In the Room Where it Happens
Observations from attending my first meeting of the American Bar Association's House of Delegates
On Monday, February 6th, I had the privilege of participating in the Mid-Year Meeting of the American Bar Association’s House of Delegates, the ABA’s policy-making body. I recently was appointed to serve as a member of the Massachusetts Delegation, which includes several lawyers selected by the Massachusetts Bar Association and the Boston Bar Association, among other constituencies. Last week’s meeting in New Orleans was my first HOD meeting, and I decided that my main jobs for this inaugural trip were to listen, learn, and vote on the several resolutions that were presented, as well as to enjoy spending time with the other, more experienced delegates from my state.
I have been a lawyer for more than 40 years, an active member of the ABA most of that time, and an officer of the Boston Bar Association from 2007-2011, yet through no one’s fault but my own, I had little understanding of what the HOD does or who its members are. Even after attending this meeting, my understanding remains incomplete, but I learned quite a bit.
The main thing I learned is that the HOD considers and votes on resolutions that are brought before the body by HOD committees or state and local bar associations. Most of the resolutions would not force immediate change, but rather would commit the ABA to urging federal, state, local, and tribal governments to pass laws to implement the policies they reflect. Such resolutions address important issues involving criminal justice, the legal profession, human rights, and the Rule of Law, among other areas that are fundamental to principles of liberty, justice, and equality. (One, seemingly atypical, resolution adopted at last week’s meeting condemned Russia’s invasion of Ukraine, and another condemned antisemitism.)
An area over which the ABA has direct authority is deciding on the standards for accreditation of American law schools. At last week’s meeting, the HOD considered a resolution that would make standardized law school admissions tests optional. Currently, and for many decades, a law school wishing to be accredited must require applicants to take the standardized admissions test known as the LSAT (the Law School Admission Test, administered by the Law School Admission Council), or, for a small percentage of students, the GRE (Graduate Record Examination), taken by college students and college graduates seeking admission to graduate school.
Some lawyers and aspiring lawyers object to the admissions test requirement, asserting that the tests (or at least the LSAT) perpetuate racial, ethnic, and socioeconomic bias in law school admissions. They base that conclusion on the disparity in test scores among members of different racial and ethnic groups, which may suggest inherent bias in the LSAT itself, or at least in an applicant’s ability to enroll in costly test preparation courses. The resolution to make law schools test-optional would allow each institution to make its own decision whether to require applicants to take a standardized test and to innovate in its own admissions standards. If the resolution were to pass, many law schools likely would drop the testing requirement.
Opponents of the resolution argue that the tests are only one of several screening tools for law school admissions, that they serve a useful purpose, and that doing away with the test requirement would result in a “race to the bottom,” as all law schools would eventually feel pressure to abandon them. The opponents also argue that, even with the testing requirement, law schools have achieved strong diversity numbers, and that law school diversity continues to improve. They also assert that eliminating the testing requirement could actually undermine diversity efforts, as some law schools might then place more emphasis on applicant and family wealth, to the detriment of qualified applicants of modest financial means.
The debate over this controversial resolution was lengthy and intense. Numerous presenters spoke on each side. What impressed me most was the quality of both sides’ presentations. They were powerful and persuasive, and the presenters exhibited the highest standards in legal advocacy. It was as if each presenter was making an impassioned closing argument at the end of a trial, expertly recounting the evidence supporting the verdict they hoped would be reached, and the HOD members were their jury. My 1,400-mile trip to New Orleans would have been worth it to witness that portion of the meeting alone.
And there was an added virtue. Although the resolution was prompted in part by a concern about systemic racism in admissions testing, each side was represented by a diverse team of presenters. The presenters supporting the test-optional approach acknowledged that those opposed were not motivated by racial or ethnic animus, and that there was simply an honest difference of opinion about whether the testing requirement harmed, helped, or had no material effect on law school diversity.
At the end of the debate, the HOD voted to retain the testing requirement. But last week’s vote is not necessarily the end of the matter, and the contest over possible changes to the requirement will likely continue.
There were other important resolutions adopted at the meeting, including a resolution to urge the Supreme Court to adopt an ethics code binding on its justices, like the ethics codes that apply to judges in the lower federal courts (one can dream can’t one?). Many of the votes taken were unanimous or nearly unanimous, although a few were not. And where opposition was given a voice, the debates were always civil and well delivered.
For my part, I was just grateful to be allowed to participate in the proceedings with a diverse group of accomplished lawyers from other states and territories, to connect and reconnect with lawyers and law professors from Massachusetts and beyond, and to be part of a high-quality gathering of lawyers from an august association addressing important professional and societal concerns.
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If you’d like to learn more about the resolutions voted on at the HOD meeting, you can find a very brief summary here: ABA House of Delegates Meeting