Conservative lawmakers blasted the American Bar Association as a partisan organization that promotes “racist DEI” policies during a testy Congressional hearing Wednesday that Democrats dismissed as political theater and patronage to President Trump.
Congressman Brandon Gill, a Republican from Texas and chairman of a House Oversight Committee task force that convened the hearing, accused the ABA of “doubling down” on “discriminatory DEI practices” in the wake of the 2023 Supreme Court ruling that outlawed the use of race-conscious affirmative action in college admission.
“This included requiring law schools to consider race as a factor for admissions and to elevate racial discrimination over merit in order to ‘diversify’ the profession,” Gill said at the hearing meant to examine ABA’s role as sole accreditor of law schools. He added that the ABA has also used its institutional power to “bully” law schools into requiring mandatory DEI-related courses.
Gill focused much of his remarks on ABA’s accreditation Standard 206, which calls for law schools to take “concrete action” to foster diversity and inclusion in the legal profession. It also calls for law schools to have faculty and staff that are diverse in terms of gender, race and ethnicity.
The ABA has moved to repeal the standard to avoid running afoul of the Trump administration’s interpretation of 2023 Supreme Court that banned the use of race in college admissions. Repeal of Standard 206 is pending final approval at the ABA’s House of Delegates meeting in August, which essentially made Wednesday’s hearing a de facto last-minute, high-profile political push to dissuade the ABA from continuing its diversity pursuits.
Michelle Behnke, president of the American Bar Association, testified that the organization remains “deeply committed” to fostering diversity within the legal profession. She cited a statistic that shows only 4.9% of lawyers in the U.S. are Black, whereas Black Americans make up 13.5% of the nation’s population.
“When we have diverse teams, our profession is stronger,” Behnke said. “It enhances our ability to solve our clients’ problems when we can tap into the varied experiences and perspectives of people from every background and every community.”
Gill – who has gained a reputation and an adulating social media following for posing seemingly simple yes-or-no questions meant to stump witnesses, often by asking them if they agree with their organization’s own propaganda – kept up the tradition Wednesday.
Noting that the ABA’s website explicitly states “We all have biases. Every one of us,” Gill asked Behnke repeatedly if she had any biases, at one point asking her bluntly: “Against which groups do you have implicit biases?”
Behnke declined to answer and instead repeated ABA’s commitment to diversity.
In a similar exchange, Gill asked Behnke if the ABA’s position that the judiciary should reflect the demographics of the nation means the Senate should refuse to confirm a third Black justice to the Supreme Court since the two current Black justices – Clarence Thomas and Ketanji Brown Jackson – make up 22% of the nine Supreme Court justices while the Black population in the U.S. is only about 13%.
Behnke said the ABA does not support racial quotas, which the Supreme Court outlawed in college admissions in the 1978 case, University of California v. Bakke.
When asked if President Joe Biden was “righteous” when he stated in 2022 that his next Supreme Court nominee would be a Black woman – thereby excluding Black men – Behnke said the ABA “never supports discrimination.”
“That’s good to hear,” Gill said somewhat sardonically.
Congresswoman Lateefah Simon, a Democrat from California, characterized the hearing on ABA’s role as an accreditor as political theater and a distraction from more pressing issues, such as massive cuts to Medicaid. She also suggested Wednesday’s hearing was meant to appease President Trump and provide retribution for a lawsuit the ABA filed that challenges the Trump Administration’s use of executive orders to coerce lawyers and law firms to discard clients, legal arguments, and principles that contradict the Administration’s political ideology.
Congressman Dave Min, a Democrat and former law professor from California, questioned why the Republican-controlled Oversight Committee called Behnke to testify when it’s actually the Council of the ABA’s Section of Legal Education and Admissions to the Bar – which Behnke said is “separate and independent” from the ABA – that accredits law schools.
Zack Smith, Senior Legal Fellow, Courts and the Constitution, Legal Policy Center at The Heritage Foundation, a conservative think tank in Washington, D.C., said the council’s status as being separate from the ABA is a distinction without a difference.
“The council would not exist without the ABA,” Smith said.
In his written statement, Smith said that the ABA has "abandoned its mission to provide best practices for the legal profession” and instead sought to “push a partisan program full of radical policies,” such as abortion rights and transgender surgery.
Asked if other entities besides the ABA should be allowed to accredit law schools, which the ABA has done solely since 1952, Smith said: “The Department of Education absolutely should authorize more law school accreditors than one monopolistic entity.”
