ABA's New Anti-Bias Curriculum Rule Is Insufficient

By Donna Mulvihill Fehrmann | March 11, 2022, 5:36 PM EST ·

Donna Mulvihill Fehrmann
Donna Mulvihill Fehrmann
Last month, the American Bar Association's House of Delegates approved a revision to the legal education program with amendments to Standard 303 on curriculum.

The revision will add a requirement that law schools offer "substantial opportunities for ... the development of a professional identity." Per the revisions, professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society.

The revisions to Standard 303 provide that the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination and racism in the law should be among the values and responsibilities of the legal profession to which students are introduced.[1]

The ABA House of Delegates also approved the addition of Standard 303(c) to the curriculum standard to require that:

(c) A law school shall provide education to law students on bias, cross-cultural competency, and racism.

The education need not come through an added course, but could be satisfied with an orientation session, a lecture or other educational experiences that train students in cross-cultural competency. The training is required to come twice during the law school experience — at the start of legal education and once again before graduation.

While the approval of this training, confirming the need to educate law students in "bias, cross-cultural competency and racism" is a step in the right direction, the vague mandate with no new course requirement is not enough. This required training lacks any acknowledgement of the institutional bias at the center of the epidemic of injustice and over-incarceration of Black men in this country and feels very inadequate.           

When you look at the NAACP's statistics on racial disparities in the criminal justice system, cited in an article in one of the ABA's own publications, the informal training on professional identity and cross-cultural competencies feels woefully lacking.

Although Black people make up just 13.4% of the population in this country, they make up:

  • 22% of fatal police shootings;
  • 47% of wrongful conviction exonerations; and
  • 35% of individuals executed by the death penalty.[2]

Black Americans are incarcerated in state prisons at nearly five times the rate of white Americans. Nationally, 1 in 81 Black adults in the U.S. is serving time in state prison. In 12 states, more than half of the prison population is Black. Seven states maintain a Black/white disparity larger than 9-to-1.[3]

In a study of wrongful convictions occurring from 1989 through early 2019, Black defendants were more than twice as likely to be victims of misconduct that contributes to wrongful convictions in drug crimes, at 47%, compared to 22% for white defendants.[4] In exonerations involving death sentences, there was police or prosecutorial misconduct in 87% of the cases involving Black defendants, compared to 68% for white defendants.[5]

The ABA's baby step requiring an informal conversation about racial bias is gravely insufficient in the face of the harrowing statistics on how the current legal system is victimizing Black men in this country. The legal institution needs more than diversity training — it needs to study the statistics, own the mistakes that have been made, and commit to training a future of lawyers who won't so easily make the same mistakes.

The ABA should update the legal curriculum to include both a required (1) criminal justice reform class — the statistics on wrongful convictions, how they happen and how they disproportionately impact Black men in this country and how the legal institution can address the epidemic of wrongful convictions and mass incarceration; and (2) criminal defense class to teach all lawyers how to defend the most vulnerable against abuse.

In stark contrast to the ABA, the American Medical Association has launched an Organizational Strategic Plan to Embed Racial Justice and Advance Health, whose origin dates back to June 2018.[6] In an 85-page, three-year strategic plan, the AMA sets forth a road map for urgent action to embed racial justice in medicine and advance health equity for years to come.[7]

By offering education, building alliances, demanding organizational change, empowering physicians, studying the drivers of inequity and confronting the history of racism, the AMA details a plan for substantial progress toward its vision for equity and justice in medicine by 2023.

As part of the plan, the AMA commits to seeking the truth and "recognizing and rectifying historical injustices"[8] as well as "acknowledg[ing] the historical realities that powerful organizations and structures, rooted in white patriarchy and affluent supremacy ... have both intentionally and unintentionally made invisible."[9]

The plan includes the creation and implementation of the Health Equity Education Center, as well as expanding the online equity curriculum for physician and medical student engagement. The AMA Health Equity Center has developed extensive learning modules that are being considered by several specialty licensing boards for mandatory training for licensing.[10]

While there are no required courses yet, that change looks imminent and this work is a huge step toward achieving equity in medicine.

Additionally, three new policies focused on racial equity passed at the November 2020 Special Meeting of the American Medical Association House of Delegates. These policies (1) denounce racism as a public health threat; (2) call for the elimination of race as a proxy for ancestry, genetics and biology in medical education and research; and (3) decry racial essentialism in medicine.[11]

In adopting the policy declaring racism a public threat, the AMA acknowledges that structural, systemic and interpersonal forms of racism and bias exist across society and present threats to both society and the health care industry.[12]

The comprehensive AMA plan is impressive. The statistics on racial disparities in access to health care are far less horrific than the statistics on racial disparities in the criminal justice system,[13] yet the medical profession has prioritized this issue and committed to being a part of owning this problem and saving future victims.

The legal institution has been incredibly resistant to acknowledging the widespread problems in their own criminal justice system. While the medical profession acknowledges the wrongs of the past and commits to health equity in the near future, the legal profession continues to deny there is a problem.

The statistics are painfully hard to read.

Not only is there a problem, it is the lawyers at various points in the system that often create and perpetuate the problem: the prosecutors who overcharge, withhold evidence, obtain false confessions and cut corners to get their convictions; defense counsel who are overwhelmed and push pleas because they don't have the bandwidth to fight charges.

To date, only 4% of prosecutors who were involved in wrongful conviction cases due to prosecutorial misconduct have faced any type of personal or professional discipline — and when they have, it has been mild.[14]

The ABA should require all law students to be educated on the problems in the system and in the fundamentals of criminal defense. If more lawyers in this country knew how to defend those who need it most, not only would the most vulnerable be better off but the countless public defenders drowning under their caseload would have more capable lawyers joining their ranks.

