Harvard SCOTUS Case: American Bar Association Supports “Race-Conscious Admissions Policies”

Harvard SCOTUS Case: American Bar Association Supports “Race-Conscious Admissions Policies”

ABA Amicus Brief: “The Court should not ban race-conscious admissions policies…”

The American Bar Association, which has been pressuring law schools to go woke, filed an amicus brief in two pending Supreme Court cases supporting the continuation of racially-discriminatory admissions.

The cases are Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. Both cases involve challenges to the legality of what used to be called reverse discrimination, and is now usually called affirmative action in university admission policies.

The Supreme Court’s decision in the leading discriminatory admissions case, Grutter v. Bollinger, allowed discrimination as a temporary measure (presumed to have a 25-year maximum) to further the stated goal of fostering diversity of perspectives on campus. As we previously reported, Legal Insurrection Foundation filed an amicus brief supporting the petitioner, Students for Fair Admissions. The brief explained the fallacy of Grutter’s reasoning.

You can find our previous coverage here:

• Complaint Says Harvard Discriminates Against Asian-Americans (2015)
• New Harvard President Rejects Claims of Discrimination Against Asian-Americans (2018)
• Federal Judge Sides With Harvard in Discrimination Case Brought by Asian Applicants (2019)
• Trump administration sides with Asian American students in discrimination suit against Harvard (2020)
• Appeals Court upholds Harvard’s discrimination against Asian-Americans (2020)
• Supreme Court Asked To Hear Harvard Anti-Asian Discrimination Case (2021)
• Supreme Court Delays Whether To Review Harvard Anti-Asian Discrimination Case, Seeks Biden Admin Position (2021)
• Federal Court Rules UNC May Use Race in Admissions (2021)
• Harvard Dropping SAT Requirement for Several More Years Enables More Anti-Asian Discrimination (2021)
• Supreme Court Agrees To Hear Harvard and UNC Affirmative Action Cases (2022)
• Our SCOTUS Brief: “The Grand Judicial Experiment of Excusing Racial Discrimination in University Admissions … Has Failed” (2022)
• SCOTUS Splits Up Affirmative Action Cases So KBJ Can Participate On UNC, After She Recused From Harvard Case (2022)

In allowing schools to discriminate, the Supreme Court deferred to a school’s “educational judgment that such diversity is essential to its educational mission.” Despite the Court’s deference to schools’ judgment, the ABA is in the process of imposing racial quotas in all but name on law schools. It has also weaponized its power to force CRT/DEI ideology on law schools.

We’ve been covering how the ABA abuses its gatekeeper-status as the sole law-school accreditor, and the monopoly or near-monopoly states give the ABA to set educational eligibility requirements for bar exam applicants, to impose wokeness on law schools. You can find our previous coverage of the ABA here:

• American Bar Association Abusing Its Accreditation Power To Force Race-Focused Study On Law Students (2022)
• Debate: Should American Bar Association Be Stripped Of Its Monopoly Law School Accrediting Power? (2022)

In its amicus brief, ABA asserted that the existence of bias in the justice system is “undeniable”, claiming that prosecutors give harsher plea agreements and judges give longer sentences to black defendants. It also said, lawyers sitting on local school or zoning boards “may” make decisions that perpetuate residential segregation and racial disparities. Ergo, according to the ABA, law schools have to diminish racial bias. It also cited the Grutter opinion in claiming that the Supreme Court has “long recognized” that racially discriminatory admissions create “diverse student bodies that help break down such racial biases and stereotypes”

The purported evidence of bias ABA cites is at best circumstantial. Missing from it is any analysis of whether the black and white defendants studied were similarly situated. Were their crimes similar/identical? Were their criminal histories similar/identical? ABA’s brief doesn’t say.

ABA’s effort to tie the supposed prosecutorial and judicial bias to law schools is also weak:

However, implicit racial bias among lawyers may account for a significant part of racial injustices that continue to taint and divide our society. The Court should not ban race-conscious admissions policies that address this evil directly (Br. at 17 (emphasis added)).

ABA offers no evidence that discriminatory admissions to law schools reduce discriminatory treatment in the justice system. It just asserts, without citing any support, that “The legal system has made significant progress over the last several decades, due in no small part to the increased diversity in the legal profession resulting from admissions policies that consider race as one of many factors.” On the contrary, the supposed evidence of discrimination in U.S. justice systems 44 years after Regents of the University of California v. Bakke suggests discriminatory admissions haven’t fixed the problem ABA says exists.

ABA cites Justice O’Connor’s theoretical analysis in Grutter to claim “‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’”

But, theory is not reality. As we explained in LIF’s amicus brief, experience hasn’t borne out the claim that discriminatory admissions would add to diversity of perspectives. Rather, the opposite has been the case, as recent headlines show. Faculty who fail to conform to today’s platitudes about “diversity” – from Joshua Katz being fired from Princeton, to Ilya Shapiro being pressured to leave Georgetown University, to Justice Clarence Thomas becoming unavailable to teach at George Washington University after a petition made clear he wasn’t welcome, to Joseph Manson giving up tenure at UCLA because of the ruin of the academy – demonstrate that the “diversity” regimen has actually narrowed the range of opinions that may be expressed.

The fact that ABA is pushing law schools to admit more black and Hispanic law students in the same proposed standard change in which it demands law schools assess whether their environment is “inclusive and equitable” demonstrates that discriminating in admissions and stifling opinions contrary to current racial orthodoxies are opposite sides of the same coin.

ABA makes one final argument. It claims that discriminatory admissions are essential to conferring legitimacy on American institutions. We addressed that argument in the LIF amicus brief:

As for Grutter’s assumption that race-conscious admissions confer legitimacy on law schools – which are not involved in the current consolidated cases before the Court – the argument is strained at best. The Court’s rationale appears to have been that institutions of higher education must be allowed to discriminate in order to give the appearance that they do not discriminate. This is the tail wagging the dog. Even if the argument might have provided a compelling interest in the immediate aftermath of legalized discrimination, the country is many years beyond that. Were legalized discrimination allowed to stand on this basis, it would be an exception swallowing the rule that all are entitled to equal protection of the law. This is an additional reason to overrule Grutter.

Most recently, ABA has proposed getting rid of the law school entry exam requirement (usually the LSAT, although ABA also deems the GRE acceptable). Test scores are a key metric by which courts have identified discriminatory admissions treatment, and has certainly been cited by the SFFA petitioner.

In preparing to dump the entrance exam, ABA appears to be laying the groundwork for evading a ban on discriminatory admissions, should the Supreme Court overrule Grutter.

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