The Right Coast

March 15, 2006
By Gail Heriot

Loyal Right Coast readers may have observed that I have not exactly been a diligent correspondent over the last month or so (and that I appear to be trying to make up for it today).

Part of the reason is the American Bar Association. You may have read David Bernstein's fine piece in the Wall Street Journal about the ABA's new accreditation standards on diversity. What you may not know is that the ABA (or more precisely the ABA Council of the Section on Legal Education and Admissions to the Bar) is the U.S. Department of Education's officially-recognized law school accrediting agency. A law school that is not accredited by that body cannot receive federal funds, and its students are not eligible for federally guaranteed loans. In other words, a loan school that is not so accredited is road kill. The Department of Education renews its recognition of accrediting agencies every five years. And it just so happens that the ABA is up this year and that the deadline for public comment was March 8th.

Below I have reproduced a letter that Steve Balch and I submitted to the Department of Education on behalf of the National Association of Scholars. Due to the limitations of the medium, I have left out the footnotes, some of which were important. You can read the document in full here (click on "LETTER").

Ms. Robin Greathouse
Accreditation and State Liaison
United States Department of Education
Room 7105, MS 8509
1990 K Street, N.W.
Washington, D.C. 20006

Re: Renewal of Recognition of the ABA Council of the Section on Legal Education and Admissions to the Bar as Law School Accrediting Agency

Dear Ms. Greathouse:

On behalf of the National Association of Scholars, an organization of over 3,500 college and university professors, graduate students, and independent scholars, we write to oppose the renewal of recognition of the American Bar Association Council of the Section on Legal Education and Admissions to the Bar (the "ABA") as the accrediting agency for law programs in legal education that lead to the first professional degree in law, as well as free standing law schools offering such programs. Unless the ABA eliminates all requirements of racial, ethnic, and gender diversity from its accreditation standards, it would be inappropriate for the Department of Education to renew its recognition.

The ABA has long used its position as the law school accrediting agency recognized by the Department of Education to pressure law schools into adopting diversity policies that many of these schools would not, in the exercise of their best independent academic judgment, have chosen to adopt. Some might have chosen to reject the use of racial and ethnic preferences in their admissions policies altogether. Others might have chosen to put only a tiny thumb on the scale in favor of minority applicants. But they were instead pushed by the ABA into the extensive use of preferences. Their federal funding depended on it.

The ABA’s Accreditation Standard 211 originally read:


Consistent with sound legal education policy and the Standards, a law school shall demonstrate or have carried out and maintained, by concrete action, a commitment to providing full opportunities for the study of law and entry into the profession by qualified members of groups, notably racial and ethnic minorities, which have been victims of discrimination in various forms. This commitment typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and a program that assists in meeting the unusual financial needs of many of these students, but a law school is not obligated to apply standards for the award of financial assistance different from those applied to other students.

Until recently, the ABA has been comparatively cautious in implementing that standard, perhaps out of a concern that a more aggressive stance would attract unwanted attention to its policies by the Department of Education or by the courts. Since the Supreme Court’s decision in Grutter v. Bollinger, 539 U.S. 306 (2003), however, the ABA has become emboldened. In part as a result of a misinterpretation of that case, it has drafted a considerably more aggressive version of Standard 211, which covers faculty and staff in addition to the student body. The new version reads:


(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

(b) Consistent with sound legal education 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 new version of Standard 211 was adopted on February 11, 2006 by the ABA, but must be approved by the American Bar Association House of Delegates at its August 3- 8, 2006 meeting in Honolulu before it will go into effect.

A number of differences between the old and new versions jump out–some of which are in the title, some of which are in the text, and some of which are in the official interpretations. For example, the title change from "Equal Opportunity Effort" to "Equal Opportunity" makes it clear that the emphasis will no longer be placed on "effort." Numerical results will matter. This theme is made even more concrete in the interpretations. The original version stated that the "satisfaction of [each law school’s] obligations is based on the totality of its actions." The new version expands the basis on which law schools will be judged to include "the results achieved." (Compare old Interpretation 211-1 to new Interpretation 211-3.)

