[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
THE FUTURE OF DEI
IN LAW SCHOOL ACCREDITATION
AND THE LEGAL PROFESSION
=======================================================================
HEARING
BEFORE THE
TASK FORCE ON DEFENDING CONSTITUTIONAL
RIGHTS AND EXPOSING INSTITUTIONAL ABUSES
OF THE
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
SECOND SESSION
__________
JULY 22, 2026
__________
Serial No. 119-72
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Printed for the use of the Committee on Oversight and Government Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on: govinfo.gov, oversight.house.gov or docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
64-273 PDF WASHINGTON : 2026
=======================================================================
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JAMES COMER, Kentucky, Chairman
Jim Jordan, Ohio Robert Garcia, California, Ranking
Mike Turner, Ohio Minority Member
Paul Gosar, Arizona Eleanor Holmes Norton, District of
Virginia Foxx, North Carolina Columbia
Glenn Grothman, Wisconsin Stephen F. Lynch, Massachusetts
Michael Cloud, Texas Raja Krishnamoorthi, Illinois
Gary Palmer, Alabama Ro Khanna, California
Clay Higgins, Louisiana Kweisi Mfume, Maryland
Pete Sessions, Texas Shontel Brown, Ohio
Andy Biggs, Arizona Melanie Stansbury, New Mexico
Nancy Mace, South Carolina Maxwell Frost, Florida
Pat Fallon, Texas Greg Casar, Texas
Byron Donalds, Florida Jasmine Crockett, Texas
Scott Perry, Pennsylvania Emily Randall, Washington
William Timmons, South Carolina Suhas Subramanyam, Virginia
Tim Burchett, Tennessee Yassamin Ansari, Arizona
Lauren Boebert, Colorado Wesley Bell, Missouri
Anna Paulina Luna, Florida Lateefah Simon, California
Nick Langworthy, New York Dave Min, California
Eric Burlison, Missouri James Walkinshaw, Virginia
Elijah Crane, Arizona Christian Menefee, Texas
Brian Jack, Georgia Ayanna Pressley, Massachusetts
John McGuire, Virginia Rashida Tlaib, Michigan
Brandon Gill, Texas
Richard McCormick, Georgia
------
Mark Marin, Staff Director
James Rust, Deputy Staff Director
Ryan Giachetti, Chief Counsel
Karl Keyzer-Andre, Professional Staff Member
Rodney Rios, Counsel
Mallory Cogar, Director of Operations and Chief Clerk
Contact Number: 202-225-5074
Robert Edmonson, Minority Staff Director
Contact Number: 202-225-5051
------
Task Force on Defending Constitutional Rights and Exposing
Institutional Abuses
Brandon Gill, Texas, Chairman
Jim Jordan, Ohio Lateefah Simon, California,
Michael Cloud, Texas Ranking Member
Andy Biggs, Arizona Dave Min, California
Byron Donalds, Florida James Walkinshaw, Virginia
Brian Jack, Georgia Ayanna Pressley, Massachusetts
C O N T E N T S
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OPENING STATEMENTS
Page
Hon. Brandon Gill, U.S. Representative, Chairman................. 1
Hon. Lateefah Simon, U.S. Representative, Ranking Member......... 3
WITNESSES
Ms. Michelle A. Behnke, President, American Bar Association
Oral Statement................................................... 5
Mr. Zack Smith, Senior Legal Fellow, Courts and the Constitution,
Legal Policy Center, The Heritage Foundation
Oral Statement................................................... 7
Mr. David Blackman, Former Law Student, Penn State Dickinson Law,
Texas State Guard Veteran
Oral Statement................................................... 8
Written opening statements and bios are available on the U.S.
House of Representatives Document Repository at:
docs.house.gov.
INDEX OF DOCUMENTS
* Article, KERA, ``North Texas Families--And Summer Food
Programs They Rely On--Feeling Sting of Inflation''; submitted
by Rep. Simon.
* Article, ABA, ``ABA President Michelle A. Behnke calls Equity
Summit 2026 `a step towards action' ''; submitted by Rep. Gill.
* Article, Above the Law, ``ABA's Defunct Diversity In Law
School Standard Moves Toward Getting Repealed''; submitted by
Rep. Gill.
* Article, Washington Times, ``ABA's Evaluation of Judicial
Nominees Tarnished by Liberal Bias''; submitted by Rep. Gill.
* Article, Zack Smith, ``Accreditation and the American Bar
Association''; submitted by Rep. Gill.
* Article, Bloomberg, ``Big Law Leans Left--and Is Moving
Further Left, Research Shows''; submitted by Rep. Gill.
* Article, Bloomberg, ``Trump Pressure Forces ABA Weakening of
Law School DEI Standard''; submitted by Rep. Gill.
* Article, Washington Free Beacon, ``TX Mil Vet Dropped Out of
Penn State Law Rather Than Submit to Anti-Racism Course'';
submitted by Rep. Gill.
* Article, National Review, ``Yes, the ABA Is Still a Left-Wing
Advocacy Group''; submitted by Rep. Gill.
* Letter to Dean Conway; submitted by Rep. Gill.
* Letter to DOE re: ABA; submitted by Rep. Gill.
* Report, Heritage Foundation, ``ABA's `Diversity' Agenda
Endangers the Integrity of the Legal Profession''; submitted by
Rep. Gill.
The documents listed above are available at: docs.house.gov.
THE FUTURE OF DEI
IN LAW SCHOOL ACCREDITATION
AND THE LEGAL PROFESSION
----------
WEDNESDAY, JULY 22, 2026
U.S. House of Representatives
Committee on Oversight and Government Reform
Task Force on Defending Constitutional Rights and Exposing
Institutional Abuses
Washington, D.C.
The Task Force met, pursuant to notice, at 2:28 p.m., in
room 2154, Rayburn House Office Building, Hon. Brandon Gill,
[Chairman of the Task Force] presiding.
Present: Representatives Gill, Jordan, Cloud, Jack, Simon,
Min, and Walkinshaw.
Mr. Gill. This hearing of the Task Force on Defending
Constitutional Rights and Exposing Institutional Abuses will
come to order. Welcome everybody. Thank you all for being here.
Without objection, the Chair may declare a recess at any time.
I now recognize myself for the purpose of making an opening
statement.
OPENING STATEMENT OF CHAIRMAN BRANDON GILL
REPRESENTATIVE FROM TEXAS
The rule of law and equal access to justice for Americans
are bedrock principles enshrined in the Constitution. Access to
our legal system and the rights and freedoms we enjoy as
Americans as a result of the rule of law are fundamental
components of the success of our Nation as we celebrate the
250th anniversary of the Declaration of Independence. So, it
should concern all Americans that these principles are eroded
by discriminatory Diversity, Equity, and Inclusion (DEI)
practices and concerned them even more that these DEI policies
have been promoted by attorneys with the legal training to know
better.
The American Bar Association (ABA), as an institution,
plays an outsized role in American law and the legal
profession. Ever since it was founded in 1878, the ABA has
grown to be the entity that sets the accreditation standards
for American law schools. Since 1952, the ABA has been
recognized by the Federal Government as the only law school
accreditor. Those states' supreme courts have the power to
regulate the conduct of legal professionals within those
states. Many states also recognize the ABA as the accreditor
for their law schools.
Furthermore, the ABA evaluates judicial nominees,
promulgates model rules of professional conduct for attorneys,
and speaks for many people as a voice for attorneys in the
United States. So, what has the ABA done with this impressive
accumulation of power and prestige?
Unfortunately, it appears that the ABA, ideologically
captured by radical leftists, has continuously pursued
discriminatory DEI practices. This included requiring law
schools to consider race as a factor for admissions, and to
evaluate racial discrimination over a merit in order to
diversify the profession. This was not done in secret.
