The American Bar Association (ABA) is about to be sued over its usage of discriminatory selection criteria for various internships. A group has filed a civil-rights complaint with the federal Equal Employment Opportunity Commission against the ABA. Such a complaint will lead to either the EEOC suing the ABA (if it wishes to do so), or the EEOC issuing a “right to sue” letter allowing the group to sue the ABA on its own (if the EEOC doesn’t wish to sue). It is more likely that the EEOC will issue a right-to-sue letter than that it will sue the ABA on its own.
The group that filed the complaint is Faculty, Alumni, & Students Opposed to Racial Preferences (FASORP). It is represented by two nonprofit law firms — the American Civil Rights Project and the Wisconsin Institute for Law and Liberty– and a think-tank, the Center for Equal Opportunity.
FASORP’s EEOC complaint was filed on Feb. 10.
FASORP’s complaint explains that the ABA has violated Title VII and the Equal Protection Clause of the Fourteenth Amendment through its use of race-based eligibility requirements. It focuses on programs such as the “Judicial Intern Opportunity Program,” the “Diversity Clerkship Program,” “Business Law Fellows” and the “Diversity Fellowship Program.”
FASORP’s EEOC complaint follows President Trump’s executive order banning Diversity, Equity and Inclusion (DEI) initiatives in the federal government, which led some employers and universities to drop similar policies.
The ABA’s Diversity Clerkship Program states that applicants must have characteristics such as being a “law student of color,” a woman, a law student “with disabilities,” an “LGBTQ+” law student, or a student who has “overcome social or economic disadvantages.” This program is for “lawyers of color, women lawyers, LGBTQ+ lawyers, and lawyers with disabilities,” providing them the opportunity to serve as judicial law clerks, according to the ABA website.
The ABA’s Judicial Intern Opportunity Program provides “opportunities to students who are members of racial and ethnic groups that are traditionally underrepresented in the profession, students with disabilities, veterans, students who are economically disadvantaged, students who identify as LGBTQ+, women, and others.”
The ABA’s Business Law Fellows internship provides “young lawyers, lawyers of color, lawyers with disabilities and LGBTQ+ lawyers … a springboard to substantive leadership roles.”
The ABA’s Diversity Fellowship Program provides “leadership opportunities within the Division for historically underrepresented groups, including racial and ethnic minorities, women, LGBTQ+ individuals, and persons with disabilities.”
Usually, race-specific programs violate the constitution and civil-rights laws, as some courts ruled even prior to Trump’s executive order, in court cases such as Podberesky v. Kirwan (1994).
