So what if it’s on the brink of bankruptcy, has lost the faith of the vast majority of America’s lawyers and is held captive by a small coterie of fringe social justice warriors who are using it to pursue their ideological agenda to the harm of the legal profession. It’s the American Bar Association, and so it continues to hold the one small bit of power given when it was the old, stodgy, legacy organization that could be “trusted” to maintain the standard of the profession: Accrediting law schools.
At its midyear meeting, now being held virtually because few of its members can afford to travel, Resolution 300 was just approved by a vote of 347 to 17, which amends the curriculum requirements to include the following:
(c) A law school shall provide education to law students on bias, cross-cultural competency, and racism:
(1) at the start of the program of legal education, and
(2) at least once again before graduation.
What does this mean?
Interpretation 303-5
Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society.
Students are to be taught that this is a “professional obligation.”
Interpretation 303-6
With respect to 303(a)(1), the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law should be among the values and responsibilities of the legal profession to which students are introduced.
While the ABA still holds some legacy persuasive sway over model codes, from professional responsibility to penal, its control over law school accreditation is its one real power. Does its mandate that law schools teach students about “bias, cross-cultural competency, and racism” abuse that authority?
Some, particularly legal academics and incoming students, may well see this as utterly uncontroversial. Racism is obviously an evil and so teaching students that they, as lawyers, have an obligation to eradicate racism must be an obvious good. Indeed, who but a racist would oppose including this as a mandatory aspect of a legal education?
Others may see this as ideological indoctrination, teaching law students that their professional duty is to be an anti-racist. Further, that the mandate will impair their ability to zealously represent clients whose position fail to comport with this ideology. Can a lawyer defend a person who is charged with violating another person’s civil rights on the basis of race? Can a lawyer defend a corporation accused of engaging in racist practices? What is racism, anyway? Is it whatever Kendi, or the Secretary of Anti-Racism, says it is? Is it racist for a white lawyer to dispute whatever a black person says it is?
On another level, is this really a part of a legal education or something that is viewed as a general social good that’s extrapolated into a legal education via the argument that lawyers (like anyone else?) should be at the forefront of eliminating racism because they’re special? Are they? Does this belong in a law school curriculum at all?
The often maligned and misunderstood notion of Critical Race Theory has generated much heat and little light, but it looms very large as a legal concept born of the view that racism permeates law as a system designed for that purpose. Has the ABA now taken the step of making this theory, viewing the law through in ideological racial lens, and making it a required part of a legal education? If so, has the ABA overreached its legacy authority and demonstrated that it can’t be trusted with its one power, the ability to accredit law schools?
*Tuesday Talk rules apply.
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Melvin Belli.
“Getting kicked out of the American Bar Association is like getting kicked out of the Book-of-the-Month-Club.”
“Can a lawyer defend a person who is charged with violating another person’s civil rights on the basis of race?”
This reminds me of the letter Gerry Spence wrote to Alan Hirschfield, explaining why he was defending Randy Weaver, after Hirschfield asked him to withdraw from the case:
“I view the defense of Randy Weaver’s case as an opportunity to address a more vital issue, one that transcends a white separatist movement or notions of the supremacy of one race over another, for the ultimate enemy of any people is not the angry hate groups that fester within, but a government itself that has lost its respect for the individual.
. . . And so my friend Alan, if I were to withdraw from the defense of Randy Weaver as you request, I would be required to abandon my belief that this system has any remaining virtue.”
Always a good show at the midyear meeting. Jack Rives reports on “real progress” to increase membership and revenue. Per Law 360, ABA Treasurer Kevin Sheperd reported yesterday that, amid a continued slide in membership dues and declining meeting revenues, the association fell $4,000,000 short of budgeted operating revenues during the first four months of its fiscal year.
Wow. When Rives said they were doing better, I never dreamed they were doing that much better.
Real progress, in that he multiplied an imaginary gain in membership by an imaginary gain in meeting revenues and produced a negative real number.
It’s a new step for the ABA to mandate the content of curriculum beyond some time spent on “professional responsibility”, I suppose. Beyond that the standard and other interpretations are more general and do not mandate certain content and courses. There being value in an accrediting body, I don’t think it’s enough for the ABA to lose its authority now, but it’s a large step in the wrong direction and does not bode well for its future.
Those who can’t see how this would be controversial are shortsighted, and those who would see this as an ideological coup are overreacting.
To be fair, I’m biased against the ABA and see it as a withered corpse that still manages to twitch from time to time. I don’t think it should be accrediting law schools and that function should be handled by something else, but having no solution of my own I can only complain when the ABA does something I don’t like and otherwise try to express my opinion that no lawyer should be giving the organization time or money.
Does it hurt your nuts to sit on the fence like that? While the resolution allows enough wiggle room to claim plausible deniability that they’re mandating specific anti-racism curriculum, what part of professional responsibility makes it an obligation of lawyers to eradicate their undefined “racism” in the law?
