The Right Coast

February 11, 2006
ABA goes big for telling law schools what their diversity policy should be
By Tom Smith

This piece by David Bernstein is troubling (subscription may be necessary):

The new [ABA] Standard 211, styled "Equal Opportunity and Diversity," would govern admissions and faculty hiring policies. It says nothing about treating people from different groups equally, and lots about "diversity" -- a code word for affirmative action preferences. "Consistent with sound legal education policy and the Standards," part (a) says that a law school must provide "full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities," and it must also commit "to having a student body that is diverse with respect to gender, race and ethnicity."
Part (b) says, "Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity."
This sounds innocuous, since law schools can reasonably differ on what constitutes "sound legal education policy." Some might think that the educational benefits of a racially heterogeneous student body justify significant racial preferences; others might give more weight to data showing significant educational costs resulting from preferences.
An empirical study by Richard Sander of UCLA, for example, confirms anecdotal evidence that student beneficiaries of such preferences tend to struggle in law school and end up at the bottom of their classes. Statistics published in the year 2000 also reveal that under current affirmative action policies, 42% of all African-American matriculants to law school either never graduate or never pass the bar (compared with 14% of whites). Some schools might conclude dooming a huge percentage of African-American students to failure is contrary to sound educational policy, and limit their "diversity" efforts to recruitment and retention.
That will not be possible, according to the "interpretations" of Standard 211, which have "equal weight" to the rules themselves. Interpretation 211-1 states that "the requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211."
Racial preferences will thus generally be necessary to comply with Standard 211 -- despite the fact that several states, including California and Florida, ban race as a factor in law school admissions or hiring or both. Equally outrageous is Interpretation 211-2, which states that, "consistent with the Supreme Court's decision in Grutter v. Bollinger, a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity." This is a complete misstatement of the law, and the attorneys who wrote this are either incompetent or, more likely, intentionally dissembling.

So to satisfy the ABA, we would have to violate California law? That doesn't sound like a good idea to me.