Opposing Proposed Repeal of Standard 206 (Diversity and Inclusion) and Correcting Racial Bias in Legal Education and Correcting Racial Bias in Legal Education

We are law professors, legal scholars, and members of the legal profession committed to advancing equal protection and racial equality in legal education. In response to the Council’s February 20, 2026, decision to send the repeal of Standard 206 (Diversity and Inclusion) out for notice and comment, we urge the Council to reconsider its course. We ask that you not repeal Standard 206. Instead, we urge the Council to amend the standard by shifting it from a diversity focus to an equal-opportunity focus grounded in the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The Council should amend the standard and adopt language requiring law schools to take a corrective approach to racial-bias. This will ensure that schools examine their admissions and faculty selection systems for racial bias and that any documented bias— especially against disadvantaged minorities—is addressed. In practice, this means holistic review and, where warranted, affirmative action that accounts for documented bias in selection criteria.

Let us begin with what is at stake. Repealing Standard 206 without replacement means that the ABA—the body charged with ensuring the quality and integrity of legal education in the United States—would affirmatively permit the continued use of racially distorted selection systems—systems that produce the persistent underrepresentation of racial minorities among law students and law faculty. It would signal that the accrediting body for American law schools has no institutional position on whether the processes by which students are admitted and faculty are selected are fair. It would leave in place Standard 205’s general nondiscrimination mandate but strip away the only standard that requires schools to take affirmative steps toward equality of opportunity. And it would do so at a moment when the evidence that law school admissions and faculty-selection processes are infected with racial bias is stronger than ever.

We understand that the current formulation of Standard 206 has become legally and politically untenable. We do not urge the Council to preserve its existing language. But repeal is the wrong response. The Council’s memorandum frames the choice as binary: keep the old language or repeal. There is a third option—and it is the right one. The question before the Council is not whether law schools may consider race. It is whether they may ignore the role race already plays in the criteria they use.

I. The Council Should Amend Standard 206 and Require Law Schools to Eliminate Racial Bias in Student Admissions and Faculty Hiring Practices

The Council should replace the current diversity-centered framework in Standard 206 with a standard that requires law schools to adopt practices to identify and correct racial bias in the selection of students and faculty. The Council should explicitly align Standard 206 with the Equal Protection Clause, Title VI, and Standard 205’s existing commitment to equality of opportunity. The revised standard should require law schools to evaluate whether they employ racially biased selection process, and then take corrective steps.

This is not merely a defensive maneuver to preserve some version of Standard 206. It is a substantively stronger standard that offers a critical insight that the Council should not overlook: if law schools correct the racial bias in their admissions and hiring processes, diversity and inclusion will likely follow as a byproduct… The underrepresentation of [] minorities is often due to an overreliance on evaluation methods that tend to underestimate the abilities of minority applicants. When law schools address and correct racial biases, they can foster inclusivity without mandating it as a specific outcome. A law school that selects students and faculty using nondiscriminatory, merit-based measures may admit and hire more members of underrepresented groups. Why? Because those groups are no longer being excluded by racial distortions embedded in a law school's selection process.

The Council need not choose between lawfulness and its commitment to fairness for underrepresented minorities. Abandoning diversity as its primary rationale for achieving this fairness, however, is wise. The shift from a diversity rationale to a bias-correction equality rationale does not abandon inclusion. On the contrary, it pursues inclusion through a framework that is empirically grounded and less vulnerable to the legal challenges plaguing the current diversity standard.

II. The Bias-Correction Rationale Does Not Violate the SFFA Decision

In Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023), the Supreme Court held that race-conscious admissions programs at Harvard and UNC violated the Equal Protection Clause and Title VI. While the Court did not dispute that diversity was a compelling government interest, it found that affirmative action programs could not satisfy the narrow tailoring prong of the strict scrutiny test. The decision reasoned that this prong was unsatisfied because diversity as an interest is immeasurable and lacks an endpoint. The SFFA decision, however, neither addressed nor foreclosed a different rationale: correcting racial bias already present in a school's own selection criteria. No defendant has ever presented that rationale to the Court. It occupies doctrinal space SFFA left untouched.

