Colbert meeting represents standard practice on the part of diversity administrators every day in law schools (and universities more generally) around the country. One of the many striking aspects of the recording is that the YLS administrators offer their diagnoses and cures with a degree of certainty that comes only with regular training and frequent practice. It’s difficult to imagine this was all a one-time slip.
The ABA should pay attention.
 It’s surely time to hit pause on the diversity-related changes to the Standards and Rules that the ABA’s Section of Legal Education and Admissions has recommended. Those changes, recall, include a requirement that law schools provide all students with education on “bias, crosscultural competency, and racism;” a mandate that all law students “participate in a substantial activity designed to reinforce the skill of cultural competency and their obligation as future lawyers to work to eliminate racism in the legal profession;” and a specification that “among the values” that (required) professional responsibility courses must teach are “the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law.”
In light of the Colbert incident and the risk that it is representative rather than aberrational, these proposed changes to the Standards and Rules are surely fuel for fire. Entirely absent from the proposed changes are mechanisms to guard against law students, educationally primed to identify biases, cross-cultural incompetencies and racism, from rushing to report to administrators the adjudged sins of their peers and professors and to demand outsize redress. Worse yet, tying anti-racism to professional identity and obligation makes certain consequences of the kind the YLS administrators (reminding Colbert he will be applying for admission to the bar) only insinuated.
The best critique of the proposed diversity changes to the ABA’s Standards and Rules remains the letter, last June, from ten Yale faculty members. They knew—and know—what they were talking about.               

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