DEI, Legal Education, and the Rule of Law: A Narrower Path for the ABA
By Michael Diederich, Jr.
The American Bar Association is at a difficult crossroads. Its Council of the Section of Legal Education and Admissions to the Bar has moved toward repeal of Standard 206, the law-school accreditation standard requiring schools to demonstrate a commitment to diversity and inclusion. At the same time, the ABA is considering changes to Standards 205 and 207, addressing nondiscrimination and disability accommodations, and Standard 303(c), addressing education on bias, cross-cultural competency, and racism.
For NYSBA members, the issue should not be framed as a simple choice between being “for DEI” or “against DEI.” That framing is too crude for lawyers. The better question is: Which civil-rights commitments are lawful, professionally necessary, and institutionally sustainable, and which accreditation mandates are now vulnerable under Supreme Court precedent?
The legal profession’s history makes this discussion morally serious. Law schools were once instruments of exclusion. In Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938), and Sweatt v. Painter, 339 U.S. 629 (1950), the Supreme Court confronted racially discriminatory legal education practices that helped lay the groundwork for Brown v. Board of Education, 347 U.S. 483 (1954). Women, Black lawyers, and other excluded groups have had to fight for entry into legal education, bar membership, courtrooms, firms, judgeships, and leadership. NYSBA and the ABA should not minimize that history.
But history does not answer the present doctrinal question. Standard 206 is not merely a statement of welcome or a nondiscrimination rule. As written, it requires “concrete action” toward a student body, faculty, and staff diverse with respect to race, ethnicity, and gender. Its interpretation looks to “results achieved.” In an accreditation context, that language may reasonably be read as pressure to produce demographic outcomes. That is the legal problem.
The Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023), is the starting point. The Court held that Harvard’s and UNC’s race-conscious admissions programs violated equal-protection principles. The Court criticized admissions systems that lacked sufficiently focused and measurable objectives, used race negatively, involved racial stereotyping, and lacked meaningful endpoints. It allowed schools to consider an applicant’s individual experience, including experience affected by race, but warned that schools may not accomplish indirectly through essays what they may not do directly through race-based admissions.
That matters for Standard 206. A standard that asks law schools to achieve racial, ethnic, or gender diversity in admissions and employment—especially with compliance judged by results—will be viewed by opponents as a workaround for forbidden racial balancing. Cases such as Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), and Regents of the University of California v. Bakke, 438 U.S. 265 (1978), all reflect the Court’s skepticism toward racial classifications, even when adopted for benign or remedial purposes.
The recent voting-rights case Louisiana v. Callais, 608 U.S. ___, Nos. 24-109 & 110 (2026), sharpens the point. There, the Court stated that the Constitution “almost never” permits race discrimination and identified only a short list of compelling interests that can satisfy strict scrutiny. The Court held that Voting Rights Act compliance, properly construed, can sometimes be compelling, but that Louisiana lacked such a justification for the race-based map at issue. If even Voting Rights Act compliance—a core civil-rights interest—is tightly cabined, a generalized law-school diversity mandate is unlikely to receive a warmer reception.
Standard 206(b)’s faculty and staff language creates an additional employment problem. Title VII protects individuals from discrimination based on race, color, religion, sex, and national origin. In McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), the Court recognized that Title VII protects white employees as well as minority employees. In Ricci v. DeStefano, 557 U.S. 557 (2009), the Court rejected race-conscious employment action taken to avoid potential disparate-impact liability absent a strong basis in evidence. In Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), the Court unanimously rejected a heightened evidentiary burden for majority-group Title VII plaintiffs, emphasizing that the statute focuses on “any individual” and does not distinguish between majority and minority plaintiffs.
That is where the concern about “reverse discrimination” must be handled carefully. The phrase is sometimes used polemically. But the legal issue is real. If an applicant, student, faculty candidate, or employee is disadvantaged because of race, ethnicity, sex, or gender in pursuit of a preferred demographic composition, that person may have a cognizable civil-rights claim. Civil-rights law is not only about disadvantaged groups’ advancement. It is also about individual protection.
