By John O. McGinnis
PHOTO: GETTY IMAGES/ISTOCKPHOTO
The
ABA’s proposed accrediting standards would impose uniformity and call it
‘diversity.’
The American Bar Association is proposing new accrediting
standards for law schools that would make them more race-conscious, more
politically correct and less intellectually diverse. The proposal should fail
on the merits. It’s so bad it should also prompt reconsiderations of the ABA’s
role as accreditor of law schools and of the U.S. Supreme Court precedent on
racial preferences in law-school admissions.
Having lawyers regulate entrance into their own
profession has always been anomalous. The ABA has an abiding interest in making
entry more expensive—it decreases competition for its current members. But now
the ABA wants to use wokeness to raise operating costs, impose ideological
uniformity, and reduce academic freedom. The new standards would require law
schools to show continuous “progress” toward diversifying their faculties and
student bodies. They would be encouraged to do it on a timetable, as if a
school can predict when someone of a particular race who meets often
specialized curricular and research needs will show up. The ABA also wants to
add new diversity requirements for ethnicity and gender identity.
Notably absent is any requirement that faculty be
intellectually diverse. The ABA is content to have professors singing from the
same political hymnal so long they create the favored mix of races, genders and
sexual preferences. A recent study in the Journal of Legal Studies shows that a
hiring focus on many of the ABA’s preferred characteristics makes law faculties
even more left-wing than they already are.
The ABA’s total disregard for viewpoint variety
undermines the diversity rationale that has been used to justify discrimination
in law-school admissions. If adopted, it could finally encourage the Supreme
Court to abandon the notion that choosing students by demography advances the
life of the mind.
Many states have laws on the books prohibiting public
universities from considering race and sex in hiring and admissions. The new
proposal explicitly states that such laws provide no justification for
noncompliance with its diversification requirements. The pre-eminent
organization of American lawyers is inviting lawlessness.
The standard also would require law schools to create an
“inclusive and equitable environment for students, faculty and staff.”
Inclusivity and equity are euphemisms that in the current climate almost
certainly mean the opposite of what you’d expect them. The ABA’s guidance on
how to comply encourages evaluation of “academic outcomes disaggregated” by
minority status. At many law schools groups identified by minority status are
admitted with different median grades and test scores. Yet these measures are
required of all applicants because they predict law-school performance. Thus,
assuring “equitable” outcomes would over time likely make grading and other
benchmarks less accurate. And it could well upend established methods of
instruction. While the Socratic method is inclusive in that everyone gets
grilled, some theorists of “inclusivity” complain that aggressive questioning
makes some students uncomfortable.
The guidance also would encourage “diversity, equity and
inclusion training.” Such training can amount to indoctrination. It is a
violation of academic freedom to require faculty to accept value-laden
propositions about the ideological concepts of diversity and equity.
The ABA also would require that students be educated in
“cross-cultural competency.” Again the concept isn’t clear, but its
indeterminacy offers a convenient vessel for pouring in propaganda about race
and ethnicity. A law school should not be required to teach such a course any
more than it should be required to teach courses in relations among the sexes
or the sociology of class.
The proposed new standards would undoubtedly provide jobs
for diversity bureaucrats and consultants. Thus the cost of legal education
would rise, making it less affordable, particularly for those of modest means.
To be sure, some law schools asked the ABA to add the new
requirements. But that is what cartels do: require standardized services rather
than the product differentiation that encourages competition. Nonprofits, like
law schools, also have incentives to indulge in politics as well as price
distortion, because their stakeholders substitute ideological satisfactions for
the additional profits a corporate cartel could earn. Thus, there is even less
reason to have lawyers control the production of lawyers than there is to have
milk producers regulate the production of milk. At least farmers don’t have
dogmas to impose.
Mr. McGinnis is a law professor at Northwestern
University.
