The U.S. Department of Education says the country’s largest legal association shouldn’t be allowed to accredit law schools. A long track record of ideological bias and a cozy relationship between an accrediting committee and the American Bar Association (ABA) proves public officials are correct in their judgment. Even with major changes to the ABA, law schools should have more choices over who gives the school a seal of quality.
In August, the Education Department recommended the ABA lose its accrediting authority. The ABA is the largest association of attorneys in the U.S.—and the world—so the department’s recommendation will have far-reaching implications.
For years, the ABA’s Accreditation Council was the only federally authorized law school accreditor. This accrediting role gives the ABA influence over law schools’ operations and instruction. The ABA claims its council is separate from the association—a separation required by law—but our Heritage Foundation colleague Zack Smith agrees with the department’s finding that this council does not approve its own bylaws “without further approvals” from the General ABA. The council, then, is not sufficiently “separate and independent” from its parent organization.
Member associations must be distinct from accreditors because associations can and will support positions on public policy issues. An organization’s divisions (such as the ABA’s Accreditation Council) will reflect the positions of its parent association. The ABA has supported abortion policies and positions in favor of so-called transgender work, as well as the use of racial preferences in postsecondary institutions. This latter position contradicts the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard, which ruled unconstitutional the use of racial preferences in higher education activities such as admissions decisions.
Notably, the ABA says the U.S. Constitution has 28 amendments. This number includes the Equal Rights Amendment, which lawmakers have not, in fact, adopted.
These policy positions affect the council’s accrediting standards and, therefore, the practices of member law schools. For example, the ABA’s position in favor of racial preferences was evident in the council’s accreditation process concerning George Mason University’s (GMU) Law School. GMU lowered its admissions standards to comply with the accreditation requirements. Not long after, in 2006, the ABA began requiring law schools to take “concrete action” to recruit and retain diverse students, faculty, and staff based on race, ethnicity, and gender.
This week, the National Advisory Committee on Institutional Quality and Integrity (NACIQI), the board advising the Education Department on accreditation, will discuss the agency’s recommendations. NACIQI should consider ABA’s ideological bias, as well as the close operations between the ABA and its Accreditation Council.
Last year, as the Trump administration exposed colleges applying racial preferences, the ABA suspended its DEI requirements. Shortly after the Department of Education released its report recommending the ABA lose its accrediting authority, the association repealed the standard entirely.
The council’s repeal of the standard does not erase concerns that similar requirements could reappear in the future. Nor does the repeal fix the other compliance issues the Department raised in its report.
If the ABA loses its accrediting status, only 14 independent law schools would be affected, according to the ABA’s website. Other university law programs can accept students using federal loans because of the university’s overall accreditation. If NACIQI votes to remove the ABA’s authority, that recommendation would not destabilize the law school community.
In fact, some state policymakers have already created new paths to accreditation. Over the last year, policymakers in Texas, Florida, and Alabama have approved alternatives to the ABA. Ohio’s Supreme Court published proposed rules in July to create alternatives to the ABA, and Tennessee officials are considering similar policy changes.
The ABA is no longer a seal of quality for law schools but a driver of radical policy positions on race and “gender.” The U.S. Department of Education has helped expose the ABA’s monopoly over law school accreditation. NACIQI has a chance this week to turn up the heat.
