Gail Heriot has an excellent op-ed on the subject in the Wall Street Journal. As I’ve emphasized in previous writings and speeches, it’s a real problem when the consistent focus of affirmative action in law schools is on how many black students are admitted, with little if any attention paid to how many of the admittees actually succeed in becoming lawyers.
Interestingly, the ABA, which just last year was on the offensive in passing new guidelines requiring all law schools to engage in significant racial preferences, has now proposed new accreditation rules that threaten the viability of many lower-tier law schools, including several historically black law schools. The ABA is acting under pressure from the Department of Education, which has grown weary of the ABA mandating all sorts of requirements for law school, but ignoring what would seem to be the most significant mandate: that the schools actually succeed in preparing their students for careers in law, not least by ensuring that they actually pass the bar.
Isn’t it time the ABA just gave up, and acknowledged that as a body completely captured by the perceived interests of the profession it’s supposed to be regulating, is in no position to serve as a neutral gatekeeper for law school accreditation?
Meanwhile, my antenna have picked up some subtle new signals from the ABA bureaucracy, that it is less interested in enforcing universal norms on schools that find its preference policies counter-productive, and more interested in finding ways to get all sides together to cooperate in increasing transparency and improving the prospects of minority law students. Unfortunately, I doubt this shift would last if the Department of Education lays off, as it will almost certainly do if a Democrat wins in ’08.
UPDATE: The ABA’s new proposed rules have apparently been “withdrawn for further study” until February 2008. Thanks to Lee Otis for the pointer.
Also, The Chronicle of Higher Education reports that
The U.S. Commission on Civil Rights plans to issue a report today calling for federal and state officials to require law schools to disclose detailed information about their use of affirmative action in admissions and the short- and long-term success of the minority students they enroll.
The report also urges the section of the American Bar Association that accredits law schools to drop a requirement that law schools seeking accreditation demonstrate a commitment to diversity, with a majority of the commission’s members arguing that such a requirement infringes on the schools’ academic freedom. Among its other recommendations, the report calls for the National Academy of Sciences or some other entity to finance research on the effect of law schools’ affirmative-action policies, and it urges state bar associations to cooperate with such studies.