Monday, June 14, 2021

Call by ABA for comments on significant proposed changes to standards pertaining to "non-discrimination and equal opportunity" and "curriculum"


The proposed changes are available here.   Written comments on the proposals should be addressed to:  Scott Bales, Council Chair.  Please send comments to Fernando Mariduena ([email protected]) by June 28, 2021.

I am going to offer a few observations of my own on some of these proposals, which readers are free to incorporate into any comments they wish to send to Mr. Bales (with or without attribution to this blog).   Some of the proposed changes are minor, but many are not.  As a threshold matter, the ABA should have to explain why the existing standards were not more than adequate, especially since some of the proposed changes will impose substantial costs on schools and seem ill-supported by evidence.

(1)  Proposed changes would replace previous language requiring "concrete action" and "reasonable efforts" related to diversity, to a standard that demands "demonstrat[ing] progress."   What does "progress" mean?  If a very diverse law school becomes slightly less diverse after a few years (but is still extremely diverse), does that mean it is in violation of the standard?  That would seem bizarre.   Suppose a law school becomes more diverse by enrolling more Asian-American students, but fewer African-American students.  Is that "progress" within the meaning of the Standard?  What if it enrolls more students with disabilities, but fewer Hispanic students?  How is "progress" to be measured?  Why is it a preferable standard?

(2)  The proposals impose a substantial new burden on schools to collect and maintain data that will be both costly and time-consuming, and will almost certainly require schools to hire additional administrative staff (see esp. 206-3 and 206-4). This includes publishing "threshold data disaggregated by race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status" (several of these categories are new), plus requiring "quantitative and qualitative measures of campus climate and academic outcomes disaggregated" again by all the preceding demographic categories.  Wouldn't the money spent on these reporting requirements be better spent on financial aid, for example, that increased diversity?

(3)  Recommended actions that would demonstrate "progress...under the Standard" would include (206-5) "Diversity, equity, and inclusion training."   This raises two concerns.  First, there is evidence that such "training" is not effective, and can even be counter-productive.  Second, and even more seriously, such training will almost certainly violate the academic freedom rights of faculty at many (probably most) schools by demanding conformity to a particular ideology about "diversity," its meaning, and its value.  The ABA should not even be suggesting that schools violate the contractual and/or constitutional rights of faculty to academic freedom.  (There is a related problem with the mandatory "diversity statements" at certain public universities.)

(4) The proposal suggests making the new "diversity, equity and inclusion" standard a "core" standard, such that failure to comply with it would be grounds for public shaming of schools and ultimately loss of accreditation.   Given the uncertainties about what constitutes satisfaction of this standard, and the subjective judgments that will be necessary, it seems risky in the extreme to make it a "core" standard.

(5)  The proposed curricular reforms all relate to requiring law schools to "provide training and education to law students on bias, cross-cultural competency, and racism."   Moreover, law schools must provide this "training and education" at the start of law school and at least once before graduation!   This prompts a few questions and concerns:

(a)  What is "cross-cultural competency," and how is it taught?   The proposed changes contemplate, for example, that law schools might offer courses on "racism and bias in the law," but not on "cross-cultural competency and the law" (Interpretation 303(7)).   If cross-cultural competency is different than "racism" and "bias," what is it exactly?

(b) As with point (3), above, is there evidence that "training" in this domain is effective?  Before imposing a requirement like this, the burden should be on the ABA to establish, and not simply assume, that such training is possible and efficacious.

(c)  Why is the ABA singling out "race" rather than, say, "class," as the focal point for education and training?  It is a matter of lively dispute among scholars what role economic class, rather than race, plays in explaining patterns of police violence, for example.  Why is the ABA, which has no scholarly competence in this domain, mandating a particular position about which features of identity demand curricular attention?  Should this not be the provenance of schools and their faculties?

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