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NY Bar Groups Urge Law Schools to Sidestep SCOTUS Ruling on Affirmative Action

 May 11, 2024

In a bold move against a recent Supreme Court decision, New York's leading bar associations are pushing for methods to preserve racial diversity in legal education and employment.

New York bar groups are advocating for new approaches to sustain diversity in law, in what some say is an effort to sidestep a Supreme Court ruling, as the Daily Wire reports.

Initial Reactions to the Supreme Court Ruling

Following the Supreme Court's ruling in Students for Fair Admissions v. Harvard, which struck down affirmative action, the American Bar Association (ABA), the New York State Bar Association (NYSBA), and the New York City Bar Association (NYCBA) have been proactive in their response.

They are attempting to guide law schools and firms on how to legally maintain racial preferences in their admissions and hiring processes.

The associations have suggested adopting nominally race-neutral methodologies that aim to continue considering race indirectly. This includes evaluating applicants based on broader goals and values that correlate with racial diversity without explicitly acknowledging race.

Strategies to Maintain Diversity Without Explicit Racial Criteria

These methods involve a nuanced approach to applicant evaluation, focusing on attributes like socioeconomic status, immigrant background, and geographic diversity. This strategy, they say, aims to preserve the spirit of diversity initiatives while adhering to legal constraints.

The NYSBA has gone further by issuing a 93-page report recommending significant changes in admissions practices. These include potentially dropping the LSAT and early admission policies to foster a more diverse student body.

Enhancing Access Through Pipeline Programs

Another significant strategy discussed is the development of pipeline programs. These initiatives provide tutoring, test preparation, and mentoring for students from low to middle-income backgrounds, designed to prepare them for legal education.

However, concerns about the legality of these programs remain, particularly if they explicitly consider racial backgrounds. Researcher Renu Mukherjee notes that such programs must be "open to ALL students, not just blacks and Hispanics" to remain lawful.

Legal Challenges and Potential Risks

The bar associations are also encouraging firms to continue employing affirmative action-like policies in hiring. They argue that the Supreme Court's decision does not directly address employment, hence these practices might still be permissible in professional settings.

Despite these efforts, there are legal risks. The Wisconsin State Bar Association had to redefine "diversity" for its internships after facing a lawsuit alleging discrimination based on race and sexual identity.

Controversial Views on Racial Preferences in Education and Employment

According to the NYSBA report, some current practices, such as race-based scholarships and diversity fellowships, are essentially "affirmative actions by another name." The report criticizes these methods for prioritizing skin color over merit, which could perpetuate divisions rather than resolve them.

These strategies, while race-neutral on the surface, are designed to be race-conscious in practice, as highlighted by Mukherjee. She describes the approach law schools are attempting to adopt, focusing on admitting students in a manner that indirectly considers race to maintain diversity.

Legal and Social Implications of Indirect Racial Preferences

As bar associations navigate the complex landscape post-Supreme Court decision, they face a balancing act. They are trying to promote diversity while respecting legal boundaries, a task that involves careful planning and potentially controversial methodologies.

Mukherjee's comments underline a broader concern within the legal community about excluding certain demographics, specifically white males, from diversity initiatives that are not meticulously crafted.

Conclusion and Future Outlook

The legal landscape for affirmative action and diversity policies is rapidly evolving. New York's bar associations are at the forefront, advocating for innovative, albeit indirect, methods to support racial diversity in the legal field.

These include reassessing admission standards and supporting expansive pipeline programs, all while facing potential legal challenges.

As the debate continues, the effectiveness and legality of these new approaches will likely be tested in courts, shaping the future of diversity policies in education and employment across the nation.