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ABA House of Delegates Passes "Diversity" Accreditation Standard That Requires Law Schools to Act Unlawfully:

[Readers can find most of my previous posts on this issue, which contain lots of background information, here and here.]

The Federalist Society's Barwatch Bulletin reports from the ABA's annual meeting in Honolulu:

Recommendation 106B, concerning revisions to Standards 210-212 regarding diversity and legal education, generated considerable debate. Jose Garcia, representing the Section of Legal Education and Admissions to the Bar, opened discussion by heralding the merits of the proposal: "Fostering diversity in legal education is a core goal and value of the ABA and this section for many years. Indeed this Association and this section is at the forefront of the effort. The commitment to law school diversity represents a broad consensus expressed in legal education and higher education generally regarding the educational value of diversity in the classroom." According to the sponsor, the U.S. Supreme Court has recognized the importance of diversity in Grutter vs. Bollinger. Law schools in some circumstances would be permitted to use racial standards in admissions in the context of the law the Supreme Court has used. The sponsor noted that it considered input from many sources. One amendment was made in June 2006. Revised Standard 211 proposed law schools demonstrate by concrete action a commitment to having a student body that is diverse with respect to gender, race and ethnicity. Law schools would have latitude in this commitment in taking into account their individual characteristics such as their geographic location. Furthermore, if an educational institution is to be successful in enrolling a diverse student body, it must also have a diverse faculty and staff. [Editor: Note that Standard 211's binding interpretation states that law schools will explicitly be judged by "results;" that there is nothing in it about geographical considerations, that there is nothing in Grutter that allows racial preferences for faculty or staff to help recruit students; and that Grutter allows law schools in the exercise of their academic freedom, not the ABA, discretion in whether and how to use preferences--if a law school uses preferences only to satisfy the ABA, it is violating Grutter.] He stated, "Faculty and staff diversity enhance classroom discussion and better prepare students to be professional."

A Wisconsin State Bar delegate questioned the terminology of Section 211. He inquired whether the mandatory language of 211 raises ambiguity. He suggested that the ABA should question whether it is proposing something that violates the rule of law. He moved that Statement 211A and 211B be referred back to the Section of Legal Education and Admission to the Bar as the 'mandatory language as drafted raises an ambiguity as to whether or not the standard complies with the Grutter requirements."

Immediate past president Robert Grey spoke in opposition to the referral. He stated, "We are faced with the responsibility of drafting the accreditation standards and do so in a matter that you will see it in fact encourages compliances with the Supreme Court. It uses the wording [of the Supreme Court's decision] for law schools to promote diversity [Editor: No, it doesn't. It says that law schools, "consistent with Grutter," may use preferences to promote eqaul opportunity, not just for "diversity," which is contrary to Grutter]...[T]he language that they have adopted comes as close as you can expect it to come."

... The motion to refer failed by a majority, though not unanimous, vote.

The motion to concur in the action of the Council was adopted.

As my editor's notes suggest, the ABA is continuing a pattern of at best disingenuous and at worst blatant dishonesty about what its new standard does, and how it relates to Grutter. Look for several developments now:

(1) Almost certainly, someone is going to sue. I don't know who, and I don't know what the theory will be, but not only have several conservative groups been up in arms about this, but many law school deans would welcome such a lawsuit to stop the ABA from forcing them to admit "diversity" students with LSATs way, way below the law school's median.

(2) The federal Department of Education put off reaccrediting the ABA as the official body that decides which law schools are eligible for federal programs such as student loans, pending a vote on Standard 211. It will be interesting to see what the Department of Eduation will do.

(3) The U.S. Civil Rights Commission (which has no enforcement authority) will come out with a report on Standard 211 soon.

(4) Most important, I think the ABA may have just cost pro-affirmative action forces their victory in Grutter. Grutter, of course, was a 5-4 ruling in favor of allowing "diversity" admissions higher education. Justice O'Connor's deciding vote was based on the view, first articulated by Justice Powell in Bakke, that courts should give leeway to academic institutions to engage in affirmative action when those institutions believe it to be essential for educational reasons. The reaction of the establishment institutions, such as the ABA (among others), to Grutter has not been to allow, or even encourage universities, in their exercise of academic freedom, to use racial preferences to admit a diverse class. Rather, it's been to try to force all academic (and other) institutions to use preferences, regardless of whether any particular institution thinks it's valuable, irrelevant, or, as in the case of many law schools that see most of their minority students never passing the bar, completely counterproductive.