The ABA published an accreditation standard to enforce it.
That is Standard 206, and the implementing guidance for
Standard 206 says that even if those DEI practices are illegal
under a constitutional provision or statute, that illegality
is, quote, ``not a justification for a school's noncompliance
with Standard 206,'' end quote.
Even after the Supreme Court held in 2023 that race-based
admissions practices violate the equal protection clause of the
14th Amendment to the U.S. Constitution, the ABA did not
voluntarily reverse course. Instead, it double-downed and told
law schools it would continue to enforce its DEI standards in
the accreditation process.
Through accreditation Standard 206 and Standard 303(c), the
ABA used its institutional power to bully law schools to also
require mandatory DEI-related courses in addition to race-based
policies in admissions. As we heard from witnesses during our
hearing on July 14, discriminatory DEI policies, in addition to
being illegal, seek to pit Americans against one another on a
count of their immutable characteristics, and at their core
fundamentally reject the American ideal of equal justice, and
of achieving success based on one's merit.
The ABA, an organization made up of attorneys who should
know better, persisted in promoting DEI practices even though
race-based admissions forced speech in considering race in
employment considerations clearly violate the law. Those
practices violate Federal civil rights statutes passed by
Congress more than 60 years ago, in addition to violating the
U.S. Constitution.
It was not until President Trump issued executive orders
and threatened the ABA's accreditation monopoly at the Federal
level that the ABA begrudgingly started to assess whether to
get rid of those DEI requirements. Enforcement of Standard 206
on DEI in admissions is currently suspended, and although the
ABA standards committee recently recommended that it be
repealed, it received numerous comments still supporting
keeping DEI in full force, and the full repeal has not yet
taken effect.
Standard 303(c) on DEI-related mandatory coursework remains
in force. And although the accreditation committee is reviewing
that standard as well, no final decision has been made.
Meanwhile, the ABA devotes entire pages on its public facing
website to promoting DEI in the legal profession leaving me,
for one, skeptical that it has learned the error of its ways
and will make a clean break from its racist DEI policies.
ABA President Behnke even stated in February this year,
when speaking to the ABA delegates, that, quote, ``We will not
abandon our commitment to diversity, equity, and inclusion,''
end quote. Given this reality, it is no surprise that many
states like Florida, Texas, Alabama, and Tennessee, are moving
away, or considering moving away, from the traditional monopoly
in law school accreditations exercised by the ABA.
Our purpose today, is to examine the role and future of an
institution like the ABA and law school accreditation, and in
the legal profession in our country. The harm that DEI has
caused to the legal profession and to Americans who deserve
equal access to justice and competent representation from their
legal professionals is extensive. We must ensure a course of
action that will restore merit and integrity to American law
and the legal profession.
And with that, I yield to Ranking Member Simon for her
opening statement.
OPENING STATEMENT OF RANKING MEMBER
LATEEFAH SIMON
REPRESENTATIVE FROM CALIFORNIA
Ms. Simon. Thank you, Mr. Chairman. And thank you to the
witnesses and to the public who have joined us today for this
conversation. You know, before the witnesses begin, I want to
talk to this room about what you are going to hear in the next
hour because the script is not new.
We will hear that a private, independent association of
attorneys is the great racial menace of our age. We will hear
the word, ``merit,'' spoken as if opportunity has ever truly
been distributed by merit in this country, and we will hear
that a diversity standard already suspended and repealed
somehow still threatens the republic.
The Majority has convened the machinery of the U.S.
Congress to prosecute a rule that no longer is in question at
an institution that has already capitulated to the President of
the United States, and they call this exercise oversight.
It is not oversight. It is theater. Because, let us be
clear, you read the bylaws of said organization, if we look at
organizational charts of said organization, the council that
sets up accreditation standards is separate from the ABA
professional organization here today. It exists to ensure that
lawyers are qualified and ethical, but we all know that
qualified and ethical attorneys and judges are often on the
front lines, the front lines of protecting Americans, of
preventing the Trump Administration from violating American's
rights and the rule of law. So, I ask, and I think it is an
important question, is this conversation helping Americans?
Last year fewer than one in 10,000 Americans applied to an
ABA accredited law school. That is .02 percent of the
population, yet this is what the Majority chooses to
investigate today. While ten million Americans will lose their
health insurance because of the law that the Majority wrote,
just last year, which made the deepest cuts in Medicaid in our
country's history.
The American Bar Association casts no vote on that bill,
but 209 Republicans did. Four million people have already lost
their food assistance faster than the Congressional Budget
Office predicted. This Congress ordered a 64-year-old woman to
prove her work hours before she could keep groceries on the
table, and ended exceptions for our veterans, people
experiencing homelessness, and children aging out of foster
care. No bar association wrote a word of it, but the
Republicans did.
5,843 National Institutes of Health (NIH) grants have been
terminated or frozen; 383 clinical trials--and we all know who
are in clinical trials--were stopped midstream by this
Administration and more than 74,000 people enrolled were sent
home. Those are folks fighting cancer, Amyotrophic lateral
sclerosis (ALS), also known as Lou Gehrig's disease, children
struggling and waiting for another call of a possible clinical
trial, only again to be turned away because of this
Administration's actions and the Trump Administration decided
with all of those 74,000 people that their lives were not worth
it, more than 100 schoolgirls are buried underneath the rubble
from American munitions in a war that no Americans asked for,
but no lawyer's association put those babies in the ground. My
colleagues, however, financed it.
So, if the American Bar Association did none of those
things, why is the American Bar Association on deck? I will
tell you why. Because they sued the President. When lawyers
were stripped of their security clearances for representing his
critics, when law firms were pressed into nearly a billion
dollars in tribute to our President, the ABA went to Federal
court, and judge after judge ruled that the Administration's
actions were unconstitutional.
The government lawyers argued only that no one had standing
to sue so the hearing that you are in today is an answer to
that lawsuit. A task force with the word constitutional in its
title has been a symbol to collect a political debt for the
President--a President that the courts keep ruling against.
And since the Majority insists on talking about racism, let
us consult the record. In 1912, the ABA expelled three Black
lawyers and had admitted by mistake, including William H.
Lewis, then the Assistant General Attorney, Assistant General
Attorney of the United States, because of its settled practice
to only admit White men. After public outrage the ABA
reinstated them, then it amended its application process so
that every future applicant had to declare their race. It
knowingly admitted no other Black lawyers for another three
decades.
So, the diversity standard on trial today was a part of the
ABA's effort to reckon with that history. The Majority arrives
a century late, silent about the discrimination, yet furious
about its repair. The Constitution is not endangered because
more Americans entered the legal profession. It is endangered
when power is used to punish those who challenge it. When
oversight becomes retaliation and when Congress mistakes
grievance for governance, history will remember which side that
choice we stood on.
And I yield back. Thank you, Mr. Chairman.
Mr. Gill. Thank you, Ranking Member Simon.
And now, I would like to welcome our witnesses. Once again,
thank you all for being here. First, we have Michelle Behnke,
president of the American Bar Association. President Behnke has
held her position since 2024, and prior to that, served in
various other leadership positions within the ABA, including
serving as chair of the ABA Commission on Racial and Ethnic
Diversity in the profession.
Second, we have Zack Smith, Senior Legal Fellow of Courts
and the Constitution at the Heritage Foundation's Legal Policy
Center. Next, we have David Blackman, a Texas State Guard
veteran and former student from Penn State University Law
School who is directly affected by DEI radicalism in his law
school.
Thank you all for joining us, and I look forward to your
testimony. Pursuant to Committee Rule 9(g), the witnesses will
please stand and raise their right hands.
