ABA Tries Again With Legal-Ed Diversity Rule

"Concrete actions towards creating an inclusive and equitable environment under Standard 206(a)(3) may include . . . Continuing education for faculty members regarding the effective use of diversity in the classroom."

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.

Interpretation 206-1

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.

Interpretation 206-2

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.

Interpretation 206-3

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.

Interpretation 206-4

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.

Interpretation 206-5

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.

Interpretation 206-6

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.

Comments

[Darth Chocolate]

Shorter ABA:

"You will submit AND you will like it."

[AtR]

Not just the ABA ... that seems to be the tenor of the conversation world-wide.

[Ed Grinberg]

Sounds like the Rev...

[I Callahan]

With a slight adjustment:

"You will submit AND you will like it, Clingers."

[DaivdBehar]

All diversity is Maoist criticism of the USA from the 1960's. Zero tolerance for woke. The ABA should lose its accreditation powers.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

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;

Which is it -- all, or particularly some?

English first not language mebbe.

[Illocust]

Mott and Bailey for legal trials. They'll hold you to the second, but at trial they'll claim only the first.

[Ed Grinberg]

All animals are equal, but some animals are more equal than others.

[SKofNJ]

Ed, perfect quote.

[Sarcastr0]

The rule is exhortative, not directive.

[Rossami]

The use of "shall" instead of "should" belies that interpretation.

[Sarcastr0]

The lack of concrete actions being specified makes it quite clear that no particular implementation is being considered.

[WuzYoungOnceToo]

The lack of concrete actions being specified makes it quite clear that no particular implementation is being considered.

Perhaps English isn't your first language either.

[swood1000]

The lack of concrete actions being specified makes it quite clear that no particular implementation is being considered.

What they are describing are the criteria for determining whether a particular law school will be accredited. The fact that they don't specify the weight of each one in reaching their final judgement does not seem to be a cause for comfort on the part of the law schools.

[Sarcastr0]

How would that be implemented, then?

Exhortations like 'particularly' are not going to be anything you can cite as a dealbreaker.

[swood1000]

Exhortations like 'particularly' are not going to be anything you can cite as a dealbreaker.

Accreditation decisions are understood by all to be a matter of judgment. For example, the following could be part of the explanation for an adverse decision: “The law school failed to demonstrate concrete actions towards creating an inclusive and equitable environment under Standard 206(a)(3).” I don’t think that the typical accreditation body will be assigning mathematical weight to each general reason it gives in its report. They typically are private entities whose obligations are contractual.

[WPHDM]

Ahnenpaß all over again? ... or just Ethnic Authenticity Certification

Sounds rather familiar ... some persons are more equal than others, and then there are the persons that aren't even persons but entities.

Also: How are you "related" to race? What degree will do? Human race not good enough? Extra points for alienage?

Then about that ethnicity thing.... Can it be idiosyncratic, and if not, where is the list of recognized ethnicities, rank ordering thereof, and currently preferred mixes and melanges? Next challenge: How do you best validate your ethnic authenticity for diversity-optimization purposes?

Suppose I am a Mennonite born and raised in the Chihuahan desert with Plautdietsch as my toddler tongue, then Spanish, English, and High (School) German. Am I ethnic enough and if so, which one? Swiss, Dutch, Prussian, Russian, Candadian? or just a generic Mexican La Raza person of no particular color. Though colorful perhaps in other respects. Would it help to convert? Panwokism or such?
https://en.wikipedia.org/wiki/Plautdietsch_language

Now, what if managed to enlist Cornel West to find me some ancestors that was Yiddish-speaking shtetl dwellers in Austro-Galicia? Would that do any good when being probed and grilled by the diversity-minded human resources department? Could throw even Ukraine into the mix, since that place been in the news lately.

Insomma: Would this mongrel be ready to be actively affirmed for the greater good of a diversified intelligentsia, or does he have to work a bit more on the pedigree thing? Get a genealogical Gutachten; a more extensive DNA profile perhaps, whether to ascertain the (non)purity of the breed or to detect an assortment of distinctive and desirable markers of previously-underutilized person status and that bode well for becoming a future partaker of equity?

- Guidance, please!

