Trump’s State Bar DEI Threat Emboldens Diversity Policy Attacks

Under threat from the Trump administration and lawsuits from conservative litigators, state bar groups across the country are deciding whether to shelve diversity programming or risk getting dragged into court.

State bar leaders have been war-gaming their responses to Trump’s executive order compelling all federal agencies to investigate any diversity, equity, and inclusion funds and specifically calling out state bars for scrutiny. The American Bar Association recently suspended enforcement of its DEI mandate for law schools.

“Bar associations don’t want to make themselves targets for the feds, and there are pockets of litigation groups looking to make a point,” said Victoria M. Santoro, president of the Massachusetts Bar Association and co-founder of Santoro & Gray Law. “But by the same token, getting to know one another, getting to know people from different backgrounds, is not illegal, and it’s never going to be illegal.”

Some bar leaders are resolute, including Connecticut Bar Association President Tim Shearin. His organization will continue programs like its diversity summit and a law camp for high school and college students.

“Our promise to make the legal profession open to all remains steadfast,” he said in a statement.

Eight state bars said they didn’t plan on changing their DEI programs.

State bars have reason to be afraid, said Skylar Croy, associate counsel with the conservative Wisconsin Institute for Law and Liberty—a group that has sued over state and national bar DEI policies and plans to take advantage of Trump’s order.

“100%, this order will be helpful” for groups like his because finding federal funding for DEI will trigger more cases, Croy said.

Key Liability Factors

Two main factors could determine a state bar’s exposure to lawsuits over DEI work: whether the bar’s membership is voluntary, and whether it gets public funds.

There are 31 states, including California, Florida, and Wisconsin, that have “mandatory bars” where lawyers must join and pay dues to actively participate in a state’s legal industry and take on clients.

The remaining states, like Massachusetts, have some form of voluntary bar for lawyers to network, train, and advocate for a state’s legal community.

The second factor—public funds—is where Trump’s order could play a key role. If the administration unearths funding for bar activities that Trump says violate federal anti-discrimination rules, that would give conservatives leverage to sue bars receiving this cash, Croy said.

Claims against bars—including a complaint WILL filed this month against the American Bar Association for a diversity clerkship program—generally allege DEI work violates federal and state laws by discriminating against non-minority lawyers. They also often argue that requiring lawyers to pay into DEI-supporting bars violates free speech and association rights of lawyers that don’t support that work.

Those claims are weakest against voluntary bars which use their own cash. For example, a landmark state court decision in New Jersey found its voluntary bar has the same free association rights as other private groups. These rights allow clubs to pick their leadership and members.

But in a few months, Croy hopes to see a trickle of reports from federal agencies highlighting bar grant programs. That would arm conservative groups with evidence they need for more suits.

“If any facts of that nature get unearthed, there are a lot of organizations that are very, very interested in getting a ruling from the US Supreme Court,” he said. “The idea is the group is discriminating on the basis of race, so I don’t want to associate with them—that’s a compelling fact pattern that people are going to start bringing more and more.”

‘Bars Will Have to Decide’

Bar leaders and affinity groups worry that Trump’s order will chill the varied kinds of diversity programming they’ve spearheaded across the country.

Continuing legal education, special committees for affinity groups, and summits where law firm and corporate hiring managers discuss ways to seek out diverse candidates, have been common programs nationwide, even in conservative states.

Texas ran a minority-centered scholarship program and events focused on getting minority-run law firms more business with public and private sector clients. The Texas Bar declined to comment for this story.

The stance a state bar takes on diversity programming often depends on its high court.

Vermont Bar Association Executive Director Robert M. Paolini said in an email that their state high court requires DEI training.

In contrast, the Florida Bar—controlled by a conservative Florida Supreme Court—has ended diversity training and committees, and has stripped the words “diversity and inclusion” from its policies. The group didn’t respond to a request for comment.

Other states have recognized Trump’s order puts everything they do under a microscope.

In opening remarks before the New Jersey State Bar Association’s Diversity Summit last month, President William H. Mergner Jr. addressed the elephant in the room. He said their gathering came “at a particularly challenging time” while other institutions and boards were canceling their programs due to Trump’s order.

“The New Jersey State Bar Association remains steadfast in our longstanding commitment to diversity,” he said.

What the bars say and do matters, and will send messages to the broader legal community as it weighs how to respond to Trump’s executive orders, said Damon T. Hewitt, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law.

“Just as lawyers are going to have to decide, the bars will have to decide if they will stand on the side of truth, justice, fearlessness and due process,” he said. “Or are they willing to abandon the long-held values of the American legal system because it’s politically expedient.”