ABA Softens DEI Clerk Language After Conservative Challenge (1)

The American Bar Association has loosened its diversity, equity and inclusion requirements in a clerkship program, according to a non-profit group that accused the organization of recruitment bias.

ABA now encourages participating schools to select diverse students by promoting equal participation and eliminating bias, according to the group, the Wisconsin Institute for Law and Liberty. ABA previously required schools choose four to six students from underrepresented communities of color and asked judges to hire at least two minority clerks over five years.

“In reviewing the program materials, some language was removed that did not accurately reflect the operation of the program,” ABA Senior Associate Executive Director and General Counsel Annaliese Fleming said in a statement. “The Judicial Clerkship Program has not been changed.”

Law firms, nonprofits, and companies are scrutinizing their diversity policies and making changes after legal challenges from conservative groups emboldened by the US Supreme Court’s 2023 decision to restrict the use of race in college admissions. Edward Blum’s American Alliance for Equal Rights on Monday in an EEOC complaint accused Merck & Co. Inc. of unlawfully excluding White and Asian workers in a diverse leadership program.

The Wisconsin Institute for Law and Liberty in May accused the ABA of violating federal law through its clerkship program by targeting applicants based on race, age, and sexual orientation. The group filed complaints with the US Justice and Education departments and also targeted South Texas College, the University of the Pacific, and Willamette University for their roles in some of the programs.

“We will continue to challenge race-based programs and promote a colorblind society,” an attorney for the group, Skylar Croy, said in a statement. The State Bar of Wisconsin changed terms of its diversity fellowship program after being sued by the group last year.

More than 20 Republican state attorneys general in June warned the ABA of potential discrimination violations over diversity requirements in the organization’s law school accreditation system. Then in August the ABA body that accredits law schools suggested striking language that instructs schools to provide opportunities “for members of underrepresented groups, particularly racial and ethnic minorities.”

Instead, the body suggested broader language to encourage access for “all persons,” including those disadvantaged on the basis of race, color, ethnicity, religion, national origin, gender, gender identity, gender expression, sexual orientation, age, disability, military status, Native American tribal citizenship and socioeconomic background.