ABA can’t end anti-white scholarship discrimination lawsuit

By Jonathan Bilyk | Legal Newsline
The Center Square

The American Bar Association can’t escape a lawsuit accusing the group, tasked with setting national ethical and professional standards for lawyers and judges, of discriminating against white law school students in doling out certain scholarships.

In the ruling, U.S. District Judge Joan B. Gotschall said the lawsuit could continue because the plaintiffs had done enough to show that the ABA’s refusal to accept scholarship applications from white applicants amounted to a potential violation of federal laws forbidding discrimination in the making of contracts.

The judge, however, explicitly shied away from addressing the ABA’s attempt to argue it couldn’t be sued for ant-white racial discrimination, because the First Amendment protected its right to “advocate for diversity in the legal profession.”

Gottschall delivered the decision on Jan. 21, allowing the American Alliance for Equal Rights (AAER) to continue with its legal claims against the ABA.

The AAER is a conservative legal advocacy group which has filed numerous high profile lawsuits in recent years against governments, law firms, and other businesses and organizations, generally accusing them of anti-white or anti-heterosexual discrimination.

The AAER had filed suit against the ABA in April 2025, accusing the ABA of illegally discriminating against white students under its Legal Opportunity Scholarship Fund.

Under LOSF, the ABA for more than two decades has awarded $15,000 annual scholarships to students beginning law school. However, to be eligible for a LOSF scholarship, applicants must be a member of a non-white racial or ethnic minority group, including black, Latino, Native American or Asian.

In addition to satisfying the ABA’s desired racial and ethnic criteria, LOSF scholarship applicants are also evaluated based on “personal statements” and personal and family finances, among others.

However, in their complaint, the AAER noted that only 39% of ABA LOSF scholarship recipients are considered to be “first in their family to attend college.”

In its lawsuit, the AAER notes that white students are ineligible to apply for the scholarship, “regardless of financial need, academic achievement, or any other factor.”

“The ABA’s scholarship thus rests on racial stereotypes, using whiteness as a proxy for advantage and minority status as a proxy for disadvantage,” the AAER said in its complaint.

In the complaint, the AAER notes that the ABA drafts model rules of professional conduct for attorneys, “including the one barring lawyers from ‘discrimination on the basis of race.'”

“But instead of opposing racial discrimination, the ABA practices it,” the AAER said in its complaint.

In filing the complaint, the AAER asserted the ABA has improperly continued its discriminatory scholarship program even after the U.S. Supreme Court ruled in 2023 that “race-based admissions in higher education” are illegal under federal civil rights law, no matter the race of those receiving preference or being discriminated against.

And they noted in their complaint that the race-based scholarships are in keeping with the ABA’s practice of requiring law schools to “‘demonstrate by concrete action,’ a commitment to diversity, ‘particularly racial and ethnic minorities,'” in order to maintain their accreditation.

In response, the ABA moved in June 2025 to dismiss the lawsuit. Among other defenses, the ABA particularly argued it should be allowed to exclude white applicants when awarding scholarships, regardless of the apparent prohibition on such discrimination in federal law.

They argued the ABA should have a First Amendment right to create scholarship programs open only to non-white applicants because such awards are in keeping with the ABA’s policy of increasing diversity in the ranks of American lawyers.

“As AAER’s own complaint acknowledges, the ABA is an advocate for diversity in the legal profession,” the ABA wrote in its brief. “It is the ABA’s First Amendment right to express its views on this issue, and to engage in expressive conduct consistent with its views—including by awarding scholarship funds to LOSF participants.”

The ABA also urged the judge to reject the AAER’s assertion that the LOSF scholarship program violates potential applicants’ contractual rights under federal non-discrimination law.

The ABA asserted no one has a legal or contractual right to any scholarship funds, which are “discretionary gifts” awarded by the ABA.

In her decision, Gottschall declined to rule on the ABA’s First Amendment arguments. The judge agreed with the AAER that it would “premature” to rule on such claims at this point in the proceedings.

Rather, the judge said the AAER had done enough to move ahead on their claims of discrimination in the makings of contracts.

While the ABA argued the scholarships are “discretionary gifts” and the applications are not contracts, the judge noted the AAER had shown that applicants must sign a release allowing the ABA to, “among other things … use a winner’s application materials for promotional purposes.”

“Since that is effectively a license to use copyrighted application materials, and a license constitutes valuable consideration sufficient to form a contract, the court concludes that the amended complaint pleads a plausible … claim (under federal law),” Gottschall wrote.

The ABA has been represented by attorneys Joseph J. Torres and Katherine M. Funderburg, of the firm of Jenner & Block, of Chicago.

The AAER is represented by attorneys Matt Pociask, Thomas R. McCarthy, Cameron T. Norris and R. Gabriel Anderson, of the firm of Consovoy McCarthy, of Arlington, Virginia; and Adam K. Mortara, of LawFair LLC, of Nashville, Tennessee.