ABA changes description of Judicial Clerkship Program after conservative group sees 'quotas'
The ABA headquarters in Chicago. (Photo by John O’Brien/ABA Journal)
The ABA updated the description of its Judicial Clerkship Program after a conservative group alleged that the language indicated that the association used racial “quotas” in violation of Title VI of the Civil Rights Act of 1964.
Annaliese Fleming, the ABA senior associate executive director and general counsel, said in a statement the description was changed because it was inaccurate.
“In reviewing the program materials, some language was removed that did not accurately reflect the operation of the program,” Fleming said. “The Judicial Clerkship Program has not been changed. We remain committed to the ABA’s Goal III of enhancing diversity and eliminating bias in the legal profession, legal system and the association.”
The prior description said law schools participating in the Judicial Clerkship Program must “commit to send (and underwrite the costs for) four to six law students who are from underrepresented communities of color.” The old description also said judges participating in the program would be asked to make a commitment to hire at least two minority law clerks over the next five years.
The new wording says law schools “are encouraged to select a diverse group of students using criteria aligned with the ABA’s Goal III objectives.” It also says judges from across the country participate in the program but says nothing about judges striving to hire at least two minority law clerks.
Reuters and Bloomberg Law covered the new language.
The conservative Wisconsin Institute for Law & Liberty had targeted the ABA’s description of the Judicial Clerkship Program in a civil rights complaint filed with the U.S. Department of Justice in May.
The complaint, which was also sent to the Department of Education, targeted law schools participating in the program, as well.
The complaint alleged violation of Title VI, which bans discrimination on the basis of race, color or national origin by recipients of federal funds. The complaint says the ABA is subject to Title VI because it receives federal funds, serves a public purpose, and provides educational and social services.
The complaint asked for an investigation of the ABA and any university that participated in the Judicial Clerkship Program.
The ABA had told the institute in response to an April demand letter that it “imposes no restrictions on which students can attend the program,” and that “the selection of student participants is left solely to the discretion of participating schools,” according to the Title VI complaint. The ABA response also said judges were not asked to make hiring commitments.
“The programs at issue are lawful, and we intend to defend them vigorously against any challenges,” Fleming said in a statement when the institute filed the DOJ complaint.
Skylar Croy, associate counsel at the Wisconsin Institute for Law & Liberty, did not immediately respond to an ABA Journal email with questions about the change.
