Complaint targets ABA diversity programs; claims are 'factually and legally incorrect,' association says
A civil rights complaint filed Tuesday with the U.S. Department of Justice alleges that at least nine ABA diversity programs discriminate on the basis of race in violation of Title VI of the Civil Rights Act of 1964. (Image from Shutterstock)
A civil rights complaint filed Tuesday with the U.S. Department of Justice alleges that at least nine ABA diversity programs discriminate on the basis of race in violation of Title VI of the Civil Rights Act of 1964.
The conservative Wisconsin Institute for Law & Liberty alleges that the ABA programs use “racial quotas and preferences” by favoring lawyers and law students from communities that are traditionally underrepresented in the profession, including racial and ethnic minorities.
Annaliese Fleming, the ABA’s general counsel, defended the ABA diversity programs in a statement provided to the ABA Journal.
“The claims by Wisconsin Institute for Law & Liberty Inc. regarding the ABA’s diversity programs are factually and legally incorrect,” Fleming said. “The programs at issue are lawful, and we intend to defend them vigorously against any challenges.”
ABA President Mary Smith also provided a statement.
“More broadly, the ABA strongly believes in the need to eliminate bias and enhance diversity in the legal profession and the justice system,” Smith said. “Currently, the legal system does not reflect the nation’s population. We can and should do better.”
Title VI 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, it serves a public purpose, and it provides both educational and social services.
One of the nine programs targeted in the complaint is the Judicial Clerkship Program, said to introduce law students from diverse backgrounds to judges and law clerks.
Law schools that want to participate must “commit to send (and underwrite the costs for) four to six law students who are from underrepresented communities of color,” according to an archived screenshot from the ABA website that is included in the complaint.
In another archived screenshot, the ABA says judges participating in the program are asked to make a commitment to hire at least two minority law clerks over the next five years.
The Title VI complaint seeks an investigation of the ABA and any university that participated in the Judicial Clerkship Program, including three schools that the Wisconsin Institute for Law & Liberty identified as among the program participants this year.
The complaint, which was also sent to two offices of the U.S. Department of Education, says the schools are South Texas College, the University of the Pacific and Willamette University.
The Wisconsin Institute for Law & Liberty filed a separate judicial misconduct complaint against U.S. Magistrate Judge Leo I. Brisbois of the District of Minnesota for his participation in the Judicial Clerkship Program. The May 21 complaint was filed with the judicial council of the 8th U.S. Circuit Court of Appeals at St. Louis.
Screenshots from other targeted ABA programs describe broader criteria for applicants. They allow law students and lawyers to apply not only if they are minorities but also if they have overcome social or economic disadvantage or if they are from “diverse backgrounds.”
The Wisconsin Institute for Law & Liberty argues, however, that the additional social and economic disadvantage categories are irrelevant because some racial minorities automatically qualify as underrepresented because of their race, making the programs illegal.
The complaint says the ABA appears to have removed at least four webpages about the Judicial Clerkship Program after the Wisconsin Institute for Law & Liberty sent an April 24 demand letter to the association.
In response to the letter, the ABA told the Wisconsin Institute for Law & Liberty 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 complaint.
The ABA response also said judges are not asked to make hiring commitments.
Online language about diversity programs “references the programs’ historical mission to support students belonging to traditionally underrepresented racial and ethnic minority groups,” according to the ABA response cited in the complaint. “But these programs have long since been expanded to encompass all students facing hardships of any kind.”
The Wisconsin Institute for Law & Liberty previously sued the State Bar of Wisconsin over its Diversity Clerkship Program. The state bar settled the lawsuit by agreeing to redefine diversity to mean the inclusion of people “with differing characteristics, beliefs, experiences, interests and viewpoints.”
The other targeted ABA programs are:
• The Judicial Intern Opportunity Program
• The Diversity Clerkship Program
• The Legal Opportunity Scholarship
• The Business Law Fellows Program
• The Diversity Fellows Program
• The Diversity and Inclusion Fellowship Program
• The GPSolo Diversity Fellowship Program
• The Loretta Collins Argrett Fellowship Program
“An organization that should be dedicated to ‘liberty and justice for all’ has continued to pursue programs that are discriminatory and unjust,” said Skylar Croy, associate counsel for the Wisconsin Institute for Law & Liberty, in a May 21 press release. “Enough is enough. It’s why WILL has taken significant legal steps to resolve this injustice.”
Brisbois did not immediately respond to the Journal’s email request for comment sent to his chambers.
South Texas College told the Journal that it is a community college, and it appears that the Wisconsin Institute for Law & Liberty was targeting the South Texas College of Law. That law school and the other universities named in the complaint did not immediately respond to a Journal request for comment.
