ABA files amicus briefs in two closely watched cases
The American Bar Association filed two amicus briefs in mid-August, asking the U.S. Supreme Court in separate cases to affirm long-standing principles in civil rights law as they apply to sexual orientation and uphold a 44-year-old federal law intended to protect against the separation of Native American families.
On August 19, the ABA asked the justices to affirm lower court decisions that private businesses cannot rely on the First Amendment to claim a right to be exempt from state public-accommodation laws barring discrimination against would-be customers based on sexual orientation. The case involves a Colorado marketing and graphics firm, which contends that a public-accommodation law compelling it and its employees to provide service to gay clients violates the free speech clause of the First Amendment.
The case addresses free speech questions left unresolved by the Supreme Court’s 2018 decision in the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which the court ruled on narrow grounds that the Colorado agency did not employ religious neutrality in its handling of the case, violating the owner’s rights.
In the current case, the ABA brief outlines numerous ABA policies against discrimination based on sexual orientation adopted since 1973. It also traces a half century of Supreme Court decisions rejecting challenges to public-accommodation laws based on personal beliefs that conflict with those laws, including the high court’s Heart of Atlanta Motel decision in 1964 that required private businesses to abide by the Civil Rights Act of 1964.
In the second brief, the ABA urged on August 18 that the court uphold the constitutionality of the Indian Child Welfare Act (ICWA), which sets minimum standards for the removal of Native American children from their families and creates a preference that they be placed with extended family or in Native foster homes when they are removed. A federal appeals court struck down parts of the law, holding they violated the 10th Amendment by impermissibly commandeering the states.
In four consolidated cases, the ABA brief asks the Supreme Court to uphold the ICWA, asserting that child placement proceedings are not the exclusive province of the states because the federal government has long played a role in child welfare cases, particularly on Native American lands, and that the ICWA builds on existing child welfare laws.
The cases will be heard by the Supreme Court in its new term, which begins October 3.
ABA council will study intersection of standards, licensing
The council of the American Bar Association Section of Legal Education and Admissions to the Bar has taken an initial step to explore how current bar passage standards interact with the approaches a small but growing number of states are taking to provide alternatives to lawyer licensing.
At its August 19 meeting, the council adopted committee recommendations to study both this issue as well as an increase in the current requirement of six credits of experiential learning to 15 credits. Both initiatives could potentially impact legal education in future years.
Many in the legal profession have advocated for such changes. Critics say the bar exam relies too much on memorization rather than skills and some cite disparities in white and minority test scores to raise questions of test bias. Also, there has been a push for more real-world educational experience during law school, with the argument that more clinical work will produce better trained lawyers and expand legal services in underserved communities, in addition to other favorable outcomes.
Nationwide, a handful of states have allowed law graduates to bypass the bar exam in what is called “diploma privilege” while others are considering it, in part generated by experiences in a post-pandemic environment. The standards for the 196 ABA-approved law schools nationwide embrace a bar exam and recent changes say a school can be found out of compliance with bar passage Standard 316 if 75% of a graduating class who take the bar do not pass it within two years.
The council previously determined to count “diploma privilege” admittees as passers in the Standard 316 calculation. The recommendation adopted by the council directs its Standards Committee to review the current language of Standard 316 with an eye toward ensuring that it can account for alternative lawyer licensing pathways, and that it does not unduly dissuade law schools and state bar authorities from exploring alternatives for fear of not meeting accreditation requirements. While the ABA sets the standards for law school accreditation, bar authorities in states and other jurisdictions set licensing requirements.
Separately, the council also set up a special task force to determine whether to revise the bar pass standard to account for the impact of student attrition and 1L transfers on the bar pass rate.
