by Chase Smith via The Epoch Times (emphasis ours),
Tennessee Attorney General Jonathan Skrmetti and attorneys general from 20 other states have called for significant revisions to the American Bar Association’s (ABA) Standards and Rules of Procedure for the Approval of Law Schools.
The attorneys general claim in a letter that ABA standards direct law school administrators to violate both the Constitution and Title VII of the Civil Rights Act, which prohibit employment discrimination based on race, color, religion, sex, and national origin.
Their demand comes in response to the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), which ended the use of so-called affirmative action in higher education.
“The rule of law cannot long survive if the organization that accredits legal education requires every American law school to ignore the Constitution and civil rights law,” Mr. Skrmetti said in a press release announcing the action.
“The American Bar Association has long pursued the high calling of promoting respect for the law and the integrity of the legal profession, and we call on the organization to recommit to those ideals and ensure that its standards for law schools comport with federal law.
“If the standards continue to insist on treating students and faculty differently based on the color of their skin, they will burden every law school in America with punitive civil rights litigation.”
The coalition of attorneys general emphasized that the ABA’s current Standard 206 on Diversity and Inclusion is incompatible with the Supreme Court’s ruling.
They argue that Standard 206, as it stands, not only encourages but mandates law schools to engage in race-based admissions and hiring practices, which the Court has deemed unconstitutional.
Supreme Court’s Landmark Decision
The Supreme Court’s decision in Students for Fair Admissions was a watershed moment, declaring that the use of race in the admissions processes of Harvard and the University of North Carolina violated the Fourteenth Amendment’s Equal Protection Clause.
The Court stated unequivocally that racial classifications, regardless of their intent, must meet the “daunting” strict-scrutiny standard, which race-based affirmative action programs in higher education cannot satisfy.
The ruling underscored that educational institutions cannot use race as a factor in affording educational opportunities, stressing that any attempt to indirectly achieve race-focused outcomes through ostensibly neutral policies would still warrant strict scrutiny.
This decision necessitates that all educational policies be genuinely race-neutral, aligning with the principle that eliminating racial discrimination means eliminating all forms of it.
Criticism of ABA Standard 206
Standard 206 of the ABA Standards and Rules of Procedure for Approval of Law Schools requires law schools to demonstrate a commitment to diversity and inclusion by providing opportunities for underrepresented groups, particularly racial and ethnic minorities, and to maintain a student body and faculty diverse in gender, race, and ethnicity.
The attorneys general argue that this standard compels law schools to consider race in both admissions and employment, directly contradicting the Supreme Court’s directive.
The letter highlights the problematic nature of Standard 206’s mandate for “concrete action” toward achieving racial diversity, which the attorneys general contend cannot be fulfilled without engaging in unconstitutional race-based practices.
They say that neither the standard nor its interpretations provide guidance on how to achieve diversity goals without unlawfully using race as a factor, thereby setting law schools up for potential legal challenges.
Proposed Revisions Insufficient
The attorneys general also critique the ABA’s proposed revisions to Standard 206, which aim to broaden the diversity criteria to include various identity characteristics.
They argue that bundling race with other characteristics does not address the fundamental constitutional issues raised by the Supreme Court’s decision.
The proposed revisions, they assert, still implicitly require law schools to consider race, thus failing to bring the standard into compliance with federal law.
The letter calls for clarity and alignment with the Constitution, urging the ABA to ensure that complying with binding nondiscrimination laws does not jeopardize a law school’s accreditation.
The attorneys general stress that the current and revised standards force law schools into a precarious position, balancing between adhering to federal law and meeting the ABA’s accreditation requirements, which could lead to significant legal and operational repercussions.
The coalition of attorneys general, led by Mr. Skrmetti, argues for the ABA to revise its diversity standards in a manner that fully complies with the Supreme Court’s ruling and federal law.
They warn that without such revisions, law schools may face punitive civil-rights litigation and risk perpetuating a culture of legal and ethical ambiguity that could undermine the profession and the nation.
States joining Tennessee in the letter to the ABA were Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Virginia.