While the proposal was passed by the House of Delegates largely unchanged, there were close to 50 comment letters submitted in response to the proposal to modify the curriculum under Standard 303. Well over half of those comments were critical of the proposal. While several were critical of the proposal's poorly defined requirements, 21 comments submitted were vehemently opposed to the addition of the training on bias, racism and cross-cultural competency, insufficient as this training requirement is.

These letters warned that the change proposed was a threat to academic autonomy, a violation of freedom of speech, that such training would amount to racism because it would attribute characteristics to individuals based on the color of their skin and that this "political indoctrination" must be "strangle[d] ... in its crib".[15]

One letter signed by 10 Yale law professors warned that the changes to Standard 303, attempting to dictate the course content for these offerings, was "particularly disturbing."[16] This letter characterizes the proposed changes to the curriculum as, "a course ... instructing students that their obligation is to eliminate racism in the legal profession, and ... a course presupposing that some students are biased and racist and therefore need instruction euphemistically referenced as 'cross-cultural competency.'"

The Yale letter warns that "ABA interference with the content and duration of law school orientation programs such as those suggested in [the proposed additions to Standard 303] are costly. Orientation programs commonly operate under time constraints in order not to bring students to campus and away from summer employment needlessly early." 

The letter concludes that

there already exists in American law schools, and certainly at Yale, a sincere and profound consensus about the desirability of promoting diversity both in the legal profession and, within the Law School, among our students, instructors, administrators, and staff ... Our law schools are in a word "diverse."

This letter represents much of what is wrong with our legal system. It conveniently ignores the glaring epidemic of racial inequities in the law and disingenuously concludes that there is no problem. Yale ranks No. 111 in faculty diversity, with only 11.7% of the faculty being members of minority groups. The school ranked No. 38 in student diversity in 2020, with 46.1% of students being part of a racial or ethnic minority, but only 7.4% Black students.[17]

There is a big problem. The statistics are compelling. Our leaders are defensive, focusing on feigned academic autonomy, while the legal profession consistently marginalizes and victimizes people of color.

The vague proposal as passed by the ABA last month, with no attempt to examine the legal institution's part in our racist system, is no cause for celebration. The change in the curriculum makes no attempt to educate future lawyers on how to defend victims against the abuse.

While the ABA House of Delegates did approve the proposal to the legal curriculum, it is not nearly enough. In passing this vague requirement to train law students on issues of bias, racism and cross-cultural competency, the ABA has failed to publicly acknowledge and commit to eradicating the systemic racial inequality in our legal system.

The comment letters in opposition to this change confirm there is significant cause for concern. Like the AMA, the ABA should commit to examining the history of racism that has led to such significant racial inequities in our criminal justice system and ensure a fair and equitable justice system for all moving forward.

This is a huge undertaking and requires much more than a simple lecture on the topic.

Donna Mulvihill Fehrmann is a criminal defense attorney in Washington, D.C., and a director at Charles Schwab Corp. She is a former assistant general counsel at Capital One Financial Corp.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.americanbar.org/content/dam/aba/administrative/news/2022/02/midyear-hod-resolutions/300.pdfhttps://www.americanbar.org/groups/leadership/house_of_delegates/.

[2] NAACP statistics from 2021 as cited in ABA publication, Racial Disparities in Criminal Justice, by Shasta N. Inman, at americanbar.org.

[3] "The Color of Justice" at sentencingproject.org.

[4] Gross, Samuel R. and Possley, Maurice and Roll, Kaitlin and Stephens, Klara, Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement (September 1, 2020). U of Michigan Public Law Research Paper No. 21-003, Available at SSRN: https://ssrn.com/abstract=3698845 or http://dx.doi.org/10.2139/ssrn.3698845.

[5] Id.

[6] See https://www.ama-assn.org/system/files/2021-05/ama-equity-strategic-plan.pdf.

[7] See "The AMA's strategic plan to embed racial justice and advance health equity" at ama-assn.org.

[8] See https://www.ama-assn.org/system/files/2021-05/ama-equity-strategic-plan.pdf at pg. 50.

[9] See https://www.ama-assn.org/system/files/2021-05/ama-equity-strategic-plan.pdf at pg. 5.

[10] https://edhub.ama-assn.org/health-equity-ed-center

[11] See AMA Health Policy H-65.952; AMA Health Policy H-65.953; and AMA Directive D-350.981.

[12] The Yale Journal of Biology and Medicine, "Race, Racism, and the Policy of 21st Century Medicine" by Mia Keeys, Joaquin Baca, and Aletha Maybank, at ncbi.nlm.nih.gov

[13] In 2017 10.6% of Black people were uninsured compared with 5.9% of non-Hispanic whites; 89.4% of African Americans had health care coverage in 2017 compared with 93.7% of white Americans. See "Health Insurance Coverage in the United States:2017 Berchick, Hood, Barnett US Census Bureau 2018 available at www.census.gov/library/publications/2018/demo/p60-264.html.

[14] Gross, Samuel R. and Possley, Maurice and Roll, Kaitlin and Stephens, Klara, Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement (September 1, 2020). U of Michigan Public Law Research Paper No. 21-003, Available at SSRN: https://ssrn.com/abstract=3698845 or http://dx.doi.org/10.2139/ssrn.3698845.

[15] https://www.americanbar.org/groups/legal_education/resources/notice_and_comment/.

[16] See Yale Comment Letter, submitted by present and former Sterling Professors of Law, at https://www.americanbar.org/groups/legal_education/resources/notice_and_comment/.

[17] See 2020 publiclegal report on Law School Rankings, found at ilrg.com.

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