The end of June will mark the one year anniversary of the Supreme Court striking down affirmative action in the Students for Fair Admissions v. Harvard (SFFA) decision. Since then, many universities and businesses have been grappling with how to restructure admissions and hiring criteria since race can no longer be used as a factor in these processes.

The American Bar Association (ABA), the institution that serves as the accreditation organization for all law schools, is also trying to sort out revisions to one of its policies that presently requires schools to consider race in their admissions.

Earlier this month, Tennessee Attorney General Jonathan Skrmetti and twenty other state attorneys general sent a letter to the ABA Section of Legal Education and Admission to the Bar, urging it to change one of its standards for failing to comport with the law under SFFA. The way the policy currently stands, the AGs argued, the ABA requires law schools to break the law by considering race in both admissions and hiring, which the Court has plainly held is prohibited.

The standard in question is the ABA’s “Standard 206, Diversity and Inclusion.” It states:

(a) Consistent with sound legal education policy and the standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race and ethnicity.

(b) Consistent with sound educational policy and the standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race and ethnicity.

In SFFA, the Supreme Court held that the use of race in admissions violated the Fourteenth Amendment's Equal Protection Clause. Further, the Court said the Constitution rejects the idea of treating people differently based on race, so this standard and the policies it encourages are in tension with the Court’s ruling.

The ABA has proposed revisions to the standard which, while a step in the right direction, likely will not be enough to satisfy the Court’s new guidelines. The revisions include expanding the diversity categories to include religion and national origin.

However, even with the revisions, Standard 206 remains quite vague as it asks law schools to “demonstrate by concrete actions a commitment to diversity and inclusion by having a faculty and staff that are diverse.” The standard does not explain what these “concrete actions” might be.

The letter from Skrmetti points out that the Court in SFFA anticipated that institutions would try to avoid complying with its holding and explicitly said, “‘what cannot be done directly’ under the Constitution likewise ‘cannot be done indirectly.’”

 he ABA had delayed considering the proposed changes to Standard 206 in February in light  of the new standards outlined in SFFA, but the managing director of ABA Accreditation and Legal Education has stated the council is considering revisions and is looking to adopt recommendations at the council’s meeting this August.

Without a serious reworking of Standard 206, law schools across the country are left susceptible to lawsuits if they have to continue to abide by the ABA’s standard. As the letter says, “Whatever the intent behind Standard 206 might be, it cannot lawfully be implemented in its current or revised forms.”

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