For 74 years, the American Bar Association has had a monopoly on saying which law school diplomas count. Now the Department of Education’s accreditation staff recommended taking that monopoly away.
Anyone who has read the report will understand why. And anyone who has watched the ABA operate over the last decade should have seen it coming. Indeed, even while under the highest level of scrutiny, the ABA cannot help itself. In its most recent filing with the U.S. Supreme Court, the ABA took the position that despite Congress passing a law allowing indefinite detention of illegal alien felons before deportation, such a policy is unconstitutional.
Given the ABA’s partisan commitments, it is unsurprising that the Department of Education recommends finding the ABA’s Council of the Section of Legal Education and Admissions to the Bar out of compliance and recommends a simple solution: deny. Assistant Secretary David Barker explained the structural problem: Accreditation “operates like a cartel,” and “when there’s no competition, accreditors feel free to inject their own political preferences, their own ideologies into the work that they do.”
The ABA and its defenders will likely call this (like other adverse actions for its institutional discrimination) political. But before those defenders rush to credit the ABA, they should read the eye-opening report.
Start with Standard 206, the ABA’s so-called diversity mandate. It required every accredited law school to show “concrete efforts” toward a diverse student body, faculty, and staff — and the ABA’s own training materials instructed site evaluators that reporting demographic numbers was not enough.
In 2022, when the council revised Standard 206, its Standards Committee received comments warning that the standard “could result in racial balancing or other practices inconsistent with the Equal Protection Clause.” Almost an admission of illegality. The ABA answered that the Supreme Court was about to take up affirmative action and that, “should the legal standards on affirmative action change, Standard 206 will be revised at that time as needed.”
As legal experts should have foreseen, the legal standards changed. In June 2023, Students for Fair Admissions v. Harvard held that racial preferences in admissions violate the equal protection clause and Title VI. The council conceded the point in writing. Its 2023–2024 training materials told reviewers the council “will need to change the language of Standard 206 and the information it requests from law schools during Site Visits” after the decision.
But it did not change the standard to follow the Supreme Court ruling. Defying the ruling, the ABA kept enforcing the standard. The same training materials told evaluators to keep demanding “concrete efforts.” The 2024–2025 materials said the same thing. The council put Standard 206 on its committee agenda and left it there. Not until February 2025 — 20 months after SFFA — did it suspend the standard. And now, three years after the Supreme Court spoke and only under the pressure of federal review, repeal is now finally underway.
What happened next is worse than the delay. When the council finally suspended Standard 206, it instructed its staff to redact potentially embarrassing questions from site evaluations for four law schools. Guidance issued at the same time directed that complaints about Standard 206 not be given to site teams at all. That shady behavior looks more like an organization cleaning up a mess than seeking good-faith reform.
For 20 months after the Supreme Court told the country that race-conscious decision-making is unlawful, the sole federal gatekeeper of American legal education graded law schools on their racial efforts. Every law school dean who felt obligated to satisfy that standard was pushed toward conduct the Constitution forbids, by an accreditor that had already admitted as much on paper.
Standard 316 requires that 75 percent of a law school’s graduates who take a bar exam pass it within two years. It is the ABA’s flagship quality metric, the number that determines institutional life and death. Department staff asked a simple question: How did the council arrive at 75 percent? The ABA claimed it cited studies. But it never produced those studies — not in its original petition and not in its response to the draft analysis.
The pattern repeats across the report. The ABA has been using the federal term “adverse action” to mean something the federal regulation does not mean. It promised revisions to its rules and then failed to codify them in the governing document. It still has not shown that its accreditation arm is genuinely separate and independent from the ABA proper; the bylaws that would fix that major problem are still awaiting approval at a section business meeting this month.
These are not clerical quibbles. An accreditor with unwritten standards and undocumented benchmarks is exercising discretion in a manner that reflects its troubling history of viewpoint discrimination.
And of course, unremarked on in the staff report but hovering in the background is the embarrassing fact that the ABA purports to be a law school accreditor but cannot print an accurate copy of the U.S. Constitution. In August 2024, the ABA’s House of Delegates declared the Equal Rights Amendment fully ratified as the 28th Amendment to the Constitution and urged its implementation “by the legal community and all federal, state, local, territorial, and tribal governments.”
As a legal matter, believing the Equal Rights Amendment is a part of the Constitution requires reaching conclusions rejected by the Office of Legal Counsel under both parties and declined by the archivist of the United States. Every court facing such a claim has rejected it, including liberal-majority panels at the Ninth Circuit and D.C. Circuit. The stance cannot be legally justified and exemplifies the ABA’s commitment to politics over the rule of law.
Of course, the ABA may take this outlandish legal position. But it is impossible to square an inability to accurately state the law with being a monopoly accreditor of whether law schools competently teach law. After all, the ABA apparently does not even know what the law is — at least under the actual Constitution.
The ABA will say that stripping recognition destabilizes legal education. Texas and Florida both ended the exclusive ABA requirement for bar eligibility in January of this year, and their legal markets are intact. Law schools inside universities already carry regional accreditation. A handful of freestanding schools would need a new accreditor. For them, this presents an opportunity for newfound competition.
Federal recognition is a privilege conditioned on compliance rather than a perverse property right earned by longevity. The Department of Education staff documents an accreditor that enforced a standard it knew was constitutionally infirm, cannot justify its own benchmarks, and has appointed itself an amender of the Constitution. The department should follow its staff’s recommendation.