Do you solemnly swear or affirm that the testimony that you
are about to give is the truth, the whole truth, and nothing
but the truth, so help you, God?
[Chorus of ayes.]
Mr. Gill. Let the record show that the witnesses answered
in the affirmative. Thank you, you could take a seat.
We appreciate you being here today and look forward to your
testimony. Let me remind the witnesses that we will have read
your written statements, and it will appear in full in the
hearing record. Please limit your oral statement to 5 minutes.
As a reminder, please press the button on the microphone in
front of you so that it is on and the Members can hear you.
When you begin to speak the light in front of you will turn
green, after 4 minutes the light will turn yellow. When the red
light comes on, your 5 minutes have expired and we would ask
that you please wrap up.
I now recognize President Behnke for her opening statement.
STATEMENT OF MS. MICHELLE A. BEHNKE
PRESIDENT
AMERICAN BAR ASSOCIATION
Ms. Behnke. Good afternoon, Chairman Gill, Ranking Member
Simon, and distinguished Members of the Task Force. Thank you
for the opportunity to be here today.
My name is Michelle Behnke and I am serving as the
president of the American Bar Association, a nonpartisan
membership organization opened to all American lawyers. I
practice law in Madison, Wisconsin where my husband and I have
raised our two, now adult, children. I have been a lawyer for
almost 40 years, focusing on real estate, business, and estate
planning.
I began my one-year term as president of the ABA last
August. Each and every day, I put on this pin, and I am proud
to represent our 250,000 members from every state across the
country in all walks of life. Our members come from red states
and blue states. They range from solo practitioners to lawyers
in big firms, and their practices include everything from
family law, to criminal defense, to commercial contracts, and
litigation.
When the ABA, as an organization, takes a position it
reflects the considered judgment of this diverse membership.
The ABA has been carrying out its mission to serve and
strengthen the American legal system for nearly 150 years. As
the national representative and voice of the legal profession,
we are dedicated to serving the legal community, and the
public, by defending liberty and pursuing justice.
The rule of law does not defend itself. Lawyers do, and
that is why I have chosen to serve. It is also the reason I
would like to address the subject of today's hearing. The ABA
is deeply committed to fostering a justice system that everyone
in America can have access to and confidence in. When our
practice is open, and inclusive, and unbiased, we attract a
wider range of talent and perspectives.
Diversity and excellence are not mutually exclusive. In
fact, the opposite is true. Diversity, equity, and inclusion
initiatives enhance merit within the legal profession. When we
have diverse teams, our profession is stronger. It enhances our
ability to solve our client's problems, when we can tap into
the varied experiences and perspectives of people from every
background and every community.
When someone asks me whether we have arrived at a truly
open profession, I think back to my parents. When Brown v.
Board of Education was decided in 1954, the decision that
dismantled the legal framework of separate by equal, my mom and
dad were just 12 years old living in Mississippi.
Segregation and legalized racial discrimination shaped the
world they grew up in. Their daughter later became the first
Black woman elected to serve as president of the State Bar of
Wisconsin, and now I sit before you as the President of the
American Bar Association.
Our story is proof that there has been progress, but the
numbers tell us that there is still more work to do. The data
shows that women, lawyers of color, and other groups remain
drastically underrepresented in the American legal community.
Barriers still remain. Barriers that prevent talented
individuals from pursuing legal careers and rising within the
profession once they enter it.
Working to identify and reduce those barriers enhances
merit within the profession, itself, by ensuring everyone has
the opportunity to bring their capabilities to the practice of
law. That is what true meritocracy looks like, and that is what
the ABA strives toward.
Next, I would like to talk about the importance of a
national law school accreditation to the American legal system.
The Council of the ABA's Section on Legal Education and
Admission to the Bar has been recognized by the Department of
Education as the national accrediting body for Juris Doctor
(JD) programs for more than 70 years. The Council is separate
and independent from the ABA, and this separation is legally
required by the Department of Education.
So, while I cannot speak for the Council, I can tell you
what the Council's work means for the American public and
potential law students. When someone enters a lawyer's office
facing divorce, or criminal charge, or a business dispute, they
do not have the opportunity to audit the lawyer's legal
education. They have to trust that the lawyer received a
quality education. The accreditation system is what makes that
trust possible.
The Council's accreditation system is also a promise to
every law student that their degree will be portable, and that
they will have the opportunity to practice in any state, not
just where they went to law school.
In closing, I would like to underscore, at the ABA, we
believe in a legal profession that is open to anyone with the
talent and drive to serve, and we believe in the rule of law
that guarantees the fundamental rights of every American. Thank
you again for the opportunity to appear.
Mr. Gill. Thank you.
And I now recognize Zack Smith for his opening statement.
STATEMENT OF MR. ZACK SMITH
SENIOR LEGAL FELLOW
COURTS AND THE CONSTITUTION, LEGAL POLICY CENTER
THE HERITAGE FOUNDATION
Mr. Smith. Thank you, Chairman Gill, Ranking Member Simon,
Members of the Committee [sic], for this opportunity to testify
before you today.
The American Bar Association has abandoned its mission to
provide best practices for the legal profession. Instead, it
has opted to push a partisan program for radical policies. For
example, the ABA has weighed in on hot button cultural issues
by supporting nationwide abortion and racial discrimination at
American universities. It has opposed Second Amendment rights,
and it has attacked states that refuse to let children cutoff
their genitals if they feel they were born in the wrong body.
Even more egregiously for an organization supposedly
dedicated to the rule of law, it has taken the absurd and
patently incorrect position that our Constitution has 28
instead of 27 Amendments.
This position that the Equal Rights Amendment has become
part of our Constitution is so egregious that even the Biden-
appointed Archivist of the United States, the official that
certifies newly enacted constitutional amendments rejected it
out of hand.
As a private organization, the ABA is free to adopt almost
any policy it wishes, but the Federal Government recognizes the
ABA's Council of the Section of Legal Education and admissions
to the Bar as the sole federally recognized law school
accreditor. And when this entity, which is not only under the
auspices of the ABA, exercises government-sanctioned authority,
it must comport with the Constitution, but it does not.
In fact, as current president, Michelle Behnke, made clear
in a February 2026 speech, the ABA will not abandon its
commitment to diversity, equity, inclusion because now is not
the time to take back the progress that we have made. And she
delivered introductory remarks at the ABA's 2026 Equity Summit
which the ABA diversity, equity, and inclusion center hosted in
coordination with the ABA's DEI advisory council.
The summit included panels with titles like ``Disparate
Impact Liability,'' an old innovation that remains
advantageous; ``Beyond Rainbow Logos,'' centering lesbian, gay,
bisexual, transgender, queer/questioning (LGBTQ+) voices who
fuel innovation, equity, and better lawyering; and
``Professional Conduct in a Fractured Climate,'' model rule
8.4(g), DEI challenges and ethical lawyering.
Now for those unfamiliar with the ABA's model rule 8.4(g)
it is a chilling speech code put forward by the ABA under the
guise of policing the professionalism of lawyers, but it is
drawing condemnation from across the political spectrum. And
one Pennsylvania Federal court found that Pennsylvania's
version of this professional conduct rule, which was based on
the ABA's model, was unconstitutional, though that case was
later dismissed for other reasons.
While the Council is supposed to be nominally independent
from the larger ABA, there are very real reasons to question
just how independent the Council really is, given the co-
branding and Byzantine relationship between the two entities.
Even setting aside that overlap, the Council, itself, has taken
a number of controversial actions including targeting law
schools such as George Mason or St. Thomas for not implementing
its radical DEI and other progressive policies aggressively
enough.
