The American Bar Association’s Problematic Proposed “Diversity, Equity, and Inclusion” Rules for Law Schools

American Bar Association proposes new rules for law school “Diversity, Equity, and Inclusion”.

Law schools must provide: (1) Access to legal education and admittance to the profession to everyone, including members of minority groups such as race and ethnicity. (2) Faculty and staff members that include members of these underrepresented groups. (3) Respect for race, color and other characteristics.
Interpretation: 206-1 The underrepresented group refers to groups related to race and ethnicity as well as gender, gender identity, expression or gender sexual orientation. Standard 206(a),(2) defines faculty as full-time, part-time tenured, tenure-track, contract, research, adjunct, or any other category of faculty.

The proposed rule has serious flaws in my view. (Based on previous experience, I assume that the ABA will understand such language as “full accessibility” and “includes” as both allowing as well as with regard to URMs requiring positive action preferences if a school does not have sufficient members of relevant groups.

The first is how law schools can determine if a particular 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. Law school applicants must indicate whether or not they identify as white, Hispanic/Asian, Native American, Native Hawaiian/Pacific Islander, African American, or Asian. Census Bureau also tracks statistics on these groups and the number of their jobs in diverse fields. It is possible to determine that certain members of these categories are “underrepresented” in legal practice.

What law school can determine if a group is identified by religion, national origin or gender? [or]”Disability” is underrepresented within the legal profession. Nobody keeps or gathers the necessary statistics. Is Armenia underrepresented in the Armenian community? What about gay men? Nobody knows.

Another troubling aspect is that, although no official statistic can be compiled, it’s clear that law school faculty are significantly “overrepresented” in Jewish communities. One study that was done ten years ago found that about thirty percent of faculty members at top 100 law schools identified as Jewish. Although it may be lower than in recent years, I believe that this is still a significant percentage of the American Jewish population. This is why, among other things, Protestants and Catholics are invariably underrepresented. Although I am sure the ABA does not mean that law schools must engage in affirmative actions for Protestant faculty and students, that is the obvious implication. The ABA may want law schools to be able to hire Muslim faculty. However, federal education law does not allow for such a preference.

Let’s get back to “groups related racial 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 federal bureaucrats who created these categories had no other purpose than to unite the records maintained by federal agencies. David E. Bernstein’s 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). These categories were created by bureaucrats, who explicitly warned against their being “interpreted as scientific or anthropological” and not to be used as criteria for Federal eligibility. [affirmative-action] program.”

This raises an obvious question: why should law schools use these categories for their base? They are very wide and can include groups of widely different socioeconomic status, even in the legal profession.

Although “Hispanics are underrepresented as lawyers, is that true for other groups such as Cubans and Argentines? But, is this true for African Americans? Or Nigerian Americans who are among the most wealthy of any American group? The success of Asian Americans is due in large part to their education achievements. Is the American legal profession well-represented in Vietnamese, Cambodian Hmong, Baglandeshi and Pakistani Americans? I doubt it. How many Appalachians end up in the white category as lawyers or law faculty members? Cajuns? Are Cajuns the same?

There is a constitutional problem in the ABA’s mandate that law school students engage in diversity-related activities. Grutter and Bakke showed that the Supreme Court was very concerned with universities being able to explore diversity in an academic setting. However, if the ABA mandates law schools that pursue diversity, law schools no longer exercise independent judgment but must follow ABA guidelines to maintain accreditation.

If any VC readers are curious, the ABA will accept written comments about the proposal to Leo Martinez (Council Chair). Please send comments to Fernando Mariduena ( by January 21, 2022. Comments received after January 21st, 2022 may not appear in materials that the Council considers at their February 2022 meeting.