No law school that is up for its seven-year review will fail to recognize the implicit message: A law school must do what’s necessary to obtain the undefined, unspecified diversity "results" that will satisfy the ABA or face the disastrous possibility that its accreditation will be revoked or held up. If that means employing racial, ethnic or gender preferences that the law school faculty believes are academically ill-advised, then so be it. Anything is better than de-accreditation.

New Interpretation 211-2 informs law schools for the first time that they "may use race and ethnicity" in their admissions decisions. The reality, however, is that under the ABA Accreditation Standards, they must do so. As the Supreme Court recognized in Grutter v. Bollinger, short of generally relaxing its admissions standards, the only realistic method by which an elite law school can get the kind of diversity the ABA advocates is to lower its admissions standards for underrerpresented minorities considerably. Mid-level and less competitive law schools must follow suit if they want similar levels of diversity, since minority students whose academic credentials would have qualified them for admission at those schools are often instead attending elite schools as the beneficiaries of preferences.

This general theme continues. A clause in the original text of Standard 211 that stated "a law school is not obligated to apply standards for the award of financial assistance different from those applied to other students" has been deleted in the new version. The obvious implication here is that it will no longer be true that law schools are not so obligated.

Just in case some law schools fail to understand the ABA’s message, it has taken the extraordinary step of deleting the word "qualified" from its new version of Standard 211. Hence, instead of requiring law schools to provide opportunity to "qualified members" of minority groups, the new version requires law schools to provide opportunity to "members." Evidently, in the future, qualifications will not be so important.
By far the most troubling of all the changes, however, is the new version of Interpretation 211-1:

The requirement 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.

This is an astonishing provision. It is difficult to avoid the interpretation that the ABA is attempting to pressure law schools into breaking the law. If so, it is highly irresponsible. Doing so under color of authority of the Department of Education is simply appalling.

No doubt ABA members will protest that that is not what they meant. They will likely argue that they meant the law schools prohibited by law from engaging in preferential treatment will be required to find other methods of keeping up their minority numbers. But the ABA’s own statements before the Supreme Court belie that argument. In its amicus curiae brief in Grutter v. Bollinger, the ABA complained bitterly about the impossibility of complying with the laws of those jurisdictions that ban what the ABA euphemistically calls "race conscious admissions standards" and its own expansive vision of diversity. It told the Supreme Court that "[r]ace-[c]onscious [a]dmissions [a]re [e]ssential to [i]ncreasing [m]inority [r]epresentation in the [l]egal [s]ystem." "[I]t is unquestionable," the ABA wrote, "that the improvement in minority participation in our law schools, and thus in our legal system, has been achieved largely by the use of race-conscious admissions policies such as those under attack here." According to the ABA, prohibiting racially preferential admissions policies nationwide, as California and Washington have done statewide, would cause "a precipitous decline in minority participation in the institutions of our legal system" and "undo much of what has been accomplished in the last several decades." (Amicus Brief at 18-21.)

For further evidence concerning the ABA’s intention, consider the curious deletion of old Interpretation 211-2. That provision originally stated that each law school shall "prepare a written plan describing its current program and the efforts it intends to undertake relating to compliance with Standard 211" and "maintain a current file which will include specific actions which have been taken by the school to comply with its stated plan." It is conspicuously absent from the new version. No doubt, experience has taught the ABA that such documents almost inevitably fall into unsympathetic hands when lawsuits are filed (and lawsuits based on violations of California’s Proposition 209 and Washington States Initiative 200 can surely be expected sometime in the future). Evidently the ABA has determined that the preservation of written plans and records is not so important after all. It is not difficult to guess why.

