June 14, 2021
Call by ABA for comments on significant proposed changes to standards pertaining to "non-discrimination and equal opportunity" and "curriculum"
MOVING TO FRONT FROM JUNE 1--TWO MORE WEEKS TO SUBMIT COMMENTS TO THE ABA!
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 (Fernando.Mariduena@americanbar.org) 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.)
May 21, 2021
MOVING TO FRONT FROM MAY 19--AFTER I POSTED THIS ORIGINALLY, YALE REMOVED THE REPORT; A YALE LAW STUDENT KINDLY SUPPLIED AN ALTERNATIVE LINK FOR THOSE WHO WANT TO READ THE REPORT
...and the effect of class background on the student experience. As the report notes near the start, during the 2018-19 academic year,
"Students called out the 'whisper networks' and gamesmanship that funnel prized opportunities, like clerkships and Coker Fellowships, to those under the wings of a few connected faculty. Those networks were exposed for what they truly reward: savvy over skill, and privilege over equity."
May 03, 2021
Cardozo Law faculty protest Yeshiva University's continued discrimination against LGBT student groups
April 29, 2021
Texas House authorizes public universities in Rio Grande Valley and El Paso to establish up to two new law schools
The bill still has to get through the state Senate. Texas established a new public law school at the University of North Texas (near Dallas), which began admitting students in 2014, but is only still provisionally accredited by the ABA. Texas acquired an additional public law school when Texas A&M University acquired the former Texas Wesleyan law school (in the Dallas-Fort Worth area). The only law school in West Texas is at Texas Tech University, so the case for a law school in El Paso is probably a good one.
April 08, 2021
April 07, 2021
March 15, 2021
The big increase in applicants to law schools this year (and the big increase in high-end LSAT scores)
Informative piece at the ABA Journal. This bodes very well for the law teaching market in 2021-22, as does the impending end of the pandemic. I wouldn't be surprised if next academic year more than 100 new tenure-track faculty were hired, a figure we haven't seen in a decade.
March 03, 2021
February 11, 2021
January 15, 2021
IMPORTANT UPDATE BELOW: PROFESSOR KILBORN WAS NOT SUSPENDED BECAUSE OF THE EXAM QUESTION
Last month, we noted UIC John Marshall Dean Darby Dickerson's suggestion "that law schools should be 'transformed' into 'anti-racist institutions' [as distinct from being non-racist ones that comply with equal opportunity laws]," observing that it "would portend a massive violation of the academic freedom of all faculty (for example)." Alas, this proved more prophetic than we realized.
Professor Jason Kilborn gave a civil procedure exam last month involving an employment discrimination hypothetical, in which one worker used racist and sexist epithets. As the petition denouncing Professor Kilborn reports:
The question at-issue contained a racial pejorative summarized as follows: “‘n____’and ‘b____’ (profane expressions for African Americans and women).” The fact pattern involved an employment discrimination case where the call of the question was whether or not the information found was work product.
Just to be clear: the exam neither used nor mentioned the actual offending words, just the first letters of those words followed by the underline, as quoted above. Professor Kilborn has actually used variations on this hypothetical, with the n- and b-words (as above), for a decade without any incident!