The American Bar Association’s “Diversity” Agenda Endangers the Integrity of the Legal Profession

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The American Bar Association’s “Diversity” Agenda Endangers the Integrity of the Legal Profession

March 31, 2022 39 min read Download Report

Authors: Sarah Perry and Zack Smith

Summary

The American Bar Association’s new standard does not promote intellectual diversity, but instead focuses exclusively on legally questionable, surface-level diversity of admitting and hiring “underrepresented groups, particularly those related to race and ethnicity.” The American Council of Trustees and Alumni rightly observes that “in the world of higher education, diversity has come to mean a preference for a diversity of backgrounds, but not a diversity of views.” Through its proposed “diversity, equity, and inclusion” standard—combined with its other efforts to establish racial preferences across the entire profession—the ABA seeks to return the study and practice of law to an era in which Americans placed a shameful emphasis on skin color and race.

Key Takeaways

The American Bar Association and other institutions have moved away from promoting equality under the law to promoting “equity” under the law.

Rather than equalizing opportunities for students and staff, these proposals would make law schools more race-conscious and less intellectually diverse.

Our legal system must be open and accessible—regardless of any specific characteristics—to all who come before it.

 

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.REF
—Chief Justice John Roberts

Equality under the law is a bedrock principle of our nation’s legal system. Unfortunately, many leading legal institutions, including the American Bar Association (ABA), have shifted their focus away from promoting equality under the law to promoting the more nefarious and nebulous idea of “equity” under the law. This shift may seem subtle, but it is not. It is a shift from the ideal of a “color-blind” society and legal system to one that is consciously color and race obsessed—one that affirmatively discriminates on the basis of race, albeit to fix the supposed systemic racism of our society and our legal system that many on the Left believe still exists today. Whereas the term “equality” has focused on equality of opportunity for all, “equity” focuses on equality of outcomes, which can only be guaranteed by discriminating against some to ensure the equal outcomes of others.

The legal profession is not alone in experiencing this shift. On the whole, our nation’s institutions are growingly preoccupied with race. Commitment to “diversity” is now corporate America’s not-so-secret password: a signal of one’s “woke” social consciousness—the kind that turns the once-prohibited use of race into the foremost consideration for most decisions at nearly every major corporation. The NASDAQ exchange, for example, has proposed (and the Securities and Exchange Commission has approved) a diversity rule for the boards of recognized corporations trading on the exchange that requires them to have at least two “diverse” board members, or to file a statement explaining why they do not.REF New corporate business models focus less on profitability and shareholder returns and more on non-financial factors advanced by the social justice movement: environmental, social, and other governance goals,REF which prioritize certain investments because of their political impacts—even if they do not maximize shareholder returns.

These efforts are emblematic of the new, skin-deep, equity-focused “antiracism”REF in which one’s race matters first and foremost. These efforts require an active identification of and opposition to supposed instances of racism, with the goal of changing policies, behaviors, and beliefs that are not “antiracist” enough. Its proponents demonstrate a kind of religious fervor, requiring adherents to apologize for past racial sins, to recognize their own supposed inherent racial privilege (if they are not minority individuals), and to prioritize people that the proponents of this new “antiracism” have deemed oppressed or marginalized. This kind of “diversity” turns the once cherished and constitutionally guaranteed notion of equality on its head.

Unfortunately, the legal profession and its self-appointed governing membership body are no exception. In a series of ambiguous, costly, and ill-conceived proposals, the nation’s leading voluntary legal association, the ABA, has proposedREF a series of modifications to the rules of its governing platform and its accrediting standards, all of which are geared toward promoting equity over equality under the guise of increasing diversity, equity, and inclusion efforts at America’s law schools and among the legal profession more broadly.

Far from equalizing admission and scholarship opportunities for students and staff, these proposals would—as some prominent legal scholars have noted—instead make law schools more race-conscious, more politically correct, and less intellectually diverse.REF At stake is the ABA’s highly sought-after accreditation, which it has granted to 199 of the nation’s 237 law schools.REF This matters because in many states, law school graduates cannot sit for the bar exam unless the ABA has accredited their law school. And since the federal Department of Education recognizes the ABA as the only law school accrediting agency, certain financial aid and other financial benefits can be withheld from both a school and its students unless the ABA has accredited it. This shows the coercive pressure the ABA can bring to bear against law schools to adopt its controversial and constitutionally incompatible standards.