When this ends up exactly where everyone knows it’s going to end up, will you be “shocked, shocked” to learn that law students are being indoctrinated?
It doesn’t hurt, no. The wiggle room is enough for me. Thank you for your concern.
You act as though law students will lap this up without protest or critical thought. I don’t think they will. I only mentioned professional responsibility to highlight that this move by the ABA is not ordinary or otherwise outside the scope of what they already have published, so I agree with you.
I won’t be shocked to learn that some students are indoctrinated. They would be regardless of the ABA’s interpretation and standards. That I find this only a hit to the ABA’s credibility might have something to do with my already low opinion of it.
Does the ABA still care about teaching actual lawyering? It seems like the ABA leadership value knowing intersectionality more highly than knowing rules of evidence. To use an analogy, I expect a plumbing school to teach how,to solder pipes not identify microaggresions in my garbage disposal.
This is an old debate among academics, whether law school should be a trade school or some sort of graduate philosophy school.
I think it good, and part of being a good lawyer, to have some awareness of matters outside law per se – at least enough to know how much the lawyer doesn’t know. For instance, lawyers (and everyone, but referring here to lawyers and judges) with better knowledge of STEM subjects would help in discussions with expert witnesses or potential expert witnesses. But I acknowledge, maybe it’s not law school that should be teaching that anymore than law school should be teaching use of necessary time docketing software (well, actually, maybe they should if more trade school less philosophy…).
My objections to the ABA measure are not so much what it says, as what it means. That is, a reasonably fair law school with a health devotion to principles of free speech might adequately and appropriately teach lawyers something about what they should know about matters tangential to but related to, the practice of law and representation of clients and biases, direct or indirectly structural, of police and judicial bodies.
But I don’t trust law schools or the ABA to be fair like that.
This ABA isn’t the ABA to which was entrusted the accreditation of law schools. It no longer represents the vast majority of lawyers, no longer reflects our views and expectations, and no longer speaks for the profession, and it should no longer have any authority over accreditation. They have abandoned the law in favor of social justice. If that’s your thing, great. The rest of us have walked (or run) away.
But to leave the future of the law in the hands of the ABA is no longer justifiable. And now, this fairly obvious curriculum shift toward ideological indoctrination as a professional duty seals the deal.
PK’s point, that by the time they get to law school, they’re already indoctrinated, might be true, but law school is where minds of mush are to be molded to think like a lawyer. It’s where they should be unindoctrinated and taught to think instead of pray to the social justice gods.
That it shouldn’t be the ABA is patent, but the schools need to be accredited, so who does that?
That’s a real good question. I wish I had a real good answer.
Having gone through the accreditation process at a couple of schools, let me take a whack.
Lots of organizations.
They accredit schools of plumbing, air craft repair, computer security, art, hairdressers, and so on. They build a team of experts for each craft/profession and inspect the school.
Two examples are Northwest Commission on Colleges and Universities and Southern Association of Colleges and Schools, Commission on Colleges. There are others.
You gather a team of law librarians, some deans, some practicing attorneys, some professors currently teaching and see if the school is able to turn out people that can pass the bar exam.
The ABA’s position is sort of unique in higher education, as other degrees/fields (including professional fields like medicine to the best of my knowledge) have multiple state- and regional-level accreditors; the ABA stands alone as a kind of national accreditor. Some states are already contemplating allowing other law school accreditors in response to the ABA’s shift from strictly regulatory to “accreditation + elimination of bias”, and it will probably happen if the ABA insists on pressing forward. It wouldn’t be that hard for alternative accreditation agencies in some states to get set up in under a year, especially if they get defections from the ABA.
There will have to be some uniform body so students can take the bar in states other than the one in which he or she attended law school. It can be created, but could also suffer the same fate as the ABA accreditation given the dominant views in legal academia, and who would want to be involved in such an endeavor.
A logical continuation of this question would be: “Why do law schools need accreditation anyway.”
Start the debate from ground zero.
[Ed. Note: Steve, I thought we had agreed you were only going to read and not comment here anymore.]
For the benefit of other non-lawyers following Steve down this rabbit hole, far removed from the focus of this post on the ABA’s control of law school accreditation to the question of why schools need to be accredited at all, your comments were trashed despite Tuesday Talk rules because they had nothing to do with this post. No matter how fascinating you think your issues may be, start your own fucking blog and write about any damn thing you want, but this is mine and you don’t get to hijack my post to argue about whatever idiocy pops into your delusional heads.
And that, you should note, is why the Ed. Note was included in Steve’s comment. If you can’t take a hint, go to reddit.
Can they be trusted? It depends on what you are trusting them to do. Can they be trusted to abuse their authority to advance the cause of (anti)racism? Yes they can.
Abusing authority to mandate racism is a feature not a bug.
The ABA is starting to remind me of the Mafia, Triads, and Yakuza. All started with good intentions and evolved into protection (and other) rackets.
There’s always the AHBA.