The Volokh Conspiracy
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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, 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.
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 parttime tenured and tenure-track faculty, as well as contract faculty, research faculty, adjunct faculty, and any other faculty category.
I see some serious problems with this proposed rule. (I am assuming based on past experience that the ABA will interpret such language as "full access" and "includes" as both allowing and at least with regard to URMs requiring affirmative action preferences if the ABA deems a law school to not otherwise have "enough" members of the relevant groups, with enough left officially undefined.)
First, there is the question of how a law school is to determine that a group is "underrepresented." Traditionally, "underrepresentation" concerns were limited to the official racial and ethnic minorities regarding which educational institutions and the U.S. census collect statistics. Applicants to law schools check off whether they identity as white, Hispanic, Asian, Native American, Native Hawaiian/Pacific Islander, or African American. The Census Bureau also collects statistics about these groups, and their employment in different fields. So there is at least some statistical basis for determining that members of those categories may be "underrerepresented" in the legal profession.
But how is a law school supposed to determine whether a group identified by "religion, national origin, gender, gender identity or expression, sexual orientation, age, [or] disability" is underrepresented in the legal profession? No one gathers or keeps the statistics that would be needed. Are Armenians underrepresented? Gay men? No one knows.
Also troubling: on the religion front, while no one keeps official statistics, we do know that Jews are substantially "overrepresented" among law school faculty. A study a decade or two ago found that thirty percent or so of the faculty at the top 100 law schools identify as Jewish. I suspect it's lower now, but still way higher than Jews' representation in the American population. This means that, among others, Catholics and Protestants are inevitably underrepresented. I'm sure that the ABA doesn't mean to suggest that law schools should be engaging in affirmative action for Protestant faculty (and perhaps students) and disfavoring "overrepresented Jews", but that would be the natural implication of its language. I suspect that the ABA does want to give law schools carte blanche to specifically recruit Muslim faculty, but there is no warrant in federal education law for any sort of religious preference in faculty hiring.
Let's go back to the issue of "groups related to race and ethnicity." As noted, law schools, as required by the Department of Education, collect data on student racial and ethnic ("Hispanic/non-Hispanic") identification. The relevant categories categories were created arbitrarily by federal bureaucrats whose only goal was to unify the racial categories federal agencies used for recordkeeping. 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 warned that they "should not be interpreted as being scientific or anthropological in nature" and should not "be viewed as determinants for eligibility for participation in any Federal [affirmative-action] program."
That raises the obvious question of why, in pursuit of educational diversity, law schools should be using these particular categories as their baseline. The categories themselves are extremely broad, including within them widely disparate groups with very different indicia of socioeconomic success, including in the legal community.
"Hispanics" are underrepresented as attorneys, but are such subgroups as Cuban, Argentine, or Spanish Americans underrepresented? "African Americans" are underrepresented, but is that true of, say, Nigerian Americans, who have among the highest incomes of all American groups? "Asian Americans" overall do very well in educational achievement, but that's primarily because of 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 it. In the white category, how many Appalachians wind up as attorneys are legal faculty? 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 a sound reason why someone of Argentine or Spanish descent should be of special interest to law schools because they (justifiably) check the Hispanic box, but not someone of Hmong or Yemini descent?
Finally, there is a serious constitutional problem with the ABA mandating that law schools engage in any sort of preference for diversity purposes. In Grutter and Bakke, the Supreme Court placed a great deal of weight on deferring to universities' academic freedom to seek diversity for educational reasons. But if the ABA is requiring law schools to pursue diversity, then law schools are no longer exercising independent judgment, but rather are obeying ABA rules to ensure accreditation.
If any VC readers are interested, the ABA is accepting written comments on the proposal "to Leo Martinez, Council Chair. Please send comments to Fernando Mariduena (Fernando.Mariduena@americanbar.org) by January 21, 2022. Written comments received after January 21, 2022, may not be included in the materials considered by the Council at its February 2022