Legal Commentary

New ABA Accreditation Standards

By David Bernstein

Via TaxProf, I learn that the ABA Section of Legal Education & Admission to the Bar seeks comments on proposed changes to the law school accreditation standards. I blogged about one of these proposed standards in December, the one that requires law school graduates to have a ?knowledge and understanding of ... the legal profession?s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity and respect for the rule of law.?

I wrote then, 

there?s nothing inherently wrong with ?respect for diversity,? if this means ?respecting and treating fairly all clients and colleagues regardless of their background.? Indeed, this is praiseworthy.

However, given the past record of ABA accreditation committees, who have rather loosely interpreted ABA guidelines to try to enforce a political agenda on law schools?for example, requiring strong affirmative action preferences in admissions when there was no textual basis in the accreditation guidelines for such a requirement?one could easily imagine this language being misused in the future. Teaching ?respect for diversity? could easily be interpreted as teaching that law schools, law firms, etc., should and must engage in affirmative action preferences.

Without further clarification, the ABA could easily threaten the accreditation of a law school if a substantial percentage of the faculty signed a brief opposing Grutter?like diversity admissions; or if students interviewed by the accreditation people complained that the faculty seems to them insufficiently supportive of ?diversity? (i.e., affirmative action) in its teaching; or if professors assigned academic papers arguing that homogeneous organizations or societies function better than heterogeneous ones; or if the law school failed to discipline students who undertook a satirical ?affirmative action bake sale?; and so forth. After all, any of these hypotheticals could arguably decrease students? ?respect for diversity,? depending on how this phrase is interpreted.

I suggested at the time that the Section clarify that this provision ?does not obligate a law school or any of its constituents to take any given position on the desirability of affirmative action preferences, or any other political position.? The Section failed to do so.

Comments are due tomorrow to Becky Stretch, stretchc@staff.abanet.org.

Full post as published by The Volokh Conspiracy on June 30, 2010 (boomark / email).