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ABA Must Report to the Department of Education re Application of its "Diversity" Standard:

Inside Higher Ed has the details. This is a significant victory for those of us who have noted the ABA's abuse of its accreditation power to impose arbitrary and often counterproductive rules on law schools. You can find previous discussions of the controversy here, here, here, and here. Thanks to Instapundit for the pointer.

Oren (mail):
DB, irrespective of your position on the matter, it is absurd to call the ABA's policy "arbitrary". The ABA's policy here is firmly rooted in principle (a flawed principle, perhaps) and your unwillingness to acknowledge that principle is poisonous.

Having a rational debate after calling the other side arbitrary is a contradiction in terms - if their position is not determined by reason then there can be no sense trying to reason them out of it.
6.30.2007 11:35pm
DavidBernstein (mail):
Oren, it's not that favoring (or even enforcing) a diversity standard is "arbitrary", it's "arbitrary" enforcement because the ABA accreditation people have never been willing to spell out, in writing, just what would satisfy them re efforts to promote diversity. For any given law school, the ABA could impose any rule/standard it wanted, and that's exactly what it did in the past.
6.30.2007 11:57pm
George Weiss (mail):
state high courts that admit attorneys should get the message that they should no longer rely on the aba to do accredation work for them...and start having their own standers....

that would make the aba irrelevant and give more power to the states to determine whos a lawyer in their state.

the rules say that even a state that has banned affirmative action must still comply with their standerds...saying they have to maintian a commitmint to diverszity in admissions while still being banned from using race to accopmlish that.

that rule in those states has no clear menaing at all..no wonder the edcuation department is upset.

now that there are states such as California and Michigan that have banned affirmative action...i cant see it sitting well with them allowing the aba to not acredit their schools...and simultaneously relying on the aba for deciding who takes the bar
7.1.2007 12:10am
Benjamin Davis (mail):
It's amazing how quickly all this happens. What were Breyer's words - "Never has so much been undone so quickly by so few."
Best,
Ben
7.1.2007 12:46am
Litigator:
We are closer than ever to the seemingly radical proposition that racism should not play a factor in higher education admissions.
7.1.2007 1:06am
Kazinski:
The sooner the courts completly shut down now and in the future all programs that uses racial preferences, the sooner the schools can get to the real business of improving the schools. Research has shown that affirmative action in law school admissions hurts rather than helps minorities that "benefit" from admission to law schools that they are otherwise would not gain admission to. The Seattle School district spends so much time and energy worrying about diversity, they can't competently run the district and waste millions keeping schools open that should be closed, coming up with definitions of racism that label thinking for one's self and thinking ahead as attributes of "whiteness":


Cultural Racism:
Those aspects of society that overtly and covertly attribute value and normality to white people and Whiteness, and devalue, stereotype, and label people of color as "other", different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers.


Remember it was the same geniuses that crafted that cultural racism statement that came up with the racial "tiebreaker" scheme struck down earlier this week by the SC.
7.1.2007 3:08am
EIDE_Interface (mail):
I enjoy the prospect of insane leftist racialist politics undone in weeks. It makes me downright giddy!
7.1.2007 3:57am
theobromophile (www):
Back in the '70s, the ABA used its accreditation power to require law schools to admit women. Over the past 30 years, we've seen a shift from a requirement of equal opportunity (or rather, removing overt bars to opportunity) to equal results - and the only way for law schools to safely satisfy the new standards is to impose quotas. The pipeline of talented minority law applicants is simply less than that which would be needed for an equally-qualified, "diverse" class in each law school.

I'm not sure if "arbitrary" is the right word (although it is somewhat arbitrary to have a preconceived idea of what a diverse student body is - a number below which is not diverse and above which is diverse, irrespective of the actual applicant pool) - I would choose "irrational." The ABA is trying to legislate away reality, which is that there aren't enough talented minority students in the pipeline. There is no rational way for a law school admissions committee to "demonstrate by concrete action" that they are committed to a standard which does not reflect reality.

In other words: good news. Thanks, DB.
7.1.2007 5:31am
occidental tourist (mail):
While my understanding of the application of this standard in individualized circumstances suggests that it is indeed arbitrary in situ, it is arguably de facto arbitrary as unrelated to demonstrating the capacity of a school to educate for the bar.

I don't disagree that there is a background principle expressed, i.e., that the ABA is a left leaning believer in collective action for equal outcomes (or perhaps even unequal outcomes with an imprimateur of reparative justice) both internally and externally as regards the bar and its relation to society, but unless one can rationally relates that prejudice to some objective requirement for legal education, it remains arbitrary with respect to any duty that has been stupidly conferred on a political lobby to accredit law schools.

