ABA Tries Again With Legal-Ed Diversity Rule

American Bar Association Council of the Section of Legal Education and Admissions to the Bar released a revised proposal to Standard 206. A version of the rule was approved by Council members in May. However, there were some concerns about it, such as a Eugene-authored letter.


(a.) By providing the following:

(1) All persons are eligible to study law, and all individuals can be admitted to the profession. This includes members of minority groups and those with racial or ethnic origins.

(2) An inclusive faculty or staff, especially those from minority groups.

(3) A welcoming and equal environment for all students, staff, and faculty.

(b) Law schools must report on the Annual Questionnaire, and then publish data in accordance to Standard 509b that shows the school’s compliance with Standard 206a(1)-(2).

(c). A law school is required to annually determine whether it has established an environment conducive to inclusion and equity in accordance with Standard 206(a);(3). Each year, the law school will provide to the faculty the results. The results of an annual assessment by a school of law shall be provided to the Council upon request. They will also include the specific actions that the school has taken to correct any educational deficiencies and what steps have been taken to ensure an equitable and inclusive educational environment.

Interpretation 206-1

Groups that have underrepresented status are those with a history of race, religion, gender, gender identity and expression as well as groups related to age, disability, or gender. They are less represented in the United States legal profession than they are in the general American population. Standard 206(a),(2) defines faculty as full-time, part-time tenured, tenure-track, contract, adjunct, tenure-track, tenured faculty.

Interpretation 206-2

A law school must include in its faculty, staff and students all members from underrepresented groups. However, it should focus on the historically underrepresented group of people who are racially or ethnically underrepresented in the profession.

Interpretation 206-3

Examples of concrete actions that can be taken to create an equitable and inclusive environment in accordance with Standard 206(a),(3) include but not limited:

(1) Student mentoring and support for student affinity groups

(2) Faculty, staff and students can learn diversity, equity and inclusion education;

(3) Provide mentoring opportunities to junior faculty members. Particular focus is on promotion, tenure and retention for faculty members who are from underrepresented groups in legal education.

(4) Pro bono support and externship opportunities to reflect an interest in an inclusive, equitable and welcoming environment.

(5) Faculty continuing education regarding effective diversity classroom use

A law school’s compliance with Standard 206(c), is determined by the sum of all its actions and the outcomes.

Interpretation 206-4

Standard 206 requires religiously affiliated law schools to create an inclusive environment for sexual orientation and gender expression. However, they are not required to do so if their actions are in accordance with fundamental elements of their religious beliefs.

Interpretation 206-5

Standard 206 is not applicable to law schools located in countries that ban the inclusion of ethnicity or race in admissions and employment decisions.

Interpretation 6

In accordance with academic freedom law schools are not required to prohibit or censure academic discussion about ideas that might be controversial or offensive for some students, faculty or staff.

These are three tentative thoughts.

The ABA should first wait for the Supreme Court’s decision in Harvard. Affirmative action could be overturned by the Court. All attempts to write a rule aheadOf HarvardIt is not a good idea.

Second, the DEI Training requirement for faculty is mandatory, according to my reading of the rule.

The protections granted to religious institutions only cover the “essential elements” of their religious beliefs and values. This is subject to the United States Constitution. This is a very weak standard. This is what it looks like. Smith v. Employment DivisionIt is not clear, however, that this interpretation offers any protections.