The Volokh Conspiracy - Update on the ABA and Affirmative Action:

[UPDATED and EDITED for easier reading]

My Weekend Wall Street Journal op-ed (now available slightly updated at OpinionJournal.com) on the ABA's new "diversity" requirements is causing a bit of a stir: a letter to the editor in today's Journal by the ABA president; a puff piece on the new standards in today's Journal (which doesn't even mention the controversy over the blatant illegality of the new standards, nor the point that even less stringent current racial preference standards have been a disaster for many African-American students, with 42% of black matriculants never becoming lawyers); and an article in the Chronicle of Higher Education. The ABA is going on the offensive about this in the media, but hasn't released the underlying document to the public.

However, I've ascertained that Standard 211, the focus of my op-ed, was approved as proposed (see text below). The enacted standard states that "a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity. Through its admissions policies and practices, a law school shall take concrete actions to enroll a diverse student body." Moreover, "the commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern [read, racial preferences] for determining the potential of these applicants through the admission process." And, just in case the law gets in the way of preferences, "[t]he 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." [This particular language was not part of the original ABA proposal, but was added in January with the obvious intent of requiring law schools in states that ban preferences to use them anyway.] And, finally, to see whether the standard is met, the ABA will look at "the totality of the law school's actions and the results achieved."

Despite the obvious intent and meaning of these words, publicly, the ABA is denying that they are requiring quotas, or even preferences. The ABA president writes that "a law school would be permitted, not required, to consider race and ethnicity in its admissions process" [so why bother having a provision that states that laws banning racial preferences must be ignored?] So what is the ABA requiring? One official says: "Law schools, rather than pledging to implement 'equal opportunity and diversity', must now show that they are making adequate attempts to do so, including things such as appointing a diversity officer, hosting forums or making diversity an integral part of recruitment." Another ABA official states that schools must either use racial preferences, or "demonstrate specific steps they are taking to achieve the goal of diversity, such as recruiting at historically black colleges, offering scholarships to minority or disadvantaged students, or holding summer programs to help potential applicants prepare for law school."

So let's take the ABA at its word (ignoring the fact that the ABA accreditation people have been on a pro-preference rampage since even before the new standards were proposed). A law school must either engage in racial preferences, or spend tens or even hundreds of thousands of dollars on diversity officers, special summer programs for minority students, recruitment trips to historically black colleges, and special minority scholarships. A law school that chooses the latter option may, possibly, get off the hook if these efforts don't result in the law school having as many minority students as the ABA accreditation committee thinks it should have. Obviously, the path of least resistance for law schools, especially those with tight budgets, is just to have massive race preferences, and, for that matter, implicit quotas to satisfy the ABA.

So either the ABA is directly requiring racial preferences [which I think is rather clear], or, at best, is giving law schools a choice between utilizing racial preferences or jumping through a series of expensive recruitment hoops that may or may not satisfy the ABA.

John Rosenberg has comments.

You can read the full text of the new standard, along with the "Interpretations" that have just as much weight as the formal standard, below. Note that the standard does not officially become final until the full ABA House of Delegates approves it this Summer.

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Standard 211. EQUAL OPPORTUNITY AND DIVERSITY. (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 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. Interpretation 211-1: 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. Interpretation 211-2: Consistent with the U.S. Supreme Court's decision in Gruter v. Bollinger, 539 U.S. 306 (2003), a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity. Through its admissions policies and practices, a law school shall take concrete actions to enroll a diverse student body that promotes cross-cultural understanding, helps break down racial and ethnic stereotypes, and enables students to better understand persons of different races, ethnic groups and backgrounds. Interpretation 211-3: This Standard does not specify the forms of concrete actions a law school must take to satisfy its equal opportunity and diversity obligations. The determination of a law school's satisfaction of such obligations is based on the totality of the law school's actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a more favorable environment for students from underrepresented groups.

