Law & Principles

Drummond criticizes bar association

June 11, 2024

Ray Carter

Oklahoma Attorney General Gentner Drummond and 20 other state attorneys general say the standards imposed by the American Bar Association (ABA) for accreditation of law schools violate constitutional prohibitions on discrimination and should be junked.

The criticism of the American Bar Association comes at a time when the actions of the Oklahoma Bar Association (OBA) are under similar scrutiny for the OBA’s Democratic partisanship and substantial control of judicial selection in Oklahoma.

Via a June 3 letter drafted by the office of Tennessee Attorney General Jonathan Skrmetti, Drummond joined 20 other state attorneys general to urge the American Bar Association to amend its standards for approval of law schools to comply with the U.S. Supreme Court’s recent ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), which held that race-based college admission programs violated the U.S. Constitution.

“One standard in particular—Standard 206, Diversity and Inclusion—fails to account for SFFA and, by all appearances, directs law-school administrators to violate both the Constitution and Title VII,” the attorneys general wrote. “We understand that the Council is considering revisions to that Standard in light of SFFA. While we support the Council’s willingness to modify Standard 206, the proposed revisions reemphasize Standard 206’s problematic requirement that law schools engage in race-based admissions and hiring. We urge the Council to modify its standards in a way that comports with federal law and with the ABA’s purported commitment to set the legal and ethical foundation for the nation.”

ABA’s Standard 206 “all but compels law schools to consider race in both the admissions and employment contexts,” the attorneys general wrote (emphasis in original).

Standard 206 currently requires a law school to “demonstrate by concrete action a commitment to diversity and inclusion” by, among other things, having a “student body that is diverse with respect to gender, race, and ethnicity.” The standard also requires that a law school “demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.”

“That explicit demand to make hiring decisions based on race is irreconcilable with the Fourteenth Amendment’s command to ‘eliminate racial discrimination,’” the attorneys general warned, adding that any such “race-based regime also runs headlong into Title VII of the Civil Rights Act of 1964, which outlaws race-based decision making in employment.”

“The American Bar Association—an institution that publicly touts its commitment to setting the legal and ethical foundation for the American nation and celebrates its work advancing respect for the rule of law—tells law schools that if they follow the controlling law, they are not worthy of educating future lawyers,” the attorneys general write (emphasis in original). “I cannot fathom how this anarchic language made its way into the standards for law-school accreditation. Its inclusion betrays a serious failure within the ABA. ABA standards do not carry get-out-of-federal-law-free status, nor does the ABA enjoy immunity from following the laws binding it as an accreditor. By requiring explicitly illegal consideration of race, the ABA is working hard to burden every law school in America with punitive civil-rights litigation.”

While revisions to the ABA’s Standard 206 have been proposed, the attorneys general write that even the revised version “forces law schools to play a high-stakes guessing game about how to pass ABA muster without violating the law.”

“Anyone with an interest in the legal profession and students’ well-being should be concerned that accreditation rests—and seemingly will continue to rest—on a tightrope walk between federal law, on one hand, and Section 206’s contrary demands on the other,” the attorneys general’s letter stated. “These concerns are all the more justified because schools’ balancing acts will be judged behind closed doors, according to uncertain criteria …”

The letter was signed by the attorneys general of Tennessee, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Virginia.

Concern over the ABA’s role in the approval of law schools has arisen as similar concerns have been raised about the Oklahoma Bar Association’s role in selecting Oklahoma judges.

Under the current judicial-selection process mandated in Oklahoma, a governor cannot select his own judicial nominees based on merit. Instead, the 15-member Judicial Nominating Commission (JNC) controls judicial appointments.

Of the 15 members of the Oklahoma Judicial Nominating Commission, internal membership elections of the Oklahoma Bar Association select six JNC members. No other attorneys are allowed to serve.

Public records show that 22 of the 32 individuals appointed to the JNC by the Oklahoma Bar Association from 2000 to today (nearly 69 percent) have directed most of their campaign donations to Democrats, including to presidential candidates such as Barack Obama and Hillary Clinton. Only one bar appointee to the JNC since 2000 overwhelmingly donated to Republican candidates.

The partisanship of the Oklahoma Bar Association’s JNC appointees is shielded from public exposure by the structure of the JNC. The JNC does not hold public meetings. The group does not interview judicial candidates in public. And the commission does not reveal how members vote on judicial nominees.

Since the Oklahoma Judicial Nominating Commission was established in 1967, the typical judge appointed to the Oklahoma Supreme Court via the JNC process has been consistently liberal, according to data published in the December 2023 edition of the journal “State Politics & Policy Quarterly,” a publication of the American Political Science Association.

Because of the JNC’s history of injecting Democratic partisanship into Oklahoma’s judicial-selection process, even during years when state voters overwhelmingly elected Republicans as governor, an effort was made this year to reform the process.

Senate Joint Resolution 34, by state Sen. Julie Daniels and state Rep. Mark Lepak, would have allowed Oklahoma voters to eliminate the Judicial Nominating Commission and replace it with the U.S. Constitution’s model for judicial selection. Under the replacement system, a governor could select any qualified individual to serve as judge, but legislative confirmation would be required for that person to be seated.

SJR 34 easily passed out of the Oklahoma Senate on a 32-14 vote. But in the Oklahoma House of Representatives, it failed on a 36-60 vote. Forty-one Republicans joined Democrats to prevent Oklahoma citizens from voting on the proposal.