Needless to say, the defeat of the ABA’s wrongheaded initiatives would ensure that the law, lawyers, and the legal academy remain committed to equality—rather than equity—under the law and, in that way, protect the notion that, to paraphrase the late Supreme Court Justice Antonin Scalia,REF in this country we are all one race: We are Americans.

Origins of the ABA

Lawyers have played an outsized role in our nation’s history, from drafting our Founding documents to serving in public office to representing average Americans in court cases across the country. Though many today might disagree with him, Alexis de Tocqueville observed, “[I]n America there are no nobles or men of letters…. [L]awyers consequently form the highest political class, and the most cultivated circle of society.” He continued, “[I]f I were asked where I place the American aristocracy, I should reply without hesitation that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar.”REF

In other words, lawyers should be bound together by their common commitment to equal application of our laws to all citizens and to accurate interpretations of the very Constitution they have sworn to uphold and defend.

Founded in 1878,REF the ABA is the nation’s oldest voluntary membership organization dedicated to the legal profession. Two of its most high-profile activities involve the setting of academic standards for and accrediting of law schools, and the formulation of model ethics codes related to the legal profession. Unfortunately, the ABA has used these two high-profile functions, particularly its accrediting function, to pursue a radical left-wing agenda.

Mission. The ABA’s stated mission is “[to] serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.” To that end, the ABA supports a “Diversity and Inclusion Center” that “promotes collaboration, coordination, and communication to advance ABA Goal III—to eliminate bias and enhance diversity and inclusion throughout the Association, legal profession, and justice system.”REF

Those sound like laudable goals. But they are not, because the ABA does not use those terms in their ordinary sense. Instead, it uses them to advance its radical equity-over-equality agenda. The Center and the policies it produces are some of the more visible representations of the ABA’s well-documented and long-standing liberal biasREF on issues from abortion to gun rights.REF And its increasing efforts to achieve social justice and “diversity” are reaching even further and stretching into every accredited law school in the United States.

Accreditation. Since 1965, with the Higher Education Act,REF the U.S. Department of Education has recognized the ABA as the sole national accrediting agency for American law school programs, thereby cementing its influence in shaping legal education and granting it near-monopolyREF power over it, as graduating from an ABA accredited law school is required in almost every state for applicants seeking admission to the bar.REF Accreditation is performed by the council of the ABA Section of Legal Education and Admissions to the Bar, which is an independent arm of the ABA.REF

In order to receive accreditation from the ABA, law schools must prove that they are in compliance with the ABA’s standards of a “sound legal education” that include, among other things, meeting its standards on curriculum, facilities, services, and faculty. The ABA’s outsized influence in setting legal education standards might help to explain the leftist bent of legal education since those policies are largely in line with the ABA’s own liberal focus.

Leftist Bias. In 2015, even the ABA itself was compelled to recognize the results of a comprehensive studyREF on the left-wing bias of the legal profession as a whole:

Many conservative commentators have aired claims that trial lawyers appear more liberal than the rest of the population, and they overwhelmingly contribute to Democratic candidates. Is it true? And is the legal profession on the whole left-leaning? A study by professors from Harvard, Stanford and the University of Chicago Law School says the answer is yes. “American lawyers lean to the left of the ideological spectrum.”REF

Another study in 2018 revealed that the ABA’s emphasis on hiring those with preferred liberal ideological leanings at law schools was driving the pedagogy of law schools further leftward, thus perpetuating the problem of leftist bias in the legal profession overall.REF

Despite the already blatant bias in the profession, which the ABA itself contributed to, in 2021 it proposed a revised diversity standard for accrediting law schools that garnered significant professional criticism as perpetuating—rather than solving—the leftward lean of the legal profession and legal scholarship. This revised standard sought to use “diversity” to forcibly interject racial preferences into law school admissions and faculty-hiring decisions. So impactful and problematic was this proposal and the subsequent iterations of it, that—if adopted—law schools would be faced with a Hobson’s choice: risk losing federal funding by engaging in blatantly discriminatory behaviorREF or risk losing their ABA accreditation.REF

The First Revisions to the Diversity Accreditation Standard: May 2021

So, how did all of this begin? The ABA has long maintained standards that guide its law school accreditation decisions. The ABA publishes these standards, numbers them in a way similar to other rule-based codes, and provides commentary/interpretive guidance about each standard (Think the Model Rules of Professional Conduct, the Federal Rules of Evidence, etc.). As part of this, the ABA has maintained Standard 206, entitled “Diversity and Inclusion,” for many years.

