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Rule passed in response to George Floyd protests was ‘misguided from its inception,’ expert says
The American Bar Association is facing calls from legal scholars and public policy groups to repeal a DEI accreditation requirement for law schools – a rule that one expert described as “misguided from its inception.”
Under pressure from the Trump administration and others, the legal association is considering repealing Standard 303(c), which requires law schools to “provide education on bias, cross-cultural competency, and racism.”
The standard states that this requirement “may be satisfied by, among other things, the following: (1) Orientation sessions for incoming students; (2) Lectures on these topics; (3) Courses incorporating these topics; or (4) Other educational experiences incorporating these topics.”
In a May memorandum, the ABA Council took steps to begin repealing the standard after receiving feedback “suggesting that this Standard has not effectively achieved its purpose.”
The memorandum stated that the purpose of the standard was “to ensure that programs of legal education train students to communicate effectively with all colleagues, adversaries, clients, judges and others.”
Last week, however, one of the bar association’s regulatory committees rejected the repeal recommendation – a decision that did not kill the measure but did delay potential future action, Reuters reports.
Derek Muller, a professor of law at the University of Notre Dame, is one of the scholars who submitted a comment to the ABA urging it to repeal the standard.
Muller told The College Fix in a recent interview that Standard 303(c) requires “education to students on bias, cross cultural competency, and racism at least twice in the law school curriculum.”
He said that “while ostensibly neutral on its face, concerns arose that it would be implemented through a particular ideological valence.” On his substack, Muller described how the standard originated with a group of law school deans after the 2020 George Floyd protests.
In addition to ideological concerns, Muller also told The Fix there is a lack of clarity in the standard, stating “it was never clear how the standard was supposed to be measured in terms of improvement or effectiveness for student outcomes.”
Last year, the bar association suspended another DEI accreditation rule, Standard 206, in response to an executive order from President Donald Trump. At the time, however, skepticism remained due to the remaining standard, The Fix reported previously.
Others urging the ABA to repeal Standard 303(c) include a free market thinktank in Ohio.
David Tryon, director of litigation at the Buckeye Institute, expressed strong concern about the standard in an interview with The Fix. Tryon, a lawyer, previously served as deputy solicitor general in the West Virginia Attorney General’s office.
“ABA Standard 303(c) was misguided from its inception. It converted contested social goals into mandatory professional training,” he told The Fix in a recent email.
Tryon also pointed out the concern of the ABA’s monopoly over law school accreditation.
Until recently, the bar association was the sole accreditor of law schools in the U.S., meaning that any institution that wanted to be accredited would have to follow its standards. However, Florida and Texas recently began allowing their state supreme courts to accredit law schools instead.
In most states, the ABA remains the sole accreditor.
Whatever happens with the DEI standard, Tryon said, “… the efforts to create alternative law school accreditors and end the ABA’s accreditation monopoly should continue.”
The bar association’s leaders have defended its “unique” role in accrediting law schools.
“The Council’s openness to a variety of perspectives and its tradition of deliberative decision making are treasures worth preserving as it seeks to deliver the benefits of a national accreditation system to a new generation,” Daniel Thies, former chair of the ABA’s Standards Committee, wrote in a March article.
Having a single accreditor also ensures that every law school provides a “quality education” that produces lawyers with a “baseline of competence,” he wrote.
Defending Education, a conservative advocacy group, is another critic of the bar association’s support for DEI and its “monopoly” as an accreditor.
In its public comment to the ABA on July 6, Defending Education wrote that the standard requires law schools to “impose” the bar association’s commitment to diversity, equity, and inclusion through “ideologically laden instruction on ‘bias, cross-cultural competency, and racism.’”
Standard 303(c) was “ill-conceived and legally suspect,” the group wrote.
Additionally, the conservative education group voiced opposition to the bar association’s proposal to add “a ‘communicating effectively across differences’ skill into a separate standard — 302.”
Although the full proposal has not been drafted yet, Defending Education expressed concerns that it will simply “re-package race-based or ideologically prescriptive framework.”
The American Bar Association’s media relations office did not respond to two recent emails from The Fix asking for more details about the reasons for the proposed Standard 303(c) repeal and concerns about the proposal for Standard 302.
MORE: Pennsylvania GOP lawmaker voices concern over Penn State Law’s mandatory DEI class
