Trump v. the ABA accreditors

AG Bondi has indicated in no uncertain terms that the ABA’s accreditation authority is in peril so long as it maintains what she describes as its DEI requirement. The long-standing diversity requirement has been under serious scrutiny over the past several months, driven by the Supreme Court’s recent affirmative action case and, one might speculate, the tenor of the times. In a previous post, I encouraged the Council of the ABA Section on Legal Educations and Admission the Bar (the real authority in accreditation, although often confused with the “big” ABA) to continue their initial path of reconfiguring this requirement, and in a way that would accommodate multiple interests and would, frankly, fix what had become to all honest observers, a de facto diversity faculty and student mandate — and one without the sort of mechanical head counting that was hard to implement and hard to maintain under current law. My advice went unheeded (hey, it happens) and under the pressure of many deans who encouraged the Council to vehemently resist anything they viewed as retrenchment, they retreated from their efforts and have essentially kicked the can down the road.

Now they are in a real jam. The DoJ will press hard to get the diversity mandate eliminated entirely. The room for compromise on language and structure is rapidly closing. And AG Bondi’s unmistakable threat is that the federal government will use all available authority to eliminate the ABA’s historic role as law schools’ accreditor.

 

Lest you think that this plunges law schools and their students into existential jeopardy, let me offer some ameliorative comments that come from the lessons of American federalism. Students are admitted to the bar by the authorities of state government. To more precise, this essentially means the authority of the state supreme courts. To be sure, the courts will typically delegate such authority to state bar officials. These officials will do the hard work of setting up criteria for admission. So far as ethical responsibilities are concerned (the operative phrase being “character and fitness”), these are defined by state law, although states have by and large converged on what it means to be an ethical lawyer. As to competence, this where the state bar exams come in. Although here too states have, under what Prof. David Engstrom and I have called “Our Bar Federalism,” the prerogative to create their own exams, the majority have more or less outsourced this function to the National Conference of Bar Examiners through their Uniform Bar Exam. There is more to say on the evolving bar exam situation, but not much more relevant to this post.

Here’s the kicker in all this: The determination of which students may sit for the bar is made by the states and the states alone. That the ABA has a role that law schools care about is entirely the result of the choice made by state authorities to rely on the ABA to determine which law schools are OK and which are not OK, or more to the point, which have graduated students who are worthy to sit for the bar and complete the other requirements necessary for admission and which aren’t. Interestingly, a handful of states, most notably by its size California, does provide a pathway to students who have not attended an ABA-accredited law school or, under some fairly elaborate conditions, students (think of our nation’s most famous would-be lawyer, Kim Kardashian) who have not attended law school at all.

You can see where I am going with this. Even if the Trump administration is completely successful with its scheme to remote the ABA as law school accreditor, this does not necessarily leave law students in the lurch. Rather, state bar authorities, whether as a stopgap measure or as a full response, could “rescue” law schools from the big punitive measures of the DoJ by deeming graduates of all law schools previously (measured by some period of time perhaps) accredited by the ABA to be qualified to sit for the bar. In other words, the ABA’s accrediting authority is only powerful to the extent that state decisionmakers give them this authority. Note that has loomed in the background of longstanding critiques of how the ABA has used its accrediting power. But my point here doesn’t rest on these critiques. Instead, it suggests that a totally defanged ABA doesn’t jeopardize the functioning of law schools except insofar as state justices and their authorities to whom they have delegated power have themselves put these law schools in jeopardy.

And let’s take this argument one step further: If state bar authorities were to believe that some commitment to diversity, expressed in the ways they believe are both sensible and legal, were important, they are free to come up these requirements and insist upon them as a condition for law schools to function as “acceptable” educators of students. In other words, they could do the hard work of accrediting law schools on their own initiative. I suppose we could imagine a world in which the federal government thought that it had appropriate legal authority to boss the states around in this arena, but I firmly believe that this would be a constitutional federalism bridge too far. And, in any event, Congress is more likely than not, even in an era of white-hot MAGA, to leave the sleeping dog of displacing state authority in lawyer and legal services regulation, lie.

We have gotten from there to here, to be sure, because states by and large trust the ABA to do the accrediting; or maybe we have gotten here in no small part because states do not want to do this hard work. But what the Bondi invective and relentless threats open up is the possibility that something different — something better? — will emerge from the ashes of the ABA’s accrediting history.

I add my caveat here at the end, rather than at the more-typical beginning; I do not in any way root for this Trump/Bondi outcome. Warts and all, the ABA Council has functioned as an honest broker so far as law school accreditation is concerned, at least on the whole. I have had my strong criticisms, often expressed publicly, with particular ABA decisions and non-decisions and so there is no space on the wall where I anticipate putting any award from that group anytime soon. However, I applaud the energetic, well-intentioned lawyers, judges, and educators who have, over many years, devoted their energies to improving the quality of legal education in the U.S. I highlight the “less than meets the eye” element of the Trump administration’s jihad against the ABA just to say that legal education and the process for the admission of lawyers can and ought to be resilient in the face of these threats. The immediate future in this space at least need not be a bleak one.

POSTSCRIPT:  Someone on LinkedIn (I don't have his permission to identify him, but you can look it up on my LinkedIn post) made the good point that there is more to the ABA accreditation change than bar admission.  For example, freestanding law schools who lack an approved regional accreditor may be left out in the cold.  And there may be financial aid consequences to students.  All of this suggests that (many) law schools should be wary of this potential change in any event.