Next term, the Supreme Court will reconsider Grutter in two affirmative action cases arising at the grade school level. The choice can no longer honestly be presented as either requiring race-neutrality or merely allowing preferences under limited circumstances. Rather, and unfortunately, the choice, in practice, is between forbidding preferences on the one hand and allowing quasi-governmental actors like the ABA (which has government-sanctioned authority over who gets to take the bar) to require everyone to engage in preferences on the other. I don't think even O'Connor would have voted for the latter, and I seriously doubt that Justice Alito will.

Armen (mail) (www):
Classic Bernstein...more diversity necessarily means lower scores, only racial preference in admissions can create diversity, blah blah blah.

I'll just start with pointing out the obvious...Roberts replaced Rehnquist, not O'Connor. The question is how Alito will vote.
8.8.2006 3:21pm
DavidBernstein (mail):
So Armen, what do you know that the admissions officers at every law school in the country, as well as every scholar who has ever studied the issue, doesn't?
8.8.2006 3:31pm
Goober (mail):
Not quite "classic" Bernstein. It's missing such stunning insight as this:
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.
First, Grutter held only that racial preferences in higher education are legal when used to promote diversity, not when used to promote equal opportunity. The Supreme Court has consistently disapproved of the use of racial preferences other than for either educational diversity, or to remedy past discrimination, and nothing in Grutter is to the contrary.
Second, Grutter did not hold that any law school may use race in its admissions process to promote racial diversity. Rather, the court stated that it was deferring to the Michigan Law School's "educational judgment that such diversity is essential to its educational mission." Other law schools may not share that educational judgment, particularly if the only way to achieve such diversity is by admitting underqualified minority students. Nothing in Grutter would permit such a law school to engage in racial preferences.

My rule of thumb is, if it doesn't distinguish "diversity" from "diversity and opportunity" and accuse those who disagree of willful dishonesty, or at least rely on a hypothetical law school that doesn't think racial diversity is an important goal, it's j.v. Bernstein at best.
8.8.2006 3:33pm
Houston Lawyer:
"The commitment to law school diversity represents a broad consensus expressed in legal education and higher education generally regarding the educational value of diversity in the classroom." "Furthermore, if an educational institution is to be successful in enrolling a diverse student body, it must also have a diverse faculty and staff. "Faculty and staff diversity enhance classroom discussion and better prepare students to be professional."

All of these statements are completely unsupportable. I do not believe that even those who support racial set asides believe them.
8.8.2006 3:42pm
DavidBernstein (mail):
Goober, there are many law professors who don't think racial diversity, as such, is a critical educational objective, and far more who think that racial diversity is an important goal, but not at the expense of having admissions standards for minority students that lead to a huge failure rate among those students, as in 52% of African American students who attend the bottom 2/3 of law schools never becoming lawyers, either because they fail out or never pass the bar.

As for the opportunity/diversity distinction, you'll have to blame the Supreme Court for that one, not me. I think it's completely ridiculous to assert that "educational diversity" is a compelling reason for racial preferences, but trying to compensate for hundreds of years of slavery, Jim Crow, etc., is not, but that's what the Supreme Court has basically said.

Now, a warning: I've tried to steer this thread away from juvenile insults that have no substance, and future comments along those lines will be deleted without warning.
8.8.2006 3:46pm
RT (mail):
Could Professor Bernstein expand on his statement that the Court will (as opposed to may) reconsider Grutter in the grade school affirmative action cases? Can those cases be decided without a reexamination of Grutter?
8.8.2006 7:02pm
Gabriel Malor (mail):
I don't know what it is about Prof. Bernstein that does this, but he seems to have the most rude commenters of any of the posters here at VC. For whatever reason (and I've been reading VC forever and must have missed it) he's really got these folks' blood up.

Prof. Bernstein, if these are the type of people that hate you, you're doing something right.

Note, I disagree with much of what Prof. Bernstein writes. It's just that I like to think my disagreements are well-reasoned and I hate when people who are on my side act like such embarassing idiots.

