by Hans Bader
As lawyers like Barack Obama have noted, law school is already a year too long, with lots of nonessential classes. As a result, law students often graduate with over $150,000 in student-loan debt. Yet law students may soon be required to take more unnecessary classes.
One hundred and fifty law school deans have asked the American Bar Association to require that “every law school provide training and education around bias, cultural competence, and anti-racism.” These include the deans at the University of Virginia, the University of Richmond, and the College of William & Mary.
In their letter, the deans argue that “preparing law students to be lawyers requires that they should be educated with respect to bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. … We are in a unique moment in our history to confront racism that is deeply embedded in our institutions, including in the legal profession.”
The deans, most of whom are left-leaning, don’t define “bias” or “anti-racism.” That is unfortunate, because “bias” is often in the eye of the beholder, to the point where left-wing law professors accuse people of bias or racism just because they disagree with them. So training law students in “bias” or “anti-racism” might amount to ideological indoctrination, and students might have to parrot left-wing ideology to show “anti-racism” or lack of “bias.”
Accusations of bias are often baseless and ideologically-motivated. After Justice Kennedy, the Supreme Court’s swing vote, retired in 2018, a law professor condemned his rulings as “white nationalism” that “privileged the interests and perspectives of white, heterosexual Christians and ultimately harmed a wide swath of sexual, racial, and religious minorities.” (Russell K. Robinson, Justice Kennedy’s White Nationalism, 53 U.C. Davis L. Rev. 1027, 1028 (2019)).
A left-leaning lawyer at a widely-read legal web site lobbed an accusation of racism at the current Chief Justice of the Supreme Court, John Roberts. Roberts is the Court’s most frequent swing vote. Yet that lawyer opined that “Roberts has consistently shown himself to be a deep racist — albeit one who draws less attention than his cross-burning brethren.” (Elie Mystal, The Racism of Chief Justice John Roberts Is About To Be Fully Unleashed, Above The Law (June 28, 2018)).
Law professor Josh Blackman worries that training in “bias” will brand people as racist based on pseudo-science:
Many schools will consider requiring students, and perhaps faculty, to take the Harvard University Implicit Bias Test, known as IAT. (The American Bar Association Section on Litigation already promotes the test.) These tests do not accurately predict racism. ….’the IAT doesn’t predict subconscious racial biases.’… doesn’t measure implicit bias, and what it does measure doesn’t correlate with discriminatory behavior.’
Requiring students to espouse “anti-racism” could violate the First Amendment, and lead to discrimination. As Professor Blackman notes about ‘anti-racism,’ “This phrase doesn’t mean you simply oppose racism.” On campus, it means supporting racial discrimination against whites, to remedy past discrimination against blacks. As the guru of anti-racism, Ibram X. Kendi, wrote in his book, How To Be an Antiracist:
The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.
That violates the Constitution, which regards discrimination as a “last resort,” not the “only remedy.” To the Supreme Court, the remedy for “present discrimination” is to compensate the victim or punish the discriminator, not to discriminate against whites in the future. Past discrimination is not supposed to be “remedied” by discrimination against whites, except in unusual circumstances (i.e., if the discrimination was recently committed by the government, and was widespread). Discrimination against whites is never the “only remedy” — states can ban race-based affirmative action if they feel like it. (See Schuette v. BAMN (2014)).
As Professor Blackman notes, mandating antiracist ideology is “problematic for state institutions” because “antiracism” activists advance “arguments in favor of affirmative action that the Supreme Court rejected three decades ago in City of Richmond v. J.A. Croson Company.” College officials following that ideology could thus illegally discriminate against whites in hiring and admissions.
Yet this ideology is becoming sacred dogma at many colleges. For example, Cornell’s president told her university to read “‘How to Be an Antiracist,’ by National Book Award winner Ibram X. Kendi.”
Kendi teaches that “racial disparities” are only due to “racism.” That’s wrong, and ignores reality. Asians typically make more money than whites. That’s not due to racism. Hispanics live three years longer than whites, on average. That’s not due to racism, either. Racial disparities exist everywhere, for reasons other than racism, as the black economist Thomas Sowell explains in his book Discrimination and Disparities.
Judges have rejected Kendi’s idea that disparities prove discrimination. An appeals court ruled in 2001 that a racial “disparity” in school-discipline rates does not “constitute discrimination,” even if most suspended students are black. Similarly, the Supreme Court ruled that racial disparities in who received city contracts did not constitute discrimination, when the statistics didn’t take into account whether black people were qualified to receive a contract from the city. (See Richmond v. J.A. Croson Co. (1989)).
A student trained in “anti-racism” could very well reach conclusions at odds with these court rulings. That would make the student a worse lawyer, rather than promote “professional competence” as the law deans claim.
Requiring students to adhere to “anti-racism” dogma could violate the First Amendment, just as it violates the First Amendment to force students to say the pledge of allegiance.
The law deans also want students to be trained in “cultural competence” or “awareness” — useless gobbledygook. As a student at Harvard Law School, I did not receive any training specifically “in bias, cultural awareness, and anti-racism.”
My lack of such training did not keep me from representing minorities well. For example, I helped write the court briefs for the African-American defendants who won their case in United States v. Morrison (2000). In that landmark decision, the Supreme Court struck down a federal law, finding it exceeded Congress’s powers under both the Commerce Clause and the 14th Amendment. It was the first decision in over a century to strike down a law as beyond Congress’s 14th Amendment powers, and the second decision in over 60 years to void a law as beyond Congress’s Commerce Clause powers.
Hans Bader is an attorney living in Northern Virginia. This column was published originally at www.libertyunyielding.com.
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