The American Bar Association wields significant power and influence through its accrediting of U.S. law schools, but one of the organization’s latest proposals appears to dive headfirst into uncharted and troubling waters.
The ABA has proposed mandating diversity training and affirmative action in all of its accredited law schools — and this move is poised to insert the organization’s subjective public policy views on controversial issues directly into the curriculum of accredited law schools.
Traditionally, the ABA has asserted its accreditation power in relatively modest ways. For example, the organization might work to assure that a law school’s library is adequate to meet students’ needs. The ABA’s latest proposal, in comparison, would require accredited law schools to “provide education to law students on bias, cross-cultural competency, and racism.” Law schools would also be required to “take effective actions” to diversify their student bodies, faculty, and staff, even when doing so risks violating federal laws that purport to prohibit considerations of race or ethnicity.
As a group of Yale Law School professors pointed out, the ABA proposal conflicts with existing law school standards that prohibit applicants, students, faculty, or staff from having to disclose their sexual orientation or gender identity in ways that would be tracked for diversity initiatives. These academics have expressed serious concerns with the ABA’s “attempt to institutionalize dogma” and “intrud[e] on the right and obligation of every professor to determine what to teach in a class and how to teach it.”
As a former law school dean, I find that these concerns about interfering with a law school’s academic freedom hit home. While diversity is undoubtedly an important societal issue (and one that our nation is grappling with how best to address), mandating how law schools must teach the subject is not the solution. Law school deans and their faculty should decide upon a law school’s curriculum, allowing for the same diversity of approaches that exist for any area of legal education.
Members of the ABA, the law school community, and the public should have deep concerns about the association’s proposed mandates. Regardless of one’s views on diversity issues, it is a slippery slope for the ABA to wade into law schools’ instruction of any public policy issue. For instance, the precedent set could allow a conservative ABA Board of Governors to require that all law students read and absorb conservative beliefs or adhere to directives of conservative legal organizations such as the Federalist Society. Law students should be free to learn all dimensions of public policy issues, not one prescribed view, so that they can become active participants in debates on public policy issues. Indeed, a key law school function is teaching law students to understand different sides of an argument.
The ABA should shelve its overreaching mandate and allow law schools the academic freedom to teach diversity-related issues the same way they do any other public policy issue.
Victor E. Schwartz is a former law school professor and law school dean at the University of Cincinnati College of Law.