As far as the diversity requirement goes, I also am wondering which law schools (plural because one almost certainly wouldn't challenge this on its own) will sue. Whoever does is going to have to fight the ABA at the same time its claiming not to be anti-minority. (Yes, I know opposing 211 doesn't make anyone anti-minority, but that's certainly the way it's going to be spun.)
8.8.2006 7:12pm
DavidBernstein (mail):
RT, I haven't looked at it closely, but apparently (accoridng to a draft amicus brief I was sent) the Court asked the parties in the pending cases to address whether Grutter should be overruled.
8.8.2006 7:27pm
Jack Schaedel (mail):
Wouldn't imposing the Standard on public California law schools require them to violate California law (Prop 209)?
8.8.2006 7:52pm
te (mail):

a student body that is diverse with respect to gender, race and ethnicity

Hmmm, I can see how you might have diversity of races or ethnicities, but I don't see how you can have much gender diversity since there are only two "genders." Maybe so-called transgendered folks?
8.8.2006 7:52pm
Goober (mail):
Duly noted, Prof. B, but the argument quoted above is still pretty thin. Correct me if I'm wrong, but you essentially said "it's 'diversity,' not 'diversity and opportunity.'" Calling someone a liar for that is simply ridiculous. And as to the argument that an affirmative action program would be transformed from constitutional to unconstitutional by dint of some professor's skepticism as to the value of affirmative action, I think that's a overly literalist reading of Grutter.
8.8.2006 8:00pm
Goober (mail):
And p.s., Gabriel, you have my deepest apologies for being an "embarassing idiot[]." I'd truly love to hear your well-reasoned disagreements with Prof. Bernstein. Somehow, though, I'm suspicious that these disagreements are more than a little hypothetical.
8.8.2006 8:03pm
pajamasmedia (mail):
is the problem that grutter represented a ceiling, and the ABA regulations are trying to turn the grutter ceiling into a floor for all law schools?

if so, then yes, that does seem bogus. and likely unconsitutional if that is really what they are doing.

grutter is shaky law anyway. it was an 'oconnor' compromise in a case that required black and white.
8.8.2006 8:24pm
elChato (mail):
Good grab HoustonLawyer.

I would just love to see the empirical evidence on which those quotes rest.
8.8.2006 8:47pm
Huh:
elChato, you should note that Houston Lawyer said the statements were "unsupportable." He's not faulting them for a lack of support. He's saying no evidence could be gathered from any source to support them at all.

As mushy and "mission stateminty" as they sound, I think unsupportable is a pretty strong claim, especially when applied to the first quoted statement:


"The commitment to law school diversity represents a broad consensus expressed in legal education and higher education generally regarding the educational value of diversity in the classroom."


My guess is you COULD gather the vision and mission statements of every college and law school in the nation and draw some support for a "broad consensus" in favor of the educational benefits of diversity. Bernstein is surely correct that many law schools and universities don't think of diversity as a core goal. But the above quote, rationally considered, isn't a crazy, pie-in-the-sky characterization of higher education in America. I agree the other statements are more difficult to support. But the one I've quoted is not only supportable, it borders on the obvious, especially if conservatives are right about academia being dominated by the "loony left."

Also, from Houston...

HUH
8.8.2006 11:41pm
Twill00 (mail):
But, (1) when it comes down to arguments about the benefits of "diversity", all the workable arguments "pro" have to do with diversity of experience and thought processes, not diversity of ability to tan.

(2) All the implementation methods for "diversity" have to do with maximizing the number of people who can tan really well.

(3) The first statement is supportable, but only as long as you remain in the squishy world of mission statements rather than the real world of measuring tans for special benefits to dubiously qualified candidates.
8.9.2006 5:38am
Archon (mail):
On the issue of reconsidering Grutter; does any think the court might rule unconstitutional affirmative action in primary and secondary school while saving the same practice as constitutional by relying on the concept of academic freedom (which primary and secondary public schools are generally understood not to posses).
8.9.2006 12:32pm
yetanotherjohn (mail):
While this might fall under the catagory of starting a debate with a person who buys ink by the barrel, isn't there a possibility of a private Rico act suit. If the KKK worked to get law school accredidation to be granted only to schools that discriminated in violation of the equal protection amendments, I would think that the case could be made for a Rico act lawsuit. The fact that the goal of the ABA isn't the same as the KKK, the fact that they are arguably trying to use their powers to force others into breaking the law should would remain the same.

I suspect that if the supreme court wanted to quash this quickly, it could promulgate a rule barring any attorney from arguing before the supreme court who graduated from a school accredited by the ABA in compliance with the 211 standard. It would have no immediate impact (figure at a minimum 2 years for the first law school graduate to show up plus however long for them to rise to the position of arguing before the supreme court), but it would be as clear as signal as possible absent a case for the supreme court to indicate they felt this standard was going to far.
8.10.2006 10:40am
Mary Katherine Day-Petrano (mail):
"Revised Standard 211 proposed law schools demonstrate by concrete action a commitment to having a student body that is diverse with respect to gender, race and ethnicity."