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	[David Bernstein, February 14, 2006 at 8:27am] Trackbacks Update on the ABA and Affirmative Action: [UPDATED and EDITED for easier reading] My Weekend Wall Street Journal op-ed (now available slightly updated at OpinionJournal.com) on the ABA's new "diversity" requirements is causing a bit of a stir: a letter to the editor in today's Journal by the ABA president; a puff piece on the new standards in today's Journal (which doesn't even mention the controversy over the blatant illegality of the new standards, nor the point that even less stringent current racial preference standards have been a disaster for many African-American students, with 42% of black matriculants never becoming lawyers); and an article in the Chronicle of Higher Education. The ABA is going on the offensive about this in the media, but hasn't released the underlying document to the public. However, I've ascertained that Standard 211, the focus of my op-ed, was approved as proposed (see text below). The enacted standard states that "a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity. Through its admissions policies and practices, a law school shall take concrete actions to enroll a diverse student body." Moreover, "the commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern [read, racial preferences] for determining the potential of these applicants through the admission process." And, just in case the law gets in the way of preferences, "[t]he 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." [This particular language was not part of the original ABA proposal, but was added in January with the obvious intent of requiring law schools in states that ban preferences to use them anyway.] And, finally, to see whether the standard is met, the ABA will look at "the totality of the law school's actions and the results achieved." Despite the obvious intent and meaning of these words, publicly, the ABA is denying that they are requiring quotas, or even preferences. The ABA president writes that "a law school would be permitted, not required, to consider race and ethnicity in its admissions process" [so why bother having a provision that states that laws banning racial preferences must be ignored?] So what is the ABA requiring? One official says: "Law schools, rather than pledging to implement 'equal opportunity and diversity', must now show that they are making adequate attempts to do so, including things such as appointing a diversity officer, hosting forums or making diversity an integral part of recruitment." Another ABA official states that schools must either use racial preferences, or "demonstrate specific steps they are taking to achieve the goal of diversity, such as recruiting at historically black colleges, offering scholarships to minority or disadvantaged students, or holding summer programs to help potential applicants prepare for law school." So let's take the ABA at its word (ignoring the fact that the ABA accreditation people have been on a pro-preference rampage since even before the new standards were proposed). A law school must either engage in racial preferences, or spend tens or even hundreds of thousands of dollars on diversity officers, special summer programs for minority students, recruitment trips to historically black colleges, and special minority scholarships. A law school that chooses the latter option may, possibly, get off the hook if these efforts don't result in the law school having as many minority students as the ABA accreditation committee thinks it should have. Obviously, the path of least resistance for law schools, especially those with tight budgets, is just to have massive race preferences, and, for that matter, implicit quotas to satisfy the ABA. So either the ABA is directly requiring racial preferences [which I think is rather clear], or, at best, is giving law schools a choice between utilizing racial preferences or jumping through a series of expensive recruitment hoops that may or may not satisfy the ABA. John Rosenberg has comments. You can read the full text of the new standard, along with the "Interpretations" that have just as much weight as the formal standard, below. Note that the standard does not officially become final until the full ABA House of Delegates approves it this Summer. (show) Standard 211. EQUAL OPPORTUNITY AND DIVERSITY. (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 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. Interpretation 211-1: 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. Interpretation 211-2: Consistent with the U.S. Supreme Court's decision in Gruter v. Bollinger, 539 U.S. 306 (2003), a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity. Through its admissions policies and practices, a law school shall take concrete actions to enroll a diverse student body that promotes cross-cultural understanding, helps break down racial and ethnic stereotypes, and enables students to better understand persons of different races, ethnic groups and backgrounds. Interpretation 211-3: This Standard does not specify the forms of concrete actions a law school must take to satisfy its equal opportunity and diversity obligations. The determination of a law school's satisfaction of such obligations is based on the totality of the law school's actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a more favorable environment for students from underrepresented groups. (hide)