The Volokh Conspiracy
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The American Bar Association Council of the Section of Legal Education and Admissions to the Bar has released a revised proposal for Standard 206. The Council approved a version of this rule in May, but it generated some controversy, including a letter co-authored by Eugene.
Here is the revised rule:
Standard 206. DIVERSITY, EQUITY, AND INCLUSION
(a) 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, 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.
(b) A law school shall report in the Annual Questionnaire and publish in accordance with Standard 509(b) data that reflects the law school's performance in satisfying Standard 206(a)(1)-(2).
(c) A law school shall annually assess the extent to which it has created an educational environment that is inclusive and equitable under Standard 206(a)(3). The law school shall provide the results of such annual assessment to the faculty. Upon request of the Council, a law school shall provide the results of such assessment and the concrete actions the school is taking to address any deficiencies in the educational environment as well as the actions taken to maintain an inclusive and equitable educational environment.
Underrepresented groups are groups related to race, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status that are underrepresented in the legal profession in the United States when compared to their representation in the general population of the United States. Faculty for purposes of Standard 206(a)(2) includes full-time and part-time tenured and tenure-track faculty, as well as contract faculty, research faculty, adjunct faculty, and any other faculty category.
To ensure the effective educational use of diversity, a law school should include among its faculty, staff, and students 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.
Concrete actions towards creating an inclusive and equitable environment under Standard 206(a)(3) may include, but are not limited to:
(1) Support of student affinity groups and the provision of student mentoring opportunities;
(2) Diversity, equity, and inclusion education for faculty, staff, and students;
(3) Provision of mentoring opportunities for junior faculty members with particular focus on promotion, tenure, and retention of faculty members from groups underrepresented in legal education;
(4) Support of pro bono and externship opportunities that reflect a commitment to an inclusive and equitable environment; and
(5) Continuing education for faculty members regarding the effective use of diversity in the classroom.
The determination of a law school's satisfaction of its obligations under Standard 206(c) is based on the totality of the law school's actions as well as the results achieved.
To the extent that Standard 206 requires a religiously affiliated law school to provide an environment that is inclusive and equitable with respect to sexual orientation and gender identity or expression, the school is not required to act inconsistently with the essential elements of its religious values and beliefs provided that its actions are protected by the United States Constitution.
For law schools in jurisdictions that prohibit the consideration of race and ethnicity in employment and admissions decisions, Standard 206 does not compel the consideration of race and ethnicity in such decisions.
Consistent with academic freedom, the requirement of creating an inclusive and equitable environment does not require law schools to censure or prohibit academic discussion of ideas that may be controversial or offensive to some students, faculty, or staff.
Three tentative thoughts.
First, the ABA really should wait to see what the Supreme Court does in the Harvard case. The Court very well may blow up affirmative action as we know it. Any effort to draft a rule ahead of Harvard is a mistake.
Second, as I read the rule, faculty members would be required to undertake mandatory DEI training.
Third, the protections for religious institutions are limited to "essential elements of its religious values and beliefs provided that its actions are protected by the United States Constitution." This standard is cut very thin. Given Employment Division v. Smith, it isn't clear that this interpretation provides any protections at all.