But after an ABA Fall 2020 Roundtable on Diversity, Inclusion, and Equity, a revised Standard 206 on “Diversity, Inclusion, and Equity” was released in May 2021, with the additional suggestion that this proposedREF Standard 206 be made a “core” standard,REF making a law school’s failure to comply grounds for public notice—something that if not rectified could lead to the law school losing accreditation. This proposal elevated the revised standard to the same position as other important standards, such as one that requires a certain percentage of a law school’s graduates to pass the bar exam within a certain period of time after graduation.

The revised standard read:

Standard 206: Diversity, Inclusion, and Equity

(a) A law school shall provide: (1) Full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly those related to race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status; and (2) An environment that is inclusive and equitable with respect to race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status.

(b) A law school shall take effective actions that, in their totality, demonstrate progress in (1) Diversifying the students, faculty, and staff; and (2) Creating an inclusive and equitable environment for students, faculty, and staff.REF

But the truly shocking statements came in the ABA’s formal “interpretations” of the proposed revisions to Standard 206. In these, the ABA boldly asserted:

The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s noncompliance with Standard 206. A law school that is subject to such constitutional or statutory provisions would have to demonstrate the effective actions and progress required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.REF

Let that sink in: With this revised standard, the ABA essentially told law schools that the ABA’s own controversial policy must trump any constitutional or statutory provisions that conflict with it. Common sense says that, if anything, the reverse should be true. True, it said that schools facing a constitutional or statutory prohibition would have to “demonstrate effective action and progress” by means “other than those prohibited,” but how is that supposed to work? It is an impossible task.

Furthermore, the ABA said that in order to satisfy the standard and show that progress has been made toward diversifying the student body and the faculty, law schools should:

  • Set and publish goals related to diversity and inclusion;
  • Collect data disaggregated on race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status;
  • Use pipeline programs to facilitate the recruitment of underrepresented groups;
  • Provide diversity scholarships to students; and
  • Keep hiring pools open until they include a diverse group of qualified faculty candidates.REF

To establish proof of progress towards creating an inclusive and equitable environment, law schools were encouraged to:

  • Support affinity groups;
  • Provide diversity, equity, and inclusion training; and
  • Describe their efforts toward creating an inclusive and equitable environment.REF

Under this revised standard, law schools were also required to make affirmative hiring and admissions decisions favoring certain classes of individuals, with a strong emphasis on race.

Blowback. After its introduction in May 2021,REF the proposed revision to Standard 206 resulted in significant blowbackREF from legal scholars and professionals who claimed the ABA was attempting to substantially restructure law schools by promoting racial preferences in law school admissions. These scholars and professionals said that doing so would lead to the kind of sameness in thinking about “diversity” and “inclusion” that would divest law schools of the very intellectual and professional diversity that is critical to the study of law.REF

Unfortunately, this was only one of a series of problematic proposals put forward by the ABA.REF And more importantly, it ran afoul of settled legal principles that promote equality rather than equity under the law. To understand why this proposed revision and the subsequent iterations of it are so problematic, a brief overview of those legal principles is necessary.

Legally Flawed

Constitutional Implications of the Use of Racial Preferences in Higher Education. The Fourteenth Amendment to the U.S. Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”REF The “central purpose” of the Equal Protection Clause “is to prevent the States from purposefully discriminating between individuals on the basis of race.”REF This equal protection principle reflects our Nation’s understanding that racial classifications ultimately harm the individual and our society.REF As a result, the U.S. Supreme Court has recognized that “[c]lassifications of citizens solely on the basis of race ‘are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’”REF Therefore, “the Equal Protection Clause demands that racial classifications…be subjected to the ‘most rigid scrutiny.’”REF Considerations of race must, to satisfy this standard of “strict scrutiny,” be narrowly tailored to further a compelling governmental interest.REF This “strict scrutiny” analysis is required whether the use of a racial classification stems from state, federal, or local government action.REF

