How the American Bar Association Just Radicalized Law School

Law students now required to learn about their duty to ‘eliminate racism’

Aaron Sibarium • February 15, 2022 5:30 pm

The American Bar Association voted on Monday to require that all law schools educate students on their duty to “work to eliminate racism,” a move top law professors say will “institutionalize dogma” throughout legal academia.

The association, which accredits almost every law school in the United States, voted 348 to 17 to adopt the standard. Law schools will now have to “provide education to law students on bias, cross-cultural competency, and racism,” both at the start of law school and “at least once again before graduation.”

Additionally, law students will have to complete a course on “professional responsibility” that introduces them “to the values and responsibilities of the legal profession”—including “the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law.”

The standard has stirred controversy among law professors, many of whom assailed it as an assault on academic freedom when it was first proposed last year. Brian Leiter, a legal theorist at the University of Chicago Law School, said the proposed requirements would “almost certainly violate the academic freedom rights of faculty at many (probably most) schools.” And in an open letter to the American Bar Association, 10 Yale Law School professors called the change a “disturbing” attempt to “institutionalize dogma” through the accreditation process and an “overreach by the ABA.”

These objections prompted the American Bar Association to add a Disclaimer to the final standard, saying it “does not prescribe the form or content of the education on bias, cross-cultural competency, and racism.”

But the new standard does dictate the content of the professional responsibility course, an unprecedented step by the American Bar Association. And according to the Yale Law professors, requiring anti-bias training “presuppos[es] that some students are biased and racist and therefore need instruction.”

“American law schools today are hotbeds of concern and activity to promote diversity,” the Yale professors wrote. “Further ABA intrusion into school autonomy on this matter is unneeded.”

The American Bar Association declined to comment.

Though many law professors oppose the new requirement, the vast majority of law school administrators have welcomed it. In August 2020, the deans of 176 law schools—including Chicago and Yale—petitioned the American Bar Association to require that “every law school provide training and education around bias, cultural competence, and anti-racism.”

Hulett Askew, a member of the American Bar Association who spoke in favor of the new rules, said they were a direct result of the deans’ petition.

“I hope you recognize how remarkable it is that 75 percent of the deans of the law schools in America asked for this standard,” Askew told the bar association’s House of Delegates. “The deans’ expression of support represents the depth and breadth of concern on this issue.”

The petition’s signatories include the deans of almost every top American law school, including Columbia, Stanford, and Harvard.

“We are in a unique moment in our history to confront racism that is deeply embedded in our institutions,”  the deans said, “including in the legal profession.”

The new standard will be enforced by the American Bar Association’s Council of the Section of Legal Education, the only law school accrediting body recognized by the Department of Education. Though the council is officially independent of the American Bar Association, as per federal regulations, it was the council that drafted the standard in the first place.

Some law schools have already taken steps to satisfy the new requirements. In February 2021, the University of Southern California announced that all incoming JD candidates would be required to take “Race, Racism, and the Law,” citing the “racial reckoning of 2020.” Two months later, the University of California, Irvine, School of Law required that all students take a course on “race and indigeneity, structural inequity, and the historical bases for such inequity.”

The American Bar Association also adopted a resolution that urges law schools to provide accommodations for “lactating individuals.” The resolution, which was drafted by the American Bar Association’s “Commission on Women in the Profession,” does not use the word woman.