Legal Skills Prof Blog

Adam Lamparello: Comment on Proposed Changes to Standard 303(c)

Legal education scholar, Professor Adam Lamparello, has submitted a comment to the ABA Council concerning proposed standard 303(c).  Here  Like the previous substantive comments, Professor Lamparello opposes the proposal.

Excerpts:

"I am writing to comment regarding the proposed changes to Standard 303(c). For the reasons that follow, the proposed changes should be categorically rejected. They are not based on credible science. They will not have a beneficial impact on students. They are vague and provide insufficient guidance to law schools, particularly concerning how to discuss the relevant topics in a balanced manner that welcomes diverse perspectives. As such, the proposed changes should be rejected."

"Empirical studies regarding implicit bias suggest that there is no credible relationship between implicit bias and biased behavior. Additionally, these studies reveal that the Implicit Association Test (IAT) is flawed and not predictive of biased behavior."

"[O]ne study summarizes concisely implicit bias's flaws:

'Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person's behavior. These findings, they write, `produce a challenge for this area of research.'

Indeed, these researchers examined "63 studies that explicitly considered a link between changes in bias and changes in actions . . . [but] they found no evidence of a causal relationship." Put simply, implicit bias's relationship to biased behavior is, at best, tenuous and, at worst, non-existent."

"Racism in any form is deplorable. Discrimination in any form, whether on the basis of, for example, race, sex, religion, sexual orientation, or gender identity, is likewise deplorable. The answer, however, is not to mandate anti-racism and implicit bias training."

"First, the evidence suggests that this training is ineffective and, in fact, may do more harm than good: '[W]hile implicit bias trainings are multiplying, few rigorous evaluations of these programs exist.'"

"Second, such training would likely involve a discussion of highly controversial concepts that are not based on science and that are the subject of substantial disagreement. For example, some universities and law schools have emphasized the deleterious effects of microaggressions, which are broadly defined as subtle comments that unintentionally reveal prejudice toward members of marginalized groups. However, as Edward Cantu and Lee Jussim explain in their article titled Microaggressions, Questionable Science, and Free Speech, there is substantial disagreement about precisely what constitutes a microaggression. . ."

"Notwithstanding, at some law schools, you can be sure that, as a part of bias and racism training, microaggressions, along with controversial concepts such as implicit bias, white privilege, institutional racism, and white supremacy, will be discussed. How does this proposal ensure that these difficult discussions will be conducted in a manner that is consistent with science and that welcomes diverse perspectives? It doesn't. And that places students, including the most vulnerable, at risk for being stereotyped and marginalized simply because they are members of a certain race - under the guise of ensuring diversity and inclusion."  [Here, Professor Lamparello gives several moving examples.]

"Third, and relatedly, this training would likely be deeply divisive because it would alienate and marginalize students who want to be judged based on the content of their character, not the color of their skin."

"The language of the proposed changes is too vague and provides insufficient guidance to law schools, particularly regarding how to discuss these topics in a balanced manner that welcomes diverse perspectives. After all, does the proposal provide any checks on law schools to ensure that whatever training, orientation session, or course they adopt will be consistent with science, not reflect ideology, and welcome diverse perspectives? No."

"Thus, if those responsible for implementing bias and racism training lack ideological diversity, how can you expect that the training itself will reflect diverse viewpoints? It won’t."

"The Council should consider a different approach to increasing diversity in the legal profession and enhancing the voices of marginalized communities. Specifically, it should focus on the professional outcomesof minority students (and all students) at ABA-accredited law schools. It does no good to admit students, regardless of race, only to see such students struggle in law school, fail the bar exam, or obtain jobs that cannot possibly pay for the crushing and non-dischargeable debt that they often incur. As such, the Council should focus on the professional outcomes of graduates at ABA-accredited law schools to assess whether their stated goal of diversifying the profession is more than mere lip service. As they say, the proof is in the pudding."

"Ultimately, in a climate where misinformation, inflammatory rhetoric, and uncivil discourse characterizes public policy discussions, the Council would set an outstanding example by basing its decision on facts and evidence. Here, the facts and the evidence overwhelmingly demonstrate that this proposal should be rejected categorically."

In sum, Professor Lamparello has written a very convincing criticism of the proposed standard 303(c).

(Scott Fruehwald)

Print Is Better For Reading

Why We Need to Rethink Digital Reading by James M. Lang.

