The ABA and Diversity
In and of itself, such a resolution is unremarkable, though it is a reminder of the difficulty of implementing in the real world the theoretical distinction that Sandra Day O'Connor drew between diversity and quotas in Grutter and Gratz.
Instead, two legally binding interpretations of the resolution attracted Bernstein's notice. First, the ABA states that"the requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance" with the"diversity" resolution. In other words, law schools in states like California and Washington are being told by an organization whose mission is to uphold respect for the law that they should ignore their own state constitutions.
A second interpretation holds that" consistent with the Supreme Court's decision in Grutter v. Bollinger, a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity." Yet Grutter listed only diversity as grounds for using race and ethnicity in the admissions process. Are ABA accreditors unfamiliar with the law?
It seems all but certain that implementation of this resolution will generate more lawsuits. And with Alito replacing O'Connor on the court, the ABA might have been well advised not to press this issue at the present time.