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Time to Liberate Legal Education from the ABA’s Systemic Ideological Corruption


The deans of 150 law schools, including all three in Oklahoma, have written a letter to the American Bar Association (ABA) asking the organization to require “every law school provide training and education around bias, cultural competence, and anti-racism.” These politically loaded terms are left undefined in the letter, but given the terminology, almost surely refer to the newest school of critical race theory, most prominently expounded by professor Ibram X. Kendi in his best-selling manifesto, How to Be an Anti-Racist. Most Americans would find Kendi’s views distinctly at odds with their own definition of racial equality. Most of us consider Martin Luther King, Jr.’s dream of a society in which people are judged not by the color of their skin but by the content of their character as the aspirational ideal. Not critical race theory and “anti-racism.” As articulated by Kendi:


Since the 1960s, racist power has commandeered the term “racial discrimination,” transforming the act of discriminating on the basis of race into an inherently racist act. But if racial discrimination is defined as treating, considering, or making a distinction in favor or against an individual based on that person’s race, then racial discrimination is not inherently racist. The defining question is whether the discrimination is creating equity or inequity. If discrimination is creating equity, then it is antiracist. If discrimination is creating inequity, then it is racist.


There is a word for this way of thinking: racism. Or, if you prefer, racialism. Though he casts himself as rescuing Dr. King’s legacy from a sanitized, incomplete popular perception limited only to the King of 1963, Kendi’s construct, in reality, requires the rejection of Dr. King’s dream. According to Kendi, race neutrality or believing one is “not racist,” is a mask that prevents progress toward true racial equity. King never espoused such views and never abandoned the precepts he lead the civil rights movement by in the early 1960s, even were Kendi’s account of his later “radicalism” accurate. As one commentator explains Kendi’s anti-racism theory:


To oppose reparations for slavery (or to have no opinion on the matter) is racist. To say “All lives matter” is to place oneself among those “beleaguered White racists who can’t imagine their lives not being the focus of any movement.” To allude to color blindness or talk of a “post-racial society,” to back religious freedom or voter-ID laws . . . these are racist things, too. Even the overarching vision that rallied white liberals to civil rights — the belief that blacks could, and should, assimilate into American society — becomes morally suspect.


But this blog isn’t intended as a meditation on race, as much as I need my inbox to fill up with love letters. My concern for the moment is more with the law school part.


A few months ago, 1889 Institute published a study about the ABA’s dysfunctional monopoly over the accreditation of law schools and proposed to break that monopoly by ending the requirement that applicants to the bar receive a degree from an ABA-approved law school. The ABA, a private trade association for lawyers, obtained its cartel over legal education after extensive lobbying of state legislatures decades ago, and its victory was nearly total. Today, in 47 states, one cannot sit for the bar exam without having first graduated from an ABA-approved school. Ending the ABA accreditation requirement would allow new law schools to open, competition from which would force innovation in the provision of legal education. Combined with an improved bar exam that better measures competency, the result would be better law schools, better lawyers and a better legal system.


The cartelization of legal education has produced precisely the results one would expect: reduced quality, increased prices, and a homogenized legal academe. This ideological regimentation has rendered law schools susceptible to being co-opted by obscure dogmas. In the case of public law schools, much of the political gobbledygook that passes for legal education is often starkly at odds with the views of the people footing a huge part of the bill—taxpayers.


This is bad for the legal system, which is enough of a reason for reform. But it’s also destructive to the political system. Lawyers play a special role in public life. Some important elected offices can only be filled by lawyers (judges, prosecutors) and others are historically dominated by them (legislative seats). Virtually every elected official relies heavily on the advice of lawyers. One would be hard pressed to think of a group of individuals who have a greater influence on government than lawyers.


We should pay attention to how these lawyers are educated and intellectually formed. In the study, I suggested that perhaps the ABA’s domination of legal education has something to do with the unusual leftward skew of lawyers as a group. It is not obvious that lawyers should be more liberal as a group than say, accountants, or doctors, or bankers. But they are. They really are. This wasn’t always the case.


Consider just the example of lawyers in Oklahoma during the New Deal era. The articles in the Oklahoma Bar Journal from that time read like letters from Wendell Willkie’s campaign committee. Much of the bar’s scorn for Roosevelt, incidentally, was directed at the President’s efforts to pack the Supreme Court. Can you imagine any bar association today excoriating Chuck Schumer and other leftwing reactionaries for dusting off this old assault on constitutional government? Me neither.


Notably, there is a dean of a top 25 law school who did not sign onto the letter (as best I can tell, on of, if not the only, dean of a Tier 1 or 2 law school who declined). This man is the first black man to serve as the dean of his law school, and speaks movingly of the discrimination he and his family faced when he was a child. Here he recounts when, in 1968, his father’s face was crushed with tire irons and baseball bats, his white assailants leaving him die in front of his young children. It’s a truly hideous tale of racial violence, the apparent motive for the crime being only the color of the victim’s skin.


I do not know this dean’s politics and do not profess to speak for him. But I can say I am proud that G. Marcus Cole is the dean of my alma mater, Notre Dame Law School. Dean Cole did not arrive at NDLS until ten years after I graduated, so I’ve never actually met him. As such, I want to be clear that the following are my own suppositions, not his, and are made from afar.


Perhaps he has other reasons for refusing to join the letter, but I suspect someone like Dean Cole—who has risen to the top of his field by overcoming real racial prejudice—has one principal reason for refusing to join the lockstep march of today’s self-proclaimed anti-racists: he recognizes their kind. They may not be violent, but at the root of their worldview is the same ugly premise as was held by the racists who assaulted his father all those years ago.


In a recent talk on race and the Culture of Life, Dean Cole reminded listeners that “each of us is made in the likeness and image of God, which means that God reflects many races, and that we need to see each other as He sees us.” This admonition is difficult to square with an ideology that considers color-blindness, itself, to be racist.


In any event, the law school deans’ misguided letter is only the latest episode in the steady leftward drift of the legal academy. Since these deans and their underlings carry such sway over our political system, shaping generation after generation of attorneys, it matters what they teach. Law school should be a place for free and open debate, which is the only way to arrive at truth. Curricula that begin with a worldview that separates thinking, unique, complicated individuals (all of us are) into either part of the racial problem or part of the solution, and that reject the idea that we ought to judge individuals as individuals, not as members of a group they had no option to join and cannot leave, are inconsistent with the American legal tradition.


Time for some competition.


Ben Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org


The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

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