[Cal Cetín]

"required to undertake mandatory DEI training"

It's bad enough to be required to take DEI training, but to be required to take *mandatory* training?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

English first not language mebbe.

[Gandydancer]

Those are EV's words, not the standard's, which says merely:

Concrete actions towards creating an inclusive and equitable environment under Standard 206(a)(3) may include, but are not limited to:...
(5) Continuing education for faculty members regarding the effective use of diversity in the classroom.

[highlighting by EV]

The ABA of course has no business hijacking the accreditation process to pursue any other goal than determining the ability of schools to educate competent lawyers, but EV seems to be reading into this standard a requirement that does not appear in the text.

It says "may", not "must", so I'm not seeing where EV got EITHER "required" or "mandatory".

[perlhaqr]

Blackman, not EV, BTW.

[David Nieporent]

Yeah, that makes a lot more sense. A tendentious inference from vague language, phrased as certainty. Blackman, not EV.

[Sebastian Cremmington]

White American men—hold off on chopping your balls off or converting to Islam until the Supreme Court weighs in. 😉

[IPLawyer]

No worries, my nephew just accidentally shot me in the dick

[Longtobefree]

The only way to not be a racist is to first and foremost look at the color of skin.
Bullshit.

[Rev. Arthur L. Kirkland]

How would you try to explain the strikingly White, odds-defyingly male content of the Volokh Conspiracy -- colorblindness at work?

[Bored Lawyer]

Given that entry to the blog as a commenter is free for all, with no limitations as to number, then there is nothing more color-blind (or gender-blind) than that.

[Rev. Arthur L. Kirkland]

That is a profoundly stupid response to a comment concerning the roster of Conspirators.

But, as I have observed before, it appears our remaining right-wing bigots in this society no longer wish to be known as bigots or have attention directed toward their bigotry.

[Bored Lawyer]

No, what is profoundly stupid is your equating some statistical imbalance in the makeup of the commenters (and compared to what? the general population?) with discrimination.

You are nothing but an empty shell, spewing insults, because your grasp of basic logic and ability to make a substantive argument is completely absent. Calling others "bigots" or "clingers" is not an argument, it is nothing more than table-pounding. It is where those like you are headed -- intellectual oblivion.

Leftism, socialism and all the other isms are in theory wonderful, but in practice they have one basic problem. Like the perpetual motion machine, they just don't work.

[Gandydancer]

As always, Asshole, you pile obliviousness on absurd stupidity. Biored Lawyer's observation that the qualfication for commenters here is entirely color-blind is perfectly on point as a response to your fact-free "comment" posing as a question.

[IPLawyer]

Weird, I went to law school, granted it wasn't an atrocious school like STLS, but still my professors were nowhere near being as exclusively white or male as this blog.

[Titus PUllo]

What's "white"? I hate to go there but as a true latin (Italian American) my tribe seems to be marginalized in the media, academia, hollywood, wall street, big tech, and most democratic administrations. I want my DIE (diversity, inclusion, and equity) entitlements.

[Rev. Arthur L. Kirkland]

Italians were treated brutally for decades in America. Now some of their descendants have joined the latest wave of ugly bigots targeting others.

[Gandydancer]

No, you ugly bigot asshole, no one is joining you in anything.

[DaivdBehar]

Artie is making the same arithmetic error as the Democrat partisans at the Census. That huge bubble of Hispanics is not diverse. It is white supremacist, conservative, religious, right wing bigots. They engaged in violent ethnic cleansing of blacks in LA, as a harbinger. Black support of the Democrat Party and its open border policy is very self defeating.

[Kazinski]

My kids are half Asian, half White, the way things are going that makes them "SuperWhite".

Stained not only as being oppressors, but subject to quotas for being overachievers.

[AmosArch]

Diversity and Equality are diametrically opposed concepts. Simultaneously holding both as your fundamental bedrock values essentially means your cult is based on a contradiction/double think

[Lee Moore]

I'm not sure that's right. For example, if all people are in fact equal, but some deplorables mistakenly believe that those people over there are inferior, the goal of diversity ie making sure that there is a goodly helping of those people over there in whatever sample you are collecting for whatver purpose, also serves the goal of equality - demonstrating to the deplorables that they are mistaken.