Now that it is facing an existential crisis and the loss of
its monopoly on law school accreditation, the Council seeks to
back away from some of its most egregious positions. Consider,
as we heard, that it now seeks to repeal accreditation Standard
206 which requires law schools to demonstrate, by concrete
action, a commitment to diversity and inclusion which it
interpreted as requiring law schools to treat students,
faculty, and staff differently based on their race.
But the Council is not making this move having reevaluated
its position, or even after having reevaluated the proper role
of an accreditor. It is making this move out of crass self-
preservation. When it perceived the political winds to be
blowing in a different direction several years ago, the Council
demanded that law schools comply with Standard 206 even if
constitutional or statutory provisions required otherwise.
In other words, the Council said its rules trump the
Constitution. That is shocking. So, what is to be done? First
Congress and the executive branch should build on the good work
that has been done and eliminate the ABA as the sole law school
accreditor. Congress should update relevant statutory
provisions to prohibit the recognition of any accreditor that
imposes DEI requirements, and Congress should build on the work
of states that have eliminated the ABA as the gatekeeper to
state bar exams.
If other states continue to rely solely on the ABA for this
function, Congress should strip those states of relevant
Federal funds. As Justice John Marshall Harlan had the
foresight and fortitude to make clear 130 years ago, our
Constitution is colorblind and neither knows nor tolerates
classes among citizens. But the ABA has been using its
accrediting authority to undermine these constitutional
commitments to equal treatment regardless of race.
In closing, the Federal Government and states must continue
to take actions to end the ABA's monopolistic status as a law
school accreditor. Thank you.
Mr. Gill. Thank you.
And I now recognize David Blackman for his opening
statement.
STATEMENT OF MR. DAVID BLACKMAN
FORMER LAW STUDENT, PENN STATE DICKINSON LAW
TEXAS STATE GUARD VETERAN
Mr. Blackman. Chairman Gill, Ranking Member Simon, honored
Task Force Members, I thank you for the honor of speaking
before you today and the ability to tell my story. I will not
spend much time on the specifics of my departure from Dickinson
Law, seeing as those events are well in the public record.
However, I want to be clear about who I am, and why I walked
away.
When I served as a 911 dispatcher in Texas, I operated
under a system of objective rules and clear standards. I went
to law school believing the legal profession held that same
reverence for objective truth. I was wrong.
I did not leave because the coursework was too difficult. I
left and pivoted my career because I realized the institution
was demanding ideological conformity over objective legal
analysis. In the world of business school, we deal in facts,
concrete frameworks, and strict compliance, but at our law
schools, this framework has been replaced by a political litmus
test.
The American Bar Association has done more damage to the
neutral administration of our laws than any other institution
in modern America. The impact of Standards 206 and 303(c) will
be felt for a generation. This is without a doubt the biggest
implementation of mandatory DEI in higher education across our
Nation, touching the lives of every law student who chooses to
walk the path of Abraham Lincoln and Thurgood Marshall.
Make no mistake, Members of Congress, DEI does not care for
the opinions of the police officer, nor the letter of the law.
DEI does not care for the principles on which our republic was
founded. DEI does not consider the violent felon, nor does it
comfort the victim of an attack. Instead, it looks to determine
if the perpetrator is a minority, or what in their background
drove them to commit the crime.
DEI does not care for the frustration of the veteran judge,
who is now being pressured by activist lawyers to abandon blind
justice in the name of equity. DEI is not only incompatible
with Americanism, but it is incompatible with the study of law
itself because DEI seeks to break down the laws, framing as
inherently racist.
Because of Standard 303(c) law students around our country
are being taught that they must consider the law as an
oppressive tool. This will inevitably lead to judicial
activism, where judges rule not based on the laws of our
Nation, but based on their own opinions of fairness.
You might ask how an unelected organization forces every
law school in America to adopt this world view. The answer is
extortion. The ABA leverages its monopoly over accreditation as
a weapon. If the university does not bend to these diversity
standards, they risk their accreditation and their students
risk the ability to sit for the bar exam.
The ABA is acting as a cartel, enforcing an ideological tax
on every future lawyer and every university that accepts
Federal funds. The American Bar Association has much to answer
for, and it is high time that this monopoly be held accountable
for the implosion of blind justice it has caused.
They know they are in legal peril. They have quietly tried
to backtrack on these radical standards since the Supreme Court
struck down race-based admissions. But make no mistake, even
though they scrubbed the language, the activist programs they
created remain. We must work together to ensure that the
standards of viewpoint discrimination, DEI, and critical race
theories are removed from our law schools before it is too
late. Thank you.
Mr. Gill. Thank you.
And I want to once again thank the witnesses for being
here. We are now going to move on to the question and answer
portion of our hearing, and we will begin with Chairman Jordan.
I now recognize----
Mr. Jordan. Thank you.
Mr. Gill. Chairman Jordan for 5 minutes.
Mr. Jordan. Thank you, Mr. Chairman.
Ms. Behnke, a press statement, November 30, 2023, headline
reads, ``American Bar Association Withdraws Two Statements on
Israel Hamas War.'' Why did the ABA withdraw those statements?
Ms. Behnke. Congressman, I am the president and became the
president last August. The process for either making statements
or withdrawing statements, those particular statements happened
outside of my time in presidency.
Mr. Jordan. I understand that, but why did they do it? The
president of the same association who withdrew the statement
should know why they did it.
Ms. Behnke. Each year, when the ABA takes positions, they
do so based on policy that has been adopted by our----
Mr. Jordan. Who are the good guys in the Israel Hamas war,
Ms. Behnke?
Ms. Behnke. When we adopt policy----
Mr. Jordan. No, that was not my question. I just asked you
a new question. Who are the good guys in the Israel Hamas war?
Ms. Behnke. I have nothing to add other than we adopted
policy----
Mr. Jordan. Simple question. Israel is our ally, one of our
best friends. They were attacked on October 7th. One of these
statements that was withdrawn by the ABA came out on October
9th, two days after women and children were killed and raped
and taken hostage, villages destroyed. Israel is fighting a
terrorist organization. I am asking you a simple question. Who
are the good guys? Israel or the terrorist organization?
Ms. Behnke. The ABA adopted policy, and when the ABA adopts
policy, then statements are issued, and those are the decisions
that are made.
Mr. Jordan. I am not asking about the statements right now.
Forget the statements for a second. I am asking you a simple
question. Who do you want to win, Israel or the terrorist
organization?
Ms. Behnke. I have nothing further to add. My personal
opinion is not relevant. I am here as the president of the
American Bar Association.
Mr. Jordan. You took statements down, statements that were
issued two days after Israel was attacked. The statements were
taken down because they were deeply flawed because they
suggested Israel was guilty of war crimes. That was ridiculous,
and you took those statement down. Now I am asking you, as the
head of the Bar association, who are the good guys in this
conflict, our friend and ally, Israel, or the terrorist
organization, Hamas? This is not a trick question. It is
actually a simple question.
Ms. Behnke. I have nothing further to add.
Mr. Jordan. You will not answer. Third sentence of your
written testimony you said that the American Bar Association is
a nonpartisan organization. Is that really true?
Ms. Behnke. Yes, sir, it is.
Mr. Jordan. Really? Do you take any partisan positions as
the American Bar Association?
Ms. Behnke. The ABA takes position when our house of
delegates----
Mr. Jordan. The Association opposes any law that restricts
abortion. This came out after the Dobbs decision. That is
pretty partisan. The American Bar Association opposes detention
of individuals who are here illegally. Any migrants who break
our immigration laws, you oppose detention. Those sound pretty
partisan positions to me. Would you agree?
Ms. Behnke. The ABA takes positions by our house of
delegates, which is made up of 600 lawyers from across the
country. When we take positions, we do so based on the
information that we believe is important to the----
Mr. Jordan. How about men in women's sports. Do you have a
position on that?
