I am a professor at the Washington University School of Law with an academic specialization in First Amendment law. I have recently learned that the ABA is seriously considering repeal of its Standard 206. I strongly believe that Standard 206 is a desirable, important, entirely lawful mandate for law schools and, separately, that repeal of Standard 206 at this time would amount to – or at least appear as – a craven capitulation to government aggression that violates the First Amendment.
Standard 206 is desirable and wise. I have taught at law schools for more than 25 years. Although I am a straight, cisgender, white, gentile, physically abled man, I have observed with sorrow and often anger the challenges that students who lack one or more of those privileges face in navigating law school and entering the legal profession. Despite the broadly honorable efforts of the institutions where I have been proud and fortunate to teach, the overarching systems of legal education and legal practice are largely of, by, and for people like me. To require that law schools pay attention to, and make some efforts to ameliorate, identity-based disadvantages is a minimal intervention into a massive, consequential problem.
Legal education has ripple effects through society. If people of diverse identities cannot successfully pursue legal education, then the practice of law will lack people with those diverse identities. Diverse clients, in turn, will lose opportunities to engage lawyers who may better understand, and care more deeply about, those clients’ circumstances and problems. Likewise, diverse students will lose opportunities for mentorship and guidance by professors who share important aspects of those students’ distinctive life experiences. I have learned a great deal as a law professor about challenges of physical disability, minority religious belief, gender transition, and more. But I have not come close to fully understanding the experiences of people who face those challenges. Our diverse world needs diverse lawyers and law professors.
Standard 206, in its present form, is perfectly lawful. No amount of government bullying can change the fact that even the Supreme Court’s sweeping prohibition of considering race in higher education admissions leaves institutions with broad latitude to pursue and promote goals of diversity, equity, and inclusion. Standard 206 and its accompanying Interpretations explicitly disavow direct consideration of race in law school hiring and admissions. Everything the Standard mandates and encourages is perfectly consistent with a strict reading of the Court’s pronouncements.
Even if some policy consideration validly supported repeal of Standard 206 (which none does), such a repeal at this time would be deeply unwise. The Trump Administration is strenuously scheming to coerce the repeal. Apart from any arguments about the substantive validity of Standard 206, the ABA would make a serious error if it even created the mistaken appearance of bowing to government intimidation. The government would view the ABA as pliant and would accordingly intensify efforts to warp other ABA policies toward government whims. The profession and the public would view the ABA as cowardly and unprincipled and would accordingly devalue the ABA’s role in the legal profession and broader society.
Whatever substantive policy choices the ABA makes, those choices must be independent of official coercion, and that independence must be unmistakable.
Indeed, any government coercion that caused the ABA to repeal Standard 206 would be flatly unconstitutional. Standard 206 is an expression of principle, and much of what the Standard requires of law schools is expressive. A long line of Supreme Court case law makes clear that the government may not use threats of adverse consequences, including withdrawal of government benefits, to censor an institution’s autonomous expression or compel an institution to express government-approved viewpoints. Like all First Amendment protections, that noncoercion principle only carries weight if institutions assert it against violations. The leading professional association of lawyers should be the last institution in our society to voluntarily sacrifice constitutional protections.
Standard 206 is wise. It is important. It is lawful. Repeal of Standard 206 under government pressure would be, or appear, cowardly. Such repeal would degrade First Amendment protections. The ABA can and should stand up for principles of diversity, equity, and inclusion and against authoritarian tyranny. I strongly urge the ABA to retain and strengthen Standard 206.
Gregory P. Magarian
Thomas and Karole Green Professor of Law
Washington University in Saint Louis School of Law
April 7, 2026