Equality under the law is a bedrock principle of our society and our legal system — or at least it used to be.
Unfortunately, many today have embraced the idea of equity, meaning the equality of outcomes instead of the equality of opportunity under the law. The pursuit of equity necessarily involves discriminating against some to favor others.
Rather than pushing back against this discriminatory idea, the nation’s oldest voluntary legal organization, the American Bar Association, has embraced it.
Founded in 1878, one of the ABA’s most high-profile activities today involves setting academic standards for law schools and accrediting them. Since 1965, the U.S. Department of Education has recognized the ABA as the sole national accrediting agency for law school programs.
This accreditation is crucial for law schools and their students. After all, graduating from an ABA-accredited law school is a prerequisite in almost every state for those seeking admission to the bar. And since the federal government recognizes the ABA as the sole law-school accrediting agency, certain financial aid and other benefits also can be withheld from a school and its students without ABA approval.
That’s a lot of power. The ABA knows it and has harnessed its power to further its radical, left-wing equity-over-equality agenda.
For instance, last May, the ABA proposed revising its “diversity” standard for accrediting law schools. This revision — and subsequent iterations of it — seek to forcibly inject racial preferences into law school admissions and faculty-hiring decisions.
The standard proved controversial — even among some academics — and garnered significant blowback.
But the truly shocking statements came in the ABA’s formal “interpretations” of the proposed revisions to its standard.
“The requirement of a constitutional provision or statute that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admission or employment decisions is not a justification for a school’s noncompliance with” the new standard, the ABA said.
Let that sink in.
The ABA told law schools that its own controversial policy must trump any constitutional or statutory provisions that conflict with it.
Common sense says that, if anything, the reverse must be true.
Is it any wonder that some law students today see themselves as being above the law? Is it any wonder that, in response to the leaked draft opinion overruling Roe v. Wade, law students at Yale University who disagreed with the draft had the audacity to chalk on the sidewalk, “we are the law”?
These are our nation’s future lawyers, law professors and judges. Sadly, they are only following the ABA’s lead.
When our nation’s supposed preeminent legal organization, which also rates judicial nominees as being qualified or not qualified for the federal bench, explicitly places its own views and policies above the law, lawlessness is what we get.
And problematically, with its proposed “diversity, equity, and inclusion” standard, the ABA seeks to return the study and practice of law to an era in which Americans placed a shameful emphasis on skin color and race.
What the new standard does not promote is intellectual diversity.
Just the opposite, it focuses exclusively on legally questionable, surface-level diversity, insisting that racial and ethnic preferences be injected in law schools’ admissions and faculty-hiring decision-making.
The latest proposed iteration of the ABA’s revised diversity, equity and inclusion standard will go before the ABA’s governing body, its House of Delegates, in August for a final vote on whether it should be adopted.
Obviously, it should not. And it doesn’t take a lawyer to see why.
• Zack Smith is a legal fellow at The Heritage Foundation’s Meese Center for Legal and Judicial Studies.
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