By Noreen Marcus, FloridaBulldog.org
The Florida Supreme Court has assembled a committee to figure out how to stop an outsider from inflicting what it considers radical leftist standards like diversity on Florida lawyers.
That outsider is the American Bar Association, which has tangled with the Supreme Court over diversity in legal education. Now the hyper-conservative court wants to ditch a 70-year-old rule that says only graduates of ABA-approved law schools can take the Florida Bar exam, the gateway to a law license.
Knowledgeable observers say that ABA-opposition politics is driving this project. That’s not how Supreme Court Chief Justice Carlos Muniz framed the issue for the Florida Bar News, however.
“Reasonable questions have arisen about the ABA’s accreditation standards on racial and ethnic diversity in law schools and about the ABA’s active political engagement. Scholars have also questioned how ABA accreditation requirements affect costs and innovation in legal education,” Muniz remarked about the court’s March 12 order creating the six-member committee.
The order sets a Sept. 30 deadline for this working group, chaired by former conservative justice Ricky Polston, to report back to the Supreme Court. Two of the state’s dozen law schools, at the University of Florida and Florida State University, are represented on the committee.
In the meantime, opinions about changing the licensing protocol are starting to bubble up. Among those firmly opposed is Leroy Pernell, former dean of the law school at Florida A&M University in Tallahassee.
“I am very much concerned and disturbed by this. I think it’s the wrong way to go,” said Pernell, now a FAMU law professor. He stressed that he was speaking for himself, not for his school, when he said that removing ABA accreditation from licensing requirements would handicap Florida lawyers.
THE CALIFORNIA MODEL
Some states, including California, do not require candidates for Bar admission to graduate from ABA-accredited law schools. The results aren’t encouraging, Pernell noted.
“The survivability of non-ABA approved law schools in California has been questionable,” he said. “I would not call non-ABA schools big successes.”
Statistics from the State Bar of California support his observation. Graduates of ABA-approved schools who took the Bar exam for the first time in July 2022 had a 75 percent pass rate, almost six times the 13 percent pass rate for graduates of unaccredited schools, the ABA Journal reported.
And Pernell has many more concerns about endorsing non-ABA schools. “You can only practice law in your state,” he said. “It substantially reduces the opportunity for law school graduates and reduces the attractiveness of bringing in the best and the brightest students to a law school where the value of their degree is sharply diminished by the inability to practice outside the state.
“It’s really concerning that students of color in particular will be damaged because those at most ABA law schools, and particularly at HBCUs [historically black colleges and universities], tend to be more geographically diverse,” he said. “They probably won’t want to attend a law school where opportunities upon graduation are limited, so any commitment that a school has to diversity is going to be substantially harmed.”
Pernell also worries that muting the ABA’s influence “will open the door to prohibiting the teaching of certain things and expressing a centralized political viewpoint that’s at odds with ABA standards.”
The end game, he said, is to “politically exert ever greater control without being bothered by those pesky standards.”
ABA SCHOOL VETTING ‘A JOKE’
Other academics have no problem with the prospect of bypassing the ABA’s influence on lawyer licensing. “I suspect the justices think that the ABA has a leftist perspective and they want to explore that and see what alternatives exist,” said Steven Willis, a University of Florida law professor who describes himself as a Christian Republican.
Willis didn’t express an opinion about diversity but he did criticize the ABA’s approach to accreditation. He said he’s seen ABA reviewers threaten punitive action such as probation unless law school administrators gave in to faculty demands.
“I think this happens all over the place,” Willis said. He considers the ABA accreditation process “a joke.”
The diversity issue is motivating President Donald Trump, the Justice Department and the U.S. Supreme Court to reshape higher education and, indirectly, the ABA.
U.S. Attorney General Pam Bondi is pressing the 400,000-member group to stop cultivating DEI (diversity, equity and inclusion) – or else she’ll strip away its power to accredit law schools.
Also, financial pressure is building. The nonprofit ABA is subject to a Trump executive order to dump DEI programming or lose its federal revenues, which accounts for more than half of its funding.
And on June 20, 2023 the U.S. Supreme Court provided a reason for canceling DEI. The high court ended race-based college admissions policies, finding they violate the U.S. Constitution’s Equal Protection Clause.
Trump, who wasn’t president at the time, welcomed the decision as marking a “great day” for America. People with “extraordinary ability” finally would be rewarded, he said.
COURT WON DIVERSITY FIGHT
The ABA’s immediate response to the Florida Supreme Court’s new ABA-ejection committee was conciliatory.
“We welcome the opportunity to discuss the many ways that our accreditation of law schools promotes the court’s and the council’s common goals of providing excellent cost-effective legal education; producing effective, ethical and responsible lawyers; and protecting the public,” Jennifer Rosato Perea, the ABA’s managing director of accreditation and legal education, wrote to the ABA Journal.
In fact, the ABA has been conducting its own soul-searching and pragmatic reckoning about diversity, equity and inclusion.
After Trump signed his woke-begone executive order, the ABA suspended its old DEI standard and retooled the concept into “Access to Legal Education and the Profession.” Now insiders are debating how to apply this guideline to law school admissions and hiring, according to the ABA Journal.
The ABA already lost a diversity battle with the Florida Supreme Court.
In April 2021 the court revised continuing legal education (CLE) rules for Florida’s 80,000-plus lawyers with valid licenses. The justices decreed the lawyers could no longer take ABA courses to earn required CLE credits.
The court accused the ABA of setting verboten “quotas” for CLE course instructors. The ABA and the Florida Bar’s business law section had wanted CLE faculties to include all races, genders, ethnicities and viewpoints – a nod to the DEI standard.
But in the end the Bar section and the ABA backed down and stopped fighting for diversity.
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