The American Bar Association (ABA) has long held a stranglehold on accrediting U.S. law schools, including by forcing a law school to discriminate on the basis of race. In 2023, the ABA decided that George Mason University Law School (now Antonin Scalia Law School) didn’t have enough Black students and forced the school to admit more Black students based on their race to keep its accreditation.
Even in Texas, the ABA gets to decide which schools’ students can take the bar exam, a prerequisite to practicing law. Entrusting a private, out-of-state organization with control over Texas legal education is problematic for three reasons: the ABA pushes politically biased standards, and it’s an unconstitutional delegation of power, and it imposes burdensome requirements.
First, a little history lesson: Forcing George Mason Law School to adopt racially discriminatory admission policies isn’t the only time that the ABA has used its accreditation monopoly to impose its ideological standards. In February 2022, the ABA instituted a new rule to enshrine its ideology in all law schools by saying they must provide education on “bias, cross-cultural competency, and racism through mandatory orientation sessions, lectures, courses, or other educational experiences.” The ABA also has other controversial rules which push forth its ideological views.
George Mason Law School wasn’t the only school to face the wrath of the ABA for daring to act contrary to the ABA’s ideological views. Using racial preferences in admissions is now illegal according to the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard. But, recently, the Pacific Legal Foundation documented how the ABA pushed law schools to discriminate from 2014 to 2023. The ABA has in the past pressured law schools to discriminate based on race in violation of state laws, so it remains to be seen whether the ABA will comply in good faith with Students for Fair Admissions v. Harvard.
But there’s a way to ensure ABA doesn’t poison Texas law schools, with its political biases—by having the Texas Supreme Court reclaim its constitutional duty.
In 1983, the Texas Supreme Court delegated its authority to approve law schools to the ABA. Previously, the Court itself determined which law school programs met licensure requirements. As a result, the ABA now decides what law schools in Texas are accredited. The reliance on the ABA should end—no unelected out-of-state private entity should have that much power in Texas. The Texas Supreme Court is considering reducing or ending reliance on the ABA to determine which law schools satisfy the law study requirements for licensure—a move that, if taken, would restore the Court’s constitutional duty.
Likewise, the Texas Legislature has delegated the responsibility of licensing attorneys to the Texas Supreme Court, and it was clear that the authority may not be handed off to someone else. The non-delegation doctrine prohibits handing off this authority to a private entity. In FM Props. Operating Co. v. City of Austin, the Court warned that delegating legislative power to private entities undermines “democratic rule” because they are not accountable to the public.
By relying on the ABA, Texas surrenders control over its legal profession to an unelected body.
The practical consequences of this unconstitutional delegation are serious because the ABA’s accreditation standards also stifle innovation and access. The ABA only allows fully accredited brick-and-mortar schools to apply for a fully online juris doctor (JD) program, leaving legal education stuck in the 20th Century. In Texas, regions like the Rio Grande Valley, Laredo, and El Paso lack ABA-accredited law schools, forcing aspiring lawyers to relocate for at least three years. By removing the ABA’s gatekeeping, Texas could unlock access to the legal profession for the people in major population centers. Allowing alternative accreditation pathways in Texas could enable more affordable, flexible, and closer programs that could meet the needs of those major population centers.
Moreover, the ABA’s accreditation standards also drive up the cost of legal education. As Josh Blackman recently noted, “there is no demonstrable connection between the ABA’s onerous regulations and promoting high-quality and cost-effective legal education.”
The ABA imposes extensive regulations on everything from diversity education to faculty hiring and library resources, which all increase operational costs for law schools, which are then passed on to students. With all the ABA regulations, it is no wonder that the average law school tuition has skyrocketed, with many students graduating with debt equivalent to a home mortgage.
It is encouraging to see that the ABA’s monopoly is now being questioned. The ABA’s monopoly reduces access, inflates costs, and imposes standards misaligned with Texas values. It is time for the Texas Supreme Court to reclaim its constitutional duty to decide what is necessary for law schools to meet Texas’s standards and take away power from a bunch of unelected people from Illinois. It’s time for Texas to lead the way.
