Inside Higher Ed and the Chronicle of Higher Education (subscription only) are carrying stories about Friday’s U.S. Commission on Civil Rights Hearing on proposed ABA Standard 211, which would in effect require law schools to use racial preferences in admission or risk their accreditation. Unfortunately, neither article is very good, and neither captures the essence of what was said, especially by me (just ignore anything I was supposed to have said).
Here, in my view, are some of the important things that came up in the hearing:
(1) Professor Richard Sander of UCLA and Professor Richard Lempert of Michigan disagreed strongly on the effectiveness of affirmative action (read: preferences) as a means of aiding African Americans who benefit from them and attend elite law schools. They disagreed, especially, on what the social science evidence shows, but strongly agreed that appointing a panel of neutral experts to review the evidence would be very useful. As I understood it, Professor Lempert was not at all confident that similar benefits accrue to the purported beneficiaries of preferences at lower-ranked law schools, which (as a emphasized in my testimony) have a much lower (and often disastrously low) rate of success in graduating such students and preparing them for the bar.
(2) The ABA has now amended proposed Standard 211 to state that law schools need not (and should not) violate state law to use racial preferences to satisfy the standard. The original standard seemed to require law schools to violate the law (and was supported in this regard by a coalition of left-wing “civil rights” organizations).
(3) Officially, the ABA maintains that not only will the new Standard not require law schools to engage in racial preferences, but that the ABA has never tried to pressure or force law schools to use such preferences in the past. The latter claim, as is well-known in the legal academy, is simply false. This may be the result of accreditation committee members going beyond the letter or even spirit of the law, but no one wants to butt heads with officials who hold an institution’s accreditation in their hands.
(4) Various commissioners focused on the fact that the proposed standard’s official “interpretations” requires the ABA to consider not just law school diversity recruiting efforts, but also results. The ABA representative (Dean Steven Smith) had no good answer when asked how–given the unfortunately small pool of “qualified” African American applicants available to elite schools–a results-based standard could be met without resort to preferences.
(5) Several commissioners expressed grave concern about the extraordinarily high rate at which African American law students at non-elite law schools either fail out of law school or fail to pass the bar exam (over 50% at the bottom two-thirds of law schools), and about the fact that while the new standard requires law schools to pursue diversity in admissions, it says nothng about the need to ensure that admittees actually succeed in becoming attorneys. Dean Smith acknowledged that the ABA committee that drafted the Standard has no data regarding the failure rate of African American matriculants at particular law schools, nor about how the new standard may worsen this rate.
(6) Several commissioners expressed concern, shared by myself, Prof. Lempert, and Professor Sander, that many “diversity” candidates have no idea regarding the extent of the preferences that they receive, or how this might affect their chances of successfully completing law school and passing the bar exam. Even Dean Smith acknowledged that it might be a good idea to make more information about the success rate of matriculants available to prospective students, if such data could be gathered accurately. There was significant support among the commissioners for a pending bill in Congress that would require universities to reveal far more about their admissions policies, especially with regard to preferences.
(7) Commission chairman Reynolds, among other commissioners, expressed concern that the ABA was trying to force all law schools to adopt the ABA’s view that racial diversity, even at the expense of a dual admissions policy (Asians and whites admitted under one standard, Hispanics and Blacks under another), is a crucial element of legal education. Reynolds suggested that Justice O’Connor’s opinion in Grutter was in large part based on the Supreme Court’s respect for the academic freedom and independence of law schools to decide their own policies on diversity, but that the ABA was now trying to take away that freedom from dissenting law schools, and ironically citing Grutter to support this gambit.
(8) I can’t confirm this, but I heard during the break that the renewal of the ABA’s privilege to accredit law schools for federal purposes has been held up by the Department of Education due to concern over Standard 211.
The Commission’s report that will result from this should make interesting reading.
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