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Who Runs the Legal Academy?

It’s worse than you thought; the lunatics license the asylums in addition to running them.

The most disturbing detail that emerged from the coverage of Professor Josh Blackman’s widely-publicized shout-down by leftist protesters at CUNY Law School was that CUNY law dean Mary Lu Bilek—who defended the disruptive mob as “reasonable” and engaging in “protected free speech”—serves on an ABA “site visit team.”  Indeed, her official CUNY bio states that Bilek “served on the ABA Special Committee on the Professional Education Continuum, and chaired the Section on Legal Education Diversity Committee.” An academic who can’t tell the difference between a reasoned debate and the “hecklers’ veto” is a honcho with the organization responsible for accrediting law schools? [1] That struck me as odd, so I dug deeper.

This is the first installment in an occasional series.

Bilek, it turns out, has a long progressive resume, albeit entirely consistent with the left-wing agenda of the ABA. One reason that law schools are becoming monolithic social justice academies and ideological echo chambers is that the ABA—in its capacity as regulator—is pushing them to do so. When I looked at my alma mater (the University of Texas law school) recently, I was staggered by the extent of the internal bureaucracy dedicated to “diversity and inclusion,” including a full-time administrator devoted to “student affairs, inclusion and community engagement” and a dean-appointedcommittee on diversity and inclusion.” (This is in addition to race-based preferences in admissions that UT has fought hard to continue.)

I was initially curious about why a publicly-funded law school that continually complains about inadequate legislative funding would expend its scarce resources on a subject seemingly unrelated to the school’s core mission: teaching students to be competent lawyers. Then I discovered that the ABA has made “diversity and inclusion” one of its accreditation standards. Standard 206 states that:

(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

(b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.

Clearly, law schools create diversity infrastructure in order to appease the ABA. A “diverse” student body, faculty, and staff has become mandatory.

If the text of Standard 206 is not clear enough, the accompanying “interpretation” makes explicit that pro forma compliance is insufficient; quota-conscious affirmative action is required: “In addition to providing full opportunities for the study of law and the entry into the legal profession by members of underrepresented groups, the enrollment of a diverse student body promotes cross-cultural understanding, helps break down racial, ethnic, and gender stereotypes, and enables students to better understand persons of different backgrounds.” [2] While no specific actions are required, the ABA warns that:

The determination of a law school’s satisfaction of such obligations [to promote diversity and inclusion] is based on the totality of the law school’s actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a favorable environment for students from underrepresented groups. [3]

Evidently, a purely meritocratic admissions process, without regard to the race, ethnicity, and gender of the admitted students (denying them the “cross-cultural understanding” that the ABA deems essential to sound legal education) would result in a law school’s loss of (or inability to attain) accreditation—making it impossible for its graduates to practice law. So far, the ABA is not insisting on “diversity and inclusion” with respect to disability, sexual orientation, and “gender identification,” but those are on the horizon, “gender identity” and “gender expression” having already been adopted as totems by the influential Association of American Law Schools.

This is where ideological zealots such as Dean Bilek, serving as an ABA commissar, play a fateful role. Progressive activists selected for these positions (how and by whom I do not know) [4] wield life-or-death power over the law schools they subject to what the ABA euphemistically calls “site visits,” but would more commonly be referred to as compliance inspections. The ABA decides, based on the “totality” of a subject school’s actions and results, whether the institution’s “commitment” is fulsome enough. Such vague standards invite subjective application, prompting schools to “over-comply” to avoid an adverse finding.

The result is the establishment of cookie-cutter “diversity and inclusion” departments at law schools, staffed with affirmative action hires likely to be social justice warriors. John McGinnis has noted in this space the common linkage between minority status and left-wing political orientation: “Since minority and female law professors are likely to be even more left-liberal than white males, the routine diversity policies of law schools decrease the number of conservatives and libertarians compared to a baseline of purely merit selection.”  Thus, the irony is that ABA standards purportedly designed to increase “diversity” actually stifle the most important type of diversity—a spectrum of different points of view. McGinnis concludes: “Racial and gender diversity does reduce ideological diversity.” (Here is just one example.)

Throw in the ABA’s Model Rule of Professional Conduct 8.4 (defining professional misconduct to include “harassment or discrimination” on the basis of the Left’s favored protected classes), which could chill the pedagogy of law professors holding law licenses, and one begins to see the imposition of a speech code, potentially proscribing criticism of, say, same-sex marriage, transgenderism, illegal immigration, radical Islam, or even the welfare state.

