Trump’s DEI Scrutiny Coming to Bar Associations, Law Schools (2)

Diversity, equity and inclusion programs at bar associations and law schools will be subject to more scrutiny under a second Trump administration.

A new, anti-DEI executive order will open up private sector entities, including state and local bar and medical associations and institutions of higher education with endowments over $1 billion dollars to up to nine potential civil compliance investigations, according to the Tuesday executive order. It seeks to root out “the most egregious and discriminatory DEI practitioners in each sector of concern.” Entities found in violation could be subject to federal litigation or potential regulatory action.

“The EO has the intent of erasing the existence of real living gorgeous people from our communities and families, workplaces and armed forces,” said Anya Lynn-Alesker, executive director of the National LGBTQ+ Bar Association and Foundation. “Our role as the National LGBTQ+ Bar is to support the national community of LGBTQ+ legal system actors, law students, and future members of the profession and their families in living their whole, authentic lives, without fear of harm and retribution.”

Law firms, nonprofits, and companies made changes to DEI policies after legal challenges from conservative groups emboldened by the US Supreme Court’s 2023 decision to restrict the use of race in college admissions. The accreditation body at the American Bar Association is tinkering with changes to how it describes its diversity rules for law schools. The State Bar of Wisconsin changed its definition of diversity in a clerkship program after facing a lawsuit.

There’s a lot of angst from clients around what the orders mean, said Victoria Slade, who co-leads Davis Wright Tremaine’s DEI advisory group. “It’s definitely showing that the government is taking a strong interest in evaluating programs to determine if they’re unlawful,” she said. “It raises questions of the standards they will apply.”

The order declares that inquiries should be done in the next 120 days. It also asks the attorney general and the secretary of education to propose guidance for higher education institutions that receive federal funds on how best to comply with the standards set in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

Trump’s aversion to diversity, equity and inclusion measures was a central point for his campaign.

More than 20 Republican state attorneys general warned the American Bar Association of potential discrimination violations over diversity requirements in the Bar’s law school accreditation system in a June 2023 letter. Arkansas Republican Sen. Tom Cotton sent letters in July to 51 global and national law firms to warn them that their continued use of DEI programs and advice to their clients on these programs could violate federal law and land them in court.

This activity can create a chilling effect for companies with any diversity, equity and inclusion initiatives, Slade said. “For some businesses, that is enough to decide to change course voluntarily,” she said.