Check out all of our diversity! I mean… access.
Despite the challenges of acknowledging and acting on the country’s deliberate systemic inequality after the SFFA decision, it seemed like the ABA was still willing to tread potentially litigious waters. Earlier this year, they planned to diversify what counted as diversity — not perfect by any means — but they were at least using a shorthand for the historically disenfranchised. A recent council proposal suggests that advocacy isn’t that high of a priority any more. The ABA Journal has the details on their suggested language change:
The council of the ABA Section of Legal Education and Admissions to the Bar has proposed reframing a contentious law school accreditation standard that encourages diversity to instead focus on achieving “access to legal education and the profession” for all qualified aspiring lawyers.
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“We have never advocated for diversity for diversity’s sake. So we decided to focus on the underlying goal that we seek to promote, which is access to legal education,” [Carla] Pratt said. “It doesn’t mean we have to fling doors open. It requires affirmative steps, concrete actions.”
Thank God they don’t have to fling the doors open! Not like they did prior to the language change; let’s not forget that both the faculty and student body of law schools have been, on balance, pretty White. Aspiring to “affirmative steps and concrete actions” is nice on paper, but is there a timeline? Are there clear goalposts to measure this “access”? Are you increasing access by lowering tuition costs or investing in a standardized testing process that doesn’t have racial bias baked into it? Because access doesn’t generally manifest without some force supporting change. Drawing on an example from our history, the Supreme Court ruled that integration was supposed to happen with “all deliberate speed” with Brown v. Board. The powers that be took deliberate speed to mean glacial — then President Eisenhower had to call in the damn National Guard to hasten the process.
What will be the concrete difference between the ABA’s “focus on access” and the Supreme Court’s “all deliberate haste” before the guard got called in?
Will they point to proof of increased access by highlighting the growing amount of female enrollment? luck not getting hit with a 14th Amendment suit for being biased toward women. Increased access by highlighting the growing amount of Black or Pacific Islander enrollment? We’re back in SFFA territory.
We’ve already seen good predictors for what happens when you get rid of affirmative action: Diversity falls substantially. If that isn’t the goal, the push for access has to be substantial. If the access is substantial, well, prepare for the proxy suits.
Earlier: Several AGs Push The ABA’s Accreditation Criteria To Comply With SFFA v. Harvard
13 State AGs Band Together To Focus On What Really Matters — Preventing Affirmative Action
ABA Committee Decides To Diversify Diversity. It Should Come With A Clear Reason For Why That’s Important
The Slippery Slope Of Ending Affirmative Action Has Moved On To Its Next Target: Women And ‘Proxies For Diversity’
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.
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