This is the deeper concern with identity politics and a collective-rights approach. Historical discrimination against women, Black Americans, and others is real. But if past collective injustice is used to justify present individual disadvantage based on protected identity, the organized bar risks inverting civil-rights principles. The Equal Protection Clause and Title VII are structured primarily around persons, not racial or gender blocs. A professional culture that appears to rank individuals by identity categories will increase polarization and potentially deepen prejudice, not reduce it.
Polarization already threatens the ABA’s institutional role. The ABA Council’s authority depends in significant part on recognition by the U.S. Department of Education and by state high courts regulating bar licensure. The Standards Committee has warned that balkanized accreditation could lead to confusion, higher costs, worse outcomes for graduates, and less competent lawyers serving the public. In conservative states, Standard 206 is readily portrayed as a “woke” or unconstitutional mandate. The more the ABA appears to insist on demographic outcomes, the easier it becomes for state officials to bypass the ABA altogether.
The answer is not to abandon civil-rights work. It is to distinguish among standards.
Standard 205, properly framed, is a nondiscrimination rule. That should remain. Standard 207, properly framed, requires reasonable accommodations for qualified individuals with disabilities. That should remain. The ABA’s proposed clean version of Standard 205 requires law schools to adopt, publish, and adhere to a policy prohibiting discrimination in violation of applicable law; the proposed clean version of Standard 207 requires reasonable accommodations for qualified individuals with disabilities, consistent with law. Those principles are mainstream civil-rights law.
Standard 303, or its substance, is also on firmer footing. Standard 303(c) is curricular, not compositional. It concerns education in bias, cross-cultural competency, and racism. The ABA Standards Committee itself has described the purpose as training students to communicate effectively with colleagues, adversaries, clients, judges, and others, calling that a core lawyering skill. The Committee has recommended reconsidering the placement of that requirement, possibly as a learning outcome in Standard 302 rather than a curricular rule in Standard 303, but it has reaffirmed that cross-cultural communication is a core lawyering skill.
That is the right lane for the ABA. Lawyers must represent clients across race, religion, sex, disability, national origin, class, ideology, and culture. They must understand discrimination law, professional responsibility, equal access to justice, and the ways bias can affect counseling, negotiation, credibility judgments, juries, courts, policing, sentencing, housing, employment, and public institutions. Teaching those subjects to all students does not require preferences, quotas, or ideological conformity.
A durable NYSBA position should therefore be both principled and precise: repeal or substantially rewrite Standard 206 as an accreditation mandate; retain nondiscrimination and disability-accommodation standards; and preserve Standard 303’s substance as professional education for all law students. That approach honors civil-rights history without sacrificing individual civil rights. It also preserves the ABA’s legitimacy as a national accreditor and leader of a profession committed to the rule of law.
Proposed NYSBA recommendation for an ABA Resolution
RESOLVED, that the American Bar Association reaffirms its commitment to nondiscrimination, equal opportunity, disability accommodation, access to legal education, equal justice, and the preparation of lawyers capable of serving a diverse public;
FURTHER RESOLVED, that the ABA supports repeal or substantial revision of Standard 206 to ensure that no accreditation standard requires or pressures law schools to use race, ethnicity, sex, gender, or other protected characteristics as decisional criteria in admissions, hiring, promotion, retention, scholarships, or employment;
FURTHER RESOLVED, that the ABA shall retain and enforce standards requiring nondiscrimination and reasonable accommodations, including the substance of Standards 205 and 207, consistent with applicable federal, state, and local law;
FURTHER RESOLVED, that the ABA shall preserve, whether in Standard 303 or as a required learning outcome, meaningful education for law students concerning professional identity, bias, cross-cultural competency, racism, discrimination, and equal access to justice, without requiring ideological conformity or political orthodoxy.
Such a Resolution will honor both the law and our profession’s laudable goals of respecting diversity, equity and inclusion in the bar.