The latest episode of the Mediate.com podcast addresses a proposed revision to a legal education standard on diversity in law schools (Standard 206) currently being considered by the American Bar Association. Ben Davis and Charles Crumpton walk through what is troubling about the proposed revision and suggest some ways to make your voice heard:
Here’s the memo Ben and Chuck sent to the ABA DR Section Executive Committee:
We were asked on October 3, 2024 to draft a memo on the above topic for the Executive Committee to examine for its meeting on October 11, 2024 with respect to the discussion of the draft proposed Standard 206 revision provided by the Council of the Section of Legal Education and Admissions.
We provide this memo as a personal proposal.
This memo is divided into five sections: Section I with our conclusions, Section II with our critique of the Standard 206 revision under consideration, Section III an Alternative A standing on principle approach, Section IV an Alternative B retreat from principle amelioration, and Section V with our analysis of the two alternatives and the basis for our conclusion.
In making this memo we have front of mind the importance and meaning of this work as was enshrined in two giants visions.
Looking back to what the late Justice Thurgood Marshall said in 1988 in receiving the Jurist of the 21st Century award from the National Bar Association we remind all of what he said had animated him throughout his work, to wit:
“We’ve got to have the one thing in mind. And I am going to close with what I have been saying for 50-60 years. I don’t care about the Constitution alone or the Declaration of Independence or all of the books together. It’s not that important.
What is important is a goal toward which you are moving. A goal that is the basis of true democracy which is over and above the law. And it is something that won’t happen. But you must pray for it and work for it.
And that goal is very simple. That goal is – that if a child, a negro child, is born to a black mother in a state like Mississippi or any other state like that, born to the dumbest poorest sharecropper – … by merely drawing its first breath in a democracy, there and without any more, is born with the exact same rights as a similar child born to a white parent [or] the wealthiest person in the United States.”
Thurgood Marshall, Awarded National Bar Association Jurist of the 21st Century (8/10/1988) youtu.be
Looking back to 1965 and then President Lyndon B Johnson’s speech to a joint session of Congress as he introduced the Voting Rights Act, we remind all of what he said animated him, to wit:
“There is no issue of states’ rights or national rights. There is only the struggle for human rights.”
President Lyndon B. Johnson’s Voting Rights Act Speech youtu.be
I. CONCLUSIONS: THE REVISED STANDARD 206 IS INCOMPATIBLE WITH BOTH RESOLUTION 105 AS ADOPTED BY THE ABA HOUSE OF DELEGATES IN AUGUST 2018 AND ABA GOAL III ADOPTED BY THE ABA IN 2006, TO WIT:
GOAL III: ELIMINATE BIAS AND ENHANCE DIVERSITY.
Objectives:
We recommend the Section
1) oppose the adoption of the revised Standard 206
2) we propose to the Section on Legal Education and Admission a revised Standard 206 and its interpretation that takes into account the SFFA Supreme Court decision, Resolution 105, and ABA Goal III.
II. CRITIQUE OF THE REVISED STANDARD 206 AND ITS INTERPRETATION
The draft is seriously flawed in that it carefully avoids identifying those underrepresented groups in the legal profession that the ABA has identified itself. This vagueness bleaches the ABA’s commitment to Goal III and Resolution 105 in a retreat by the profession from its long recognized need to lead in this arena.
This effort at signaling an ABA retreat from its leading role in enhancing diversity and confronting bias is framed as a response to the SFFA decision concerning race in admissions. Yet, the draft revision of Standard 206 does more than that. As detailed in the 44 Deans letter that is attached as Annex 1 to this memo, the SFFA decision discusses race, in an unfortunate, but, thankfully, very limited manner. As a consequence, it is clear the Standard 206 revision is not only a response to the SFFA decision which focused in a limited way on race as used by the universities and colleges. Rather the retreat is far broader as it encompasses deletion of mention of gender and ethnicity as well as race more broadly, topics that were not the subject of the SFFA decision.
Seeking to have the ABA adopt such a flawed revision is merely an effort to put in place a credibility structure with the ABA’s name on it as part and parcel of a society wide effort to weaken all diversity efforts.
It is obvious that the proposed language is a weak response to the systematic and virulent effort across our society to combat any effort at diversity and combating bias. Just one example of that systematic effort is the 44 Deans letter. We have learned that there would be more Law Deans support for the letter but that there are a significant number of Deans who are supportive but are PROHIBITED signing on due to the climate and/or legislation where their law school is located. These silenced Deans would sign on if they could but, due to their official capacity, they cannot. That reality itself is reflective of what is at issue here. The Section should review this proposed Standard 206 revision with the full awareness that the ability to express opposition is being muzzled as there is an official force that is trying to prevent that expression of dissent from happening or being heard.
