The problematic rules proposed by the American Bar Association on “diversity, equity and inclusion” for law schools

The American Bar Association has proposed new “diversity, equity, and inclusion” rules for law schools:

Standard 206. DIVERSITY, EQUITY AND INCLUSION
A law school shall 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, especially members of underprivileged groups represented linked to race and ethnicity; (2) A faculty and staff that includes members of underrepresented groups, especially 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, identity, or national origin. gender expression, sexual orientation, age, disability and military status.
Interpretation 206-1 Underrepresented groups are groups related to race, ethnicity, religion, national origin, sex, gender identity or expression, sexual orientation, age, disability and military status who are underrepresented in the legal profession in the United States compared to their representation in the general population of the United States. For the purposes of 206(a)(2), faculty includes full-time and part-time tenured and tenure-track professors, as well as contract professors, research professors, adjunct professors, and any other teacher category.

I see serious problems with this proposed rule. (I assume, based on past experience, that the ABA will interpret such language as “full access” and “includes” as allowing and at least with respect to URMs requiring affirmative action preferences if the (ABA believes that a law school does not otherwise have “enough” members of relevant groups, with enough left officially undefined.)

First, there is the question of how a law school should determine that a group is “underrepresented”. Traditionally, concerns of “underrepresentation” have been limited to official racial and ethnic minorities about which educational institutions and the US Census collect statistics. Law school applicants check off whether they identify as White, Hispanic, Asian, Native American, Hawaiian/Pacific Islander, or African American. The Census Bureau also collects statistics on these groups and their employment in different fields. There is therefore at least a statistical basis for determining that members of these categories may be “underrepresented” in the legal profession.

But how is a law school supposed to determine whether a group identified by “religion, national origin, sex, gender identity or expression, sexual orientation, age, [or] disability” is under-represented in the legal profession? No one collects or keeps the statistics that would be needed. Are Armenians underrepresented? Homosexuals? Nobody knows.

Also troubling: On the religion front, while no one keeps official statistics, we do know that Jews are substantially “overrepresented” among law professors. A study a decade ago found that about thirty percent of professors at the top 100 law schools identified as Jewish. I suspect it’s lower now, but still much higher than the representation of Jews in the American population. This means, among other things, that Catholics and Protestants are inevitably under-represented. I’m sure the ABA doesn’t mean that law schools should engage in affirmative action for Protestant faculty (and perhaps students) and disadvantage “overrepresented Jews”, but that would be the implication natural to his language. I suspect the ABA wants to give law schools carte blanche to specifically hire Muslim professors, but there is no guarantee in federal education law for any sort of religious preference in hiring professors.

Let’s go back to the question of “racial and ethnic groups”. As noted, law schools, as required by the Department of Education, collect data on the racial and ethnic identification (“Hispanic/non-Hispanic”) of students. The relevant category categories were created arbitrarily by federal bureaucrats whose sole purpose was to unify the racial categories used by federal agencies for record keeping. See David E. Bernstein, The Modern American Law of Race, 94 S. Cal. L.Rev. 171, 197–200 (2021); see also David E. Bernstein, Classified: The Untold Story of Racial Classification in America (forthcoming 2022). The bureaucrats who created the categories expressly cautioned that they “should not be construed as scientific or anthropological in nature” and should not “be considered determinants of eligibility to participate in any [affirmative-action] program.”

This raises the obvious question of why, in the pursuit of educational diversity, law schools should use these particular categories as a benchmark. The categories themselves are extremely broad, comprising within them very disparate groups with very different indices of socio-economic success, including in the legal community.

“Hispanics” are underrepresented as lawyers, but are subgroups such as Cuban, Argentinian or Spanish Americans underrepresented? “African Americans” are underrepresented, but is that true of, say, Nigerian Americans, who have the highest incomes of any American group? Overall, “Asian Americans” do very well in school, but this is mainly due to the success of Chinese, Japanese, Indian, and Korean Americans. Are Vietnamese, Cambodian, Hmong, Bangladeshi, Pakistani Americans well represented in the American legal profession? I doubt. In the white category, how many Appalachians end up as lawyers in law school? Cajuns? Yemeni, Iraqi and Egyptian Americans (contrary to popular belief, all Arabs are counted as white)? If the ABA is truly concerned about underrepresented ethnic groups, is there any good reason why someone of Argentinian or Spanish descent should be of particular interest to law schools because they tick (rightly ) the Hispanic box, but not a person of Hmong or Yemini origin?

Finally, there is a serious constitutional problem with the ABA requiring law schools to engage in any sort of preference for diversity purposes. In Grutter and Bakke, the Supreme Court placed great emphasis on relying on the academic freedom of universities to pursue diversity for pedagogical reasons. But if the ABA requires law schools to pursue diversity, then law schools no longer exercise independent judgment, but rather obey ABA rules to ensure accreditation.

If any VC readers are interested, the ABA welcomes written comments on the proposal” to Leo Martinez, Chairman of the Board. Please send your comments to Fernando Mariduena ([email protected]) by January 21, 2022. Comments writings received after January 21, 2022, cannot be included in the documents considered by the Board at its February 2022 meeting
Encounter.”

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