Ms. Behnke. I do not have a list of all of our----
Mr. Jordan. I will read from the American Bar Association,
adopted by the House of Delegates August 9, 2021 resolution.
The American Bar Association opposes any Federal, state, local,
territorial, Tribal regulation or policy that prohibits
transgender students from participating in athletics in
accordance with their gender identity. Sounds like you are for
men in women's sports to me.
Ms. Behnke. Our house delegates adopted a resolution based
on the discussion and debate of our 600-member, our house of
delegates.
Mr. Jordan. I never heard of a nonpartisan organization
that is for unrestricted abortion, no detention for people who
break our immigration law, and who want men in women sports. I
never heard a nonpartisan organization adopt those positions.
Do you still say you are nonpartisan?
Ms. Behnke. I do, sir.
Mr. Jordan. Wow. That is amazing. Nonpartisan and will not
tell us who you want to win the war, our ally, or a terrorist
organization.
Mr. Smith, the marketplace has a way of speaking. How many
lawyers do we have in the United States of America?
Mr. Smith. Several million.
Mr. Jordan. Several million. Do you know how many are in
the American Bar Association? I think it is like 1.5 million
lawyers in the country. Some people might think that is too
many. I do not know that that is or is not, but 1.5 million, I
think. How many do you know are in the Bar Association?
Mr. Smith. Members of the ABA, I do not know that number
off the top of my head.
Mr. Jordan. Like 200-and-some thousand. When most lawyers
say, ``I do not want to join this nonpartisan organization,''
do you think, maybe, it has something to do with their
partisanship why they do not want to join?
Mr. Smith. Well, I think that is the reason you are seeing
states' supreme courts moving away from having the ABA act as
the gatekeeper for lawyers to be able to sit for their state's
bar exam.
Mr. Jordan. Several states are doing that, right?
Tennessee, Texas, Florida--saying we do not want these guys,
who cannot even tell us that they want our ally to win a war,
who take all kinds of left-wing positions and then pretend to
be nonpartisan. We do not want them doing the accreditation for
our law schools in our----
Mr. Smith. Correct.
Mr. Jordan [continuing]. Respective state. Is that
accurate?
Mr. Smith. That is accurate.
Mr. Jordan. Yes. And I think it is the marketplace
speaking. The American people, American lawyers are saying, no,
no, no. We are tired of this left-wing operation.
Mr. Smith. Yes, I think that is accurate, Congressman.
Mr. Jordan. I yield back to the Chair.
Mr. Gill. Thank you, Chairman Jordan.
And I now recognize Mr. Min for 5 minutes for the purpose
of asking questions.
Mr. Min. Thank you, Chair Gill, Ranking Member Simon, for
hosting what appears to be a rerun of last week's hearing.
Before I get into the substance of this hearing, I did want
to just note again something that I think goes to the heart of
the credibility of this particular hearing. This Task Force was
created to defend constitutional rights and expose
institutional abuses. We have myriad examples of this happening
right now. The issues that my constituents are calling me
about, whether it is the illegal war in Iran, whether it is the
illegal abuses by ICE, real constitutional abuses, and instead
of focusing on any of these actual constitutional abuses by
President Trump, we are, once again, focused on DEI--diversity,
equity, and inclusion.
I also want to just note something, just to show how
unserious this hearing is. Ms. Behnke, I just want to clarify,
you are the president of the American Bar Association. The
primary professional organization of lawyers in the United
States. Is that correct?
Ms. Behnke. That is correct.
Mr. Min. Does the ABA accredit law schools?
Ms. Behnke. The Council of Accreditation and Admissions to
the Bar does the accreditation work, but that is separate and
apart from the Association as is required by the Department of
Education.
Mr. Min. So, the Council of the ABA's Section of Legal
Education Admissions, the Council is responsible for
accreditation. And that, as you noted, is a separate entity as
required by the Department of Education. I want to apologize on
behalf of this entire Committee for wasting your time and
inviting you here because this is not supposed to be you, but
someone from the Council that should be addressing our
Committee. Is that correct?
Ms. Behnke. The Council is responsible for accreditation,
so I cannot speak on behalf of the Council.
Mr. Min. That is fair, and I think this is a failure of
this Committee showing how unserious this is, because we do not
even understand, apparently, the basic structure of legal
education. We are inviting the wrong witness to testify before
this Committee. This is not a minor failure. This is something
that goes to the heart of this, this is a bunch of mistruths,
half-truths trying to create a smear campaign against the ABA
and against law schools.
Now, I was a law professor myself once upon a time. I
actually served on our admission's committee at one point, and
I have some familiarity with what happened here. And I just
want to address--Mr. Blackman, I had a chance to read your
testimony, and I will just note, I do not know what the
policies at Penn State Dickinson are, but at my law school and
every law school I am aware of, it would be extremely
inappropriate for a 1L student to write a message to every
single person on the law school email list, probably prohibited
at my school.
So, I am not sure why you think that is a suppression of
your free speech. It really has nothing to do with the content
of what you are saying. I would suspect that that is a policy
matter. We do not want 1Ls addressing the entire law school
community.
Another point I would make to you, in regards to your
testimony, you make a great deal about how you were forced to
take a class on race and equal protection clause. You
understand--I know you did not finish law school. You maybe
finished a semester. That is a core part of the 14th Amendment
that is something that is taught in every Con. Law class in
every law school in America, right?
I do not know why you thought that was so offensive, why
that forced you to drop out of law school, but part of the law
school pedagogy is addressing topics that we may not agree
with. The idea here is to accustom us with understanding the
other side's position, an integral part of being a lawyer. I
wish you would have taken more classes.
I taught many conservative students. Some of them were
among my best students precisely because they challenged the
orthodoxy of other students. They made other students
uncomfortable. But in that process, they also learned to
understand and empathize with opposing arguments. And that is a
core part of the pedagogy here.
Now I want to just point out another problem here with this
entire line of questioning and some of the testimony that we
have read today, including from you, Mr. Smith, with one of the
relevant cases that has governed basically my entire life on
affirmative action, 1978 Supreme Court decision Regents UC v.
Bakke.
As we all know, I think we all know, the Supreme Court, in
this decision, prohibited universities from using strict race-
based quotas during the college or other admissions processes.
They allowed race and other protected classes to be factors.
But when I was on the admissions committee--this is before the
decision in Harvard, we were allowed to use race as a factor.
We were not allowed to actually have any kind of quotas. We
could not say, for example, we do not have enough Black
students. We need to admit more. That would have been exactly
illegal.
Ms. Behnke, I want to ask you. You are aware of the 2023
Supreme Court decision, Students for Fair Admissions v.
Harvard. Is that right?
Ms. Behnke. Yes, I am.
Mr. Min. And you know that in that decision, they held that
University of North Carolina School of Law (UNC)'s and
Harvard's race-conscience admissions practices were
unconstitutional under the equal protection clause and Title
VI. While I would note that this ended race-based admissions,
but did not actually eliminate all DEI practices, and what is
still allowed to be quotas or to be factors in admissions,
geographic diversity, something we know universities and law
schools take great pride in. We could say we have people from
rural Alabama, as well as California.
We also know that they are allowed to take ideological
diversity into consideration. That is something that my law
school took very seriously. We hired more conservatives. It was
definitely a factor. People that needed a little bump up we
said we do not have enough conservatives here on our faculty.
We do not have enough conservatives in our study body. We
admitted those students. We bumped up the faculty for that
reason.
And I would just note, just to close, that these practices
of geographic and ideological diversity actually benefit kids,
say, from rural Alabama, conservatives, much more than they do,
say, Asian kids from Irvine. I do not know why we are focused
on race and not on----
Mr. Gill. The gentleman's time has expired.
