The American Bar Association is suspending its enforcement of its diversity, equity, and inclusion standards for law schools. The DEI standard for law school accreditation was revised to conform with a U.S. Supreme Court ruling prohibiting race-based admissions. In attempting to reform the rule over the last several years, the ABA has met with criticism from attorney generals from both Republican and Democratic-controlled states.
President Donald Trump’s recent executive order, Ending Illegal Discrimination And Restoring Merit-Based Opportunity, ended federal funding for DEI programs. It also encouraged investigations into the private sector and state and local ABA DEI programs that engage in “illegal discrimination or preferences.”
Damned if You DEI, Damned if You Don’t
This is not the first change to its diversity and inclusion policies. The ABA council’s standard committee sought to reframe its position to align with the U.S. Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The court held that academic institutions of higher education could not use race as a factor for admitting students.
In August 2024, the ABA proposed changes to Standard 206, “Diversity and Inclusion.” First, it changed the name of the standard to “Access to Legal Education and the Profession.” Second, they removed a list of identities, taking away the burden on law schools to ask students about their race or ethnicity. Third, they advised that law schools should demonstrate a commitment to law school and legal profession access instead of a commitment to diversity.
Objections to the August 2024 Standard
However, the ABA received pushback from commenters and many Attorney Generals from Democratic-controlled states, who thought the changes to the DEI rule went too far and beyond the scope mandated by the Court decision. In November 2024, the ABA revised the language to reinforce a commitment to diversity, inclusion, and access to the study of law, “including those with identities that historically have been disadvantaged or excluded from the legal profession due to race, color, ethnicity, religion, national origin, gender, gender identity, gender expression, sexual orientation, age, disability, military status, Native American tribal citizenship and/or socioeconomic background.”
Objections to the November 2024 Standard
The November 2024 diversity standard was met with resistance from 21 Attorney Generals from Republican-controlled states. The AGs claimed the proposed standard was an unlawful DEI initiative because it required schools “to show commitment to diversity through recruitment, admissions, and programming.”
Are DEI Policies Freedom of Speech?
However, the ABA asserts that the executive order should not limit their proposed standard due to their right to freedom of speech. On Friday, a judge blocked a Trump executive order that would terminate all federal “equity-related” grants or contracts. The plaintiffs, educational groups, and the City of Baltimore claimed the order has a chilling effect on freedom of speech about diversity, equity, and inclusion. The judge found that the “executive orders discourage businesses, organizations and public entities from openly supporting diversity, equity and inclusion.”
The American Bar Association is reportedly introducing a new policy in August of this year. In the meantime, there will certainly be more court challenges regarding DEI policies for a variety of businesses and organizations.
Related Resources
- Judge Dismisses 'Woke-buster' Lawsuit Against NYU's DEI Practices (FindLaw Courtside)
- Are DEI Positions and Policies at Law Firms on Risky Legal Ground? (FindLaw's Practice of Law)
- The Future of Law Firm DEI Programs (FindLaw's Practice of Law)
