ABA Accreditation Standards Supersede Contrary State Laws

according to a coalition of left-wing advocacy groups.

As regular VC readers will recall, I wrote an op-ed for the Wall Street Journal noting that the ABA's new accreditation standard 211, which is due for a final vote this Summer, requires law schools to engage in racial preferences, even when it's contrary to their own educational judgment, in violation of the Grutter opinion. Moreover, the standards seem to require law schools to violate federal and state law if laws stand in the way of meeting ABA diversity requirements. (For the full argument, see the op-ed and related VC posts.)

Following publication of the op-ed, several conservative organizations wrote to the Department of Education, requesting that it divest the ABA of its authority to accredit law schools for federal purposes if the ABA goes through with enforcing Standard 211.

A coalition of left-wing advocacy groups has written its own letter to the Department of Education, defending the standards.

The most shocking of this letter's many flaws is the claim that to the extent the ABA standards conflict with state constitutional or statutory law, the ABA standards trump state law! [This relates to the following ABA Standard 211 language, which seems to order law schools to violate the law: "The requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211."] I couldn't believe that anyone would make such an argument with a straight face, but here it is:

Nothing in Standard 211 requires law schools to achieve a fixed number of under-represented students. The interpretative language of the Standards also makes clear the Council's practice to look at the actions of individual law schools in their totality rather than in a rigid, inflexible manner. In any event, as in the case with federal statutes and executive orders, such provisions supersede state laws and constitutions. Particularly, when the accrediting body is overseen by the U.S. Department of Education by virtue of the recognition process, the matters involved in the establishment and imposition of accreditation standards take on the color of federal action.

Come again? The letter writers are claiming that if the Federal Department of Education permits a private organization to accredit law schools, the private organization's standards implicitly become part of federal law, and thus supercede state law under the Supremacy Clause. The chutzpah, the absurdity, the audacity of this argument simply floors me.

I wonder if ABA spokespersons are willing to state on the record that once Standard 211 is in place, the ABA will not adopt the position that it will be a "higher law" than any laws that may conflict with efforts that ABA accreditation committees will try to impose on law schools?

As noted above, the letter has many other flaws. For example, acccording to the letter, the new ABA diversity standard will not require the admission of minority students unless they "are fully capable of succeeding in the educational program." In fact, even under current diversity efforts, over 42% of all African American matriculants either fail out of law school or never pass the bar. At the bottom 2/3 of law schools, the (approximate) figure is over 51%. At individual law schools within the bottom 2/3, the relevant percentage is undoubtedly over 60%, and perhaps much higher at particular schools.

Just to make it clear that the ABA is not interested in whether admitted minority students are likely to succeed, the ABA is also poised to undermine rule 501(b), which states that "A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar." A proposed "interpretation"* of this rule is pending that directs law schools to ignore the rule if it conflicts with the Standard 211. So, according to the ABA, it's not only okay, but actually required to admit students whom you know are likely to fail—but only if they are minority students. It's hard to imagine that the ABA could come up with a more pernicious policy if avowed racists led the organization.

The coalition of organizations that are supporting the ABA seem to me to be supporting racial preferences for their own sake, without regard to whether they are lawful in a particular context, and, more surprisingly, without regard to whether they will actually help their purported beneficiaries. The ABA has a stake in ensuring that many minority students matriculate in law schools: after all, the ABA would have a hard time justifying the various monopoly privileges it gets from the government if it didn't ensure that law schools admitted many minority students, at least some of whom will eventually become lawyers. But what stake do "civil rights" organizations have in forcing third and fourth-tier law schools to matriculate African American students who will be giving up other career and educational opportunities for a (sometimes way) less than 50% chance at becoming a lawyer?

* Proposed Interpretation 501(2): "A law school's admission policies shall be consistent with Standards 210 and 211."

On the ABA's "Well-Respected Tradition of Accrediting Law Schools":

In defense of the ABA's role in accrediting law schools, under fire for the ABA's pending insistence that all law schools use racial preferences even if they are illegal under federal or state law, Wade Henderson, executive director of the Leadership Council on Civil Rights, says: "The ABA has a long, well-respected tradition of accrediting law schools." That's one way of putting it. Another way of putting it is that the ABA has a long history of trying to cartelize the profession through accreditation standards, and that historically part of the purpose of these standards was to exclude Jews and other non-WASPs. From an article by James Moliterno in the Wake Forest Law Review:

One way the elite tried to exclude outsiders was through its attempt to set higher educational standards and higher bar admission standards. The elite lawyers were troubled by the influx of immigrants and Jews into the legal profession--many of whom went to law school by night or via correspondence courses. Night schools, observed the Dean of the Wisconsin law school, enrolled "a very large portion of foreign names." An ABA committee recommended that the character of the bar could be improved by raising educational standards in order to "purify the stream at the source."

And need I mention the irony of Mr. Henderson's comment in light of the fact that the ABA excluded African Americans from membership until 1954?(!)