Law school accreditor ABA moves to end DEI to protect monopoly under threat from Trump, state courts

As red states expand accreditation options for their law schools and the Trump administration pushes to dismantle the legal field's politically progressive flavor of racial discrimination, the American Bar Association is taking decisive action to stanch the bleeding before its federal monopoly over who can become a lawyer is rendered toothless or ended altogether.

The ABA Accreditation Council has given final approval to repealing Standard 206, which demands law schools "demonstrate by concrete action" their commitment to diversity and inclusion in admissions and hiring by "gender, race, and ethnicity," regardless of whether a "constitutional provision or statute" purportedly prohibits such preferences.

The council also proposed repealing Standard 303(c), which requires law schools to "provide education to law students on bias, cross-cultural competency, and racism" at the start of the program and "at least once again before graduation," for notice and comment among ABA membership. Two interpretations "related to effective communication" are on the chopping block as well.

Proposed revisions to nondiscrimination and disabilities-related requirements – Standard 205 and 207, respectively – are going to members for notice and comment, too.

The Standard 206 repeal at Friday's meeting of the ABA's legal education and bar admissions section in Chicago will now go to the ABA's annual meeting in August, at which the group's House of Delegates will debate and possibly revise it, Reuters reported. 

The standards committee's Standard 206 memo to the council had warned that failure to repeal would "imminently" threaten the ABA's role as an accreditor in light of threats by both the Trump administration and state supreme courts that get the final word on accreditation.

It acknowledged that repeal is deeply unpopular with ABA constituencies, with only two of 50 comments submitted during a 45-day feedback window supporting Standard 206's elimination. A common theme among opponents is that repeal "demonstrates capitulation to the current federal administration" and "lack of integrity and courage," the memo says.

'I’ll believe it when I see it'

The committee's initial response to the 2023 Supreme Court ruling against racial preferences in admissions was to suggest the removal of red flags from Standard 206, rebranding "diversity and inclusion" for "underrepresented groups" as "access to legal education and the profession" for "all persons" and adding 11 new identity categories.

The ABA suspended Standard 206 shortly after President Trump's return to office, as his administration saber-rattled against major law firms for potentially illegal diversity, equity and inclusion practices and reminded law schools of their legal obligations under the Students for Fair Admissions SCOTUS precedent.

That wasn't good enough for then-Attorney General Pam Bondi, who warned the ABA it could lose its federal accreditation monopoly and the Department of Justice might stop state bars from requiring would-be lawyers to attend ABA-accredited schools. 

The committee's Standard 303(c) repeal memo doesn't mention external pressure, citing feedback from advisers and law schools. It will ask members if the bias, cross-cultural competency, and racism requirement should be a "required learning outcome" instead of a "curricular requirement," to give law schools "flexibility."

The Standard 205 and 207 revision memo says it's aimed at making it easier for law schools to comply with "federal, state, and local laws prohibiting discrimination" rather than the current "lists of demographic categories."

Critics had mixed responses to the council's recommended repeal of Standard 206, which would be the biggest change among revisions.

"Approval may take until 2027 – so I’ll believe it when I see it," said Sarah Parshall Perry, vice president of Defending Ed, which says it works to restore schools "from activists imposing harmful agendas." 

Her group published an investigation last month finding that 62 of nearly 200 law schools accredited by the ABA "appear to still require students to complete DEI-related coursework or programming in order to graduate," while "72 law schools appear to maintain DEI offices– or rebranded versions of them – that remain in operation."

"This is the post-SFFA cleanup the legal profession resisted for two years," bestselling novelist and inventor M.A. Rothman wrote in celebration. "The plumbing finally caught up."

Law schools are like military schools?

The Standard 206 repeal memo emphasizes that the ABA isn't just dealing with an onerous federal administration but increasingly state judicial bodies.

Texas became the first state to formally sever ties in January, with its state Supreme Court now deciding which law schools qualify graduates to take the Texas bar, shortly followed by Florida via its own Supreme Court, which is seeking interest from other accrediting agencies. Tennessee and Ohio supreme courts are reviewing the monopoly as well.

The Federal Trade Commission supported the Florida Supreme Court's move in response to the latter's request for comment, arguing the ABA monopoly raises prices and imposes "ideological mandates" at odds with "legitimate educational goals" and possibly federal law.

The ABA Accreditation Council's authority depends on the Department of Education and the "high court of each jurisdiction that regulates licensure," creating a national system essential to law degrees being "recognized in all jurisdictions," the Standard 206 repeal memo says.

"This consumer protection function is paramount and is jeopardized by a balkanized system of accreditation that would likely lead to confusion, higher costs, worse outcomes for graduates, and less competent lawyers serving the public," it also said.

The council noted Under Secretary Nicholas Kent recently told two other accreditors suspending DEI requirements to remain in good standing for the long term wasn't enough, thus requiring them to submit monitoring reports on their elimination of standards that "violate federal law." The ABA has a September hearing on its own request for continued recognition.

State supreme courts have also told the council the standard is "non-neutral" and "outside the accreditor’s role," and since individual states started defecting, it has become "impossible" for a "meaningful" diversity and inclusion standard, the memo says. 

"The Council has been clear that it will not require accredited schools to choose between compliance with accreditation and legal standards," it says.

Among the commenters claiming Students for Fair Admissions isn't a threat to Standard 206 was the Critical Legal Collective, a scholar-activist group that promotes critical studies.

In its comment, the group said the SCOTUS precedent does not overrule "case law that specifically recognizes that an entity engaged in intentional discrimination can employ race-conscious measures to remedy its own demonstrated discrimination," and the ABA was founded to "exclude African-Americans, Jews and immigrants." 

Law schools are like military schools, which SCOTUS exempted from the colorblind hiring and admissions because of their "potentially distinct interests that justify a commitment to diversity measures," the collective said.