According to the Inside Higher Education story on the ABA and the Department of Education co-blogger Todd links below, while the DOE staff recommended that the ABA be subject to stringent oversight of its new "diversity" standard,

Pruitt ultimately saved the ABA's diversity standard, pointing out that while the council's track record on inconsistency is, well, consistent, there's no record of any complaint in its application of the diversity standard — making the department's preventative measure calling for the ABA to submit to onerous reporting requirements documenting its implementation of the diversity standard "a dangerous precedent" for other accrediting agencies seeking to enhance diversity.

If this representation of what happened is correct, it's absolutely bizarre. First, the new diversity standard only went into effect in August, so I don't see how Pruitt expects there to have been any complaints as of this past Fall. To the extent that Pruitt was referring to the OLD diversity standard, I'm not sure why that is relevant, because the old standard did not contain the provisions that of the new standard that have drawn the ire of critics like myself.

Even putting all that aside, I'm not sure what Pruitt means that "there's no record of any complaint" about how the ABA enforced the old standard. It's well-known in the legal academy that despite the lack of textual support for such enforcement, after Grutter the ABA informally applied the old standard to require massive affirmative action preferences. The ABA's aggressive policy in this regard was unpopular, especially at law schools that found it difficult or impossible to recruit the number of minority students the ABA "expected," at least if they wanted their consciences to be clear in terms of only admitting students who had a reasonable chance to both graduate and pass the bar. As far as a record of complaints about ABA enforcement, I certainly complained about it to a public hearing of the U.S. Civil Rights Commission.

If Pruitt means that there have been no formal complaints to the DOE from law schools about enforcement of the old standard, that may well be true, but what law school dean is going to stick his neck out to oppose application of an ABA diversity standard? Besides the negative publicity for the dean's school that this would cause, it would invite retaliation from the ABA Legal Education people, who are certainly not above such tactics. From personal experience, I can affirm that there are many people who complain about how the ABA applied its earlier, officially much more forgiving, diversity standard; since I wrote about the new standard last February, I have heard about such complaints directly from several law school deans, and a larger number of law professors. Again, assuming the relevant story is accurate, you would think that Pruitt would have actually investigated matters before making such sweeping statements.

One good thing that has come out of the controversy over the new "diversity" standard is that ABA officials have consistently and publicly denied that it requires law schools to violate state laws prohibiting racial prefrences (and indeed the standard was amended to state this), and have also publicly stated that law schools are not required to use preferences to meet the standard. Unfortunately, however, the ABA refuses to say what IS required to meet the standard, and, moreover, the ABA continues to focus solely on inputs (how many minority students are admitted), and, at least for accreditation purposes doesn't care a whit about outputs (what percentage of these minority students actually graduate and ultimately pass the bar).

UPDATE: Indeed, as I've noted before, new ABA rules require law schools to exclude most students whom they believe will not succeed in law school and on the bar; however, the rule is waived for students admitted in pursuit of diversity. In other words, law schools are forbidden to accept white students who are likely to fail, but are required to admit minority students who are likely to fail, if that's what's need to create a "diverse" class.