Saturday, June 19, 2021

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)

https://lawprofessors.typepad.com/legal_skills/2021/06/my-comment-on-aba-proposal-for-standard-303c.html

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Comments

You misread my post. I agree with your comment 100%. Cognitive science supports the recommendations of the McCrate Report, the Carnegie Report, and Best Practices.

Posted by: Scott Fruehwald | Jun 25, 2021 5:31:54 PM

Hmmm. One wonders how many cognitive scientists, social scientists, Ed.Ds, or any other specialists would defend the Socratic method, the 'one exam for 100% of your grade,' the 'professoriate who by and large practiced for under two years and aren't really capable or independently competent attorneys in their own right,' the shocking lack of vocational training for a supposedly professional school, the pathetically small amount of writing required as a graduate school, the need to take a third party professional licensing prep course because the law schools can't be bothered to teach that either, etc. ad nauseum into infinity as good educational or pedagogical practices. You should be careful going down the "this isn't good educational practice" road, as if cognitive scientists or social scientists or Ed.Ds were asked about law schools writ large, I think we all know their observations would look identical to the MacCrate Report everyone has avoided taking seriously for thirty years now.

Posted by: Unemployed Northeastern | Jun 25, 2021 2:21:08 PM

I agree that there is no basis, scientific or otherwise, that training and education to law students on bias, cross-cultural competency, and racism would be possible or efficacious. In fact, I would say the opposite is more likely true. Ex-lawyers have no competence to provide that training. Based on my experience with today's students, most of them would not be open to being lectured on those topics. And even if that were not the case, I don't think you can convert a racist by lecturing the person on white privilege in a law school class. It seems wildly arrogant to think that would work. If tenured law professors want to lecture people on racism, they should do it on their own time. If law schools want to help the cause, they should hire more African American, Hispanic, and Asian professors, and admit a more diverse student body. And they should also work on being less elitist themselves and stop treating skills professors like second class citizens.

Posted by: Legal Writing Professor | Jun 19, 2021 3:53:55 PM

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