On April 23rd, the White House issued an Executive Order titled “Reforming Accreditation to Strengthen Higher Education,” targeting the accrediting bodies of colleges, law schools, and medical schools. This, among other things, would seem to aim to embolden the federal government’s decision-making process through which colleges, universities, law schools (where we will focus), and medical schools can access billions of dollars in federal student loans and Pell grants. Put in other terms, it could, in essence, make the federal government the actual accrediting body for higher education.
What are the implications? First, the American Bar Association (ABA), and all the other accrediting bodies, will fight this for existential reasons, and the ABA is uniquely set up to do so. So I would expect we will see what has become a pattern of sorts for this administration—a pushing forward then backing a bit off that results in a compromise of sorts, ending with the ABA eliminating its currently suspended diversity standards but no schools losing accreditation and federal financial aid remaining unaltered. The hammer the White House would appear to be wielding, then, is that they could theoretically not accredit schools by taking on this authority from the ABA, and unaccredited schools would in turn not be given federal financial loan money. The diversity criteria, as noted, appear to be what the White House with its hammer is looking to continue to go after—although to steal an observation: There is patent hypocrisy in labeling DEI as discriminatory ideology but later pushing to “appropriately prioritize intellectual diversity amongst faculty.”
It should be noted that states can opt out of ABA accreditation, and my understanding is some Republican-leaning states have discussed this. The trade-off would be more autonomy with the possible risk of a law degree from an unaccredited law school (unlike an accredited law school) being less portable outside of your own state. And we do have data for bar passage in a state like California, which has a large number of law schools that are California-accredited but not ABA-accredited. The data isn’t very promising for attending a non-ABA-accredited law school and passing the bar, which tells us that the ABA accreditation process does appear to be doing its job well already. But the point being, this executive order is not something that, at a state level, could not be done anyway. It just involves the aforementioned possibility of arbitrary hard lines of dissemination of loan funds (which again we do not think will be touched).
To what applicants are asking: what happens to federal loan funding, and how will this impact law school applications, e.g. essay questions and interviews? Highly likely nothing to either. Federal funding is still there, and schools still have access to it. Indeed, the federal government has controlled it all along, so federal loans, while highlighted in the media, are no different at the law school level than before the executive order. And, as far as law school applications, they were fundamentally changed already two years ago after the Supreme Court decision in Students for Fair Admissions v. Harvard. Law schools have been much more risk-averse here than the ABA, as law schools made numerous changes to their applications already to avoid becoming the target of a federal lawsuit. If you are an applicant, these applications will likely not feel different.
In respect to diversity, we would not expect this to impact the applicant pool (rather, numbers of diverse applicants may even increase), so diverse and marginalized applicants are still going to be represented in entering classes. Some of the other innovation/value proposition components of the executive order might hurt the ABA too, but conceivably may be good for law schools that want to innovate (online, apprenticeships, etc.).
At the end of the day, this would appear to be all about DEI and forcing the ABA on that, which is harmful—heterogeneity of thought for lawyers is incredibly important to both schools and society. A homogenous mindset, which is more apt to occur when excluding diverse backgrounds, will not represent “We the people.” Beyond that—and I do want to point out the “that” I speak of is attacking DEI principles, which I strongly oppose—I strongly do not believe that loan funding and applications themselves will change due to this executive order.
On a final note, which isn’t a statement but a personal observation: Arthur M. Schlesinger Sr. (1888–1965), an incredibly influential social historian and Harvard professor, wrote in the Yale Review about the “Tide of American Politics” and calculated a very definable 20-year swing of political cycles. I bring this up because I am acutely aware and feel the concern that there is a power grab occurring against higher education, judges, law firms, and more. We have some in Congress openly wanting to impeach judges simply for disagreeing with the President. If you read Schlesinger and others, these swings have happened before and on both sides. There have been times when the Left was deeply entrenched in decision-making and the Right seemed powerless. I add these observations because nothing lasts forever. Changes to DEI now will, I believe and hope, swing back at a future date. We are always on a pendulum, and while that pendulum may feel very bad to some right now (certainly the current administration is alienating many) or may feel good to others, these changes will not be permanent, if history holds true and past is prologue.
Signed,
/s/ Mike Spivey
CEO, The Spivey Consulting Group