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.