If this is the text of Revised Standard 211, it would facially and as applied violation Title II of the Americans With DIsabilities act of 1990 (and probably the Rehabilitation Act of 1973) -- no mention whatsoever of "disability," subjecting qualified individuals with disabilities to unjustifiable "lesser opportunities" and outright excludsion. Just my take on it.

Another thing, I am shocked the ABA would promote diversity for only "gender, race, and ethncity" without being inclusive of the disabled.

Wasn't it only appx. 100 years ago the psyciatric disability of "drapetomiania" was attributed by white men to blacks -- i.e., blacks were "regarded as" mentally disabled for their inability to "turn white." This was the crux of the six decade Florida bar admission denial debacle to Virgil Hawkins, against whom the Florida Bar advocated he not be granted bar admission 'until he turned white' or 'the KKK rode out of Gainesville' -- modern times, 1976.
8.11.2006 6:32pm
Mary Katherine Day-Petrano (mail):
"If this is the text of Revised Standard 211, it would facially and as applied violation Title II of the Americans With DIsabilities act of 1990 (and probably the Rehabilitation Act of 1973) -- no mention whatsoever of "disability," subjecting qualified individuals with disabilities to unjustifiable "lesser opportunities" and outright excludsion. Just my take on it."

And, my problem with this, even though I am not a law student, is the carry-over effect such a discriminatory (against the disabled) policy would have on bar admission -- which does affect me. One has to remember it is the ABA's NCBE that continues to violate Title II of the Americans With Disabilities Act's alternative assessment methods to NCBE's standardized MBE and MPRE examinations, which effectively excludes the disabled from bar admission based on factors that do not meet the "essential functions" of a practicing lawyer.
8.11.2006 6:39pm
pdxnag (mail) (www):
Local legislature's and/or top court's could simply eliminate any precondition that a local member of bar must first obtain a degree from an ABA accredited institution. The ABA, after all, is just a routine private association with arguably voluntary membership.

Any law school can similarly escape federal preconditions that accompany acceptance of any funding via federally-related student loan programs by refusal of those funds.

The politics are a different matter than an ice cold logical analysis.
8.12.2006 2:17am
Mary Katherine Day-Petrano (mail):
"Any law school can similarly escape federal preconditions that accompany acceptance of any funding via federally-related student loan programs by refusal of those funds."

And student loans are what % of any specific law school's revenue stream? For most law schools, this theoretical suggestion will never happen in reality. That's why Rehabilitation Act of 1973 lawsuits that seek removal of federal funds are so powerful. (e.g., a state's highway funds).

Also, I think I read somewhere the US Dept. of Education can remove a State Bar Examiners' authority, even if the degree from an ABA accredited institution were eliminated. I thought it was somewhere in the Higher Education Act of 1965, as amended, and/or federal regulations thereaunder. The local legislature would not have authority over this, as I recall, but a State's Supreme Court would. As I recall, it is more complicated than it would appear at first blush.

But, then again, I am an advocate for State Supreme Courts to (1) eliminate moral character review (and all the attendant delay) by State Bar Examiners and just do the type of FBI/DOJ background check one would nee to work at US Attys.; (2) eliminate standardized multiple choice and essay testing given only 2 x per year as well as the current board specialization and implement rolling examination date performance testing or work portfolios or job demonstrations with the license keyed to a range from minimum qualification to specialization level depending on the applicant's success; (3) ensure all law school graduates walk out of law school with their professional license with no financially devastating gaps; and (4)eliminate all reciprocal/nonreciprocal licensing, multijurisdictional rules, seriatim bar examinations in different States, and require under federal law (perhaps thru US DOE?) all 50 States to accede to a national attorney license. In an era of globalization, global warming, devastating Hurricanes, Earthquakes, other Natural Disasters, and the overriding federal interest in repayment of federal student loans, it is long past time for a national licensure and one that does not enrich for profit test-preparation monopolies such as BARBRI at the expense of those who cannot afford such luxury.

But then, I do not expect anyone who is entrenched in/ profiting by the current inconsistent, unweildy, patchwork, unduly delaying, and repetitative State by State system to agree with me.
8.12.2006 7:09pm