Recently I have discussed (here and here) a new proposal from the American Bar Association that appears to require law schools to use racial preferences in admissions and hiring, even where state laws or constitutions bar the consideration of race.
This is my second year on [the admissions committee at Marquette], and I have to admit that the shiny has worn off a bit for me. I wanted to be on the admissions committee because I wanted to find out why we had classes with low percentages of minority students. Surely there must be some subconscious, yet insidious discrimination creating this result. I was going to ferret out this bias and squash it like a bug. What I found was a problem that I couldn’t fix. The problem is math.
Read, as they say, the whole thing.
Also interesting, but in a different way (the way predictably disappointing comments are interesting) were comments by Prof. Christopher Bracey of Washington University, who didn’t think much of Prof. Bernstein’s Wall Street Journal piece:
My armchair assessment: Bernstein’s op-ed is really just a sour-grapes piece…. I think Bernstein is just plain wrong when he suggests that the ABA is encouraging “lawlessness” by “demand[ing] explicit race preferences and implicit racial quotas.” Nothing could be further from the truth. Instead, the ABA is simply reminding schools that the use of race preferences is indeed constitutional, in limited circumstances, and schools should feel free to exercise that option as they see fit.
I hadn’t realized law schools and their seemingly race-obsessed admissions committees were in any danger of forgetting that Grutter allows them to engage in racial favoritism in certain circumstances, but if all the ABA wants to do is issue a polite reminder of that fact then I’m sure neither it nor Prof. Bracey would object to the removal of the language that has led many reasonable observers to accuse it of requiring disregard of the law by law schools in states that bar racial preference, namely:
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.