ABA defends its diversity scholarships as protected free speech

By Karen Sloan

June 17 (Reuters) - The American Bar Association said on Monday that a scholarship program designed to boost diversity among law students is protected free speech, in a bid to toss a lawsuit brought by a prominent conservative group alleging the program is discriminatory.

The ABA’s 25-year-old Legal Opportunity Scholarship is protected under the First Amendment, the organization said in a motion to dismiss filed in an Illinois federal court. The ABA also claimed that plaintiff American Alliance for Equal Rights lacks standing to sue.

“The ABA has a First Amendment right to distribute funds as it deems appropriate, consistent with its organizational goals,” the motion said.

The Alliance, which is led by anti-affirmative action activist Edward Blum, had sued the ABA in April alleging that the Legal Opportunity Scholarship program discriminates against white applicants because they are ineligible to apply.

Blum was the architect of the 2023 Supreme Court affirmative action case that barred the consideration of race in college admissions.

The Alliance said it is representing an unnamed white male law school applicant who alleges he would apply for the $15,000 scholarship were he eligible. The ABA awards between 20 and 25 such scholarships annually to incoming law students, according to its motion to dismiss.

That anonymous member lacks standing to sue because the lawsuit does not show he was “ready and able” to apply for the Legal Opportunity Scholarship, the ABA claims. He did not take any “concrete steps to express his interest in, or apply to” the scholarship program beyond “words of general intent,” according to the motion.

Reached by email for comment on Tuesday, Blum said none of the 18 lawsuits the Alliance has filed in the past two years alleging racial discrimination have been dismissed for lack of standing. “It seems likely that this assertion will fail,” he said.

Blum also called the ABA's First Amendment claim a "Herculean stretch."

The ABA declined to comment on Tuesday.

The ABA’s motion also claimed that the Legal Opportunity Scholarships are discretionary gifts and not contracts that are subject to the federal law requiring equal rights in making and enforcing contracts.

The ABA had in October revised the criteria for its judicial clerkship program, which encourages judges to hire diverse law clerks, to eliminate references to minority students and "communities of color."

The ABA made that change after a different conservative legal group, the Wisconsin Institute for Law and Liberty, had filed a complaint against the ABA with the U.S. Department of Education in May 2024 and threatened further legal action, alleging that the ABA was illegally discriminating by using racial quotas.

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