Mr. Min [continuing]. Ideological and geographical
diversity.
And with that, I yield back.
Mr. Gill. The gentleman's time.
All right. I now recognize myself for 5 minutes for the
purpose of asking questions. And thank you to all the witnesses
again for taking the time to come for this hearing, which I
think is incredibly important.
Ms. Behnke, according to the ABA's website, quote, ``all of
us have implicit biases.'' Would you agree with that statement?
Ms. Behnke. The ABA believes that diversity, equity, and
inclusion improves----
Mr. Gill. Would you agree with the statement that, quote,
``all of us have implicit biases,'' from the ABA's website?
Ms. Behnke. The ABA believes that diversity in all of its
policies is important.
Mr. Gill. Is that a yes? Can I take that--it is a yes or no
question. Do you believe that all of us have implicit biases as
your website says?
Ms. Behnke. The ABA looks to remove barriers and we
examine----
Mr. Gill. That is not any question, ma'am. Do you believe
that all of us have implicit biases?
Ms. Behnke. I have expressed----
Mr. Gill. You do.
Ms. Behnke. I have expressed what the----
Mr. Gill. You do.
Ms. Behnke [continuing]. ABA is doing----
Mr. Gill. That is the ABA's position as expressed by their
website. Against which groups do you have implicit biases?
Ms. Behnke. The ABA believes that it is important to always
examine----
Mr. Gill. Are you going to filibuster? Because it does not
make you sound very good. I am going to ask you again. Against
which groups do you have implicit biases?
Ms. Behnke. It is important to always examine everyone's
point of view and where they may need to consider----
Mr. Gill. It is. What about your point of view?
Ms. Behnke. I am here as the president of the American Bar
Association.
Mr. Gill. And I am asking you what your implicit biases
are.
Ms. Behnke. The ABA as an entity----
Mr. Gill. Have you reflected on your implicit biases?
Ms. Behnke. I think about how I operate in the world----
Mr. Gill. What are they?
Ms. Behnke [continuing]. Constantly.
Mr. Gill. Would you like to explain to us what they are?
Ms. Behnke. I am here speaking on behalf of the ABA and the
ABA's----
Mr. Gill. All right. We are going to move on. Was race a
factor in Ketanji Brown Jackson's Supreme Court nomination?
Ms. Behnke. I have no idea how that process works. I am a
real estate lawyer.
Mr. Gill. President Biden stated, quote, ``I made no
decision except one, and that is that person will be the first
Black woman ever nominated to the U.S. Supreme Court.'' So, I
think it is fair to say that race was a--and gender were
factors in that nomination process. Wouldn't you agree?
Ms. Behnke. You would have to have a conversation----
Mr. Gill. He explicitly stated that, so I think it is fair
to say--you are a lawyer. I think that is fair to say. Do you
think that it is just or righteous that Joe Biden explicitly
excluded Black men in the nomination process for the Supreme
Court vacancy?
Ms. Behnke. The ABA does not support discrimination of any
sort.
Mr. Gill. So, you do not--so, you do not think that it was
proper for Joe Biden to exclude every group other than Black
women in deciding who should fill that Supreme Court vacancy.
Is that your testimony?
Ms. Behnke. The ABA relishes diversity, equity, and
inclusion in bringing----
Mr. Gill. Right. Is it acceptable for Joe Biden to exclude
Black men in the nomination pool for the Supreme Court?
Ms. Behnke. The ABA never supports discrimination.
Mr. Gill. That is good to hear. You believe, I think--tell
me if--that the Supreme Court should roughly resemble the
racial diversity of the country?
Ms. Behnke. The ABA does not believe that quotas are
appropriate. It is----
Mr. Gill. According to the ABA's mission statement on its
website, it states that judges--it increases the quality of our
judicial system whenever judges resemble the vast racial
diversity of our society. Would you say it is helpful, it is
beneficial if our Supreme Court resembles the racial diversity
of America?
Ms. Behnke. The ABA believes that diversity in all of its
forms is important.
Mr. Gill. It is a good thing.
Ms. Behnke. We want people to bring all of who they are----
Mr. Gill. Yep.
Ms. Behnke [continuing]. Whether they be from small
practice or large practice.
Mr. Gill. Diversity, can you define diversity here? You
want it to--should the Supreme Court resemble America's racial
makeup, roughly? It is a yes-or-no question.
Ms. Behnke. The ABA does not support quotas. We----
Mr. Gill. I am not asking about quotas. I am asking if it
should roughly resemble America's racial makeup.
Ms. Behnke. It should represent----
Mr. Gill. Represent.
Ms. Behnke. All of what people are, and all of their
experiences.
Mr. Gill. Of what people are. Okay. So, right now there are
about two of nine Supreme Court Justices are Black. That is
about 22 percent of the Supreme Court. According to your
testimony, about 13 percent of America's population is Black.
If the Supreme Court should roughly resemble America's
demographic makeup, as the ABA states is proper, in your
opinion, regardless of qualifications should the Senate refuse
to confirm a third Black Supreme Court Justice?
Ms. Behnke. The ABA supports and encourages diversity in
all of its forms.
Mr. Gill. That was not my question. My question was, if a
Supreme Court vacancy opens up should the Senate refuse to
confirm a third Black Supreme Court nominee based on his race
or her race?
Ms. Behnke. The ABA does not support quotas and so----
Mr. Gill. The ABA does----
Ms. Behnke. But that----
Mr. Gill. Support some sort of--and we are going to,
hopefully, we will get into that. The ABA does support making
sure the ethnic makeup has a specific amount. But my time is
up, so we will move on.
And with that I yield.
I recognize Mr. Walkinshaw for 5 minutes.
Mr. Walkinshaw. Thank you, Mr. Chairman.
Constance Baker Motley, she was a Columbia law school
graduate, the first Black woman to argue before the Supreme
Court, the first female attorney at the NAACP Legal Defense and
Education Fund where she became a lead trial attorney. And
consequential early civil rights cases, she represented Dr.
Martin Luther King, Jr. She wrote the original complaint in
Brown v. Board of Education. In Meredith v. Fair she won the
case that resulted in James Meredith becoming the first Black
student to attend the University of Mississippi. She was later
an elected official, a Federal district court judge.
Ms. Behnke, you have dedicated your career both to the
legal profession and to expanding access to that profession. I
want to thank you for your service and for being here today.
The supposed purpose of our Task Force here is to defend
constitutional rights and expose institutional abuses. Your
testimony emphasizes the ABA is deeply committed both to
ensuring diversity within the legal profession and to
preserving the rule of law. And I could think of no better
example than Judge Motley to demonstrate why those commitments
are closely connected, and how together they could help us
defend our constitutional rights and expose institutional
abuses. What this Task Force is supposed to do.
Because diversity in the legal profession is not just about
who is president, or who gets admitted to a law school
classroom, or hired at a law firm. It is about ensuring that
people from every background, liberal, conservative, urban,
rural, male, female, every background, have a seat at the
table, an opportunity to use the law to identify and challenge
abuses of power, because people who have witnessed
institutional abuse, or experienced it, have come from
communities whose rights have historically been denied might
recognize an injustice that others overlook.
And a legal education can give them the tools to challenge
those injustices, hold those institutions accountable and
prevent abuses from continuing. I think that is a concept that
this Administration and some of my colleagues are terrified by,
quite frankly.
Judge Motley broke barriers. She strengthened the
profession. She forced powerful institutions to abide by the
rule of law in the Constitution. She made our country greater.
That is exactly why diversity in the legal profession matters.
A system that draws its lawyers, judges, public officials from
every background is better equipped to recognize institutional
abuses and to end them.