Rather than rejecting such retrograde attacks, this proposed Standard 206 revision placates the most abhorrent views in our society. The revision is a response beneath the dignity of the ABA and of the legal profession.
It is clear that law school Deans are concerned about this revision and are watching what the ABA is doing (Deans from America’s law schools unveil joint letter in defense of democracy, June 14, 2024, ABA News, available at
https://www.americanbar.org/news/abanews/aba-news-archives/2024/06/law-school-deans-letter/. The further 100 Law Deans’ letter is available at https://www.americanbar.org/content/dam/aba/administrative/news/2024/deans-letter-061824.pdf.).
But, it is just as clear that the world is watching what the ABA does in this fraught moment (Karen Sloan, Cutting ‘race and ethnicity’ from ABA’s law school diversity rules goes too far, critics say, October 2, 2024, Reuters available at https://www.reuters.com/legal/government/cutting-race-ethnicity-abas-law-school-diversity-rules-goes-too-far-critics-say-2024-10-02/).
The proposed Standard 206 revision acquiesces to the most retrograde elements of our society and follows them back to a time of societal indifference and hostility to underrepresented groups of which the ABA is well aware in its own history.
Put simply, our profession is better than that and we need to demonstrate leadership and not cowardice in the face of systemic efforts at oppression of the most vulnerable.
III. OUR PROPOSED REVISIONS IN LIGHT OF SFFA – STANDING ON PRINCIPLE (ALTERNATIVE A)
We propose for the consideration of the Council of the Section on Legal Education and Admissions revisions that take into account SFFA and are also compatible with Resolution 105 and ABA Goal III.
Our proposals leave explicit what the Standard 206 revision leaves unsaid.
We take this approach as we are not in a time when efforts are to be implied as we confront the explicit efforts to turn back the clock. We join with the 44 Deans of Law schools who have opposed the revision of Standard 206 and the countless other Deans who are prohibited to sign on to such a letter as well as the 100 Law Deans concerned about the direction of our democracy.
As the old adage says, lead, follow or get out of the way. The ABA should lead in this arena as it has in the past rather than follow those retrograde elements in our society.
What follows is our proposed revisions to the current Standard 206. Additions are in capitals. Deletions are mainly for readability. The entire standing on principle proposal is bolded here for ease of identification.
Proposed Standing on Principle Revisions (Alternative A)
Standard 206-1
(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action TO THE FULLEST EXTENT PERMITTED BY LAW a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, WOMEN, LGBTQ+ PERSONS, AND PERSONS WITH DISABILITIES/IMPAIRMENTS and a commitment to having a student body that is diverse with respect to gender, race, ethnicity, SEXUAL ORIENTATION AND DISABILITY/IMPAIRMENT.
Standard 206-2
(b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action TO THE FULLEST EXTENT PERMITTED BY LAW a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, ethnicity, SEXUAL ORIENTATION AND DISABILITY/IMPAIRMENT.
Interpretation 206-1
The requirement of a constitutional provision, statute, COURT, ADMINISTRATIVE OR EXECUTIVE decision that purports to prohibit consideration of gender, race, ethnicity, or national origin AND/OR STATUS AS A WOMAN, LGBTQ+ PERSON, OR DISABLED/IMPAIRED PERSON in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 206 TO THE FULLEST EXTENT PERMITTED BY LAW. A law school that is subject to such constitutional provision, statutory provision, COURT, ADMINISTRATIVE, or EXECUTIVE decision would have to demonstrate the commitment required by Standard 206 by means other than those prohibited by the applicable constitution, statute, COURT, ADMINISTRATIVE OR EXECUTIVE DECISION.
Interpretation 206-2
In addition to providing full opportunities for the study of law and the entry into the legal profession by members of underrepresented groups, the enrollment of a diverse student body promotes cross-cultural understanding, helps break down racial, ethnic, gender AND OTHER stereotypes, and enables students to better understand persons of different backgrounds. The forms of concrete action required by a law school to satisfy the obligations of this Standard are not specified. TO THE FULLEST EXTENT PERMITTED consistent with applicable law, a law school may use race, GENDER, ethnicity, STATUS AS A WOMAN, LBGTQ+ PERSON AND/OR DISABLED/IMPAIRMENT PERSON in its admissions process to promote diversity and inclusion. The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern TO THE FULLEST EXTENT PERMITTED BY LAW for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a favorable environment for students from underrepresented groups.
SECTION IV – RETREAT FROM PRINCIPLE APPROACH AMELIORATION (ALTERNATIVE B)
In 2006, the ABA House of Delegates passed Goal III (one of only four goals comprising the ABA’s mission – https://www.americanbar.org/about_the_aba/aba-mission-goals/):
Goal III: Eliminate Bias and Enhance Diversity.