Which brings us back to Dean Bilek, who applauds her students’ noisy disruption of an invited speaker, and defends the hecklers’ right to shout down a presentation (ironically, on the importance of free speech on campus) that some students wanted to hear. Bilek is either ignorant of the First Amendment or willing to ignore it. In either event, given the scope and breadth of the ABA’s power, over both law schools and practicing lawyers, it is deeply concerning that an ideologue so dismissive of the importance of free speech is invested with such broad authority.

The lack of balance in the legal academy is a serious problem, and is getting worse. Few outside the academy pay attention, compounding the problem. (Walter Olson’s excellent 2011 book, Schools for Misrule, is a notable exception.) The ABA has too much control over accreditation standards that have little or nothing to do with maintaining the quality of legal education, and everything to do with promoting a leftist ideological agenda. I will return to this topic in future posts.

[1] Brian Z. Tamanaha, Failing Law Schools 11 (2012) (45 states, by order of their state supreme court, require graduation from an ABA-accredited law school as a requisite for admission to the bar).

[2] Interpretation 206-2.

[3] Id. (emphasis added).

[4] I welcome tips from readers with such knowledge.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 02, 2018 at 07:48:14 am

Thanks for this disquieting reminder that the Left's "long march through the institutions" continues apace. We are seeing the same thing now in medical education. Competence in legal and medical practice must take a back seat to the ability to spout social justice platitudes.

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Image of George Leef
George Leef
on May 02, 2018 at 08:49:34 am

Its not going to stop until state legislatures or state supreme courts start rejecting the ABA accreditation model. Why doesn't the Federalist Society (or something similar) become a federally-recognized accrediting agency? Then a place like Texas could stop supporting the left-wing ABA by requiring accreditation from them.

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Image of Devin Watkins
Devin Watkins
on May 02, 2018 at 08:55:43 am

Devin and I agree!

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Image of Mark Pulliam
Mark Pulliam
on May 02, 2018 at 09:50:57 am

[…] Mark Pulliam: Who Runs The Legal Academy? […]

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Image of Not Before My Morning Coffee: 5-2-18 | The Universal Spectator
Not Before My Morning Coffee: 5-2-18 | The Universal Spectator
on May 02, 2018 at 10:04:32 am

"how and by whom I do not know"

Then how do you expect anyone to take you seriously?

I guarantee Bilek and her ilk do!

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Image of David Warner
David Warner
on May 02, 2018 at 10:24:33 am

As Mark Pulliam develops his analysis further, there will be occasion for more incisive, not just critical commentary.

Going further, it may be enlightening if we consider how and why we have come to have "Law Schools" (usually as parts of University systems); what needs of the social order called forth the creation and development of these facilities or instrumentalities - and - significantly, how are they related to the Legal System (and affected by what has been occurring in that system and its role in our social order).

Then, as in all such socially generated facilities we might give some thought to their "internal" evolution; giving consideration to the growing dominance of the priorities of the individual relationships within the facilities that have created "Institutions" with "purposes" and objectives of their own, distinct and separate from those which gave rise to their creation.

This issue is important to understand, but it probably can not be understood fully or correctly in isolation.

We might keep in mind that "our" legal system, in response to the movements within our social order may no longer be primarily about the Law, its procedures, and "Justice." That will affect every thing connected with that legal system.

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Image of R Richard Schweitzer
R Richard Schweitzer
on May 02, 2018 at 11:16:11 am

The ABA was once a bastion of conservativism in the profession. As it turned leftward, beginning in the 1960's, most conservative lawyers stopped seeking office or cancelled their membership in the organization. As a result, the Assembly of Delegates is now an echo chamber for left progressives and social justice radicals. In a sense we conservatives must bear much of the blame for giving up the fight for influence in the ABA without realizing the long term consequences for the legal academy..

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Image of Robert Scully
Robert Scully
on May 02, 2018 at 12:49:11 pm

Look to the nominating committee provisions whjch tend to preserve the little oligarchies which are the inevitable result of "organization."

It does seem that all "organizations" are subject to: "The Iron Law of Oligarchy."
We may derogate them as "cliques" or "the establishment;" but. they are oligarchies; most of which become self-perpetuating.

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Image of R Richard Schweitzer
R Richard Schweitzer
on May 02, 2018 at 13:52:17 pm

I second this motion!

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Image of Paul Binotto
Paul Binotto
on May 02, 2018 at 16:31:42 pm

Mr Scully touches upon a very critical component in the Left's march through the institutions. Pulliam's essay above details the mechanism (ABA accreditation) that has resulted in Left wing dominance of the profession of the Law (more to come from Mark, I am sure). What is left unsaid by Pulliam, although I suspect not unnoticed, is the *strategic* (let us hope it is strategic) retreat by conservatives from the Legal Academy which Scully addresses.

