It is long past time for the Department of Education to put forward a formal Request for Proposals for alternative accreditors for America’s law schools. The American Bar Association (ABA) is not able to fairly and neutrally ensure high quality education for law students.
How many Amendments to the United States Constitution have been ratified? The correct answer is 27. Perhaps a complete answer on a law school exam could note that the Twenty-First Amendment repealed the Eighteenth. Yet somehow, the monopoly law school accreditor for the entire country — until recently — says that there are Twenty Eight. That risible claim induced then-President of the United States, Joseph R. Biden, to rely on the ABA to make the same claim.
America’s law students deserve better. The venerable ABA has been completely consumed by activists unmoored from their goal. It has become a hyper-partisan organization that publishes articles endorsing filing ethics complaints against the sitting Attorney General for zealous advocacy on behalf of the President of the United States. During an unprecedented multi-year assault on the legitimacy of the U.S. Supreme Court, the ABA has not once issued a statement in defense of Justices Clarence Thomas or Samuel Alito. And a quick search of ABA’s website has never issued a statement condemning violence against judges in relation to Justice Brett Kavanaugh.
Indeed, the selective commentary on attacks on the judiciary raise serious questions of ABA’s nonpartisanship. The ABA has critiqued statements made by Republicans about “impeaching ‘rogue’ judges.” That article includes a critique of the current Deputy Attorney General. But ABA has not called out Democratic senators that attack even Supreme Court justices — so long as they are Republican appointed. Nor does ABA condemn attacks on the legitimacy of the Supreme Court made by a former U.S. Attorney General.
Even outside the ABA’s ongoing partisan activities, the ABA imposes odd and expensive programs on law school curricula that do not improve the quality of law school. That raises law school prices, and thus increases the cost of access to our justice system. Even worse, ABA tried to impose illegal racist quotas and mandates on law schools until fear of President Donald Trump led them to drop the efforts.
The ABA’s stranglehold on legal education and professional standards must come to an end. Recently, Texas and Florida have admirably taken steps to break free from ABA’s law school accreditation monopoly. Advocates are pressing Ohio to do the same, after embarrassing disclosures that ABA was pressuring Ohio schools to engage in illegal race- and sex-based discrimination to maintain accreditation. They have been supported by the Federal Trade Commission (FTC). President Trump and Secretary of Education Linda McMahon can take the first step to free the country, too.
The little-known Database of Accredited Postsecondary Institutions and Programs, housed in the Department of Education, recognizes the ABA’s Council of the Section of Legal Education and Admissions to the Bar as the sole nation-wide law school accreditor. That need not be the case. Even the first step of opening up Requests for Proposals for alternative accreditors could wake ABA up to the fact that it is the sole accreditor by grace of the legal community. And encourage it to reform its ways. In the likely event that it fails to do so, then at least States and law schools can look to alternative accreditors.
President Trump has completed his first year in office. And he has transformed many parts of American society. Here is an opportunity to leave a permanent mark on the legal profession: Let many flowers bloom. Let schools choose whether to embrace expensive and unproven curricula. Let schools avoid association with accreditors that oppose federal antidiscrimination laws. And let law schools choose to work with accreditors that can be neutral and nonpartisan.
After all, shouldn’t the folks certifying law schools can teach law students be able to print an accurate U.S. Constitution?
Eric Wessan is the Solicitor General of Iowa in the Iowa Attorney General’s office.