By deliberately selecting some of those people over there in preference to these people over here you are not offending against equality, because all people are in fact equal, so it doesn't matter which ones you select. They're all equal. But you are actively serving diversity, by keeping the pack fully shuffled.

So Diversity and Equality would only clash if it were not the case that all people are equal. And only deplorably mistaken people think that.

[Gandydancer]

Nonsense. All people are not in fact the same so meeting quotas necessarily implies treating them unequally.

[Sarcastr0]

This is purposefully being facile.

Treating diverse populations equally is not a contradiction.

[Brett Bellmore]

The problem is that since people actually ARE diverse, and not just as a cosmetic matter, and thanks to path dependence and the statistics of small numbers, if you treat people equally you're pretty much always going to get results the diversity mavens don't like.

The only practical way to achieve the statistical results they aim for is to treat people unequally by imposing some sort of quota.

[WPHDM]

In some contexts, random selection (or something close to it) works. Take public opinion polling, for example. Next best thing to referenda from a democratic theory perspective (though beset with much abuse).

[Brett Bellmore]

You'll find that, even in polling, after random selection, they normalize the numbers to match population statistics; Which is to say, they impose a quota.

[WPHDM]

Well, the problem with surveys is that the initial sample is typically not truly random for a variety of reasons, the most obvious one being refusals/nonreachable selected respondents. So then the challenge is to use statistical corrections/adjustments and to re-weight the somewhat biased sample that overrepresents some segments of the population and underrepresents others. It's not an exact science because only a limited number of variables being available that decribe the population, and choices having to be made about the weighting. With polls preceding elections, of course, the big unknown is who will actually turn out, which takes even more effort than participating in an online or phone-based poll.

[Sarcastr0]

Right, Brett, but it turns out that in America right now dominates diversity of experience.

Not that other stuff doesn't matter, but the reason we look at race is that race matters the most. Where I work, it is pretty clear that race and state diversity is where we leave a lot of promising talent on the table.

[WuzYoungOnceToo]

but the reason we look at race is that race matters the most

Perhaps in the circle of racists you travel in. Out here in the mostly-non-racist world things like ability, ambition, intelligence, etc all matter much, much more.

Where I work, it is pretty clear that race and state diversity is where we leave a lot of promising talent on the table.

So you choose to work at a racist organization? You racist racist.

[Rossami]

Sorry, Sarcastr0, I think you're the one being facile here. Your mistake is in focusing on populations at all. Individual people are diverse. Individual people should be treated with equal respect and dignity. Looking at populations in this context doesn't tell you much of anything except that a lot of people are really bad at math.

[Sarcastr0]

Does this rule say anything about not treating certain people with equal respect and dignity?
Because I'm not seeing it. Hence, no contradiction.

Not saying it's a good idea, only that it's not internally contradictory as Amos insists.

[Titus PUllo]

bullshit marxism. so called equity is having standards and admitting or promoting based on performance. That is fair. This DIE stuff destroys the idea of fairness. I do wonder if the powers that be will ensure the groups overrepresented are denied admission or promotion. And what are "marginalized groups?" For example where do you stop the segmentation? We know Italians and Catholics are underrepresented in Ivy League world and Jews overrepresented so I guess we need to not admit so many Jews..I wonder if the folks running the DIE programs are ok with that?

[Rev. Arthur L. Kirkland]

What do you think of Heterodox Academy, clinger?

[Ed Grinberg]

We know Italians and Catholics are underrepresented in Ivy League world and Jews overrepresented so I guess we need to not admit so many Jews.

It's been done:
https://www.jewishvirtuallibrary.org/harvard-s-jewish-problem

[Gandydancer]

Your link shows that keeping Jews out was being done almost a century ago, but that has long, long since been undone. It's past time to look around you in this century.

[GreenLanternCorps]

Yes, now they keep out Americans of assorted Asian ethnicities.

(But appear to have no issue with Foreign National ethnic Asians as long as they are paying full tuition)

[Rossami]

That's the point, Gandy. It was done in the past to Jews. It was wrong then and has since been recognized and undone. It is now being done to a different group. It is equally wrong now and should be undone (or not started).

