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

David Bernstein nails the final nail into the coffin of the argument that the ABA’s proposed Standard 211 does not require law schools to extend racial preferences in admission and hiring. (I have discussed this issue previously here [noting that the ABA’s proposal violates the two presidential executive orders establishing affirmative action], here, and here.)

Prof. Bernstein’s most recent post, linked above, provides the full text of the ABA proposal and notes that

an earlier version of the proposed Standard stated that a law school is required to pursue racial diversity, “so long as it does so in a lawful manner.” This language was replaced with language that not only does not caution law schools to obey the law, but seems to require them to violate the law, when necessary, to use racial preferences: “The requirement 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.”

Perhaps the most distressing component of the ABA proposal is its emphasis on “the results achieved.” Thus a law school could easily be found to be out of compliance even if it demonstrated that it had taken affirmative steps to recruit minority applicants (for admission, faculty, or staff positions) and had aggressively ensured that all of its decisions were made in a non-discriminatory manner — in short, as I argued in the earlier post linked above, that it had followed both the letter and spirit of the executive orders issued by Presidents Kennedy and Johnson.

It is increasingly less clear that a seal of approval from such an organization is something to be proud of.