The Dispatch: The American Bar Association’s Discriminatory Diversity Push Is Ending—For Now
For more than seven decades, the American Bar Association has been recognized as an authority to accredit law schools. The Department of Education recently recommended revoking that authority, and an independent advisory board will be meeting to discuss the recommendation on September 23. The department’s report mostly emphasizes other legal concerns, but it appears it has prompted the ABA to at least reconsider its longtime work on race issues.
For years, sometimes subtly and sometimes not so subtly, the ABA has nudged law schools toward racial discrimination in student admissions and faculty hiring, often in defiance of relevant state and federal law. Needless to say, this history of misconduct is extremely troubling. If the Department of Education ultimately chooses to recognize another accreditor in the ABA’s stead, it should ensure that the new authority is committed to nondiscrimination.
Several years back, researchers from Pacific Legal Foundation sent public records requests to the 50 public law schools ranked highest by U.S. News & World Report. Forty-five of these schools ultimately responded. Twenty respondents were faulted by the ABA in some way for not meeting diversity standards. Schools were criticized for not having enough minority faculty, not having enough female faculty, and not having enough racial and ethnic minority students.
Concerns about inappropriate accreditor pressure pushing schools toward admissions and hiring discrimination are nothing new. A U.S. Commission on Civil Rights report from 2007 tells the story of George Mason University School of Law (now Antonin Scalia Law School), which spent years fighting with the ABA about the racial demographics of its student body. Finally, GMU’s administration quietly gave in and started offering preferential admissions. Similarly, in 2006, the newly established Charleston School of Law initially failed to win accreditation because the ABA considered it insufficiently racially diverse. The ABA relented, granting provisional and eventually full accreditation, only after Charleston appointed a director of diversity.
Before the Supreme Court’s landmark Students for Fair Admissions decision in 2023, its Grutter v. Bollinger opinion permitted schools to use race preferences in admissions when the use of race was narrowly tailored to achieve a compelling interest in student body diversity. But the ABA routinely pushed schools to use race in circumstances beyond those authorized by the Supreme Court. Grutter didn’t apply to faculty or staff hiring, for example, and yet the ABA pushed schools to use race and sex in those contexts.
The ABA’s diversity standards also took the bizarre position that a state law requiring nondiscrimination in public education or employment (such as California’s Civil Rights Initiative/Proposition 209) did not excuse schools from their obligation to achieve the ABA’s desired demographics. The diversity standards referred to such laws as “purporting” to ban race discrimination, stating that “The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not a justification for a school’s non-compliance” with diversity standards.
As law professor and civil rights expert David Bernstein put it, the ABA was “implicitly adopting the somewhat wacky view that a constitutional provision or statute that prohibits racial preferences or consideration of race, gender, etc. in admissions is somehow unconstitutional itself.” The Supreme Court rejected a similar argument in Schuette v. BAMN in 2014. Yet the ABA never revised the relevant diversity standard language.
The ABA accreditation process doesn’t just provide law schools with an academic version of the Good Housekeeping Seal of Approval. In most states, students must graduate from an ABA-accredited law school to take the bar exam and eventually practice law. Loss of accreditation is basically a death sentence for the vast majority of American law schools, and most will do almost anything (including violating the civil rights laws) to avoid that fate.
Accreditation was originally intended to protect students from blatant fraud by academic institutions—for example, the so-called diploma mills that issue degrees in exchange for cash but don’t provide meaningful education or training. The federal interest in accreditation increased once the GI Bill began funneling more taxpayer money toward higher education. In 1965, Congress enacted the Higher Education Act, requiring federal money to go only to accredited institutions.
Accreditation was never supposed to be a tool of social engineering. Yet the ABA’s diversity standards often seemed driven more by the pursuit of social justice as the ABA saw it than by maintaining minimum educational standards. Indeed, much empirical research suggests that large racial preferences in education actually harm their intended beneficiaries.
Three years ago, the Supreme Court ruled in Students for Fair Admissions v. Harvard that race discrimination in admissions is unlawful. “Eliminating raciale discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the majority. But that promise cannot be realized if accreditation agencies like the ABA routinely pressure schools to discriminate in violation of law.
Eventually, the ABA grudgingly acknowledged that its diversity standards were in tension with Students for Fair Admissions. It announced it would temporarily “suspend” enforcement of one of its diversity standards and would take a closer look at another one. The decision to suspend rather than repeal appeared to be driven by political pressure; once a presidential administration more inclined to ignore unlawful race discrimination comes to power, the ABA’s thinking seemed to be, it will restore its old discriminatory practices. Finally, just days ago and on the heels of the Department of Education’s announcement, the ABA voted to pare back its diversity rules.
For far too long, the ABA has misused its accreditation authority to push law schools into unlawful race and sex discrimination. The Department of Education’s move to take away the ABA’s authority as accreditor will help to ensure that prospective law students and professors are treated fairly in admissions and hiring. Whether the ABA is kept as accreditor but reformed or replaced altogether by another authority, the Department of Education should stop abuses of the accreditation process that drive unlawful discrimination.
This op-ed was originally published in The Dispatch on September 23, 2026.
