The Culture War in American Legal Education Is Expanding

Major changes are underway in how law schools accept students into their classes. r.classen/Shutterstock

A broad-ranging and growing progressive movement in U.S. legal education and higher education is upending and reforming policies and practices in pursuit of increasing diversity in student bodies, as The Epoch Times reported recently.

In the legal education sector, the movement is one in which some of the most prestigious law schools, and the American Bar Association (ABA), which accredits the nation’s law schools, are aligned.

And the coalition pushing the change has been chalking up wins.

A bicyclist walks by Langdell Hall, the Harvard Law Library, on the campus of the Harvard Law School in Cambridge, Mass., in a file photo. AP Photo/Charles Krupa

But there is also strong pushback to the progressive agenda, with conservative and traditional-oriented advocacy organizations—and like-minded legal scholars and lawyers—asserting that what is happening in legal education is evidence of critical merit and competency being drastically and profoundly devalued in the United States, and freedom of speech being suppressed.

Dueling views on and approaches to how the law should be taught and practiced—with the law a fundamental underpinning of the constitutional republic that is the United States—play out during a period in which, as a Politico National Tracking Poll reports, 70 percent of registered voters say the country is on the “wrong track.”

Making the LSAT Optional

A specific and particular focus of the coalition is eliminating the mandate that law school applicants take the Law School Admission Test (LSAT), an exam that it maintains discriminates in two primary ways: through costs for a prep course and the fee to take the test, which are prohibitive for applicants of lower socioeconomic background, a high percentage of which are applicants of color; and that the test itself is racially biased.

In 2016, the University of Arizona Law School became the first law school to toss the LSAT requirement, and yet it still requires applicants to take a standardized test, if not the LSAT, then the Graduate Record Examinations (GRE).

Harvard University followed the University of Arizona’s lead a year later.

With Harvard on board for allowing applicants to take either the LSAT or GRE, a rush of law schools also decided to give applicants the LSAT or GRE option.

Opposition to ABA Policy

In November 2022, a big step was taken to remove the LSAT requirement across the legal education system when an arm of the ABA voted that, starting in 2025, it will allow its member schools to choose not only whether they will require an applicant take the LSAT, but any standardized test.

The decision won’t be final unless it is ratified in February by the ABA’s House of Delegates.

Many leaders in legal education in the nation disagree with making the LSAT optional.

On Sept. 1, 2022, with the ABA reviewing and discussing ending the LSAT requirement, and in anticipation of the ABA decision, a declaration letter of opposition to the proposed change was sent to the ABA and signed by 58 U.S. law school deans.

In the letter, the deans testify that removing the requirement “would be premature and could have effects directly contrary to what is desired.”

The letter stated that the change could have the “unintended consequence” of reducing “the diversity of law schools’ incoming classes by increasing reliance on grade point average and other criteria that are potentially more infused with bias.”

Pointed Criticism

The Legal Insurrection Foundation is a conservative organization that has been a consistent and pointed critic of what it views as the ABA’s push to integrate “woke” policies into the teaching and practice of law.

“We are in a culture war in this country,” Johanna Markind, counsel to Legal Insurrection Foundation, said in an interview with The Epoch Times.

“The American Bar Association, in its role as an accreditor, should not be partisan in that war. Its decisions should be based solely on academic criteria and how we best train lawyers, not how we best train lawyers who follow a particular ideology.

“ABA promotes ideology in other ways besides whether or not to drop the LSAT.

“In 2016, for example, it added a provision to its Model Rule of Professional Conduct 8.4 in such a way as to allow a ‘heckler’s veto,’ which would bar lawyers from saying something that another person might consider harassing or discriminatory, and subject lawyers to sanctions for doing so.

“Imagine, for example, that a lawyer batting the breeze in his law firm mentions the pending Supreme Court cases against Harvard and the University of North Carolina [cases challenging the constitutionality of affirmative action], and says he thinks the Supreme Court should prohibit racial discrimination in college admissions.

“Now imagine further that someone in the office takes offense to that and reports him for making a discriminatory remark. Sound ridiculous? It’s not so different from what got Professor Joshua Katz fired from a tenured position at Princeton; he was branded a race-baiter for opposing demands for race-based favoritism.”

New Front in the War

On Nov. 16, 2022, another victory for progressives began to play out when Yale University issued a statement saying that it would no longer provide U.S. News and World Report with internal data and information that the media company uses in developing its prestigious rankings of the nation’s best law schools.

As explained in a Jan. 12 The Epoch Times article, those who take issue with the U.S. News rankings claim the criteria that the media company uses to evaluate and grade encourages law schools, in their “quest to improve or hold on to their place,” give preference to “applicants from comfortable socioeconomic backgrounds, inhibits building a more diverse student body and discourages offering support to students seeking to pursue a career in public service.”

A bicyclist walks by Langdell Hall, the Harvard Law Library, on the campus of the Harvard Law School in Cambridge, Mass., in a file photo. AP Photo/Charles Krupa

Yale’s withdrawal from cooperating in the U.S. News rankings was an extraordinary development in that the school had occupied the top spot on the list every year since the rankings were launched as an annual issue in 1990.

Later the same day that Yale made its decision public, Harvard joined in, declaring it wouldn’t participate in the rankings, as did the University of California’s Berkeley Law the next day.

By the end of 2022, every law school on the U.S. News top 14 (T14) list, except the University of Chicago Law and  Cornell Law, was on board with the boycott.

It’s a boycott that caught the attention of U.S. News and World Report.

U.S. News sent a letter, dated Jan. 2, to law school deans in which it referenced that in “recent weeks, we have had conversations with more than 100 deans and representatives of law schools,” and that the “discussions, our own research, and our iterative rankings review process” are the foundation on which the media company is “making a series of modifications in this year’s rankings that reflect those inputs and allow us to publish the best available data.”

Law schools’ reaction to the letter, in which U.S. News describes changes it will implement in its rankings procedures, has been lukewarm and hasn’t persuaded a single institution that pulled out of participating in the rankings process to reengage with U.S. News.

Aaron Taylor, executive director of AccessLex Institute Center for Legal Education Excellence, an organization for which increasing student body diversity is a priority cause, had a mixed take on the letter.

“The letter to deans, while light on specifics, does put forth modifications that could be useful,” Taylor said in an Inside Higher Ed story published on Jan. 9.

“Reducing the weight of the peer-assessment surveys is a no-brainer and is something that should have been done long ago. Increasing the weight of outcomes will likely be welcomed by many.

“I was disappointed to see the continued absence of a diversity metric in the core methodology. I was encouraged, however, to see that U.S. News will make more data available to its subscribers to allow for more nuanced comparisons.”

In the wake of the flurry of law schools opting out of working with U.S. News in its evaluations, the company released a statement by its chief data strategist, Robert Morse, in which he said, “U.S. News and World Report will continue to rank all fully accredited law schools, regardless of whether schools agree to submit their data.”