[Gandydancer]

Your wording and point was carelessly unclear. Do you deny this?

[Titus PUllo]

That was my point.....we don't do this in certain areas where "marginalized" groups are overrepresented (NBA for example) and no one cares. If the best physicists are mormons..if folks have an issue with it then help your tribe become physicists not give quotas..

[IPLawyer]

"bullshit marxism"

Say it three times fast with me now "Saul Alinsky, Saul Alinsky, Saul Alinsky". Barack HUSSEEEEIIIINNN Obama.

[WPHDM]

Mezzogiorno Quotas Anyone?

Who is a Jew? Who is a Catholic? Who is a Latin? Who is a Transylvanian transsubstantiationist who travelled the Seven Seas starting with the Black one (probably underrepresented in academe)? And how do we know? As a practical matter, you have to operationalize classes and set group membership criteria, and then apply them to the human units.

Are you a Latin American if you half Italian? What if you still in Rome or Florence seeking appointment as a professor of comparative or international something or other in USA, or just letters and languages? Which is the proper universe for proportionality determinations? World popuation share? Continental? North America? USA? The state where the teaching is to be done?

And if you half, do you get discounted down 50% for Italian-admission weighting and progress-measurement purposes? Then what about that other half of you? If Kenyan or Irish, which will pull you up or down -- more more -- on the scales of equity? And other contemporary measures of gravitas?

But there is another way: Why not do as with gender: Anything goes in the self-identify box-checking selection: Maxi-Choice, Any or all of the above or none, plus fill-in-the-blank or leave it all blank like a tabula rasa.

Insomma: Be whatever you wanna be.

But then again, what's all the fuss about? Why not just be both human and unique in the particulars?

[Currentsitguy]

Any time I see the words equity and diversity instead of equality and merit I know everything that follows is horsepucky.

[Rev. Arthur L. Kirkland]

If we enforce merit, our stronger, educated, accomplished, modern communities would permit can't-keep-up backwaters such as your Pennsyltuckybama town to wither and die. Rural electrification never would have been subsidized, for example, and you would be placing your comments in stamped envelopes (or, to save postage, on postcards).

Who knew rural electrification would turn out to be such a bad idea?

[Currentsitguy]

You have no idea who I am, what I do, or what I have earned through no effort but my own. I can tell you, however, that the only reason unworthy people like you even have lights is due in part to my work. You won't last a week if they went out without someone handing you something.

Enjoy your pitiful existence.

[Jimmy the Dane]

It will be fun times when the actual reckoning comes....

[Rev. Arthur L. Kirkland]

Are you dumb enough to expect conservatives to diminish (let alone reverse) the tide of the culture war, or delusional enough to predict that can't-keep-up clingers -- most of whom haven't stuck with or accomplished much of anything in their deplorable backwater lives -- are suddenly going to overthrown the government of modern America?

Either way, you get to continue to whine about how disaffected conservatives are in modern America, but you will continue to comply with the laws established by the liberal-libertarian mainstream against the preferences of conservatives.

So open wider, Jimmy . . .

[Jimmy the Dane]

Keep on telling yourself that there AK...

[Cal Cetín]

"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."

Using customary tools of legal interpretation, what does this say of jurisdiction that *allow* the consideration of race/ethnicity in employment and admissions?

It would seem that the ABA wants schools in such jurisdictions to practice racial and ethnic discrimination.

[Gandydancer]

Of course we knew even without that text that they want "positive" discrimination everywhere, by hook or by crook.

[cjcoats]

And that DEI training usually involves Constitutionally-forbidden (at least for state related law schools) compelled speech -- it's that way for DEI training for the rest of state-university faculty and staff.

Something effective needs to be done about that.

[SKofNJ]

Ed, perfect quote.

[DonP]

Looking forward to the AMA doing the same diversity outreach. After all, Cardiac and Neurosurgeons may well be under represented by certain ethnicities. Perhaps airline pilots should also be judged by the color of their skin or heritage. Preferably by the doctors and pilots flying the people demanding this for lawyers first.

[jdgalt1]

If these people were serious about diversity, (a)(3) would include political parties and viewpoints.