Because of the suspect nature of racial classifications, the Supreme Court has recognized only two instances in which the use of race is permissible: remedying the effects of past intentional discrimination and achieving diversity in higher education.REF Yet even these are controversial. And the Supreme Court is currently reconsidering whether such race-based college admissions policies are even legal.REF

To date, the Supreme Court’s seminal statement on the use of race in higher education came in 2003. In Grutter v. Bollinger, Justice Sandra Day O’Connor wrote for a 5–4 majority that the University of Michigan Law School’s consideration of race in admissions did “not unduly harm nonminority applicants.”REF The Court ruled that the law school had both a compelling interest in attaining a diverse student body and that its admissions program was narrowly tailored to serve its compelling interest in obtaining the kind of educational benefits that flow from that diversity.

In determining that there had been no violation of the Equal Protection Clause in the law school’s use of race in admissions, the Court noted that the school was still constrained by a requirement that the means chosen to accomplish the government’s asserted purpose must be specifically and narrowly framed to accomplish that purpose. Justice O’Connor wrote:

To be narrowly tailored, a race-conscious admissions program cannot use a quota system—it cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants…. Instead, a university may consider race or ethnicity only as a ‘plus’ in a particular applicant’s file,” without “insulat[ing] the individual from comparison with all other candidates for the available seats.”… In other words, an admissions program must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.”REF

Statutory Implications of the Use of Racial Preferences in Higher Education. An analysis of racial classifications within higher education requires not only a constitutional analysis but a statutory one, as the applicable provisions go hand-in-hand.REF Title VI of the 1964 Civil Rights Act prohibits racial discrimination at any institution receiving federal funding, specifying: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”REF Title VI bans all discrimination that would simultaneously violate the Equal Protection Clause.REF Prior to approving or extending any federal financial assistance to educational institutions, the U.S. Department of Education requires that assurances be given that the program that is to be funded will comply with all anti-discrimination provisions enforced by the Department of Education, including Title VI.REF

Statutory Implications of the Use of Racial Preferences in Faculty Hiring Decisions. The ABA’s revisions aimed at diversifying law school faculty are just as problematic as its mandates to diversify law school admissions. When making personnel decisions, law schools must comply with Title VIIREF of the Civil Rights Act,REF which prohibits employers, employment agencies, and labor unions from discriminating against workers or denying them employment opportunities based on race, color, religion, sex, or national origin. Under current case law, in terms of “diversity” efforts, law schools can only act to remedy harms caused directly by past discrimination—and any such efforts must be limited in time and only undertaken once a school has determined (and can demonstrate) that it cannot achieve its goals through any race-neutral alternative.REF

The ABA’s proposed revision to Standard 206 conflicts with all of these principles. It makes no concession for the individual analysis of candidates or the composition of each ABA-accredited law school’s student body. Its blanket standard on racial admissions aimed at “diversity” appears more like the type of quota that Grutter explicitly prohibits. The revised standard, if adopted by law schools in receipt of federal funding, would violate Title VI of the Civil Rights Act prohibition against racial discrimination, and would therefore put their educational funding in jeopardy. And they would likely run afoul of Title VII’s prohibited employment practices.

Conflict with Other Legal Principles. But do not forget that the ABA also made the breathtaking statement: “The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s noncompliance with Standard 206.”REF The ABA, which should encourage upholding duly enacted laws, essentially threatened the accreditation of law schools if those schools did not place following the ABA’s own misguided standard ahead of following their other legal obligations. The ABA casually dismissed the obligations of accredited law schools to comply with long-standing constitutional and statutory provisions on equality, including the Equal Protection Clause of the Constitution and Titles VI and VII of the Civil Rights Act—a shocking thing for an organization whose main mission ought to be encouraging respect for the rule of law.