We do not seek to introduce race-conscious admissions or hiring. Admissions and hiring are already shaped by race. The criteria law schools rely upon when selecting candidates are saturated with racial bias. This produces outcomes influenced by race at every stage of evaluation. We seek admissions and faculty selection processes that are as race-neutral as possible. Achieving neutrality, however, requires that schools review their selection processes for racial bias and take race into account as a means to correct and offset the already embedded bias.

Aristotle observed that the archer who aims at the mark must adjust for the wind. Similarly, a rigid application of a rule without accounting for context fails the test of practical wisdom. In admissions, the ‘wind’ is the racial bias that pervades the measures universities use to select students and faculty. Ignoring these forces (i.e., being colorblind) does not produce neutrality.

Looking for racial bias in the corrective process does not introduce race into the selection process. Race consciousness is not a departure from fairness—it is its precondition. The archer’s taking the wind into account when he aims is not tantamount to his introducing the wind.

Practicing bias correction does not require law schools to abandon measures like standardized tests. One example of this practice is to document the racial bias and perform a holistic review that does not over rely mechanically on metrics known to undervalue minority. The archer does not stop aiming at the target. He accounts for the wind.

The quest to correct racial bias has deep roots in the Court’s jurisprudence. In DeFunis v. Odegaard, 416 U.S. 312 (1974), Justice Douglas’s dissent questioned whether the LSAT discriminated against minorities. He argued that one could not conclude an admissions process constituted reverse discrimination without first demonstrating that the process itself was racially neutral. In Regents of University of California v. Bakke, 438 U.S. 265 (1978), Justice Powell’s footnote 43 identified what he called a “fifth purpose” for racial classifications:

“Racial classifications in admissions conceivably could serve a fifth purpose, one which petitioner does not articulate: fair appraisal of each individual’s academic promise in the light of some cultural bias in grading or testing procedures. To the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no ‘preference’ at all.”

Justice Powell’s reasoning resolves the strict scrutiny narrow tailoring problems that SFFA identified with the diversity rationale. A bias-correction interest can meet narrow tailoring because it is measurable and has an endpoint. It is measurable because its objective is to eliminate the effects of documented racial distortions in evaluation criteria. A bias correction interest has an endpoint. The program ends when the bias is eliminated. This is not a race-based preference. It is the precondition of a genuine meritocracy.

III. Some Evidence: Law School Selection Processes Are Not Racially Neutral

Law schools treat their admissions and hiring criteria as race-neutral. Social science, however, provides evidence that they are not racially neutral. Standardized tests, grades, and letters of recommendation carry documented racial biases that disadvantage racial minorities when evaluated.

A. Standardized Tests

Standardized admissions tests do not measure what they claim to measure—at least not equally across racial groups. A national matching study presented at trial in Grutter v. Bollinger found that when Black and White students from the same college, with the same GPA and in the same major, were compared, Black students scored 9 points lower on the LSAT—despite identical academic achievement. That gap does not reflect a difference in ability. It reflects a distortion in the instrument.

Part of the explanation lies in what psychologists call stereotype threat. When test-takers are aware of negative stereotypes about their racial group’s intellectual ability, their performance on standardized assessments drops measurably. The effect has been replicated across dozens of studies and testing contexts. Meanwhile, the SAT—even when combined with high school GPA—explains less than a quarter of the variance in first-year college performance. A test that predicts so little and distorts so much along racial lines is not a neutral measure of merit. It is a liability, and universities that rely heavily on such instruments face serious Title VI disparate impact concerns.

B. Grades

Grades are not objective. They reflect the judgment of individual instructors, and that judgment is shaped by racial bias—sometimes conscious, often not. Research has shown that when teachers hold lower expectations for minority students, those expectations become self-fulfilling: students perform worse not because they are less capable, but because they are being evaluated through a biased lens. The dynamic is not limited to K12 classrooms. In a controlled study of law firm partners, Arin Reeves gave the same legal memorandum to two groups of evaluators.

One group was told the author was Black; the other was told the author was White. Partners who believed the author was Black found significantly more errors in the identical document. They noticed different things because of who they believed had written the memo. There is no reason to think this bias disappears when professors grade law school applicants’ undergraduate work.

