Paul L. Caron

Saturday, June 26, 2021

Monday Is The Last Day To Submit Comments On ABA's Proposal To Mandate Racism And Bias Training At All Law Schools

Following up on my previous posts:

Brian Leiter notes that Monday is the last day for submitting comments on the ABA's proposed changes to the law school accreditation standards to mandate racism and bias training. Here are some of the interesting comments submitted thus far:

David Bernstein and Brian Leister [sic]:

Professor Brian Leiter and I agree on very little, and we have tangled publicly on various public policy and scholarly matters. However, I agree with every word of his critique of these proposed standards. I have reprinted his critique below. I would add that under the Grutter opinion, law schools may only engage in racial and ethnic preferences if the law school faculty and others involved in the school's academic mission have determined that such preferences would add diversity to the school in a way that would be educationally beneficial. By seeming to mandate such preferences, the ABA would be taking the decision out of the hands of the individual schools, and instead making it a requirement of accreditation. If a particular law school disagreed with the ABA"s views on diversity, the ABA would nevertheless require that school to act illegally lest its accreditation be threatened.

Standards 205, 206, and 303 – Yale Law School (Bruce Ackerman, Akhil Amar, Mirjan Damaska, Owen Fiss, Anthony Kronman, John Langbein, Jerry Mashaw, Robert Post, Roberta Romano, Alan Schwartz):

We are present or emeritus holders of Sterling Professorships of Law at Yale Law School. We write as concerned individuals.

We understand the laudable motives underlying the Notice, and we voice no objection to the proposed changes to Standard 205 that would add ethnicity, military status and gender expression as bases for non-discrimination. We understand the laudable motives underlying the Notice, and we voice no objection to the proposed changes to Standard 205 that would add ethnicity, military status and gender expression as bases for non-discrimination. We are, however, concerned about several of the other proposed changes: (1) Certain of the standards being proposed in the Notice are ambiguous, lacking in the precision appropriate to good legal drafting. (2) The substantive soundness of certain of the proposals is dubious. (3) Some of the proposed changes constitute unwarranted intrusions into the autonomy of member law schools and instructors, particularly those provisions mandating course content. ...

We would also note that there already exists in American law schools, and certainly at Yale, a sincere and profound consensus about the desirability of promoting diversity both in the legal profession and, within the Law School, among our students, instructors, administrators, and staff. American law schools have many commonalities, but particular schools vary in their curricular offerings, in the scholarly work and research projects of their faculties and associated research centers, and in the career aspirations of their students. Our law schools are in a word “diverse.” Regulatory interventions such as those proposed in this Notice, by expressly or impliedly mandating particular curricular or other practices, inevitably undercut the diversity among schools. At Yale, we have a student body and an institutional culture that is strongly sensitive to diversity concerns. We also have a rich curriculum, which our students regret that they do not have time enough to explore. Adding mandates will further diminish our students’ choices. And unnecessarily so, for any reasonable observer of the legal profession would consider the proposed professional identity course redundant with the existing professional responsibility course requirement, which refers to the “values and responsibilities” of the profession. The ABA should not be interfering with member-school autonomy or students’ curricular choices. ...

The suggestion in interpretation 206-5 that law schools can require “diversity, equity, and inclusion training” as a means of complying with a certification standard is in tension with well- established principles of academic freedom, which go to the heart of the educational enterprise. We believe it is inappropriate and should be deleted.

American law schools today are hotbeds of concern and activity to promote diversity. Further ABA intrusion into school autonomy on this matter is unneeded.

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