As Northwestern University School of Law Professor John O. McGinnis has noted, many states prohibit institutions of higher education from using race or sex in their hiring or admissions, and yet the ABA is encouraging a system in which institutions would be forced to consider both or risk their accreditation—thereby inviting lawlessness.REF Following this path could land law schools in court. University of California Berkley School of Law Professor Steven Davidoff Solomon has argued, for example, that the proposed revisions to Standard 206 would amount to unlawful viewpoint discriminationREF by violating the principles of free speech.REF By placing an undue emphasis on “diversity” (and stressing race as the most critical factor to achieve that diversity in admissions and hiring), the ABA was ultimately encouraging law schools to silence dissent. No individualized judgments on, for example, what “diversity” might look like, or what an “equitable” environment might be were permitted under the revised standard.

Similarly, Antonin Scalia Law School Professor David Bernstein argues that institutions that base racially preferential admissions decisions on the ABA’s determinations of what constitutes sufficient diversity, rather than exercising their own judgment based on governing law, might also find themselves in hot water:

I would add that under the Grutter opinion, law schools may only engage in racial and ethnic preferences if the law school faculty and others involved in the school’s academic mission have determined that such preferences would add diversity to the school in a way that would be educationally beneficial. By seeming to mandate such preferences, the ABA would be taking the decision out of the hands of the individual schools, and instead making it a requirement of accreditation. If a particular law school disagreed with the ABA’s views on diversity, the ABA would still require that school to act illegally lest its accreditation be threatened.REF

The Second Proposed Revisions to Diversity Accreditation Standard: November 2021

The significant blowback received by the ABA on its first set of proposed revisions to Standard 206 caused the ABA to chart a “new” course. The cumulative negative attention resulted in the ABA’s release of a modified diversity, equity, and inclusion proposal. On November 4, 2021,REF the ABA standards committee released a memorandum to its membership announcing a reconsideration of the earlier revisions to Standard 206.REF The new proposed revisions to Standard 206, among other things, defined “underrepresented groups,” explained the “effective use of educational diversity,” and clarified that law schools in jurisdictions prohibiting the consideration of race or ethnicity in employment and admissions are not compelled to consider them in those decisions, despite the ABA standard.

While eliminating the provision in the earlier rule that claimed to preempt other relevant laws on the use of race and other suspect classifications to advance diversity,REF the ABA’s second revision to Standard 206 still struggled with vagaries and legal inconsistencies that rendered it fatal. It read:

Standard 206. Diversity, Equity, and Inclusion

A law school must ensure the effective educational use of diversity by providing: (1) Full access to the study of law and admission to the profession to all persons, particularly members of underrepresented groups related to race and ethnicity; (2) A faculty and staff that includes members of underrepresented groups, particularly those related to race and ethnicity; and (3) An inclusive and equitable environment for students, faculty, and staff with respect to race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status.REF

In its interpretive guidance on the second revision to Standard 206, the ABA clarified that “underrepresented groups” are those related to race, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status underrepresented in the legal profession in the United States when compared to their representation in the general population of the United States. It clarified that “[t]o ensure the effective educational use of diversity, a law school should include among its faculty, staff, and student members of all underrepresented groups, but should be particularly focused on those groups that historically have been underrepresented in the legal profession because of race or ethnicity.”REF

As a rationale for its revision of the standard, the ABA noted:

Revised Standard 206 aims to achieve the effective educational use of diversity, the compelling state interest recognized in Grutter v. Bollinger…Fisher v. University of Texas…(Fisher I) and Fisher v. University of Texas…(Fisher II)…Subsection (a)(1) requires a school to provide full access to the study of law and membership in the profession to all persons but focuses particularly on underrepresented groups related to race and ethnicity. This focus acknowledges the unique historical injustices and contemporary challenges faced by those groups. Subsection (a)(2) requires a school to include members of underrepresented groups in its faculty and staff, but again requires a particular focus on underrepresented groups related to race and ethnicity. Subsection (a)(3) requires an inclusive and equitable environment for a larger list of groups…. Subsection (c) focuses on the enforcement of Subsection (a)(3) by requiring an annual assessment of the inclusivity and equity of a law school’s educational environment. The law school is required to provide the results of this assessment…to the faculty and to the Council upon request and is required to take concrete actions to address any deficiencies.REF

Unsurprisingly, much of the current legal academy has responded favorably to the revised standard. Carla Pratt, the dean of Washburn University School of Law (and an ABA council member), has assured the ABA’s members that such a revised standard “does not mean the council is going to be requiring data collection on all of those groups. It means that schools need to think about those groups when creating an equitable and inclusive environment.”REF How law school administrators may show proof of “thinking about” such groups is unclear, especially if the school’s accreditation is at risk if, in the ABA’s eyes, their “thinking” is wrong.

