Wisconsin law firm files civil rights complaint against American Bar Association, judge

The Wisconsin Institute for Law & Liberty ( WILL ) has filed a Title VI complaint against the American Bar Association (ABA) for its allegedly discriminatory programs, including its “Judicial Clerkship Program” and “Judicial Intern Opportunity Program,” which offer exclusive opportunities to candidates based on race.

The complaint also names three universities that have allegedly "conspired" with the ABA to run its clerkship program: South Texas College of Houston, the University of the Pacific and Willamette University.

WILL also filed a formal judicial misconduct complaint against Judge Leo I. Brisbois, a federal magistrate in the District of Minnesota, for his allegedly discriminatory practices as a key participant of the clerkship program.

"Article II of the Rules of Judicial-Conduct provides that recognizable misconduct includes intentional discrimination on the basis of race, color ... and national origin. ... This rule is mandatory and supersedes any conflicting judicial-council rule. R. Jud.-Conduct art. I, 2(a). The Honorable Leo I. Brisbois, a magistrate judge in the District of Minnesota, violated this rule by participating and at one point co-chairing the American Bar Association’s (ABA) Judicial Clerkship Program. He appears in a video promoting the program, in which his official title is prominently displayed," WILL attorneys wrote in a May 13, 2024 statement.

On May 29, WILL officials noted they are investigating whether to file additional complaints against other judges based on similar grounds.

During an interview with the Wisconsin Law Journal on Wednesday, WILL attorney Sjylar Croy said at least one more judicial conduct complaint is expected to be filed in the near future.

"As we discover who has been involved, this is something we want to pursue," Croy said, noting "the judicial code of conduct explicitly states you can't discriminate based on race."

"An organization that should be dedicated to liberty and justice for all has continued to pursue programs that are discriminatory and unjust. It’s why WILL issued a clear warning to the ABA that its programs are illegal and frankly perpetuate racism and division in our country. Enough is enough, and it’s why WILL has taken significant legal steps to resolve this injustice," Croy added.

During an interview with the Wisconsin Law Journal on Wednesday, ABA leadership disagreed with Croy.

"The claims by Wisconsin Institute for Law & Liberty Inc. regarding the ABA’s diversity programs are factually and legally incorrect. The programs at issue are lawful, and we intend to defend them vigorously against any challenges," said ABA General Counsel Annaliese Fleming.

ABA President Mary Smith agreed with Fleming during an interview with the Wisconsin Law Journal on Wednesday.

"More broadly, the ABA strongly believes in the need to eliminate bias and enhance diversity in the legal profession and the justice system. Currently, the legal system does not reflect the nation’s population. We can and should do better," Smith said.

According to Croy, WILL received a response from the ABA that was a total denial of any wrongdoing.

"There's nothing to see here, a total denial," Croy said, noting "the problem is they never actually addressed the screenshots we showed them."

According to a copy of a letter obtained by the Wisconsin Law Journal, Sidley Austin LLP, attorneys who represent the ABA counsel, "strongly disagrees with your assertion that the programs engage in unlawful racial discrimination."

"Your letter suggests that the programs violate the Equal Protection Clause principles expounded in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFA”), by using racial quotas to select student participants and to encourage judges to hire minority law clerks. That contention is both factually and legally incorrect," ABA's attorneys wrote in the letter.

Sidley Austin counsel for ABA further provided specific examples of how WILL's arguments were allegedly flawed.

"As is evident from the descriptions above, the operation of ... selection processes does not use race to exclude, evaluate, or select participants.

"You are also mistaken because these programs in no way violate the principles set forth in SFA ... the programs do not assume 'an inherent benefit in race qua race,' nor do they 'engage[] in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.'" the letter continued.

ABA counsel further argued in the letter that WILL's "contentions are further misplaced because (WILL) ignore(s) that the Equal Protection Clause standards articulated in SFA do not apply to JCP and JIOP. As privately-run and privately-funded programs that do not receive Federal financial assistance."

In closing, ABA counsel wrote, "It is clear that the Federal Judiciary’s Policy on Equal Opportunity does not apply to the ABA. ... The ABA remains firmly committed to eliminating discrimination of any kind in legal education and the legal profession. It is in furtherance of that goal that it will continue its current, lawful operation of the Judicial Clerkship Program and the Judicial Intern Opportunity Program."

However, Croy disagreed and pointed out that in WILL's complaint that the ABA gets federal funds, and because it is a private association that serves a public purpose, the whole entity is subject to Title VI.

According to Croy, WILL filed complaints with the U.S. Department of Education and the Department of Justice.

Croy said he anticipates hearing a response from both agencies by late summer addressing if a formal investigation will be opened by each respective agency.

"It's highly likely the investigations will be opened asit's pretty clear there is race being used here. The agencies would then tell them to knock it off and when programs have future applications, they will have to be open to everyone," Croy said.

When asked how WILL's complaint against the ABA's alleged discriminatory practices compare to the recently filed lawsuit against the State Bar of Wisconsin claiming alleged discriminatory practices, Croy said,"The ABA is much worse than the State Bar of Wisconsin, when it comes to discriminatory practices."

"They are both very illegal, the State Bar and ABA programs," Croy said.

Both the State Bar of Wisconsin and the American Bar Association claim Croy's statements are false and that both the ABA and State Bar of Wisconsin maintain their programs are lawful.

According to WILL, the firm notified the ABA and Judge Brisbois last month that, in their current form, the ABA’s programs allegedly violate multiple federal, state, and local civil-rights laws.

WILL further argued the programs allegedly harm innumerable law students around the country.

WILL officials also said unless the ABA opened its programs to all races and stopped using race as a factor, WILL would pursue appropriate legal action.

As a recipient of federal funds from multiple federal agencies, the ABA is subject to Title VI, which prohibits all discrimination “on the grounds of race, color, or national origin.” Yet numerous programs they administer or associate themselves with do just that, WILL officials added.

WILL also noted that the ABA’s Judicial Clerkship Program “introduces law students from diverse backgrounds ... to judges and law clerks.” It also “informs and educates the students as to life-long benefits of a judicial clerkship” and “encourages judges to consider students of color ... for a judicial clerkship.”

The Wisconsin Law Journal reached out to Judge Brisbois for comment on Wednesday.

In response, Rebeccah Parks, a spokesperson for the court said, "The court cannot comment on a pending judicial-misconduct complaint."

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