by Alixel Cabrera, Virginia Mercury

Virginia Attorney General Jason Miyares signed a letter with 20 of his Republican counterparts asking the American Bar Association to drop its diversity and inclusion standards for law schools.

DEI efforts implemented in the schools directs their administrators to violate both the Constitution and Title VII of the Civil Rights Act, which “prohibits employment discrimination based on race, color, religion, sex and national origin,” the states argued.

The letter comes a year after the U.S. Supreme Court’s decision in a lawsuit against Harvard College that dictated students must be considered based on their experiences as an individual and not on their race. The decision led higher institutions to stop affirmative action policies, and many states since then have passed laws restricting DEI programs.

The diversity and inclusion standard of the American Bar Association, which is currently under revision, “seemingly asks law schools to defy the Court’s clear directive. In its current form, the Standard all but compels law schools to consider race in both the admissions and employment contexts,” according to the letter led by Tennessee Attorney General Jonathan Skrmetti.

The standard establishes that law schools should “demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.”

The same diversity and inclusion commitment should also be extended to faculty and staff.

The issue with this guidance, the attorneys wrote, is that it suggests schools undertake concrete actions such as special recruitment efforts and considerations, in addition to special financial assistance programs. But, the standard and its accompanying recommendations don’t mention how to take those suggested actions without “unlawfully using race-based means.”

“If race-based admissions cannot satisfy strict scrutiny (…), then neither can racially motivated recruitment or financial aid,” according to the letter.

A demand to show a commitment to have a body of faculty and staff that’s diverse with respect to race and ethnicity, is also an “explicit demand to make hiring decisions based on race,” the attorneys argued.

By maintaining the standard, the attorneys continued, the American Bar Association would burden every law school in the country with litigation.

“Further, if American legal culture internalizes the ABA’s determination to ignore unwanted legal obligations, our profession, and our country, may never recover,” the letter reads.

The proposed revisions for the American Bar Association include that the access commitment must be extended to “all persons,” including those who have faced disadvantages or exclusion because of their identity traits.

Faculty and staff should also be diverse with respect to different characteristics, such as race, religion, gender and socioeconomic background, among others.

But, those changes “do little to solve these problems,” according to the letter, as “bundling race with other permissibly considered characteristics does not somehow make (the standard) requirements any more constitutionally sound.”

The issue is concerning, the attorneys said, because accreditation rests “on a tightrope walk between federal law, on one hand, and (the standard) contrary demands on the other.”

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