However, the Legal profession is not alone in this willing abdication of its "duty" to shape, monitor, and. to some extent, control the content, thrust and philosophy of academic pedagogy / instruction. Look to any other academic field, primarily, but (unfortunately) not exclusively in the social sciences / humanities. Recall that a religious believer in Washington State was dismissed from Teachers College because the accrediting body had so influenced the faculty as to impel them to declare that a believer, by definition, is insufficiently accepting of (potential) homosexual and minority students. One need only look to the College Board and the excrescences that it incorporates into its' syllabi in matters of US History, race relations, etc - all of which are topics that a college applicant must *master*.
Even certain areas of the physical sciences are subject to this "institutionalization" about which R. Richard writes. Has there been a dissenting voice in biology for the last 75 years. any foolish enough to arise are soon treated to "Gone with the Wind" comparisons. Next would be climate science. Oops, that is *settled science* isn;t it?

In all of these disciplines, we may also observe the voluntary (Ok, it may be somewhat rational) withdrawal of countering conservative voices. Let us not simply place all blame on the Lefties - we also are a significant factor in the demise of proper education / training.

"What we have here is a failure [ on the part of lawyers to recognize that legal pedagogy / philosophy is settled].

The stench from the consumption of those "settled eggs" is overwhelming! (with apologies to Paul Newman).

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gabe
on May 02, 2018 at 20:58:25 pm

Recall that Duke University had (has) a first-class law school, including some profs who were considered as possible SCOTUS appointees; but that during the infamous lacrosse case, not one professor or student attempted to help out during the attempted railroading of three profoundly innocent Duke students.

Now, what if any aspect of those accused students had been different --their ethnicity, their social class, their sexual orientation. How many professors and law students would have been volunteering to help their defense at the drop of a dime?

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Image of Chavez
Chavez
on May 02, 2018 at 21:19:05 pm

Yep, Devin is correct BUT ALSO THE fEDERALISTsociety OUGHT TO ENCOURAGE *RIGHT-THINKING* INDIVIDUALS (oop, caps) to STAY in the academy!

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Image of gabe
gabe
on May 02, 2018 at 21:29:37 pm

And in the continuing effort to prvide *real-time* confirmation of assertions by we DEPLORABLES (sorry, Mark - it ain't you babe" as the sone from the 60's says) there is this:

https://hotair.com/archives/2018/05/02/shocker-top-liberal-arts-colleges-dont-hire-republicans-conservative-faculty/

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Image of gabe
gabe
on May 03, 2018 at 04:45:13 am

[…] “harassment or discrimination” on the basis of the Left’s favored protected classes), which could chill the pedagogy of law professors holding law licenses, and one begins to see the imposition of a speech code, […]

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Image of Who Runs the Legal Academy? by Mark Pulliam | RUTHFULLY YOURS
Who Runs the Legal Academy? by Mark Pulliam | RUTHFULLY YOURS
on May 03, 2018 at 09:23:24 am

Herein is the "self-destruction of "institutionalization" that results from the self-perpetuation of small "closed" oligarchies determined by selection of non-threatening (and thus less and less competent ) associates and successors.

Hayek writes about that phenomenon in another contexr of "centralization."

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Image of R Richard Schweitzer
R Richard Schweitzer
on May 10, 2018 at 00:33:51 am

[…] Mark Pulliam at Liberty and Law explores a theme I raised in Schools for Misrule: the ABA accreditation process for law schools is ideologically fraught and pushes the schools toward certain prescribed views of social justice. Even for well-established, high-ranking schools the process can be an arduous one, propelled by “what the ABA euphemistically calls ‘site visits,’ but would more commonly be referred to as compliance inspections.” And the standards are not neutral — in particular not Standard 206, which establishes “diversity and inclusion” as one of the association’s accreditation desiderata. Under that standard, site visitors and reviewers investigate the institution’s “commitment” to diversity, evaluating that commitment in light of the “totality of the law school’s actions and the results achieved.” […]

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Image of Accreditation process pulls law schools leftward – John Culbreath
Accreditation process pulls law schools leftward – John Culbreath
on May 21, 2018 at 18:39:59 pm

[…] “Who Runs the Legal Academy?,” by Mark Pulliam […]

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Image of Ep. 1162 The Law Schools Are Run by Crazy People | Tom Woods
Ep. 1162 The Law Schools Are Run by Crazy People | Tom Woods

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.