The ACR Project and Center for Equal Opportunity Raise Seeming Illegality of ABA Business Law Section Diversity Clerkship Program

Today, along with the Center for Equal Opportunity, we wrote to the ABA Business Law Section, raising issues with the legality of a section program that appears to discriminate based on race, sex, and other prohibited factors in qualifying and disqualifying applicants for employment as judicial clerks.

The Diversity Clerkship Program secures employment in judicial chambers for its beneficiaries.  It provides compensation for that employment in the form of a stipend.  As advertised by the ABA BLS, these positions expressly serve a training function, providing a “background [that] will prove invaluable to a career in business law, whether it be litigation or transactional work.”

The Diversity Clerkship Program automatically qualifies for consideration for these coveted positions applicants “of color” and women, while allowing other applicants to qualify only if they assert an LBGTQ+ identification, a disability, or a history of overcoming social or economic disadvantages. That structure appears to bring the Diversity Clerkship Program into violation of numerous applicable laws, including at least 42 USC Section 1981 (one of the main surviving provisions of the Civil Rights Act of 1866) and Title VII of the Civil Rights Act of 1964, as well as potentially the 14th Amendment’s equal protection clause, the federal judiciary’s policy on equal opportunity, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972.

The ACR Project and CEO believe it to be particularly important that organizations as associated with and committed to the rule of law as the ABA BLS and America’s judiciary live up to our national consensus against discrimination and comply with long-standing nondiscrimination laws.

You can read the full letter, below.