So, unfortunately, I do not think this hearing is about
defending constitutional rights or exposing institutional
abuses. I think it is about making it harder for women and
people of color to pursue a legal education, making it harder
for them to get the tools required to protect their own rights,
to protect all of our rights. And expose abuse.
Ms. Behnke, from your experience as a law student, a
lawyer, the president of the State Bar of Wisconsin, if I have
that right, and now the president of the ABA, can you speak to
how diversity in all its forms in the legal profession can help
defend Americans' constitutional rights and prevent
institutional abuses. How can diversity help us to accomplish
those really important goals?
Ms. Behnke. When you have a diverse group, people who have
different experiences, people who have looked at the issue from
different ways, that helps expand the problem-solving. There
are studies that have been done by McKinsey and Harvard
Business Review who indicate that the more diverse a team is,
the better the solutions are.
And at the end of the day, lawyers are there to solve their
clients' problems, to solve the issues that face our society in
the way of legal issues. And so, when you have a diverse group,
you have better outcomes, and when you have better outcomes,
then the public, as well as the particular clients, have
greater confidence in the system.
Mr. Walkinshaw. Yes, I could not agree more. Look, I have
been on a lot of teams in my life--sports teams, professional
offices, organizations, boards, committees, commissions--in
every single case, I have found that those teams are stronger
when there is a diversity of perspectives, and backgrounds, and
views, and I do not understand how we got to a point in this
country where there are people in very high positions of power
so terrified by that.
Mr. Chairman, I yield back.
Mr. Gill. Thank you, Mr. Walkinshaw.
And I now recognize Mr. Cloud for 5 minutes for the purpose
of asking questions.
Mr. Cloud. Thank you, Chairman, and thank you for holding
this hearing.
You say that the American Bar Association is nonpartisan.
And that is correct? You maintain that as your testimony today?
Ms. Behnke. Yes, sir.
Mr. Cloud. Yet, when we look at amicus briefs filed over
the last ten years by the ABA, 87 briefs have been filed, 80
percent of the organizations filing advocated for liberal and
progressive outcomes, only 21 percent of the ABA's briefs
concern matters directly related to the legal profession.
Of 87 briefs filed over the ten-year period, 70 favor
liberal progressive outcomes, 17 were generally neutral in
nature, and zero can be characterized as conservative-aligned.
Why is that?
Ms. Behnke. When the ABA files an amicus, we can only do so
when two factors are in existence.
First, the ABA has to have policy. That policy is developed
by our house of delegates, which is made up of 600 members from
across this country. Every state in the union, red states and
blue states. So, first, we have to have policy. Then, if we are
requested to file an amicus, we have to determine that we have
something unique to offer the court in assisting it in making
its decision.
When we file an amicus then, we are doing so based on the
existing policy. We do not line them up based on liberal or
conservative----
Mr. Cloud. It seems like whether you are intending to or
not, the net result is the fact that your work product is very
much liberal leaning, if not progressively imposing, or working
toward those advances. It is not at all any sort of
nonpartisan, or in a way, a gatekeeper of making sure that the
legal profession is respected and protected.
Ms. Behnke. Our policies are the issues that are raised by
our members. Anyone within the house of delegates can raise an
issue, can speak to and debate an issue, and bring resolutions.
So, when we decide----
Mr. Cloud. Do you think transgender surgery for minors is a
nonpartisan issue?
Ms. Behnke. The ABA developed policy on that issue and,
therefore, going through that process.
Mr. Cloud. That is one issue where I think there is a--it
crosses, maybe, not here in Congress, but the American people
are very much against transgender surgeries for minors, yet the
ABA is supportive of that.
Ms. Behnke. Our policy is developed by our house of
delegates with those members from each and every state, sir.
Mr. Cloud. It does not concern you that you are that far
off from the American people.
Ms. Behnke. The policy that is developed in our house of
delegates is done through a very deliberative process, and when
those issues come up and are voted on, that is what sets our
policy.
Mr. Cloud. Okay. The ABA supported the disbarment of a
number of lawyers who defended President Trump. Yet, we had
other lawyers who actually campaigned in going after the
President--kind of invented new and novel legal parameters to
create a prosecution case against him. We have seen no
disciplinary action taken against those individuals. We have
not seen the American Bar Association support the disbarring of
them. You know, again, we are seeing kind of like a left-
leaning approach by the ABA.
Ms. Behnke. I am not aware of what you are speaking about
in terms of disbarring lawyers. The ABA is an association----
Mr. Cloud. You are not aware.
Ms. Behnke. We are not--we do not actually control the
barring of lawyers. Each individual----
Mr. Cloud. No, but you put out statements supporting it.
Ms. Behnke. I am not aware of any statements that support
disbarring particular lawyers.
Mr. Cloud. Okay. Mr. Smith, you have done some work and
study on this. The ABA, in a sense, acts as a gatekeeper. Yes,
there is a little bit of a divide between the accreditation
Council but, you know, there is a lot of overlap there as well
in so far as how the members of that Council are selected.
Could you speak to that? And really, should we have one
organization kind of being the gatekeeper, or should the
Department of Ed look at multiple institutions, or would it be
better left to the states?
Mr. Smith. Thank you for that question, Congressman. The
Department of Education absolutely should authorize more law
school accreditors than one monopolistic entity. Now, when it
comes to the Council of the ABA Section of Legal Education
there is a lot of overlap. The Council would not exist without
the ABA. In order to be a member of the Council, you first have
to be a member of the ABA, except for a few public members. The
officers of the ABA Section of Legal Education and Admissions
to the Bar automatically are members of the Council, the
accrediting entity.
And so, as I mentioned in my opening statement there is a
lot of overlap between the big ABA and the Council that does
the accrediting.
Mr. Cloud. So, sitting here and saying, ``Oh, there is no
overlap. I cannot speak to that,'' that is probably not exactly
accurate.
Mr. Smith. There is more overlap than I think that
statement reflects.
Mr. Gill. The gentleman's time has expired.
I now recognize Ranking Member Simon for 5 minutes for the
purpose of asking questions.
Ms. Simon. Thank you, Mr. Chairman. And, again, thank you
to our witnesses.
Today, you know the Task Force has decided to hold yet
another hearing on diversity and the horrors of inclusion, the
horrors of equity. You know, after we had this same hearing
last week, we also know that the DOGE Subcommittee just had a
hearing on this exact topic just yesterday. And I think the
American people deserve to know why the Majority is so
concerned about inclusion and equity that we need to have back-
to-back hearings on the issue.
At last week's Task Force meeting, each witness testified
in no uncertain terms that the so-called DEI crisis are the
reasons for American families suffering, paying more for
groceries and gas under the current Administration's policies.
They were all very clear about that. This is why the Task Force
is dead set on ignoring the challenges of what is affecting
Americans who are hurting the most.
I know in my state, in my district, one of the largest
states in the country. I think the Chairman's state is also--
actually the largest. We have real issues in both of our
states. In my district alone, there are over a 1,000 veterans
that are sleeping on the street. I do not care what party you
belong to, we know that that is wrong.
I know that in my colleague's district, Texas has led the
Nation in hunger--the Nation in hunger--over the past two years
with more than five million Texans unable to afford enough to
eat. In the Dallas area alone, gas prices have risen by almost
a dollar. Over the past year, from Texas to California, our
constituents are worried about how they are going to pay for
gas and groceries, and healthcare, and are worried about how
they are going to pick up their kids from the daycare that they
cannot afford, and use that gas, and hustle it to get to work
the same day.
But we are here today, here, hours, people flew in, we are
here to talk about law school accreditation, and today's
hearing is not also about restoring merit to the law school
accreditation process. We know that.
