The ABA’s “Brazen Defiance Of The Law” II

Several posts below (“The ABA Mandates Brazen Defiance of the Law,” Feb. 11) I pointed to an article by David Bernstein in the Wall Street Journal arguing (persuasively, I thought) that a proposed new American Bar Association standard on legal education would require some law schools to choose between obeying state law and losing their accreditation.

An article in the Chronicle of Higher Education this morning notes that on Saturday that new standard was approved by the ABA’s Section of Legal Education and Admission to the Bar. To take effect it must be approved by the association’s House of Delegates in August.

According to John A. Sebert, the ABA’s consultant on legal education, Bernstein “got it completely wrong.”

The revised standard clarifies that law schools may consider race and ethnicity in admissions, Mr. Sebert said on Monday, but does not require them to take that approach.

If they do not, however, they must demonstrate specific steps they are taking to achieve the goal of diversity, such as recruiting at historically black colleges, offering scholarships to minority or disadvantaged students, or holding summer programs to help potential applicants prepare for law school.

Note well, however, that

[t]he revised standard also clarifies that “the mere fact that you may be in a state that has a statutorial [or, presumably, constitutional – jsr] provision prohibiting the consideration of race in the admissions process does not relieve you” of that obligation, Mr. Sebert said.

I wonder how Mr. Sebert can argue that this standard says only that law schools may consider race even though it obviously requires them to consider it, first, in deciding whether or not they are sufficiently “diverse,” and then in doing something, such as providing minority scholarships, if they are not. Ah, the diversiphile mind is a wonder to behold.

Also note that, even by its own lights (dim as they are, in my view), this new standard does not go far enough. A law school could be in perfect compliance with the ABA’s “diversity” requirement even if there were not one single Muslim among the faculty, staff, or student body.

The nub of the issue — indeed, of most of the issues discussed here over time — boils down to this:

The title of the revised policy, Standard 211, would be changed from “Equal Opportunity” to “Equal Opportunity and Diversity.” It would apply to admitting students, appointing faculty members, and hiring other staffers.

If this change means anything, it means that equal opportunity, i.e., non-discrimination, is not enough, that actual race, ethnic, gender “diversity” must be produced, even though, according to Mr. Sebert, there is no requirement to consider race. (I suspect that “we tried but failed” would not cut it with the ABA accreditors.)

Finally, note that under Standard 211 it would be insufficient for a law school to demonstrate that it had complied with the letter, intent, and spirit of both presidential executive orders (10925, Kennedy, 6 March 1961; 11246, Johnson, 28 Sept. 1965) establishing affirmative action. The core of both contained identical language:

The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. [Emphasis added]

Indeed, as I have long argued, any law school (or other institution) that does what Grutter allows — and the ABA (its spokesman notwithstanding) is about to require — would violate these executive orders.

UPDATE

For additional remarks by David Bernstein, see here, and here for the text of the proposed ABA Standard.

Say What?