Excerpts:

"Publishers and student-success advocates alike have embraced the shift to digital reading. From various corners of the educational world we read that digital texts can provide better access for an increasingly diverse enrollment, and can help students lower their educational costs."

"What the research shows. . . .  When it comes to the kind of focused reading that we ask students to complete in service of understanding and remembering course content, print has a substantial advantage over all the other options."

"That finding seems to be especially true for longer texts and for narrative-based reading, but Baron reports that, in most studies in this area, print is superior to digital reading for learning purposes. In some contexts, the research shows little or no difference between digital and print, but in almost no cases did digital reading prove the better option for learning."

"Print has the edge not only for learning but also in terms of student preferences. Baron has been one of the scholars surveying students about their reading preferences, and the results were a tremendous surprise to me, as I expect they might for most faculty members. If cost were not a factor, 87 percent of surveyed students said they would prefer to read course assignments in print. Why? Because, according to 92 percent of respondents, they concentrate better when they are reading a physical copy."

"Baron provides a comprehensive breakdown of the many dozens of studies on this subject, and readers can judge for themselves whether there is — in the words of one theorist she quotes — a “primacy of print.” Her book leans in that direction, but she also points out the benefits of digital reading and acknowledges that it’s clearly here to stay. Cost, convenience, and access are not issues she dismisses or minimizes, nor should we. And plenty of the reading we assign these days might be available only in digital form."

"If we assign digital reading to students, Baron argues, we must do a better job of helping them grasp it. Reading in print, on screen, and through audio formats are all very different animals — each with its own challenges and capabilities. But most of the reading strategies that students have been taught in their education — highlighting, annotating a book, taking notes separately — were developed with print text in mind, and don’t always translate to digital reading. Much as we teach students to annotate a print copy, Baron writes, "digital-annotation skills need to be taught and nurtured.'"

(Scott Fruehwald) (hat tip: John Edwards)

Could the ABA Proposal for Standard 303(c) Generate Lawsuits?

Professor Steven Solomon has raised an interesting issues concerning the ABA Council's proposal on Standard 303(c).  (here)  The proposal states, "A law school shall provide training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation."

Professor Solomon writes, "However well-intentioned, I write to protest against your proposed standards. As an initial matter they constitute unconstitutional viewpoint discrimination. I have no doubt if they were adopted they would bring immediate lawsuit."

He continues, "Second, they are ill-informed and based upon invalid social science which has not been established. More specifically, your proposals are based on pseudo-science on race relations which has no valid backing. Moreover, given their undefined nature your proposed rules are bound to bring a disparate impact lawsuit as well as a due process, reasonableness claim. If anything, the only standard that should be adopted is a race-neutral one, consistent with the law of the United States and the founding principles of the country."

Professor Solomon is probably correct.   Brian Leiter has noted, "such training will almost certainly violate the academic freedom rights of faculty at many (probably most) schools by demanding conformity to a particular ideology about "diversity," its meaning, and its value.  The ABA should not even be suggesting that schools violate the contractual and/or constitutional rights of faculty to academic freedom.  (There is a related problem with the mandatory "diversity statements" at certain public universities.)"

In addition, if such training is undertaken as advocated by critical race scholars, this training is discriminatory and would create a hostile racial environment.  For example antiractist scholar, Ibram X. Kendi, has declared, "“The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination. As President Lyndon B. Johnson said in 1965, ‘You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.’ As U.S. Supreme Court Justice Harry Blackmun wrote in 1978, ‘In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.’”  (How to Be an Antiracist (2019)).  Such a practice would obviously be illegal.

And, don't assume that the ABA proposal would not involve antiracisim.  Last fall, 150 law school deans sent a letter advocating required "training and education of its students with regard to bias, cultural awareness, and anti-racist practices."  (here)  As Professor Josh Blackman has declared, "I suspect many schools will consider requiring students, and perhaps faculty, to take the Harvard University Implicit Bias Test, known as IAT. (The American Bar Association Section on Litigation already promotes the test.)"  (here)  As I have pointed out several times on this blog and elsewhere, the validity of the IAT has not been established, and cognitive scientists, social scientists, and others have strongly disputed its use.  (here)  Similarly, CLEA recently advocated antiracism training for law students.  (here)

In its comment, CLEA favorably cited an article that advocates antiracist training for law students.  (here)  The article asserts, "Using Antiracist Reflection requires competence that is, first and foremost, grounded in critical race theory."  Likewise, an article on the ABA Solo, Small Firm, and General Practice Division advocated the use of the Implicit Bias Test.  (here)