Mr. Smith, I gave you a quick hint in my opening statement,
but do you know how many people applied to ABA accredited law
schools last academic year?
Mr. Smith. Well, I would imagine the majority of applicants
applied to ABA accredited law schools because historically the
ABA has been the only law school accreditor, and historically
states have required----
Ms. Simon. My time is so limited. My time is so limited. It
is about 77,000 people. Do you know--77,000. Remember that
number. Do you know what the percentage of the American
population that is?
Mr. Smith. I do not, Congresswoman.
Ms. Simon. It is about .02 percent. Mr. Smith, do you know
the percentage of law school applicants that are people of
color of that 77,000?
Mr. Smith. The process, Congresswoman, should be open
equally to all.
Ms. Simon. I will reclaim my time. I will reclaim my time.
It is important to know because we are talking about de-
diversifying, challenging inclusion, and challenging equity.
Half of the law school applications for the last academic year
were people of color. So, do you know what percentage of the
American population that is?
Mr. Smith. Congresswoman----
Ms. Simon. Point--I will answer it. .01 percent. .01
percent. So, let us bring this issue home. We are here at a
hearing on law school accreditation, and the Republicans have
invited the ABA president, and thank you for your presence
today, knowing, knowing, they had to know, that her position
does not play a role in law school accreditation. Maybe the
Majority just made an honest mistake, but I am still trying to
figure out what we are doing here.
So, why has President Trump consistently attacked the legal
profession since he has returned to office? We know why. This
is an unprecedented executive order spree, that we have seen,
retaliating against specific lawyers and law firms.
I yield back.
Mr. Gill. Thank you, Ranking Member Simon.
And I now yield 5 minutes to Mr. Jack from Georgia.
Mr. Jack. Well, thank you, Mr. Chairman. I appreciate you
convening this Task Force today. And I, myself, as well as many
of my constituents who are watching, reached out to let me know
how impressed they were with your line of questioning. So, with
that having been said, I would like to yield the remainder of
my time to our distinguished Chairman, Mr. Gill.
Mr. Gill. Well, thank you. I appreciate that.
Ms. Behnke, let us pick off before we left off before. The
mission statement on the ABA's website states that our legal
profession is enhanced when judges resemble the cultural groups
that make up American society. How many Supreme Court justices
have we had in American history?
Ms. Behnke. I could not tell you over the----
Mr. Gill. It is about 116. Do you know of those 116, how
many of them have been transgender?
Ms. Behnke. I have no idea.
Mr. Gill. Do you think there might have been one?
Ms. Behnke. I have no idea.
Mr. Gill. Is it fair to say that there have been no
transgender Supreme Court justices in American history?
Ms. Behnke. I honestly have no idea.
Mr. Gill. You do not know?
Ms. Behnke. I have no idea.
Mr. Gill. You study the law, don't you?
Ms. Behnke. We do not study the personal attributes of
individual justices.
Mr. Gill. Is there a Supreme Court justice in American
history that you think might have been transgender?
Ms. Behnke. I have no idea.
Mr. Gill. You have no idea? Well, I think most people can
assume that there have not been any transgender Supreme Court
justices. I hope that we can agree, at least on that basis.
Would that be okay to proceed under that assumption?
[No verbal response.]
Mr. Gill. Okay. I appreciate that. So, transgenders have
not been represented on the Supreme Court. Do you think that it
is important that the next Supreme Court justice be
transgender?
Ms. Behnke. The ABA does not subscribe to any particular
quotas----
Mr. Gill. I am not asking about a quota. I am asking about
representation, diversity, equity, and inclusion.
Ms. Behnke. The ABA supports diversity in all of its forms
and----
Mr. Gill. Have transgenders been included on the U.S.
Supreme Court?
Ms. Behnke. The ABA supports the full spectrum of
diversity----
Mr. Gill. Do you think that it is a problem that the
transgender community has never had representation on the U.S.
Supreme Court?
Ms. Behnke. The ABA believes in diversity, equity, and
inclusion----
Mr. Gill. I am asking you about diversity, equity,
inclusion. I am asking you about inclusion of the transgender
community.
Ms. Behnke. We believe that people ought to bring their
entire self to whatever role they are serving----
Mr. Gill. You are refusing to answer my question. Do you
think that it is important that we have a transgender Supreme
Court justice?
Ms. Behnke. I believe that it is important----
Mr. Gill. In order to include that community?
Ms. Behnke. I believe that it is always important, the ABA
believes that it is always important to support and encourage
diversity, equity----
Mr. Gill. So, we should have a transgender Supreme Court
justice?
Ms. Behnke. Diversity has many forms, and we believe that
each----
Mr. Gill. Do you think that--you are not answering in a
straightforward way. Do you think that is because of your own
implicit bias?
Ms. Behnke. I believe that I am trying to explain that the
ABA does not set quotas and does not believe in any one----
Mr. Gill. Do you have implicit transphobia?
Ms. Behnke. The ABA believes that diversity in all of its
forms is important, and helps the profession more globally.
Mr. Gill. Okay. We are going to move on. Should Americans
be judged by the color of their skin, or the content of their
character?
Ms. Behnke. Discrimination is never appropriate, sir.
Mr. Gill. So, do you agree that Americans should be judged
by the content of their character, and not by the color of
their skin?
Ms. Behnke. Yes, I would agree.
Mr. Gill. You would agree with that? Should a law school
consider an applicant's race when making admissions decisions?
Ms. Behnke. The Supreme Court has indicated that----
Mr. Gill. I am asking you if they should. It is a normative
question.
Ms. Behnke. Discrimination is never appropriate and----
Mr. Gill. So, is it your testimony that law school should
not consider applicant's race when making admissions decisions?
Ms. Behnke. The Supreme Court has said that you may not
take race into account.
Mr. Gill. So, you do not believe that race should have any
role, yes or no, in a law school's admissions decisions?
Ms. Behnke. Law school----
Mr. Gill. Is that the position of the ABA?
Ms. Behnke. The ABA is not responsible for admissions.
Mr. Gill. I did not say it was. I am asking you if you, if
you believe, and if it is the position of the ABA, that race
should not be a factor at all in a law school's admissions
decisions?
Ms. Behnke. The ABA takes compliance with the law
seriously.
Mr. Gill. I did not ask you that. I asked--it is a really
simple question. I am asking you should--let me just ask you,
in your own personal capacity, should race be a factor in law
school admissions decisions? The question is a yes-or-no
question.
Ms. Behnke. I am here in my capacity----
Mr. Gill. Yes or no, should race be a factor in law school
admissions decisions?
Ms. Behnke. I am here in my capacity----
Mr. Gill. Because according to the ABA it should. The ABA
has said explicitly that they have a long history of supporting
consideration of race in law school admissions. Is that your
testimony, that law schools should continue taking into account
race?
Ms. Behnke. The Supreme Court indicated that diversity is a
laudable goal, and the ABA supports diversity in all its forms.
Mr. Gill. This is embarrassing for you. You ought to be
able to answer this in a very straightforward way. And with
that, the time is up.
Ms. Simon. I have three UC requests.
Mr. Gill. Go for it.
Ms. Simon. Thank you. I ask unanimous consent to enter into
the record a July 2026 article from KERA News, ``North Texas
Families--And The Summer Food Programs They Rely On''----
Mr. Gill. Without objection.
Ms. Simon [continuing]. ``Are Feeling the Sting of
Inflation.''
Mr. Gill. Without objection. All right. And we are going to
skip closing, because we have got votes now. So, in closing I
want to thank the witnesses, once again, for their testimony
today, and appreciate it. Thank you all for coming.
[Whereupon, at 3:34 p.m., the Task Force was adjourned.]
[all]