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.