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‘It will require Congressional action to prohibit accreditors from using diversity standards to push schools into violating the Supreme Court’s decision’

The American Bar Association has temporarily suspended its accreditation standard that required law schools to commit to diversity, but Attorney General Pam Bondi and others are calling for the group to end the rule permanently and officially.

The controversy is one reason why some believe America needs a law that explicitly outlaws DEI accreditation standards across higher education.

“Our proposal would amend existing law to make clear that accreditors are prohibited from pressuring individual colleges or universities into engaging in illegal racial preferences,” wrote U.S. Commission on Civil Rights Commissioners Gail Heriot and Peter Kirsanow to Louisiana Sen. Bill Cassidy, chair of the Senate Health, Education, Labor, and Pensions Committee.

In addition to their roles as commissioners, Heriot is a law professor at the University of San Diego, and Kirsanow, who chairs the commission, also serves on the advisory board of the National Center for Public Policy Research.

“Accreditors have long been strong-arming colleges and universities into ever greater levels of racial preferences,” stated their 16-page letter, which outlined numerous examples of illegal race-based accreditation standards, including with the ABA.

Heriot and Kirsanow argued that to ensure the ABA complies with the Supreme Court’s SFFA decision, the country needs legislation that would allow law schools “to pursue the ‘diversity policies’ of its choice without interference from accreditors, so long as [they act] within the confines of the law.”

In support of this argument, the two showed that the ABA has admitted before the Supreme Court that their diversity standards can “can only be satisfied at many schools through preferential treatment based on race (and hence by violating the law) three times, including the SFFA cases in 2023.”

Heriot and Kirsanow argued that while many institutions may “covertly discriminate” in violation of the Supreme Court ruling, this issue will be exacerbated by “accreditors that browbeat colleges and universities into violating the law.”

The association suspended its DEI accreditation standard after President Trump in late January signed an executive order to “end illegal DEI discrimination,” which includes a clause that the attorney general formulate a plan to “deter” DEI programs in state and local bar associations.

The ABA, recognized by the Department of Education as the “national primary law school accreditor,” temporarily suspended it on Feb. 21.

This came over a year and a half after Supreme Court ruling in Students For Fair Admissions vs. Harvard and UNC, which banned race-based admissions. The association currently plans to meet and decide on the future of the diversity policy, called Standard 206, in August.

Despite its suspension, the ABA emphasized in public statements that its “commitment to ensuring access to legal education to all people, including those who have been historically excluded from the legal profession, has not changed.”

Bondi subsequently wrote a letter to the ABA on Feb. 28 stating that while the suspension is a “welcome development,” the association has “just one appropriate course: The Standard must be repealed in its entirety.”

“Even without an explicit mandate requiring law schools to actually have diverse faculties and student bodies, any requirement that law schools demonstrate ‘a commitment to diversity’ is deeply problematic,” she wrote.

“Consider the proposed amendment the Council declined to adopt on Friday. Aspects of the proposed amendment would have required schools to blatantly violate civil rights laws by, for example, intentionally working to achieve a faculty and staff that are diverse with respect to race, gender, and gender identity. Race- and sex-based preferences are illegal, and as the Supreme Court explained in SFFA, ‘universities may not simply establish” the same through ‘other means.’”

David Brennen, chair of the ABA’s Council on Legal Education and Admissions to the Bar, wrote a letter in response, reiterating that Standard 206 is currently suspended. He stated that while no further action will be taken until the council’s next meeting in May, the ABA “has not and will not require a law school to violate the law in order to comply with its accreditation standards.”

This controversy has led the Florida Supreme Court to create a working group that will answer questions about “the ABA’s accreditation standards on racial and ethnic diversity in law schools and about the ABA’s active political engagement.” The group will study and reconsider the state’s requirement for students to have passed an ABA accredited law school to take the bar exam.

The state of Florida is also considering dropping its requirement that students have graduated from an ABA-accredited institution in order to take the Florida bar exam.

In an interview with The College Fix, Heriot said she is “pleased” with the ABA suspension, but that the ABA “has reserved the right to resume enforcement at any time.” She said she believes that the association will presumably “start applying them when it figures it can.”

What’s more, other university accreditors have not stopped applying their diversity standards, she said. Ultimately, “it will require Congressional action to prohibit accreditors from using diversity standards to push schools into violating the Supreme Court’s decision,” she said.

Numerous law schools did not respond to The College Fix’s request for comment.

A spokesperson for Liberty University told The College Fix it “is currently conducting a comprehensive review of programs and policies to ensure compliance with the federal laws referenced in the Education Department’s recent guidance.”

MORE: Former department official slams new DEI rule for federal education grants

IMAGE CAPTION AND CREDIT: The capitol building in Washington, D.C. / Shutterstock

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