The American Bar Association needs to forbid all discrimination against LGBT law students in ABA accredited law schools.

Andrew Stankevich – The American Bar Association (ABA) requires that all accredited law schools not discriminate on the basis of sexual orientation in admissions.

By Andrew Stankevich, Mississippi College School of Law, rising 3L

The American Bar Association (ABA) requires that all accredited law schools not discriminate on the basis of sexual orientation in admissions. However, the ABA does not require “a religiously affiliated school to act inconsistently with the essential elements of its religious values and beliefs” by funding or recognizing LGBT organizations on campus. The ABA allows Christian law schools to have anti-gay policies, as long as such schools give notice of these policies before students “affiliate” with the law school, and the policies do not contravene any other accreditation standard. The ABA mandates that law schools ensure that all students have reasonably comparable opportunities to take advantage of the school’s educational program, co-curricular programs, and other educational benefits. Accredited law schools must also establish policies “[which] creat[e] an atmosphere in which students and faculty may voice opinions and exchange ideas [in the classroom.]”

After the Perry v. Schwarzenegger ruling in August of 2010, the ABA urged all state governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry. Even though such a resolution had no legal or otherwise significant consequence, the ABA came out swinging as a public champion of LGBT rights. But with accreditation standards, an arena where the ABA could make a real difference for LGBT people, the ABA worked out a deal with the Christian Right that leaves LGBT law students who attend Christian law schools with the short end of the stick.

In CLS v. Martinez, the Supreme Court held that Hastings Law School in California could constitutionally refuse to fund and recognize a student chapter of the Christian Legal Society (CLS), because of their refusal to admit openly LGBT students. Hastings and the Court rejected the CLS proposal that Hastings allow exclusion, not on the basis of status as a LGBT person, but on the basis of homosexual conduct and the belief that such conduct is not wrong. Yet, the ABA accepts discrimination on the basis of “conduct” and not “status” as legitimate Christian policy for ABA accredited law schools, basically allowing Christian law schools to require LGBT law students to stay closeted while on campus or face institutional discrimination.

In acquiescing to a conservative Christian agenda that the Supreme Court would not, the ABA has created nonsensical and contradictory accreditation standards that establish a “closeted, but equal” standard. If a law school requires LGBT students to stay closeted, how does such create a classroom atmosphere conducive to voicing opinions and ideas? How can any LGBT students, closeted or not, have reasonably comparable opportunities to take advantage of the school’s educational opportunities when the school explicitly discriminates against LGBT “activity?” Furthermore, the ABA provides no standard for “notification” of such policies. If a policy is too vague to definitively describe, or if notifying every potential student of the school’s expected homophobic norms would result in prejudicing potential applicants against the law school, how can any religious law school be expected to effectively notify potential students? When Christian denominations like the Evangelical Lutheran Church in America, the Presbyterian Church (USA) and the Episcopal Church no longer believe that the Bible condemns LGBT people, notifying potential students that a law school has a Christian affiliation no longer provides adequate notification of anti-gay policies. LGBT students do enroll in Christian law schools for a number of reasons. If the ABA seriously wants to promote diversity in the legal profession, the ABA needs to abolish all approval for anti-gay discriminatory practices in the ABA law school accreditation standards.

On Sept. 1, 2010, the ABA opened an investigation into the Mississippi College School of Law at Andrew Stankevich’s request, based on his experiences from the 2009-10 school year. A second year student at the time, Mr. Stankevich alleged that MC Law, an ABA accredited law school owned by the Mississippi Baptist Convention, had anti-gay policies about which they failed to notify him. In addition to other accreditation standard violations, Stankevich also alleged that that he had neither equal access to educational resources at the school, nor a classroom atmosphere that was conducive to the free exchange of ideas. On March 8, 2011, the ABA concluded its investigation, finding that MC Law did not provide notification of their anti-gay policies to Stankevich, while dismissing all other accreditation standard complaints. Stankevich anticipates filing another complaint for the 2010-11 school year. Email Andrew Stankevich at (pg. 24) (pg. 20-21)

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May 27th, 2011


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