The Task Force on Defending Constitutional Rights and Exposing Institutional Abuses held a hearing titled “The Future of DEI in Law School Accreditation and the Legal Profession” in Washington on July 23. Members discussed how the American Bar Association (ABA) uses its accreditation authority to promote diversity, equity, and inclusion (DEI) policies that they say are contrary to federal civil rights law, as well as the resulting effects on the legal profession.
During the hearing, Michelle Behnke, President of the ABA, defended these policies. “[The numbers] tell us there’s still more work to do. The data shows that women, lawyers of color, and other groups remain drastically underrepresented in the American legal community. Barriers still remain,” Behnke said.
Zack Smith, Senior Legal Fellow at The Heritage Foundation, testified that “the ABA has weighed in on hot button cultural issues by supporting nationwide abortion and racial discrimination at American universities. It has opposed Second Amendment rights and has attacked states that refuse to let children cut off their genitals if they feel they were born in the wrong body.” Smith also criticized what he described as an overreach by stating, “for an organization supposedly dedicated to the rule of law, it has taken the absurd and patently incorrect position that our Constitution has 28 instead of 27 Amendments.” David Blackman, a former law student at Penn State Dickinson Law, said “the ABA leverages its monopoly over accreditation as a weapon” and called for accountability regarding what he characterized as mandatory DEI frameworks imposed on future lawyers.
Members highlighted concerns about Model Rule 8.4 G—a professional conduct rule put forward by the ABA—describing it as a speech code criticized across political lines. Smith referenced actions against certain law schools for not implementing DEI standards aggressively enough: “Even setting aside that overlap, the [Law School Accreditation Council] itself has taken a number of controversial actions…” Blackman added: “This is without a doubt the biggest implementation of mandatory DEI in higher education across our nation.”
Proposed changes to eliminate some ABA rules on DEI may be implemented only temporarily or with intent to restore them later; Smith urged Congress and executive agencies to consider authorizing additional accreditors beyond just one entity like ABA.
Throughout questioning from Task Force Chairman Brandon Gill (R-Texas), Behnke maintained that “the ABA supports diversity in all of its forms” but stated, “the ABA does not subscribe to any particular quotas.” On race-based admissions questions posed by Gill regarding whether race should be considered during admissions decisions for law schools or whether Americans should be judged by character rather than skin color, Behnke responded repeatedly: “Discrimination is never appropriate.” She emphasized compliance with Supreme Court rulings prohibiting consideration of race while noting that “the ABA takes compliance with the law seriously.” When pressed about partisanship within her organization by Rep. Jim Jordan (R-Ohio), Behnke insisted: “Yes sir [we are nonpartisan].”
Questions were also raised about potential overlap between members serving both within different arms of legal education oversight bodies affiliated with or operated by ABA.