Sunday, June 20, 2021

Could the ABA Proposal for Standard 303(c) Generate Lawsuits?

Professor Steven Solomon has raised an interesting issues concerning the ABA Council's proposal on Standard 303(c).  (here)  The proposal states, "A law school shall provide training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation."

Professor Solomon writes, "However well-intentioned, I write to protest against your proposed standards. As an initial matter they constitute unconstitutional viewpoint discrimination. I have no doubt if they were adopted they would bring immediate lawsuit."

He continues, "Second, they are ill-informed and based upon invalid social science which has not been established. More specifically, your proposals are based on pseudo-science on race relations which has no valid backing. Moreover, given their undefined nature your proposed rules are bound to bring a disparate impact lawsuit as well as a due process, reasonableness claim. If anything, the only standard that should be adopted is a race-neutral one, consistent with the law of the United States and the founding principles of the country."

Professor Solomon is probably correct.   Brian Leiter has noted, "such training will almost certainly violate the academic freedom rights of faculty at many (probably most) schools by demanding conformity to a particular ideology about "diversity," its meaning, and its value.  The ABA should not even be suggesting that schools violate the contractual and/or constitutional rights of faculty to academic freedom.  (There is a related problem with the mandatory "diversity statements" at certain public universities.)"

In addition, if such training is undertaken as advocated by critical race scholars, this training is discriminatory and would create a hostile racial environment.  For example antiractist scholar, Ibram X. Kendi, has declared, "“The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination. As President Lyndon B. Johnson said in 1965, ‘You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.’ As U.S. Supreme Court Justice Harry Blackmun wrote in 1978, ‘In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.’”  (How to Be an Antiracist (2019)).  Such a practice would obviously be illegal.

And, don't assume that the ABA proposal would not involve antiracisim.  Last fall, 150 law school deans sent a letter advocating required "training and education of its students with regard to bias, cultural awareness, and anti-racist practices."  (here)  As Professor Josh Blackman has declared, "I suspect many schools will consider requiring students, and perhaps faculty, to take the Harvard University Implicit Bias Test, known as IAT. (The American Bar Association Section on Litigation already promotes the test.)"  (here)  As I have pointed out several times on this blog and elsewhere, the validity of the IAT has not been established, and cognitive scientists, social scientists, and others have strongly disputed its use.  (here)  Similarly, CLEA recently advocated antiracism training for law students.  (here)

In its comment, CLEA favorably cited an article that advocates antiracist training for law students.  (here)  The article asserts, "Using Antiracist Reflection requires competence that is, first and foremost, grounded in critical race theory."  Likewise, an article on the ABA Solo, Small Firm, and General Practice Division advocated the use of the Implicit Bias Test.  (here)

Or, consider white fragility theory.  Under this theory, white fragility is "a defensive response by a white person when their whiteness is highlighted or mentioned, or their racial worldview is challenged, whether this response is conscious or otherwise. She gives examples including a white man accusing someone of "playing the race card" or a white woman crying to avoid conflict. DiAngelo proposes that white people are used to viewing themselves as "raceless" or the "default" race, and as such are insulated from feelings of racial discomfort."  (here)  In other words, she asserts that all whites suffer from implicit bias, and they deny this to protect their egos.  (Id.)  Imagine sitting in mandatory diversity training and being told not only that you were implicitly racist, but that you had developed defenses mechanisms to deny your racism!

I won't go into detail, but the other elements of antiracism, like microaggressions and pervasive white supremacy, are equally disputed as antiracisim theory, implicit bias theory, and white fragility theory.

Last week, the Volokh Blog reported that antiracist training has already produced a lawsuit.  (here)  From the complaint: "Through its DEI committee, weekly seminars and racially segregated affinity groups, the CAPS DEI program has maligned and marginalized Jews on the basis of religion, race and ethnic identity by castigating Jews as white, powerful and privileged members of society who contribute to systemic racism and denying and attempting to erase Jewish ancestral identity. In addition, the DEI program has denigrated the concept of Jewish victimhood and deliberately excluded anti-Semitism from the program's agenda. Ronald Albucher (Dr. Albucher) and Sheila Levin (Ms. Levin) are two Jewish employees of Stanford University (Stanford) who have worked as mental health clinicians in CAPS throughout the timeframe described in this complaint and have been subjected to an ongoing hostile environment in the CAPS DEI program on the basis of their national origin, religion and race."

In sum, Professor Solomon has raised a legitimate concern of lawsuits if the ABA enacts the proposed section 303(c).  In fact, I wouldn't be surprised if law schools that use the above antiractist methods on their students or faculty don't get sued individually.

(Scott Fruehwald)

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