The ABA maintains that the latest revision doesn’t require law schools to use race or ethnicity in admissions nor does it require that law schools violate federal or state laws prohibiting the consideration of race or ethnicity. A superficial reading supports such contention. After all, interpretation 211-2 states that law schools may use race and ethnicity in admissions, not that they shall. And revised 211-1 seems to direct schools in jurisdictions that prohibit racial discrimination in admissions to use methods other than preferences to achieve diversity.
Testifying before the U.S. Commission on Civil Rights last month, however, Professor David Bernstein of George Mason University Law School dissected the revisions to reveal that the standards remain, at best, inconsistent with the requirements for lawful racial preferences established by the Supreme Court in Grutter v. Bollinger:
Standard 211 requires law schools to take concrete action to demonstrate a commitment to having a diverse student body. Interpretation 211-2 dictates this be done through a school’s admissions policies and practices. Interpretation 211-3 states that the ABA will measure whether a law school has satisfied its diversity obligation by the totality of the law school’s actions and “the results achieved.”
There are at least two problems with the Standard.
First, it violates Grutter by taking away from the law school the discretion to determine whether diversity is essential to its mission. Under Grutter, the Supreme Court will defer to a law school’s judgment in this regard; i.e., the Court gives the school a presumption of good faith in defining its mission.
Standard 211, however, completely overrides the school’s discretion in determining whether diversity is essential to its mission. Instead, the ABA mechanically imposes diversity (more accurately, the ABA’s narrow definition of diversity) upon every school’s mission, regardless of an individual finding of pedagogical need. This destroys the presumption of good faith critical to the legality of a school’s racial preference program. Without the element of good faith, such programs devolve into raw racial balancing and don’t survive strict scrutiny.
Second, the Standard provides no safe harbor. Since the Standard measures a school’s compliance by results achieved, the only way a school can satisfy 211 practically is by using massive preferences.
Related Posts (on one page):
- More Evidence of ABA Lies re Accreditation and "Diversity":
- Getting the ABA Out of the Law School Accreditation Business:
- ABA Denies Provisional Accreditation, in Part Because of "Diversity" Concerns:
- Peter Kirsanow on the ABA's "Diversity" Standard for Law Schools:
As practically everyone who pays attention to these issues now knows, ham-fisted efforts to recruit minorities inevitably bring about student bodies where blacks and hispanics are the least qualified based on their LSAT's and GPA's.
Admitting a kid with an 150 LSAT into, say, Cornell Law is a good way of ensuring that he will finish at the bottom of the class, whether he is black, white, or whatever else.
Forcing law schools to admit underqualifed candidates is self-laudatory leftism with disregard for consequences, such as they are for the law schools, and perhaps more importantly for the intended beneficiaries.
Moreover, the second objection appears to read out "the totality of the law school's actions" to focus, laserlike, on "the results achieved."
Complaining about the ABA standard is one thing, but to stretch those complaints to implicate Grutter borders on bad faith.
If diversity of thought, or styles of argument (which is presumeably what I want whenI hire a lawyer) were important, wouldn't it be better to mix in one guy who grew up somewhere else, went to different schools, had a different life experience. And that requiremnt could be better filled with completely blind (to diversity factors) resumes.
Every time someone launches into a defense of diversity, I feel I am in the final scenes of the movie "Bananas". THe revolutionaries know there leader has gone crazy and must be deposed when he declares: (from memory decades old, so give me a break)
"The heal and welfare of my people is paramount. From now on, all people must change their underwear every day. Furthermore, all underwear willl now be worn on the outside, so we can check."
Diversity Uber Alles!