ABA Standard 206 Blog Symposium | Law School Deans’ Letter

Dear Chair Thies,

We are writing as deans and former deans of law schools in response to the Council’s request for comments on proposed changes to Standard 206 of the ABA Standards and Rules of Procedure for Approval of Law Schools. We disagree with the Council’s decision to suspend Standard 206 and urge the Council to reinstate it. Eliminating Standard 206 goes much further than the law requires and creates the very real risk that law schools will abandon commitments to promoting the diversity of a profession with a unique role in advancing a pluralistic democracy.

Standard 206, in its current form, states an obligation of law schools to take steps that enhance access to the legal profession and ensure environments that enable full opportunity to study the law. It provides:

• (a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.
• (b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.

The proposal would eliminate this Standard. Nothing in the law requires this action. Nothing in the Supreme Court’s decision in Students for Fair Admissions v. Harvard and University of North Carolina (2023), precludes schools from continuing to pursue diversity as an objective. Rather, the Court limited the means that may be used. The Court did not prohibit schools -- or the American Bar Association -- from pursuing the goal of a diverse student body and a diverse faculty.

Indeed, the Court authorized decision-making that accounts for experiences connected to race, permitting universities to consider student essays that discuss racial identity and experiences related to racial identity and racism: “[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise….” The Court also suggested that the military may have interests that justify it taking race into account in admissions decisions. Thus, SFFA cannot plausibly be read to require colorblindness in the admissions process or to preclude pursuing diversity as a goal.

Nonetheless, opponents of racial equality are interpreting the Court’s decision to bar schools from even pursuing diversity as a goal. That is not what the Court said, and the ABA should not change its standard to implement this political agenda. After the police killing of George Floyd,the ABA and numerous other bar associations have vowed “to develop and implement solutions” to racism in the legal system.

The proposed revision of Standard 206 would seriously undermine this essential commitment, which properly recognizes the history of exclusion from opportunity on the basis of race. The current version of ABA Standard 206 is right in expressing a commitment to diversity, which is integral to the education of all of our students and in preparing them to be lawyers. That all said, we propose these two minor revisions to the Standard (bolded and underlined below).

• (a) Consistent with sound legal education policy and the Standards, and as permitted by federal and state law, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.
• (b) Consistent with sound educational policy and the Standards, and as permitted by federal and state law, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.

The ABA thus should continue to insist that law schools take steps, consistent with both federal and state law, to demonstrate a commitment to diversity and inclusion. The ABA should not abandon its commitment to this vital goal, even though the Supreme Court has limited the means that can be used to achieve it. The ABA’s changing this standard sends an undesirable message to law schools that they no longer should pursue diversity in their student body and on their faculty.

This letter is signed by deans as individuals, not on behalf of law schools or universities, and the titles and affiliation are for identification purposes only.

Sincerely,

• Erwin Chemerinsky

  Dean

  Jesse H. Choper Distinguished Professor of Law

  University of California Berkeley School of Law
• Marisa S. Cianciarulo

  Dean and Professor of Law

  Western State College of Law
• Danielle M. Conway

  Dean and Donald J. Farage Professor of Law

  Penn State Dickinson Law and School of International Affairs
• David L. Faigman

  Chancellor & Dean and John F. Digardi Distinguished Professor of Law

  University of California College of the Law, San Francisco
• Roger A. Fairfax, Jr.

  Dean and Professor of Law

  Howard University School of Law
• James Hackney

  Dean and Professor of Law

  Northeastern University
• Zelda B. Harris

  Dean and Professor of Law

  Western New England University School of Law
• Joan Howarth

  Dean Emerita

  Michigan State University College of Law
• Lolita Buckner Inniss

  Dean and Provost’s Professor of Law

  University of Colorado Law School
• Johanna Kalb

  Dean and Professor of Law

  University of San Francisco School of Law
• Michael J. Kaufman

  Dean and Professor of Law

  Santa Clara University School of Law
• Lisa A. Kloppenberg

  Dean Emerita, Professor of Law, &

  Special Assistant to the Vice President of University Relations

  Santa Clara University
• Tamara F. Lawson

  Toni Rembe Dean and Professor of Law

  University of Washington School of Law
• Dayna Bowen Matthew

  Dean and Harold H. Greene Professor of Law

  George Washington University Law School
• William McGeveran

  Dean

  William S. Pattee Professor of Law

  University of Minnesota Law School
• Kristen E. Murray

  Interim Kean Family Dean and Professor of Law

  Temple University, Beasley School of Law
• Camille Nelson

  Dean and Professor of Law

  University of Hawai‘i at Mānoa William S. Richardson School of Law
• Vivian I. Neptune-Rivera

  Dean

  University of Puerto Rico School of Law
• Angela Onwuachi-Willig

  Dean and Ryan Roth Gallo Professor of Law

  Boston University School of Law
• Alicia Ouellette

  Jordan D. Schnitzer Dean

  Lewis & Clark Law School
• Sam Panarella

  Dean & Professor of Law

  University of Massachusetts School of Law - Dartmouth
• Jenny Roberts

  Dean and Professor of Law

  Maurice A. Deane School of Law at Hofstra University
• Michael Hunter Schwartz

  Former Dean & Professor of Law

  University of the Pacific McGeorge School of Law
• Anthony E. Varona

  Dean and Professor of Law

  Seattle University School of Law
• Robert A. Schapiro

  Dean and C. Hugh Friedman Professor of Law

  University of San Diego School of Law
• Michael Waterstone

  Dean and Professor of Law

  UCLA School of Law