American Bar Association’s new equity standards are inconsistent with equality before the law

February 02, 2022 | By WEN FA AND BRITTANY HUNTER
Equality before the law

The American Bar Association (ABA) recently proposed a new rule that would require law schools seeking accreditation to implement “bias, racism and cross-cultural competency” training for all students, as well as adopt and promote equity-based policies.

Taken at face value, the proposed rule may seem like a positive step toward building a firm foundation of equality on law school campuses. After all, making sure future lawyers understand the importance of protecting equality is essential.

But that is not the aim of this proposal.

Across the country, we are seeing a sweep of educational institutions of all levels implementing policies targeted at creating equity on campus.

Equity, in this context, is the enemy of equality. The Fourteenth Amendment guarantees every individual’s right to be judged equally based on the content of their character instead of an arbitrary characteristic like race. Equity, on the other hand, seeks to lump people into racial groups and subverts individual aspirations and achievements in favor of group outcomes.

Equity is not only incompatible with equality, but it also seeks to undo everything the Fourteenth Amendment exists to protect.

The ABA’s rule is just one example. Its focus on proportional representation would coerce law schools into treating individuals as members of their racial groups. It would pressure schools to allocate benefits and burdens on the basis of race and ethnicity, which can violate the Equal Protection Clause (public schools), Title VI of the Civil Rights Act of 1964 (schools that receive federal funding), or both.

Racial classifications are a crude metric by which to judge an individual. Such classifications say nothing about an individual’s aspirations or abilities. That is especially true with the broad and crude racial classification that many law schools employ today.

“Asians,” for example, make up roughly 60% of the world’s population and encompass people of Chinese, Indian, Filipino, and many more backgrounds. Yet, despite the many differences among individuals who are Asian, they are often lumped into one broad racial group.

Race-based assignments also “embody stereotypes that treat individuals as the product of their race.” College guidebooks like the Princeton Review go so far as to advise Asian-American applicants to use caution when they are filling out college applications. Against the backdrop of racial preferences, these prospective students are counselled to “distance [themselves] as much as possible from stereotypes about Asians.” This includes disavowing aspirations of being doctors or engineers and even avoiding participation in math, chess, or computer clubs.

Imagine telling an ambitious college student that they must hide their dreams lest they be stereotyped and denied access to the education needed to reach their goals.

As one Chinese-American student at Yale recounted, “I quit piano, viewing the instrument as a totem of my race’s overeager striving in America. I opted to spend much of my time writing plays and film reviews—pursuits I genuinely did find rewarding but which I also chose so I wouldn’t be pigeonholed.”

This is the consequence of favoring equity over equality.

Protecting every individual’s right to equality before the law is a fundamental principle of our Constitution—one for which Pacific Legal Foundation has fought vehemently for three decades, which is why we, along with several other concerned parties, have urged the ABA to reconsider this proposed rule.

As we wrote in our public comment against the proposal:

“PLF believes that laws that distribute benefits and burdens on the basis of race are antithetical to the principle of equality before the law…. The promise of the Fourteenth Amendment is not equity among government-defined groups. On the contrary, the Fourteenth Amendment protects the freedom of every individual to pursue life, liberty, and happiness, according to his or her values, actions, and ability.”

To be perfectly clear, the ABA is not technically a government entity. However, it is, as one commenter called it, “a gatekeeper” to the law school world. The ABA has worked closely with the government, which has promoted it as a significant influencer in the shaping of the legal field. It is also recognized as THE definitive authority of law school accreditation. If you do not attend an ABA accredited institution, some states will not allow you to sit for the bar exam or obtain your license to practice law.

As a result, the ABA standards are important to aspiring lawyers. The ABA should not adopt a standard that is so incompatible with the principle of equality before the law. If this requirement is allowed to be instituted in law schools, it will encourage other institutions to strengthen discriminatory practices already in place.

Many examples can be found in K-12 education, where PLF is currently representing Coalition for TJ, whose members have experienced the effects of this crude racial lumping first-hand. The local school board implemented changes to the admissions policy at Thomas Jefferson High School for Science and Technology (TJ) as a result of perceived overrepresentation of Asian-Americans at the school. Since the policy went into effect, Asian-American admissions already have seen a decline.

As the situation in TJ makes clear, schools at any level should be focused on individual achievement, not proportional representation. As Lewis Powell, former Supreme Court Justice and ABA president, put it, “[e]qual justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society.”

The idea of equality before the law is already being jeopardized throughout academia. The ABA should set an example and discard this proposed policy before it further perpetuates the degradation of equality before the law.