Objectives:
Goal III is a stronger source to cite to than Resolution 105 (2018), which is focused on promoting diversity in inclusion and selection on rosters. That said, Goal III has come under attack for similar reasons as the SFFA lawsuit.
The interesting thing is that – in general – all of these types of policies get to be quite vague as to the how – how are you increasing access. We should agree to bring in the core diversity identities usually factored in by the ABA Goal III and expand them beyond race and ethnicity.
At the same time, we think it may be true that the writing is on the wall that they are looking to find ways to still promote “access” without naming the identity groups because of this DEI scare. If this is the case, we would therefore focus comments on the interpretation piece to try to ensure core DEI concepts – the hows – are still included in ABA policy.
On the interpretation side, the new text being shared for comment says:
Interpretation 206-1 4
The commitment to providing access to the study of law and entry into the profession typically includes:
1) admissions policies, processes, and practices aimed at evaluating each applicants’ potential holistically, including consideration of the applicant’s individual experiences and challenges and the contribution that the applicant is likely to make to the legal profession such as making affordable legal services available to all people;
2) recruitment efforts targeted at groups that have been disadvantaged in or excluded from the legal profession,
3) programs aimed at meeting the academic and financial needs of all students; and
4) efforts aimed at creating a supportive learning environment for all students in the law school.
Interpretation 206-2
Compliance with Standard 206(b) does not require a law school to take race or any other identity characteristic into account in making an individual employment decision.
Interpretation 206-3
A supportive learning environment is one that promotes professionalism, mutual respect, and belonging for everyone in the law school community.
Under this Alternative B approach, we would suggest we should change revision 206-3 to read:
A supportive learning environment is one that promotes professionalism, mutual respect, and belonging for everyone in the law school community. This includes an environment that is accessible to people of different abilities, sensitive to the experiences of people with different identities, and empowering to people from varying backgrounds.
Through that seemingly small change, we believe it would add in a requirement to have accessibility to people who are disabled and cultural sensitivity to different diversity identities and equity to empower people of varying backgrounds – getting those core concepts incorporated, albeit indirectly, into this new language of “access”.
Again, if we cited to anything we should cite to 2006’s Goal III as opposed to 2018’s Resolution 105, for this context. However, it may be citing to that would further alienate the powers that be considering these comments. It may be better to just add that one sentence without linking it to DEI principles just to get them to be willing to adopt it and incorporate it as a small-seeming note, instead of ruffling their feathers thinking they are placating DEI people.
SECTION V – CHOOSING AN APPROACH BETWEEN SECTION III ALTERNATIVE À (STANDING ON PRINCIPLE APPROACH) AND SECTION IV ALTERNATIVE B (RETREATING FROM PRINCIPLE AMELIORATIVE APPROACH)
Protective and Proactive Framing
This section is aimed at evaluating the merits of the two approaches in Sections III and IV and the reasons for the recommendation we make to the Section.
The ABA Goal III set out, as one of only four goals of the ABA, that it is our responsibility to be inclusive and free of bias. That goal was operationalized, in part, in Standard 206’s Diversity and Inclusion provisions which is now being edited to refocus instead on a more generic language of Access to Legal Education and the Profession.
It is understandable that there is now a proposal aiming to be protective of the ABA and all of the law schools it accredits in the face of perceptions of increasing liability associated with DEI language, policies, and curricula.
At the same time, this current draft revision perhaps inadvertently neglects the purpose and goals of the ABA. That Diversity and Inclusion Standard existed and Goal III has existed because the American Bar Association endeavors to be proactive in moving the profession forward to help all legal stakeholders work toward goals of fairness, representation, and access across all legally protected classes of people. While it is helpful that the proposed revision still makes nods to supporting access for identities that have historically been disadvantaged or excluded – it is a clear step backward that we are now abstracting identities that were once articulated.
Instead, we propose enumerating diversity identities commensurate with the types of diversity the ABA’s DEI Center recognizes under Goal III – race, gender, sexual orientation, and disability. We also propose careful attention to this language of access to ensure that the ABA continues to proactively lead the way in setting standards that ensure fairness, representation, and accessibility for all members of the profession including people who have experienced disadvantages related to their diverse or intersectional backgrounds.
Yes, there is an understandable push to be protective in response to potential liability following the SFFA lawsuit and similar actions, and yes it appears that the climate around DEI initiatives is unfortunately becoming increasingly fraught, divisive, and precarious. That said, the ABA is still the leader in the field that has the power to continue setting the right tone for lawyers and law schools to follow as we navigate some of these challenging times.
