Startling Confession by the ABA:

As regular readers of this blog know, the ABA has just passed a controversial new "diversity" standard, Standard 211, that seems to require law schools to act illegally and immorally by engaging in racial preferences to admit minority students who, in many (statistically predictable) cases, will have a slim chance of making it through law school and passing the bar exam. More on that in a future post.

For now, I want to focus on the old Standard 211, which I have pasted below "the fold". Unlike new Standard 211, which specifically empowers the ABA accreditation committee to consider the results of a law school's diversity efforts, the old standard was a purely efforts-based standard. As you can see, below, neither the standard itself nor its (binding) interpretations empowered the committe to consider results. Indeed, in case there was any ambiguity in this regard, the old Standard is entitled "EQUAL OPPORTUNITY EFFORT," whereas the new Standard is entitled "EQUAL OPPORTUNITY AND DIVERSITY."

Nevertheless, the ABA Council of the Section on Legal Education has just circulated a "commentary" on the new Standard, defending it from its critics (including, I assume, me). One argument made defending the new results-based standard is that, in practice, it does nothing new:

The Council also recognized that the results achieved are very relevant, though not dispositive, in evaluating commitment. Thus the second sentence of Interpretation 211-3 provides: "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 Council understands that this sentence is consistent with the current practice of the Accreditation Committee, which does consider the diversity results that a school has achieved as a factor in evaluating the school's compliance with current Standard 211.
I agree with the Council that the Accreditation committee has been informally using a results-based standard in recent years, especially since the Grutter opinion came out. But I would also note that there is nothing in old Standard 211 that suggests that a law school will be judged based on results, as opposed to efforts.

Indeed, old Interpretation 211-1 lists a variety of ways that a law school could demonstrate to the satisfaction of the ABA that it has a commitment to equal opportunity (note: not diversity). Racial preferences is not among them, and indeed, the use of racial preferences is literally contrary to "equal opportunity." If anything, as written the old Standard implies that attempting to achieve specific results by lowering admissions standards for minority students would be disfavored (not, I acknowledge, that anyone believed that the ABA would punish a law school for using preferences).

The ABA's confession that it was applying an unwritten results-based standard is startling for at least two reasons. First, as noted in the case linked in co-blogger Jon's post about the Cooley Law School case, the ABA, as a quasi-state actor in its accreditation process, has constitutional due process obligations. It strikes me as inconistent with due process to have one "published" version of accreditation standards, and another version applied informally and without written authority by accreditation officials.

The other reason, even more important reason this is a startling confession is that the Department of Education is currently considering, against the objections of the American Law Deans Association and several groups that oppose racial preferences, whether to renew the ABA's role as the official accrediting agency of law schools for federal law purposes, such as the availability of student loans to students at those schools. 34 C.F.R. Sec. 602.18 states that the Secretary of Education may only recognize an accrediting agency such as the ABA if, among other things, the agency "[b]ases decisions regarding accreditation and preaccreditation on the agency's published standards."

In addition to the objections of the groups noted above, the Department of Education should consider the fact that the ABA is, by its own tacit admission, in gross violation of DOE regulations in enforcing an accreditation standard that was never put in writing; indeed, the purpose of new Standard 211 is to "codify" what the ABA has already been illegally doing!

You can read old Standard 211 below.

Related Posts (on one page):

  1. Interesting News from the ABA re Accreditation:
  2. Startling Confession by the ABA:
Eric Rasmusen (mail) (www):
I'm surprised to see that 602.16 (d) says
" An agency that has established and applies the standards in
paragraph (a) of this section may establish any additional accreditation standards it deems appropriate."

Does that mean the accrediting agency could require that a law school violate federal law? Or, that to be accredited, a law school needs to require its students to dress up in clown suits, just to provide the world with entertainment?

If not, but the Secy. of Education chose that accrediting agency anyway, who would have standing to object in court?
8.17.2006 4:36pm
Gorjus (mail) (www):
Perhaps a possible student who might argue she was denied placement in a class due to enforcement of the standard?
8.17.2006 6:12pm
Houston Lawyer:
Does the ABA have to justify a denial of accreditation based upon the insufficiency of any particular school policy or can they just hide behind the "whole institution" does not measure up standard? This would be similar to looking at the "whole individual" in order to admit certain persons who don't meet the standards applicable to Whites and Asians.

I don't expect them to actually say that they wouldn't have denied accreditation if the school had admitted five more Black students and three more Hispanics.
8.17.2006 7:01pm
Personally, I think the ABA is attempting to fix something that isn't broken. Law school admission standards shouldn't be dumbed down to accomodate, white, red, pink, purple. Either you make the grade or you don't. There is a reason why *everyone* isn't an M.D. and *everyone* isn't an attorney. Lack of intelligence isn't a disability or ethnic category and therefore, should not be treated as such.
8.17.2006 7:36pm
Christopher Cooke (mail):
I disagree with your assertion that the ABA has "constitutional" due process obligations, or at least that the Cooley v. ABA case so held. I read the opinion, and the court held that the ABA had to comply with "common law" due process requirements, because of the authority delegated to it by many states to assist in accrediting law schools. There were no constitutional due process claims raised in that opinion. I think you are hasty in assuming that the ability to assert "common law" state-based due process claims against the ABA necessarily means that federal constitutional claims can be asserted against it.
8.17.2006 11:47pm