Among all the paperwork descending from the sky like confetti during the first week of the new administration in the US, there was one which specifically targeted bars.
It was contained in an executive order entitled ‘Ending illegal discrimination and restoring merit-based opportunity’, issued the day after the inauguration. Its aim is to stop immediately ‘dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called “diversity, equity, and inclusion” (DEI) or “diversity, equity, inclusion, and accessibility” (DEIA) that can violate the civil-rights laws’.
It emphasises the administration’s dislike for ‘illegal, pernicious discrimination that has prioritized how people were born instead of what they were capable of doing’. It not only orders the immediate cessation of such federal programmes (and the people charged with implementing them were put on immediate paid leave), but the president also ordered all agencies ‘to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities’.
Within 100 days, a report must be filed with a presidential official containing a proposed strategic enforcement plan for the private sector, containing, among other things, specific measures to deter illegal DEI programmes or principles. Each agency must identify up to nine potential civil compliance investigations of various bodies - including state and local bar associations.
Two bars were reported as having responded.
The State Bar of California, which is the largest state bar with more than 197,000 members, said that the executive order will not affect its programmes ‘as none of our work in this space involves illegal discrimination or preferences.’
The Massachusetts Bar Association said the organisation's diversity efforts do not violate the law, adding: ‘I think there are better ways our federal government could use its time than looking at bar associations.’
As a sign of how seriously the new administration is taking its crackdown, it was reported that federal agencies were told to e-mail their many thousands of staff with an order to report any efforts to disguise diversity initiatives in their agencies, or face adverse consequences. All facts and circumstances should be reported to a new government email address within 10 days.
The American Bar Association (ABA) has not so far responded. That is not surprising, given that none of this is new to it: it is itself involved in other longstanding disputes about its DEI programmes.
For instance, at least nine ABA diversity programmes were targeted by a conservative state institute in a civil rights complaint filed with the Department of Justice in May 2024. The ABA said at the time that the programmes were lawful and the allegations factually and legally incorrect.
In October last year, the ABA changed its description of a project which introduces law students from diverse backgrounds to judges and law clerks, because some language ‘did not accurately reflect the operation of the program’.
After the Florida Supreme Court banned course credits in the state for continuing legal education training sessions which had diversity quotas for their panels, the ABA changed its diversity policy for courses that it sponsors, removing numerical requirements that it had hoped would ensure diverse panellists.
And its Section of Legal Education and Admissions to the Bar is still struggling to satisfy 21 attorneys general in Republican-controlled states about its diversity requirements for law schools that it accredits.
So, as I say, none of this is new. But it has changed from being struggles between conservative states and institutes into official government policy, with real and widespread consequences.
It is of importance to us because many of our own conservative politicians and thinkers take their cue from developments in the US. A number of our conservatives were proud to record themselves going to Washington DC for the inauguration, even if hardly any were invited to witness the ceremony in person.
The UK has closely mirrored the US in the depth and spread of its DEI policies. So the impact of the new executive order on bars and lawyers, and whether it succeeds, is something which we should watch closely. So far, DEI policies have not been a major electoral contention in this country, and governments have more or less continued with their predecessors’ practices.
It is also difficult in these early days to tell what will take hold and develop. There was an acute comment from an FT journalist, who pointed out that the US president announced that he would demand that interest rates drop immediately, and would speak to the chair of the Federal Reserve about it. The markets didn’t react, no-one wrote about it. There are so many policies at once that their value is debased.
I am already exhausted by the outpouring of policies, nominations, claims over foreign territories, claims that violence and insurrection equal love, and so on, day after day. Normalisation is degrading, and debate descends into name-calling. I am going into internal exile.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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