We believe our proposal will be able to achieve the protective aims of the revisions without also sacrificing the ABA’s long history of proactively finding ways to set the policies, norms, and expectations that this profession – and its law schools – will be empowering, accessible spaces with opportunities to welcome and support new students and attorneys from all diversity backgrounds
We would note that Goal III and Resolution 105 are incorporated in the Section III Alternative À approach now.
It is important to also keep in mind that this discussion is not just about Standard 206 revision as we understand that Goal III itself is also under attack within the ABA.
With respect to the Alternative A approach, this strong standing in principle approach was what was done in 2006 within the American Society of International Law (ASIL) when a strong US focused anti-torture resolution was submitted in a grass roots effort to be approved by ASIL at its Centennial Meeting.
As this strong approach gained support, a late weak universal (meaning not US focused and modest in its wording) anti-torture resolution draft was then put forward by the powers that be and enormous pressure was placed on the grass roots strong approach leader to unify behind the weak universal draft.
That leader, in the run up to the annual meeting, took advantage of the internal listserv to excoriate the weak universal draft. This critique was done in the harshest of terms.
Both of the drafts were presented at the ASIL Executive Committee session and a spirited debate ensued.
At the Executive Committee meeting a third strong but universal version was put forward by a person in the grass roots strong version « team. » which was experienced as a betrayal of the grass roots movement.
The leader of the grass roots strong version draft « broke bones » in his comments at the Executive Committee meeting, challenging the alternative drafts as well as those speakers who wished to avoid taking a position. At one point, the leader walked out of the meeting because of the torture placating comments.
Very distinguished members of the Executive Committee (Member of the International Court of Justice, very distinguished Senior Professor) spoke up to say that a resolution had to be done. The question was which one to do.
Ultimately, the strong universal version was adopted. That night, the leader of the grass roots US focused effort asked the greatest expert on the topic if he could live with the strong universal version. That great expert said he could support the strong universal draft. So the leader of the grass roots movement signaled to all concerned including the ASIL President and Executive Director he was going to support the strong universal resolution.
At the Annual Meeting the next day, that strong universal version was the best we could do and it sailed through and became the ASIL Centennial Resolution on Laws of War and Detainee Treatment. This resolution was only the 8th resolution adopted by ASIL in its then 100 year history.
Learning from this experience and with our understanding of the relationships and knowledge in the ABA, we infer that if no one takes a strong standing on principle approach then people will not have the appropriate pressure to bend and adjust in the right direction.
We understand hesitancy about speaking out vigorously about these terrible changes. We are not convinced that defining this change process based on imagining the reactions of the drafters of the changes(as is done in Alternative B retreat from principle amelioration) is the way to approach this important matter.
We are of the view that, instead, all should focus on what is the right thing to push for.
Our thought is that if we let the drafters of the Standard 206 revision define reality such that asking them to keep fidelity to already settled DEI values somehow is seen as too much – then we realize we have already lost before the conversation began.
In negotiation, it is essentially negotiating against ourselves prior to any dialogue with the drafters of the Standard 206 revision.
As members of the Section of Dispute Resolution with our past experience with Resolution 105, we are keenly aware of just what is at stake. We are the only ones who can even make them aware that there is a choice to go hard and it is the choice that is truest to the values and principles the Section defends and stands up for.
Thus, our recommendation is to adopt the Alternate A standing on principle approach of Section III above, disseminate it to the Council of the Section on Legal Education and Admissions, as well as follow a broad communications strategy of disseminating it to all SOC members and the current and past supportive ABA leadership, members of the House of Delegates, affinity bar associations, and law school and possibly university administrations. This will force the Council of the Section on a Legal Education and Admissions to include our views in the package provided for their next meeting and will hopefully spark a meaningful dialogue across the ABA and in the profession at this important juncture.
Looking back to what Justice Thurgood Marshall said in 1988 in receiving the Jurist of the 21st Century award from the National Bar Association and what President Lyndon Johnson said in 1965 when introducing to Congress the Voting Rights Act, we see the strong standing on principle approach as being more consistent with both the Section and their views.
We may feel powerless in the face of strong forces before us. This feeling is much the same feeling a real life couple of working class Germans in 1942 felt in Berlin when they rebelled against the then Nazi regime out of their depression over the loss of a loved one on the Western Front. Their modest dissent was to drop index cards around public places that dissented from the ambient oppression. Hans Fallada in his magisterial book Every Man Dies Alone based on that couple’s heroism aptly synthesized what one was to do in the phrase
« The main thing is, to fight back. »
The Alternative A standing on principle approach of Section III fights back and it is a fight worth making.
There are times when people standing up and speaking out is necessary. This is one of those times. And, for this matter, time is of the essence.
We shall overcome.
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