Friday, December 03, 2021

The ABA Council’s Futile Quest for a Diversity Mandate

Jason Mazzone

The ABA Council of the Section of Legal Education and Admissions to the Bar has now released a second proposed set of revisions to standard 206 concerning diversity in law schools. The Council’s first effort generated significant criticism (the best of which is in the letter from Yale Law faculty members, available here). Now that we have the second proposal, the only sensible conclusion is that there is no reasonable way to mandate diversity and the Council should abandon its efforts.

In the current proposal, the Council describes its standard 206 mandates as “aim[ing] to achieve the effective educational use of diversity, the compelling state interest recognized in Grutter v. Bollinger.” That’s just nonsense. First, Grutter involved deference to the judgment of individual law schools about the educational benefits to the school of diversity—not imposition of a one-size-fits-all requirement. Second, Grutter allowed consideration of race only as part of an effort to promote diversity across multiple dimensions. The Council’s approach, by contrast, prioritizes race, requiring “[f]ull access to the study of law and admission to the profession to all persons, particularly members of underrepresented groups related to race and ethnicity.” Third, Grutter concerned only diversity within the student body. The Council’s mandate extends to employment, requiring law schools to prove they have “a faculty and staff that includes members of underrepresented groups, particularly those related to race and ethnicity.” Grutter says nothing about consideration of race in employment practices and the Council gives no attention to how such consideration would be lawful. (The reason for diversifying the staff of a law school is especially mysterious.) Indeed, most telling might be the separate provision in the Council’s proposal requiring law schools to maintain “[a]n inclusive and equitable environment for students, faculty, and staff with respect to race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, and military status.” The appearance, only here, of a multi-faceted view of diversity, suggests strongly that in admissions and hiring, by contrast, the Council’s mandate is not diversity in the Grutter sense—but just a requirement for more students and more employees of certain races.

Other parts of the Council’s proposal show equally the folly of legislating diversity. For instance, the Council identifies as a “concrete action” demonstrating a law school’s compliance “continuing education for faculty members regarding the effective use of diversity in the classroom.” The Council doesn’t explain what it would mean to “use diversity” (and “continuing education” is surely a misnomer). The “interpretation” section contains some oddly worded disavowals. In one, a religiously affiliated school is “not required to act inconsistently with the essential elements of its religious values and beliefs provided that its actions are protected by the United States Constitution.” Nobody honoring Grutter would write such a thing. Another “interpretation” states that “the requirement of creating an inclusive and equitable environment does not require law schools to censure or prohibit academic discussion of ideas that may be controversial or offensive to some students, faculty, or staff.” The phrasing suggests schools might well choose to censure speech in the name of the mandate.

Two bites at this apple are enough. 

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