ABA Halts Enforcement of DEI Rule in Reaction to Trump Agenda (2)

The American Bar Association is suspending enforcement of its diversity equity and inclusion mandate for law schools.

The decision is in direct response to the recent messaging from the Department of Education and the executive branch. Law schools typically must adhere to the requirement in order to receive accreditation.

The suggested rule had included race- and gender -based criteria and pointed to specific areas schools can take “concrete” action, including recruitment efforts targeted at groups that have been “disadvantaged in or excluded from the legal profession.”

Education Department acting Assistant Secretary for Civil Rights Craig Trainor last week sent schools a letter telling them to comply by Feb. 28 with federal law, which does not allow for race or gender-based policies, or risk losing federal funding. Law schools have made changes to their community-based web pages.

The Trump administration has issued executive orders banning DEI programs across federal agencies and calling for investigations into DEI initiatives at bar associations and universities. The State Bar of Wisconsin changed its definition of diversity in a clerkship program after facing a lawsuit.

The move has some worried about how this decision may impact how other bar associations approach their diversity, equity and inclusion agendas.

“Whatever the ABA does, other places are going to follow and then it becomes a slippery slope,” Bryson Malcolm, founder of recruiting firm Mosaic Search Partners said.

Malcolm is also concerned about what this enforcement pause may lead to, including backpedaling on demographic data collection and its distribution.

Entities are trying to figure out how to approach their diversity, equity and inclusion agenda without putting themselves in legal jeopardy, according to Danielle Conley, who leads Latham & Watkins’ anti-discrimination and civil rights practice.

“Changing the language is not going to be a silver bullet,” said Conley, who served in the Office of White House Counsel for President Joe Biden. “At the end of the day, institutions have to do the work of assessing whether they’ve got practices and programs that run afoul to the civil rights laws.”

ABA Targeted

Conservative legal groups have complained about the ABA’s various DEI policies for several years.

A coalition asked the Equal Employment Opportunity Commission on Feb. 10 to investigate the ABA over alleged bias in a diversity clerkship hiring program. A group of state attorneys general cautioned the ABA over its diversity standard in a Jan. 6 letter. “At some point, too, it becomes difficult to square the federal government’s trust in the council to serve as the exclusive accreditor of law schools with the standards’ ambiguous posture toward compliance with federal law,” the letter read.

More than 20 Republican state attorneys general had previously warned the ABA of potential discrimination violations over diversity requirements in the bar’s law school accreditation system in a June 2023 letter.

The committee had earlier defended its “value of diversity and inclusion” and changed its language options after public comments critiqued its previous revision proposal saying it would “send a negative message about the importance of diversity.”

The body functions as an independent arm of the association and also sets guidelines in other areas such as curriculum and student evaluations.