Likewise, some have argued that the element of “underrepresentation” is discriminatory in and of itself. For example, some have commented that the definition of “underrepresented groups” would exclude Jewish Americans or Asian Americans, as well as other groups that have been limited by a history of discrimination but have still achieved a higher-than-proportionate degree of success in admissions or employment.REF

This second revision of Standard 206 also addressed diversity in hiring, as did the previous iteration, simply providing that “a law school shall…provid[e] a faculty and staff that includes members of underrepresented groups, particularly those related to race and ethnicity.”

The Third Proposed Revisions to Diversity Accreditation Standard: February 2022

Because of continued objections to even the second set of proposed revisions to Standard 206, on February 10, 2022, the ABA released a memo containing a third set of revisions to Standard 206.REF The ABA noted in that memo that it had received 10 public comments on the second revised proposal and said among the several “consistent concerns expressed by multiple commentators” was the idea that this proposal was not narrowly tailored and that it still “raises legal concerns such as [a] potential violation of the Equal Protection Clause, [and the] use of racial balancing or quota[s],” among others. While supposedly addressing these concerns, the third proposed set of revisions reads as follows:

Standard 206. Diversity, Equity, and Inclusion

(a) A law school shall ensure the effective education use of diversity by providing:
(1) Full access to the study of law and admission to the profession to all persons, particularly members of underrepresented groups related to race and ethnicity;
(2) A faculty and staff that includes members of underrepresented groups, particularly those related to race and ethnicity; and
(3) An inclusive and equitable environment for students, faculty, and staff with respect to race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status.REF

Needless to say, these revisions do not adequately address the concerns, and still suffer from the same defects as earlier iterations of the proposed revision. While recognizing that earlier iterations of the proposal received objections because they were not narrowly tailored and potentially violated the Equal Protection Clause, the ABA simply made a “few revisions for clarification purposes” with this third attempt—without addressing the substantive concerns. Essentially, the ABA tried to hide the fatal flaws to their policies by changing the window dressing. That will not work.

This latest standard will go before the ABA’s governing body, its House of Delegates, in August 2022 for a final vote on whether it should be adopted.REF Obviously, it should not.

Conclusion

Justice Felix Frankfurter, writing in the 1950s, said that “part of ‘the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation.’”REF

Such an environment is most likely to occur when a great degree of intellectual diversity exists within an institution. The ABA’s new standard does not promote intellectual diversity, but instead focuses exclusively on legally questionable, surface-level diversity of admitting and hiring “underrepresented groups, particularly those related to race and ethnicity.” The American Council of Trustees and Alumni rightly observes: “The fact remains that in the world of higher education, diversity has come to mean a preference for a diversity of backgrounds, but not a diversity of views.”REF

Our legal system must be open and accessible—regardless of any specific characteristics—to all who come before it. As Justice John Marshall Harlan said in his lone dissent in Plessy v. Ferguson over 125 years ago, “Our constitution is color-blind, and neither knows nor tolerates classes among citizens.”REF Justice Harlan’s views were eventually vindicated, but are steadily losing ground under a new, leftist legal theory promoting a woke, race-centric “diversity” that prioritizes equity, rather than equality, under the law.

In his concurrence in Grutter, Supreme Court Justice Clarence Thomas reminded us that “[t]he Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”REF

Through its proposed “diversity, equity, and inclusion” standard, combined with its other efforts to establish racial preferences across the entire legal profession, the ABA seeks to return the study and practice of law to an era in which Americans placed a shameful emphasis on skin color and race. As the nation’s self-appointed governing legal authority, the ABA should know—and must do—better.

Sarah Parshall Perry is Legal Fellow in the Edwin J. Meese Center III for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. Zack Smith is Legal Fellow in the Meese Center.

Authors

Sarah Parshall Perry
Sarah Perry

Senior Legal Fellow, Meese Center

Zack Smith
Zack Smith

Legal Fellow and Co-Manager, Meese Center for Legal Studies