Or, consider white fragility theory.  Under this theory, white fragility is "a defensive response by a white person when their whiteness is highlighted or mentioned, or their racial worldview is challenged, whether this response is conscious or otherwise. She gives examples including a white man accusing someone of "playing the race card" or a white woman crying to avoid conflict. DiAngelo proposes that white people are used to viewing themselves as "raceless" or the "default" race, and as such are insulated from feelings of racial discomfort."  (here)  In other words, she asserts that all whites suffer from implicit bias, and they deny this to protect their egos.  (Id.)  Imagine sitting in mandatory diversity training and being told not only that you were implicitly racist, but that you had developed defenses mechanisms to deny your racism!

I won't go into detail, but the other elements of antiracism, like microaggressions and pervasive white supremacy, are equally disputed as antiracisim theory, implicit bias theory, and white fragility theory.

Last week, the Volokh Blog reported that antiracist training has already produced a lawsuit.  (here)  From the complaint: "Through its DEI committee, weekly seminars and racially segregated affinity groups, the CAPS DEI program has maligned and marginalized Jews on the basis of religion, race and ethnic identity by castigating Jews as white, powerful and privileged members of society who contribute to systemic racism and denying and attempting to erase Jewish ancestral identity. In addition, the DEI program has denigrated the concept of Jewish victimhood and deliberately excluded anti-Semitism from the program's agenda. Ronald Albucher (Dr. Albucher) and Sheila Levin (Ms. Levin) are two Jewish employees of Stanford University (Stanford) who have worked as mental health clinicians in CAPS throughout the timeframe described in this complaint and have been subjected to an ongoing hostile environment in the CAPS DEI program on the basis of their national origin, religion and race."

In sum, Professor Solomon has raised a legitimate concern of lawsuits if the ABA enacts the proposed section 303(c).  In fact, I wouldn't be surprised if law schools that use the above antiractist methods on their students or faculty don't get sued individually.

(Scott Fruehwald)

My Comment on the ABA Proposal for Standard 303(c)

I have previously mentioned that the ABA Council has proposed several changes to the ABA standards.  I am particularly troubled by the proposal concerning 303(c) because it is based on unproven and disputed social science.

Here is the proposed 303(c): "A law school shall provide training and education to law students on bias, cross-cultural competency, and racism. . ."

You can find my full comment here.

Excerpts:

"I urge this Council to reject the proposal concerning ABA Standard 303c because training and education to law students on bias, cross-cultural competency, and racism, as these terms are currently construed in the literature, have not been scientifically proven and they are under significant dispute among cognitive scientists, social scientists, and others. These elements include 1) the implicit bias test, 2) white fragility theory, 3) microaggressions theory, 4) anti-racism, 5) pervasive white supremacy, and 6) diversity training."

Brian Leiter has criticized the ABA proposals on his Law School Reports for reasons similar to my own.  (here)  He declared,  "As a threshold matter, the ABA should have to explain why the existing standards were not more than adequate, especially since some of the proposed changes will impose substantial costs on schools and seem ill-supported by evidence. He also asserted concerning diversity training, there is evidence that such training is not effective, and can even be counter-productive. (Citing here "Yet laboratory studies show that this kind of force-feeding can activate bias rather than stamp it out.")  Professor Leiter also noted the ambiguity of the terms used in the proposal.

Most importantly, Professor Leiter declared, "Before imposing a requirement like this, the burden should be on the ABA to establish, and not simply assume, that such training is possible and efficacious."

Citing to numerous studies, I then spend several pages showing in detail that cognitive scientists, social scientists, and others have demonstrated that the elements of bias theory, cross-cultural competence theory, and racism theory have not been scientifically proven and have been highly disputed.

In sum, law schools and others should not impose 1) the implicit bias test, 2) white fragility theory, 3) microaggressions theory, 4) anti-racism, 5) pervasive white supremacy, and 6) diversity training on students because the validity of these theories have been substantially disputed.  I want to make clear that the authors of these studies are not outliers who have have deceptively selected, but authorities who are leaders in their fields.  In addition, the weight of authority concerning the above theories is strongly against their validity.

I am open to those who disagree with the above.  In fact, I challenge those who disagree with my comments to show me where I am wrong.  Please feel free to make a comment.

(Scott Fruehwald)