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.

Interesting News from the ABA re Accreditation:

Via Taxprof, I learn that William Rakes, the new chairperson of the ABA Section of Legal Education and Admission to the Bar, has charged an 11-person task force to recommend changes to the ABA accreditation process. Rakes letter to the members of the task force, bolded in appropriate places, follows:

You are asked to consider the relevant concepts and broad issues of accreditation. Your focus should be on what is a sound program of legal education and measure against that. I think the goal of accreditation should be to provide for a system based on standards which provide for the least possible amount of intrusion on the schools, recognize that one size does not fit all, and provide for maximum flexibility on the part of the schools. I would not want the Task Force to get bogged down in the details of the Standards or in drafting. Policy analysis and recommendations are what is desired.

I ask that you a) review the standards for accreditation used by other accrediting groups, b) determine what the Department of Education requires of accrediting bodies [I pointed out recently that the ABA has implicitly admitted that it has been violating DOE standards, see link below], and c) formulate an agenda which will address those issues that raise concerns as to whether it is appropriate and necessary for our accreditation standards to prescribe conduct on the part of law schools which tend to limit innovation and impose requirements which are not basic to the goals of accreditation. It has been suggested that the standards should focus more on measurement and assessment of outputs and less on inputs.

In other words, you are asked to take a fresh look at accreditation from a policy perspective. Please provide status reports of your progress as you see fit and submit your report in time for the Council to consider it at its June 2007 meeting.

I hope this is a serious effort by the ABA to fixed its incredibly flawed accreditation process, which has been captured by various activist groups in the legal academy who have sought to use the accreditation process to require law schools to adopt their agenda (tenuring clinical and legal writing faculty, admitting more minority students and hiring more minority faculty, keeping teaching loads low, etc.), regardless of the costs and benefits to the law school consumer. The other possibility is that this is a token effort aimed at persuading the Department of Education to recertify the ABA as an accrediting body in December, after which nothing will change.