The notion that the ABA has any authority to require that law schools adopt a diversity policy (much less the aggressive policy it now plans to pursue) is based on a fundamental misinterpretation of the Supreme Court’s decision in Grutter v. Bollinger. In that case, the Court upheld the University of Michigan Law School’s authority to discriminate on the basis of race, despite the usual overwhelming presumption against state-sponsored race discrimination embodied in the strict scrutiny standard. It held that, as an academic institution, the University of Michigan Law School was entitled to deference on the issue of whether "diversity" would to be regarded as a "compelling purpose." Nowhere, however, did the Court require institutions to follow the University of Michigan Law School’s lead and engage in racially preferential admissions policies. Institutions were expected to exercise their best independent academic judgment on the matter.

The ABA (i.e., the American Bar Association Council of the Section on Legal Education and Admissions to the Bar) is not an academic institution. Its consists of 25 officers, members, delegates, and liaisons. These include several practicing lawyers, several judges, several academics, a law student, a non-lawyer journalist, and a non-lawyer former president of the League of Women Voters. It is a part of the American Bar Association–an organization composed primarily of practicing lawyers. Similarly, the Department of Education is the arm of the executive branch of the United States government charged with the regulation of academic institutions; it is not a college or university itself. Grutter entitles neither of them to deference in their academic judgments. Indeed, the ABA and the Department of Education are precisely the kind of institutions that the concept of academic deference is supposed to protect colleges and universities from. State action is involved when, as here, the Department of Education essentially confers upon the ABA the authority to de-accredit a law school for the failure to provide preferential treatment to minority members and hence cut off law schools from federal funding. That action is therefore subject to the full weight of strict scrutiny–scrutiny that we do not believe it can survive.

Racially preferential admissions policies have always been highly controversial in law schools, and in colleges and universities generally. It is safe to say that no two law professors agree precisely about whether racial preferences in admission are appropriate, if so, how strong those preferences ought to be, if not, what should be done instead and why. But there is reason to believe that racially preferential admissions policies have become less favored by law school faculty since the Grutter decision. Recent empirical evidence demonstrates that, contrary to what had been assumed, racially discriminatory admissions polices may actually decrease the number of minority attorneys who pass the bar rather than increase that number. See Richard H. Sander, A Systematic Analysis of Affirmative Action In American Law Schools, 57 Stan. L. Rev. 367 (2004). The reason is simple: Minority students who are preferentially admitted to elite law schools frequently do poorly there, while their similarly-credentialed peers at less competitive law schools perform significantly better at their schools. Perhaps these "misplaced" minority law students end up frustrated and alienated as they are forced to compete with their better-credentialed fellow students at schools where the skills and knowledge necessary for bar passage are not usually emphasized. What’s clear is that their bar passage rate is lower than the bar passage rate of their similarly-credentialed peer group at less competitive law schools. The result may well be that racially preferential policies reduce the number of minority students who pass the bar.

Given the intense and sometimes fierce debate within legal academia, it would be unconscionable for the ABA–an organization of lawyers entitled to no deference–to decide the issue in favor of discriminatory policies for all law schools.6 And for it to do so on behalf of the Department of Education would, in our opinion, be contrary to law.

The Department of Education has long recognized that the improper conduct of the organizations it recognizes as accrediting authorities implicates the department in that conduct, especially in such controversial areas as racial, ethnic and gender preferences. It therefore has a duty to scrutinize carefully the "diversity" requirements of its officially-sanctioned accreditation authorities. As Secretary of Education (now Senator) Lamar Alexander asked in 1991, "Should ... [an] accrediting agency dictate to institutions whether or how they should balance their students, faculty, administration and governing boards by race, ethnicity, gender or age?" The obvious answer is no. If the ABA nevertheless insists upon doing so, it should be terminated as the Department of Education’s recognized accrediting agency for law programs.
The NAS would appreciate the opportunity to elaborate on these points and answer any questions the Department of Education may have in an oral presentation.
Thank you for your kind attention.

Sincerely yours,

Stephen Balch

Gail Heriot
Chair, NAS Section on Law & Professor of Law at the University of San Diego (the latter affiliation is for identification purposes only)

Addendum: David Bernstein has a new post on the subject today on the Volokh Conspiracy.