The ABA Meets Its Match

The accreditation wars are heating up again. Accreditation is the system the federal government uses to ensure the quality of colleges. In particular, only students at colleges that have accreditation through a “recognized” accreditor, as determined by the Department of Education (ED), have access to federal financial aid. This makes accreditors quasi-private entities with immense power over their colleges, power that can be abused. These abuses are almost entirely in a progressive direction, and the right has started pushing back. The latest salvo is a new ED report, U.S. Department of Education Staff Report to the Senior Department Official on Recognition Compliance Issues, which recommends that the American Bar Association (ABA), the accreditor that specializes in law schools, lose recognition. If the ABA is stripped of accreditation powers, this would hit higher education like an earthquake. Here are some thoughts on this development:

The Trump Administration Means Business on Accreditation

When the second Trump administration took office, rumblings about accreditation reform were already underway. As someone who thinks accreditation desperately needs reform, I was hopeful but somewhat skeptical it would happen.

One of the keys to seeing whether the administration was serious would be whether it went after the ABA (technically, the American Bar Association Council of the Section of Legal Education and Admissions to the Bar) or SACS (technically, the Southern Association of Colleges and Schools Commission on Colleges), the two accreditors with the longest record of abusing their power, usually at the expense of the political right.

New leadership at SACS and potential public relations problems likely spared SACS. But the ABA is both less sympathetic and poses fewer public relations problems, since law students would still have access to financial aid under the university’s institutional accreditor even if the ABA (a programmatic accreditor) were stripped of recognition.

Taking the fight to the ABA implies that the administration is serious about changing the accreditation landscape.

The ABA Should Have Lost Accreditation Power Long Ago

The ABA has long been the poster child of accreditors abusing their power over college eligibility for federal funding.

The most infamous example of this came in 2006-07, when the ABA pressured law schools to find ways around state laws restricting the consideration of race and sex in admissions and employment. The ABA told schools that “a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin in admissions or employment decisions is not justification for a school’s non-compliance” with its diversity requirements.

A quasi-private organization using power granted by the federal government to pressure colleges to circumvent the effect of duly enacted state laws is about the clearest case of abuse of authority by an accreditor you can imagine and should have led to the ABA losing its authority to accredit. Yet the ABA escaped unscathed. Until now.

The Administration Could Be Using the ABA’s Own Playbook against It

The ABA was in the vanguard in pushing for diversity in law schools and wasn’t shy about using the power the government granted it to push its agenda. The experience of George Mason University’s (GMU) law school provides an illustration of how this worked in practice. During a routine reaccreditation cycle, the ABA concluded that GMU was not doing enough to boost diversity. GMU grudgingly discriminated more and more in an effort to comply with the ABA’s demands, but for years was told it wasn’t doing enough, with the ABA threatening to withhold the school’s accreditation renewal to force more and more changes.

The ED could very well be adopting this same playbook to use against the ABA. Not renewing the ABA’s recognition will not be a quick process. The initial staff report informs the decisions of an advisory committee, which then informs the decisions of ED leadership on whether to renew the ABA’s accreditation authority. Each stage provides more opportunities to extract concessions. If the ED follows through and does revoke the ABA’s accreditation power, there will almost certainly be a lawsuit that drags on for years. And even if the ED loses a lawsuit, new accreditation regulations that are projected to go into effect next July will give the ED a whole new set of tools to coerce the ABA or hold it accountable, depending on your view.

This Seems Like Getting Al Capone on Tax Evasion

1920s-era gangster Al Capone committed innumerable crimes, including murder and bribery, but law enforcement couldn’t make a case on these serious crimes stick. He was finally brought down not for any of his gangster related crimes, but for tax evasion.

The parallel with the ABA is that, while the ABA has done plenty to justify losing its accreditation authority, such as pressuring law schools to skirt state laws restricting the consideration of race and sex in admissions and employment, those ideological issues don’t appear in the ED’s staff report.

The report finds the ABA out of compliance with a host of regulations, mostly related to not having updated its internal policies and procedures to match statements made to the ED or not providing sufficient documentation to defend the standards it imposed on law schools (e.g., the ABA’s bar passage requirement).

This is probably a smart move by the Trump administration. With roughly half the country disagreeing with the ABA’s diversity campaign and the other half supporting it, a fight over diversity would almost certainly generate substantial support for the ABA. So, instead of fighting about that, the administration is citing things like a legal requirement on separate and independent status that took effect in 2020 but that the ABA still hasn’t complied with as of August 2026.

That is a less controversial case and could cause even judges sympathetic to the ABA to question whether the organization is simply disregarding the law.

Worries about Overregulation and Selective Prosecution

I won’t lose any sleep if the ABA loses the ability to accredit. But the fact that the ED was able to use existing regulations to find around two dozen areas of noncompliance to justify their recommendation is frightening.

While it is possible that the ABA was atypically lax in its compliance efforts and paperwork, more likely is that these types of issues are widespread, if not universal, which in turn indicates that any future administration would likely be able to find any accreditor it wants to out of compliance and revoke its accreditation powers. A combination of everyone’s guilty and but we’ll only prosecute those we don’t like is not compatible with justice; it is fertile territory for politicized lawfare. I don’t know if that’s the case here, but even the possibility that it is worries me.

Overall, these are exciting times in the accreditation space, which is probably the first time those words have ever been true.