The American Bar Association president, Michelle Behnke, gave a disastrous performance at a House Oversight Committee Task Force hearing last week.
She doubled down on DEI and couldn’t answer even straightforward questions.
In one emperor-has-no-clothes moment, she refused to answer what her implicit biases might be—even though the ABA proclaims that everyone has them.
In another, she said that she didn’t know if the U.S. has ever had a transgender Supreme Court Justice.
And in yet another, she refused to repudiate President Joe Biden’s exclusion of black men—solely on their biological sex—from consideration to be a Supreme Court Justice.
The list goes on.
But Democratic members of the Task Force tried to argue that Behnke’s and the ABA’s views don’t matter. They said that when it comes to law school accreditation it’s technically the Council of the ABA’s Section of Legal Education and Admissions to the Bar that functions as the accreditor.
And Behnke, in her opening statement and written testimony, said that the “Council is separate and independent from the ABA.” Moreover, she said that this “separation is legally required by the Department of Education.” So, she declared that she could not “speak for the Council.”
Most of that is true so far as it goes. But there’s more to the story.
Start with the facts: The Council is the accrediting entity officially recognized by the U.S. Department of Education. And the Department of Education (DOE) does require it to be “separate and independent” from the ABA.
But the devil is in the details.
On the Council’s Accreditation website (which is a section of the ABA’s larger website and emblazoned with the ABA’s logo across the top), it has a heading that asks, “What does ‘separate and independent’ mean?”
The first sentence that follows says that “The ABA does not choose Council membership or leadership.” Here’s the problem: That’s fake news.
As I explained in my own testimony at the Task Force hearing, the Council’s and the ABA’s governing documents seem to say differently.
Article IV, Section 2 of the bylaws of the ABA’s Section on Legal Education and Admissions to the Bar says that it is a requirement that “Members of the Council (with the exception of public members) shall be members of the Section.” (Only three of the Council’s 21 members are currently listed as public members).
And Article II, Section 1(a) says that to become a member of the Section, someone must first be a member of the American Bar Association.
Moreover, Article IV, Section 3 requires that all officers of the Section—all ABA members—serve as voting members of the Council.
And Article V, Section 2(a) specifies that the Chairman of the Section presides at meetings of the Council too.
That doesn’t sound very independent. Quite literally, the Council does not—and would not—exist without its ABA affiliation.
If someone believes that personnel is policy, there’s not much daylight between the Council and the “Big ABA.”
But even the formal policy process suggests that there’s not much separation between the Council’s policies and the larger ABA’s—despite the protestations from President Behnke.
Again, the FAQ page on the Council’s website contains fake news. It says that “The policies of the ABA do not influence or dictate the Council’s decision.”
But the Council has to undergo an iterative process with the ABA’s House of Delegates by submitting its policy proposals to the House, which can then send them back to the Council for reconsideration up to two times if a majority of the House’s membership disagrees with them.
The Council recognizes that serious questions are being raised about whether it truly does meet the requisite “separate and independent” requirements from the ABA, especially once someone begins to pull back the byzantine layers binding the two entities together. It’s working to implement policy changes that would create more separation between the two entities but that would not sever the ties.
The good news is that any concerns can be blunted if Congress takes action and gives law schools a choice of accreditors by 1) refusing to recognize as an accreditor any entity that requires unequal treatment based on race, 2) recognizing alternative law school accreditors at the federal level, and 3) stripping relevant federal funds from states that continue to rely on discriminatory accreditors as gatekeepers for their states’ bar exams.
President Behnke’s performance at the Congressional hearing on the ABA’s radical policies—and how those policies have informed and impacted the law school accreditation process—served as yet another signpost that the ABA’s monopolistic stranglehold on the law school accreditation process must end.
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[ H/T The Daily Signal ]
