The ABA received a flood of comments regarding a series of proposed changes to the Standards. The proposals involve professional identity formation and, broadly, the topic of diversity and inclusion. I added my two cents, suggesting areas where the proposals got it right and where they could use improvement. I noted an overarching concern about the ABA Standards being used to advance particular views of legal education that are better left to individual schools to decide whether to adopt. As I wrote, I can understand fully why schools may wish to specialize or distinguish themselves through professional identity formation or, for that matter, law and economics, public interest law, or international perspectives. That does not mean those views should be imposed on the other roughly 200 schools governed by the Standards as a matter of accreditation.

In any event, one of the proposals would required all law schools to provide training in “bias, cross-cultural competency, and racism” at two points in a student’s education: once at the beginning and at least once before graduation. If a student takes a clinic or externship, the second training must take place before (or concurrent with) enrollment in the clinic or externship. This proposal would add the requirement to Standard 303, the same Standard that requires (a) three broad course sequences (professional responsibility, legal writing, and the 6-credit experiential requirement) and (b) substantial opportunities for clinics, externships, and pro bono work.

In my comment, I suggested a different approach: adding cross-cultural competency to Standard 302.

(Before addressing my suggestion, I pause to note that I recommended striking “bias” and “racism” from the proposal and focusing instead on cross-cultural competency. It seems odd to single out one “ism” (racism) when there are many forms of discrimination in society. The word “bias” could be construed to mean “implicit bias,” which in turn requires the ABA to wade into the debate over whether implicit bias is grounded in science or faulty assumptions about human thought and behavior and whether implicit bias training is effective or not. I prefer focusing on cross-cultural competency. Contrary to what some of the other comments said, cross-cultural competency is a known lawyering skill, one that the clinical, writing, and skills communities have been teaching for a long time and for which there is a great deal of helpful literature and approaches.)

Back to Standard 302 versus 303. Standard 303 is prescriptive. It tells law schools, in no uncertain terms, what they must do with their curricula. Professional responsibility (2 credits), legal writing (once in the 1L year and another in the upper years), and 6 credits of experiential instruction are required, as are substantial opportunities for pro bono work, clinics and externships, and, if the proposed revision goes through, professional identity formation.

Standard 303 focuses on what law schools (through their faculties) must do, rather than what students must learn. That is why I prefer Standard 302. Standard 302 deals with the minimum learning outcomes that all schools must establish and, through Standards 314 and 315, assess. Standards 302, 314, and 315 reflect a commitment by the ABA to require schools to focus on outcomes not just inputs and tasks. Indeed, a guidance memo issued by the ABA Managing Director’s Office stated, “The focus on outcomes should shift the emphasis from what is being taught to what is being learned by the students.” Standard 302 establishes four areas that law schools must, at a minimum, establish learning outcomes for: knowledge; analysis and communication; professional responsibility; and the catch all of “other professional skills.” Within Interpretation 302-1, we find cross-cultural competency as a skill that law schools, in their judgment, could decide to identify as a learning outcome.

If we are serious about the skill of cross-cultural competency—and I think we should be—then it should be added to the list of mandatory learning outcomes in Standard 302 rather than as a prescriptive activity that law schools should engage in through Standard 303. The advantages are three-fold. First, a learning outcome must be assessed. That means there should be formative and summative assessments of the outcome throughout the curriculum (Standard 314). It also means that each law school must measure whether the outcome is being achieved (Standard 315). By putting cross-cultural competency in Standard 303 as a training program rather than 302 as a learning outcome, there is no way to ensure that the training programs will be effective. The second advantage is that it avoids a “box checking” approach to teaching this skill. As most people who have had to suffer through mandatory trainings at universities can attest, training programs run the spectrum from poor to dreadful. The only people being enriched by them are the highly paid consultants who develop and offer them. By putting cross-cultural competency in the bucket of a mandatory “training” rather than a “learning outcome,” we run the risk that this skill—which I think is important—will join the ranks of Title IX and other trainings that students have to complete for compliance reasons. A learning outcome, on the other hand, is more serious because it requires assessment to see if the way it is being taught is working. Finally, the benefit of adding a learning outcome in Standard 302 is that it gives substantial freedom to law schools to experiment and find ways to implement the outcome in ways that work for their students. It might mean a structure as the proposal suggests—two separate trainings, one early and one later in a student’s legal education. Or, schools could decide there are other, better ways to teach this skill.

But before embarking on a journey to amend Standard 302, I urge caution. Cross-cultural competency is an important “other professional skill,” but there are probably others in Interpretation 302-1 that would also warrant inclusion in Standard 302 itself if we are going to go down that road. Negotiation, interviewing, counseling, and law practice management all strike me as good candidates given the practice settings where most of law school graduates work (i.e., solo and small firms).

And therein lies the problem. The more we start heaping onto Standards 302 and 303, the more crowded a law school’s curriculum becomes. For schools (like mine) focused on bar passage in a UBE jurisdiction, the NCBE’s subject matter outline already dictates a lot of our required curriculum. Adding on top of that new requirements can turn the J.D. degree into one with very little room for electives of a student’s choosing. This approach also runs the risk of reducing the diversity of law schools’ missions. Indeed, the thrust of the move to outcomes assessment in legal education a few years ago was predicated on schools having the freedom to adopt learning outcomes that fit their particular missions. As the guidance memo for the new Standards stated, “Outcomes will differ based upon law school missions.” Not every law school has to be identical to the other, and I worry that the proposals to Standard 303 move us further in direction of greater homogeneity in legal education, which is a bad thing.

It will be interesting to see what the ABA does with all of the feedback it has received.