Bernstein: The ABA's Problematic Proposed 'Diversity, Equity, And Inclusion' Rules For Law Schools

Following up on my previous post, ABA Proposes Changes To Diversity And Inclusion Accreditation Standard:  David Bernstein (George Mason; Google Scholar),  The American Bar Association's Problematic Proposed "Diversity, Equity, and Inclusion" Rules for Law Schools:

The American Bar Association has proposed new "Diversity, Equity, and Inclusion" rules for law schools. ... I see some serious problems with this proposed rule.

First, there is the question of how a law school is to determine that a group is "underrepresented." ... [H]ow is a law school supposed to determine whether a group identified by "religion, national origin, gender, gender identity or expression, sexual orientation, age, [or] disability" is underrepresented in the legal profession? No one gathers or keeps the statistics that would be needed. Are Armenians underrepresented? Gay men? No one knows.

Also troubling: on the religion front, while no one keeps official statistics, we do know that Jews are substantially "overrepresented" among law school faculty.

A study a decade or two ago found that thirty percent or so of the faculty at the top 100 law schools identify as Jewish. I suspect it's lower now, but still way higher than Jews' representation in the American population. This means that, among others, Catholics and Protestants are inevitably underrepresented. I'm sure that the ABA doesn't mean to suggest that law schools should be engaging in affirmative action for Protestant faculty (and perhaps students) and disfavoring "overrepresented Jews", but that would be the natural implication of its language. I suspect that the ABA does want to give law schools carte blanche to specifically recruit Muslim faculty, but there is no warrant in federal education law for any sort of religious preference in faculty hiring. ...

[T]here is a serious constitutional problem with the ABA mandating that law schools engage in any sort of preference for diversity purposes. In Grutter and Bakke, the Supreme Court placed a great deal of weight on deferring to universities' academic freedom to seek diversity for educational reasons. But if the ABA is requiring law schools to pursue diversity, then law schools are no longer exercising independent judgment, but rather are obeying ABA rules to ensure accreditation.

Prior TaxProf Blog coverage:  

• ABA Mulls Racism, Bias Training Accreditation Requirement For Law Schools (May 6, 2021)
• ABA Sends Proposed Changes To Accreditation Standards Out For Notice And Comment (May 18, 2021)
• Leiter Questions ABA's Proposed Accreditation Standards Relating To Racism, Bias Training (June 6, 2021)
• Monday Is The Last Day To Submit Comments On ABA's Proposal To Mandate Racism And Bias Training At All Law Schools (June 26, 2021)
• Peltz-Steele, Sander, Steinbuch & Volokh Criticize ABA's Proposed Accreditation Standard On Diversity (June 29, 2021)
• ABA Standards Committee Approves Anti-Racism, Bias Training As New Accreditation Standards For Law Schools (Aug. 17, 2021)
• In Response To Criticism, ABA Releases Revised Proposed Diversity Accreditation Standard For Notice And Comment (Nov. 23, 2021)
• ABA Proposes Changes To Diversity And Inclusion Accreditation Standard (Jan. 3, 2022)