William E. Adams
Managing Director
As society continues to navigate the unpredictability of the pandemic, schools and the Council are beginning to consider issues beyond the problems that it poses. The Council has been busy attending to matters relating to data collection and several Standards. It has approved final revisions for Standards 205, 303, 507, and 508, and will send them to the ABA House of Delegates for concurrence at the Midyear Meeting in February 2022. All four proposals were subject to previous Notice and Comment. Below is an outline of what these revisions cover:
· Standard 205 addresses non-discrimination and equality of opportunity and was expanded to include military status, ethnicity, and gender identity and expression. The Standard now covers race, color, religion, national origin, gender, sexual orientation, age, and disability. The change would make the standard consistent with the ABA’s non-discrimination policy as well as some law schools in including military status and clarifies that a law school that is part of a university may rely on the university’s non-discrimination policy provided the policy complies with the Standard.
· Standard 303 adds a professional identity formation requirement and a requirement that students receive education in bias, cross-cultural competency, and racism both at the beginning of their legal studies and later during their law school careers. The reference to “training” was changed to “education” to avoid implying a requirement to a particular method of education. Also, Interpretation 303-8 was added to specifically state that nothing in the Standard prescribes the type and content of the education on bias, cross-cultural competency, and racism. The final language also clarifies that the second occasion for education can also take place as part of a law clinic or a field placement.
· Standard 507 requires all admitted students receive information on resources related to financial aid and student loan debt and individual student loan counseling. The resources can be provided by the law school, the parent university, or third-party services. There were no changes to this proposal.
· Standard 508 adds information on law student well-being resources to the range of student services that a law school is required to offer.
Under ABA procedures, the House of Delegates has two opportunities to review changes to rules and standards and can concur, reject, or make recommendations for changes. But final approval to change ABA Standards and Rules of Procedure for Approval of Law Schools rests with the Council.
The Council decided to further consider revisions to language in Standard 206 that would be used to demonstrate progress in terms of a school’s efforts to create an inclusive and equitable environment for students, faculty, and staff. This decision to reconsider the proposal submitted for Notice and Comment is responsive to the criticism that its original proposal drew, some of which misunderstood its requirements and intent. This misunderstanding has unfortunately generated critiques in some articles and blogs which have further described the provision in increasingly inaccurate ways. Some of these articles have also misstated the requirements of the Standard 303 revisions that are going to the House of Delegates, but which have been addressed by the minor changes described above.
I will address two of the most problematic misinterpretations of the Standard 206 proposal because they continue to be repeated. First, the proposal was generated pursuant to complaints that the current Standard’s requirement for schools to take “concrete actions” was too imprecise and that providing examples of how to satisfy the Standard would be helpful. They were also pursuant to one of our series of roundtable discussions with groups and individuals interested in legal education. In providing examples, proposed Interpretation 206-5 indicated that an action could include setting goals. This has been inaccurately characterized as requiring or “signaling” a preference for race and ethnic quotas. Not only did this example not require a quota, but the Interpretation expressly states that the actions “may include” the list that followed. Thus, the Interpretation expressly states that setting a goal is not a requirement. It also doesn’t imply or signal an intent from the Council to set quotas for schools to meet. Our schools have varying degrees of diversity in a number of ways and the Council understands that will continue to be the case as schools are differently situated in regard to diversity.
The second mischaracterization of the proposal relate to claims that the proposal requires schools to violate the law. The provision being criticized exists in a current Interpretation and is only modified by expanding the categories. The proposal states, with the proposed modification indicated:
The requirement of a constitutional provision or statute that purports to prohibit consideration of (gender, race, ethnicity, or national origin) race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 206. A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment effective actions and progress required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.
As the language in both the current and proposed Interpretation states, the prohibition only applies to assertions of a constitutional provision or statute “that purports” to prohibit considerations of persons in the listed categories and the following sentence clarifies that schools only have to demonstrate actions “other than those prohibited” by such provisions. This language has never been interpreted by the Council to require a school to violate the law and the proposed revision would not do so in the future. As noted, there have been other criticisms and misunderstandings that are more understandable, and the Standards Review Committee is working on language that will hopefully address those concerns.
In addition to the work on the Standards, the Council continues to review its current data collection practices and consider additional collection that could be helpful to applicants and the public. The Council agreed to a recommendation from the Questionnaire and Template Committee that it collect and post, starting with the 2023-2024 school year, information about the number of students who receive student loans, and the data will be categorized by race, ethnicity, and gender. Final determinations in terms of specific formats have yet to be decided and a roundtable of stakeholders might be convened for guidance. The council approved changes recommended by the Committee to the annual employment summary report, which law schools must submit with employment data from recent graduates, as well as the Employment Protocols, which govern the reporting.
As can be seen, the Council is busy addressing issues beyond those posed by the pandemic. I think that we can look forward to an exciting year of progress.