C. Letters of Recommendation

Letters of recommendation are among the least scrutinized and most biased components of the admissions process. Studies have found that recommenders use different language for minority and White applicants. Recommenders are more likely to write shorter letters, fewer standout adjectives, and more hedging language for candidates of color. These patterns are the product of the same implicit biases that shape grading and testing. However, in a holistic review process in which admissions committees read hundreds of letters, the cumulative effect is significant: minority applicants enter the review process at a subtle but measurable disadvantage that has nothing to do with their qualifications.

D. Faculty Selection and Retention

Law schools recruit faculty from a narrow pool. The credentials used to screen candidates (e.g., publication placement in top journals and recommendation letters) carry the same racial biases this letter has documented in student admissions... A school that has never examined whether its hiring criteria are racially biased has no basis for claiming that its faculty reflects merit rather than structural advantage.

Retention tells a similar story. Once hired, faculty of color face evaluation systems that penalize them based on their social identity rather than how they teach. Student teaching evaluations carry significant weight in tenure and promotion decisions. They are also among the most racially biased instruments in the academy. Studies consistently show that students rate faculty of color lower than White faculty teaching the same material with comparable effectiveness…

The question, then, is whether the current legal and political landscape permits the ABA to require what the evidence demands. The answer depends on what the recent laws and executive orders actually prohibit.

IV. The Federal Executive Orders and State Statutes Confirm That the Diversity Rationale Is Legal Baggage

The Council’s memorandum states that “enacted and proposed laws at the state level have made it impossible for the Council to have a meaningful Standard 206 that can apply to every accredited school across the country.” But these laws target diversity mandates, DEI offices, and preferential treatment. They do not target nondiscrimination... [Neither the executive orders or state laws…] prohibits the ABA from requiring law schools to use nondiscriminatory evaluation tools. Standard 205 cannot fill the gap either. Standard 205 prohibits discrimination. It does not require law schools to examine whether facially neutral policies and measures are discriminatory…

Without a successor to Standard 206, a law school can comply by posting a nondiscrimination policy on its website, and policing intentional racist discriminatory acts, while relying on selection criteria that systematically exclude qualified minority applicants through implicit biases it has never examined and has no obligation to address…

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Respectfully submitted,

Sheldon Bernard Lyke

Co-Signatories

Institutional affiliations are listed for identification purposes only and do not imply institutional endorsement.

• Mekonnen Ayano

  Associate Professor

  University at Buffalo School of Law
• Zsea Bowmani

  Assistant Professor

  University of Toledo College of Law
• Rame Charara

  Law Student

  Loyola University Chicago School of Law
• Charlton C. Copeland

  Professor

  University of Miami Law School
• April Dawson

  Professor

  North Carolina Central University School of Law
• Steven Dean

  Professor and Paul Siskind Research Scholar

  Boston University School of Law
• Mark Derflinger

  Attorney

  Public Record
• Lakshmi Gopal

  Attorney

  Public Record
• Carmen Huertas-Noble

  Professor

  CUNY School of Law
• Darren Hutchinson

  Professor and John Lewis Chair for Civil Rights and Social Justice

  Emory Law School
• Akhi Johnson

  Assistant Professor

  University of Massachusetts School of Law
• Seema Mohapatra

  Professor and MD Anderson Foundation Endowed Professor in Health Law

  SMU Dedman School of Law
• Brian L. Owsley

  Associate Professor

  UNT Dallas College of Law
• Tomar Pierson-Brown

  Assistant Professor

  University of Pittsburgh School of Law
• Matthew Patrick Shaw

  Associate Professor

  Vanderbilt University Law School
• Jonathan Sheffield

  Clinical Assistant Professor

  Loyola University Chicago School of Law
• Omavi Shukur

  Assistant Professor

  University of Maryland School of Law
• Gemma Solimene

  Clinical Associate Professor

  Fordham University School of Law
• Joan E. Steinman

  Professor Emerita

  Chicago-Kent College of Law, Illinois Institute of Technology
• Sakinah Tillmam

  Assistant Professor

  University of the District of Columbia David A. Clarke School of Law
• Ruqaiijah Yearby

  Professor and Judge Clifford Scott Green Chair in Law

  Temple University Beasley School of Law