This article originally appeared on RealClearPolicy.com on February 6, 2024
“It is a sordid business, this divvying us up by race.”
Those were Chief Justice John Roberts’ thoughts in a 2006 voting rights case alleging Texas legislators had redrawn voting districts illegally diluting the votes of racial minorities. That sentiment applies with even greater force when lawyers and judges are the ones doing the divvying up.
On January 31, the nonprofits American Civil Rights Project and Center for Equal Opportunity sent a letter to the American Bar Association Business Law Section (ABA BLS) demanding it stop selecting law students for its Diversity Clerkship Program based on race.
Publicly available information on the program suggests that for the better part of two decades and counting, the ABA BLS has provided financial stipends and secured positions for law students with judges based, in part, on race. The program website explains the obvious, the clerkship provides a “background [that] will prove invaluable to a career in business law, whether it be litigation or transactional work.” Notwithstanding its invaluable worth to law students, the ABA makes it harder to qualify for the program if a law student is a white male.
Applicants “of color” and women automatically qualify for the program. White male applicants qualify only if they assert that they are LGBTQ+, are disabled, or demonstrate a history of overcoming social or economic disadvantages. The inclusion of additional criteria that may permit white male applicants to be considered removes none of the taint of race discrimination. Its structure explicitly discriminates against applicants based on race, among other protected traits, and assures that for some applicants, their race, national origin, or sex will be the but-for cause of qualification or exclusion from the program.
As any second-year law student would know—even a white male—this structure could violate numerous antidiscrimination laws including the Fourteenth Amendment, Section 1981, and multiple provisions of the Civil Rights Act of 1964. Each of these laws prohibits the divvying us up by race. Shouldn’t lawyers and judges know better?
This is not, however, the only or perhaps even the most egregious example of such discrimination perpetuated by lawyers. The ABA Antitrust Section has something similar to the ABA BLS’s race discriminatory program. And, just recently it was reported that judges in Illinois were granting oral argument on motions based on the race or sex of the attorneys presenting the arguments.
So, what gives?
The answer seems to be that otherwise fine lawyers develop tunnel vision in the obsessive pursuit of diversity. To be sure, more diversity is a fine thing. Indeed, Chief Justice Roberts wrote of the “commendable goals” of diversity in the Students for Fair Admissions (SFFA) cases that outlawed racial affirmative action in college admissions. However, Roberts went on to explain that these goals do not alone legally justify racial discrimination.
That legal tunnel vision, in pursuit of diversity, has ensnared some of the top lawyers in the country. Indeed, even former Attorney General Eric Holder has “charged as much as $2,295 an hour” for advice on corporate diversity programs that the Washington Free Beacon reports has since gotten at least one of Holder’s clients sued for race discrimination.
Because of legal challenges both before and after SFFA, some law firms and their clients are furiously backpedaling on the bad advice given and bad behavior modeled. Lawyers exist to give sound legal advice. Discriminating on the basis of race was never good advice and it remains astonishingly bad advice and a bad thing in which to engage. Isn’t that common sense?
Ironically, the core problem is a lack of diversity—diversity of thought, that is. The liberal echo chamber of big law, big business, and academia where just about everyone agrees that any means is justified to deliver diversity results was the recipe for this disaster. Clients and this country instead deserve a legal profession capable of providing sound legal counsel, and that models legal behavior. True diversity is needed.
Specifically, prioritize individuals distinguishing themselves beyond race or other faddish diversity metrics. A special diversity handout is a projection of guilt and embarrassment for not being truly welcoming. You cannot get over that problem by shifting to new exclusionary standards.
Simply treat people equally. That is the only way to respect our shared humanity, and to recognize the vastness and value of diversity of thought, perspective, and experience.
Devon Westhill is the president and general counsel of the Center for Equal Opportunity.