If private institutions wish to submit themselves to this folly I don't object, although those who think it is the government's business to regulate private institutions that are 'public accommodations', if consistently principled would, I hope, think the opposite.

Brian
7.1.2007 8:00am
ReaderY:
I agree that the requirement may or may not be good policy, but it is not arbitrary on its face (as applied may be another matter).

Also, although doubtless Kennedy's concurring opinion in Grutter will eventually become law, it has not done so yet, and the ABA is entitled to rely on Grutter as decided. Its efforts to stretch Grutter, while unlikely to succeed in the Court, are understandable.

In my view, the fact that the Equal Protection Clause does not apply to Congress, and the 14th Amendment has an Enforcement Clause, both permit Congress to have more leeway than the states in establishing policies on issues of race amelioration, and hence Congress could enact the ABA's standards for giving law schools money under the Spending Clause. However, it has not done so, and the current Court would likely not find such a law constitutional.

I personally don't think an accreditation agency acting on the government's behalf should go beyond what Congress requires in imposing social policies on educational institutions. This is especially the case where, as it here, it has the support of neither Congress nor the Judiciary.
7.1.2007 10:42am
dharma (mail):
I think a lot of commentators are missing the point: the diversity standard is not the problem. the controversy here is ABA's unchecked power in certain ares, such as the diversity standard. The ABA has a lot of authority and weight with their approvals, but because the courts have more-or-less been silent about the ABA's criteria in accrediting law schools there may be, as some believe, abuse of power.
I, for one, favor a court review.
7.1.2007 11:34am
liberty (mail) (www):
Kazinski,

That definition completely astounds. I have come across that before. I still have not figured out the "having a future time orientation" bit -- do you have any idea what that means?

Its also interesting to see the inclusion of "emphasizing individualism [which this country was founded on] as opposed to a more collective ideology". It may be true that it is "culturally biased" to have a preference for the laws, ideology and institutions of one's own country-- but it should certainly not be discouraged in our schools!
7.1.2007 3:18pm
jimbino (mail):
Can we now all agree, in the interests of the human race, to get rid of the ABA (and the AMA, etc)? If physicists and mathematicians had had to be certified by some idiotic self-dealing gummint body, we all might be speaking Japanese now.
7.1.2007 5:10pm
Frater Plotter:
"Future time orientation" is, I believe, a reference to the economic notion of "time preference".

http://en.wikipedia.org/wiki/Time_preference

Different groups -- economic classes, or subcultures -- are sometimes described as having different time preferences. A long time preference may be associated with "WASP" or "Puritan" notions of responsibility: planning for the future, deferring present enjoyment, sublimation of immediate urges, and so forth. Lower-class institutions such as payroll loan companies and crack cocaine dealers are sometimes cited as taking unfair advantage of their clients' short time preferences -- impoverishing a person's future in order to provide short-term pleasure.

It's one thing to say that people with different time preferences should be political equals, or should be respected as human persons. It's quite another thing to say that they should be economic equals. A person with a long time preference will tend to save; one with a short time preference will tend to splurge. It seems reasonable in a libertarian sense to let both endure the consequences.
7.1.2007 5:33pm
liberty (mail) (www):
So, if schools accidentally teach students to care about the future (consequences and so forth) they are bigoted because they aren't giving equal worth to cultures which live in the now, and take peyote every day, kind of thing?

Because obviously reality shouldn't play any part... that would be racist.
7.1.2007 6:12pm
robertemmet (mail):

So, if schools accidentally teach students to care about the future (consequences and so forth) they are bigoted because they aren't giving equal worth to cultures which live in the now, and take peyote every day, kind of thing

?
What about we Irish, who live in the past?
7.1.2007 8:12pm
Toby:
Speak for yourself, Emmet. I have been thinking about my next Harp most of the day.
7.1.2007 8:43pm
Houston Lawyer:
The ABA called me just last week touting the benefits of membership. I was polite enough to tell them that I had no intention of ever joining them.

I'm surprised that they want me, since they have worked against me getting into law school in the first place.
7.1.2007 11:18pm
DiverDan (mail):
Amen to Houston Lawyer. I was amember of the ABA during Law School and after for several years, but about 1990 I finally got sick and tired of the way that the ABA's policies and decisions (on Judicial Recommendations and other matters) were so clearly dominated by the left wing and the Plaintiffs' P.I. Bar -- there seemed to be no room for any dissent from within, so I simply stopped sending in my dues. They have called me repeatedly asking me to rejoin, but each time I explain that, while I like the ABA's educational programs, I simply cannot and will not support the ABA's political decisions.
7.2.2007 2:52pm