In a recent development that underscores the ongoing debate over diversity, equity, and inclusion (DEI) initiatives in the United States, a group of 21 Republican State Attorneys General spearheaded by Tennessee Attorney General Jonathan Skrmetti has challenged the American Bar Association’s (ABA) Standard 206 on Diversity and Inclusion. In a letter sent to the ABA in early June, the Republican AG group argues that the ABA Standard and its proposed revisions are unlawful due to the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA).

This letter prompted a response from 19 Democratic State Attorneys General, who issued a counter-letter on June 20th, defending DEI efforts as lawful and crucial for addressing discrimination and promoting diversity.

Republican State Attorneys General Challenge ABA’s Diversity Standard, Citing the Supreme Court’s SFFA Ruling

The Republican AGs argued that the ABA’s Standard 206 and its proposed revisions are unconstitutional in light of SFFA and violate Title VII of the Civil Rights Act of 1964. Standard 206, found within the ABA’s Standards and Rules of Procedure for Approval of Law Schools, requires law schools to commit to diversity and inclusion “by providing full opportunities for the study of law and entry in to the profession by members of underrepresented groups” and have a “commitment to having a student body that is diverse with respect to gender, race, and ethnicity.” The Standard also requires a similar commitment for schools to have a diverse faculty and staff “with respect to gender, race, and ethnicity.”

The ABA Standards Committee’s proposed revisions to Standard 206 would require law schools to commit to and take “concrete actions” to ensure “access to the study of law and entry into the profession to all persons, including those with identity characteristics that have led to disadvantages in or exclusion from the legal profession on the basis of race, color, [and] ethnicity,” among other characteristics. The proposed revision would also require law schools to commit to and take “concrete actions” to ensure a diverse faculty and staff “with respect to race, color, ethnicity[.]”

According to the Republican AGs, Standard 206 and its proposed revisions mandate race-based admissions and hiring practices in contravention of the SFFA decision. The Republican AG letter argues that the proposed revisions still require law schools to take concrete actions based on race, in violation of SFFA’s prohibition against consideration of race in admissions decisions, which the AGs interpret broadly as barring any consideration of race by educational institutions in setting policies. Specifically, the letter opined that “bundling race with other permissibly considered characteristics” does not make Standard 206 constitutional. The letter called for the ABA to align Standard 206 with federal law prohibiting race-based admissions and hiring by first specifying “how schools are to comply” with the standard to avoid what the Republican AGs deem a “high-stakes guessing game.”

Democratic State Attorneys General Issue Response to Republican Letter

On June 20th, 19 Democratic State Attorneys General, led by Illinois Attorney General Kwame Raoul, issued a letter responding to the Republican AGs’ letter and other recent challenges to DEI programs. Previously, in a July 2023 letter, Democratic AGs had condemned efforts to equate diversity measures with racial discrimination and reminded companies of their obligations to maintain equitable and inclusive environments.

The June 20th letter criticized the Republican AGs’ letter for misinterpreting SFFA and misusing the decision to attack permissible DEI efforts. The Democratic AGs argued that SFFA pertains solely to affirmative action in college admissions and does not extend to DEI initiatives in the private sector or other educational contexts. Regarding Standard 206, the Democratic AGs emphasized that the Standard does not require law schools to make admissions decisions based on race or ethnicity.

The letter also emphasized that DEI programming and initiatives remain lawful and are vital in addressing discrimination and promoting diversity. Specifically, the Democratic AGs note that “companies have wide latitude to ensure that applicant pools are diverse and that their workplaces are equitable and inclusive.” Accordingly, the letter stated that “companies have an obligation under Title VII to ensure that their workplaces are equitable.”

Finally, the Democratic AGs argued that DEI efforts remain important for business success, highlighting studies that show a correlation between increased diversity and improved financial performance. The letter also noted the broad public support for DEI initiatives and the expectations for companies to remain committed to racial equity.

The letter concluded with the Democratic AGs expressing their readiness to defend DEI. The Democratic AGs invited leaders across sectors to collaborate in an effort “to promote DEI initiatives and to push back against efforts to misconstrue the law.”

Navigating the Legal Landscape

Any revisions made to Standard 206 will have a direct impact on educational institutions and rippling effects on employers.

These letters underscore the potential for legal challenges and the need for companies and institutions to be aware of potential actions and inquires that States Attorneys General may make regarding DEI initiatives. The legal landscape is in flux with AGs across the country taking differing views on the legality of DEI efforts. As we have recently emphasized, it is important for employers to remain vigilant and revisit their DEI programs and policies to ensure they comply with current legal standards. Crowell is ready to advise and assist employers and educational institutions as the law develops in this area.