American Bar Association Scraps Controversial Diversity Proposal After Blowback

Law professors warned that proposal would encourage illegal race discrimination

Failed presidential candidate Hillary Clinton speaks at an ABA meeting / Getty Images
August 10, 2022

The American Bar Association on Monday axed a proposal to require law schools to "diversify" their student bodies after more than a year of warnings from law professors that the plan would force schools to violate federal law.

The proposal, first released in May 2021, would have required law schools to submit annual progress reports on minority enrollment to the American Bar Association. Law schools that failed to boost the enrollment of "underrepresented groups" would have been at risk of losing their accreditation.

The proposal underwent three rounds of revisions before finally being withdrawn by the association’s house of delegates, which did not rule out revisiting the proposal at a later date. An early draft had warned that U.S. anti-discrimination laws were "not a justification" for "non-compliance" with the diversity standard, a line that drew criticism from many in the legal community, including from elite universities.

Ten Yale Law School professors said in a public comment filed in June 2021 that the proposal "instructs schools to risk violating state or federal law in order to retain certification." As late as February 2022, law professors were raising "legal concerns" about the "use of racial balancing or quotas," according to a memo from the bar association summarizing the feedback it received.

The decision to withdraw the proposal comes as the Supreme Court is gearing up for oral arguments in a landmark affirmative action case, Students for Fair Admissions v. Harvard, that could outlaw racial preferences throughout higher education. It also comes as something of a surprise given the association’s relentless focus on diversity.

The association, which accredits almost every law school in the United States, has made noise about eliminating the LSAT, a test some say disadvantages minority applicants. And in February, it voted to require law schools to educate students "on bias, cross-cultural competency, and racism," over the objections from law professors who said the requirement would threaten academic freedom.

The curricular mandate was nonetheless popular among law school administrators, with 150 deans calling on the American Bar Association to implement it. There has been much less administrative agitation for rules about minority enrollment, which law schools have long struggled to boost.

There has also been little consensus on what sort of diversity the American Bar Association should prioritize. Some comments on the now-scrapped proposal said it gave "priority to racial and ethnic diversity at the expense of LGBTQ+ and disability diversity," according to the February memo, creating a "two-tiered DEI system." Others attacked "the phrase ‘underrepresented groups,’" which "may exclude individuals of groups that have been limited by a history of discrimination."

The American Bar Association did not immediately respond to a request for comment.