The bigger picture:
Michelle A. Behnke is president of the American Bar Association.
On its website, the ABA touts its "longstanding commitment to diversity by eliminating bias and enhancing inclusion in the Association, the legal profession and the justice system." When trying to make sense of the ABA’s move, it helps to read between the lines. The memo goes to great lengths to show that the rationale is to avoid conflict with the current administration while encouraging affiliates to continue pursuing diversity goals.
The latest recommendation did not come without a spirited debate. A number of ABA members called the move a “capitulation to the current federal administration” and said it “demonstrates a lack of integrity and courage,” the memo states. The ABA’s standards committee said repealing the standard is on the table because of its need to maintain its status as an accreditor at the national and state level.
Since several landmark affirmative action cases dealt with admission to law school, it’s hardly surprising that the ABA’s standard on diversity and inclusion would be targeted in Trump 2.0.
It was in the 5-4 opinion in the 2003 Grutter v. Bollinger case – which involved the University of Michigan Law School’s “narrowly tailored use of race” in its admissions decisions – that the Supreme Court established that such use of race was legal in order to “further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” That case was effectively voided by the Supreme Court’s 2023 ban on affirmative action.
The ABA’s recommendation to repeal is expected to be taken up by the association's House of Delegates at the ABA’s annual meeting in August 2026.