[DaveM]

Every now and then I come to the VC blog without being signed in, and run into comments by the Rev. Arthur L. Kirkland because muting a user only works while you are logged on.

For those who don't know, The Rev loves to troll here. He has admitted that he enjoys getting the unwary to react to his juvenile jabs and name-calling. He's not here for an honest conversation, he's a pest.

As a thought experiment I suggest muting his comments and seeing how much nicer the neighborhood is without his constant race- and class-baiting.

[IPLawyer]

Yes, then you can read all of David Behar's posts without being distracted!

[Bored Lawyer]

Tu quoque much?

[Sarcastr0]

Doesn't the 'yes' bely that he's using that fallacy?

[WPHDM]

Abating "trolls" and "pests"

The recommended muting is not a thought experiment. It's much rather a call for the collective silencing of disagreeable verbal production, otherwise known as censorship or suppression of speech in a forum that currently seems rather open.

Correct me if I am mistaken, but I seem to remember name-calling and labeling with pejorative terms from multiple sources in this comment space.

And calling a fellow member of the species "a pest"? -- Not a good connotation in American English. --> pest control, exterminators

[WuzYoungOnceToo]

otherwise known as censorship or suppression of speech

Is English not your primary language? An individual choosing for themselves which other individuals they do/don't wish to hear is neither censors the latter nor suppresses their speech. They're still able to be read/heard by anyone who has any interest in what they're saying, or by those who simply have not chosen to ignore them.

[WPHDM]

Capisco tutto. l'inglese non è all Greek to me. Tutto bene.

And while with bene theme, including a "nicer neighborhood"
NOTA BENE: The call here was for *collective* action to silence speech based on its content, after name-calling. That's concerning.

Name-calling in response to name-calling, accompanied by mutual infantilization ("juvenile"). Call me an optimist, if you will, but we all can do better, I hope ... all aspirationally, whether we are English nativists or not.

[WuzYoungOnceToo]

The call here was for *collective* action to silence speech based on its content, after name-calling. That's concerning.

No, there was no call to silence speech, collectively or otherwise. Again, one person, two people...or a thousand people...choosing to not listen to what you have to say does not in any way "silence" your or anyone else's speech. It is still available to those who wish to read/hear it.

[WuzYoungOnceToo]

Oh, and this...

And calling a fellow member of the species "a pest"? -- Not a good connotation in American English. --> pest control, exterminators

...is just a silly word game. Referring to someone as a "pest" is not synonymous with using that word to refer to organisms that one might normally seek to "exterminate" (rats, cockroaches, etc.)

[Cal Cetín]

One definition of "pest," says Merriam-Webster, is "one that pesters or annoys: NUISANCE."

Venturing out on a limb, I think the critics of the Rev think him a pest in that sense.

[Davy C]

Full access to the study of law and admission to the profession to all persons

Sweet! So I can just go down to my local law school, maybe study some law, and get admitted to practice law?

What do you mean there are admission requirements and I have to pass the bar exam? It says ALL persons.

[Davy C]

Second, as I read the rule, faculty members would be required to undertake mandatory DEI training.

I can't decide if that wrong because it's too strong or because it's not strong enough.

Concrete actions towards creating an inclusive and equitable environment under Standard 206(a)(3) may include, but are not limited to... Diversity, equity, and inclusion education for faculty, staff, and students;

On the one hand, this rule doesn't seem to make it mandatory. On the other hand, many law schools likely *will* make it mandatory because they don't want to go anywhere near putting their accreditation at risk, and it's not just for the faculty, but staff and students as well.

[WPHDM]

OPUS DEI & WORSHIP OF DIVERSITY

DEI should be rejected by state law schools on entanglement with religion grounds.

THE TEXAS CONSTITUTION

ARTICLE 1. BILL OF RIGHTS

Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.

Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.

[Peter Gerdes]

The phrase "protected by the US Constitution" is really odd. The Constitution protects literally no private actions (tho arg abortion under current prec is closest). Rather, it merely limits congresses power and that's not mere verbal trickery since virtually any private action could be outlawed under some law.

I think the better reading is thus to suggest that the Constitution protects all private actions that haven't been outlawed by a legislature (eg 9th)