Defying the ABA’s “Brazen Defiance Of The Law”

Recently I have written several times about the American Bar Association’s attempt to pressure law schools into adopting or expanding racial preferences, even in states where those procedures are illegal, a measure that was first exposed by Prof. David Bernstein of the George Mason University law school. (See here and here, which cites three earlier posts.)

Now, according to an article in the Chronicle of Higher Education, three of the leading organizations opposed to racial preferences have

asked the U.S. Department of Education on Wednesday to revoke the American Bar Association’s authority to accredit law schools unless the association drops requirements that the groups consider “discriminatory” and “politically correct.”

The Center for Equal Opportunity and the National Association of Scholars each sent letters to the department complaining about the association’s new, tougher stance aimed at ensuring compliance with its diversity requirements. A third group, the Center for Individual Rights, was drafting a similar letter late Wednesday and expected to send it by the end of the day.

The letter from Roger Clegg, president of the Center for Equal Opportunity, can be found here. He writes that the proposed new ABA Standard (discussed in the posts cited above) is “objectionable for a number of reasons.”

First, its emphasis on law schools’ getting their numbers right inevitably pushes them toward discrimination and preference on the basis of race, color, national origin, and sex, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d; Title IX of the Education Amendments of 1972, 20 U.S.C. 1681; the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution; and other federal and state laws. While such discrimination can sometimes be legal, it usually is not, and the revised Standard will result in these laws being broken.

Furthermore, not only does the Standard not require that antidiscrimination laws be followed, but Interpretation 211-1 says explicitly that such laws are no excuse for failure to meet the Standard. By its terms, the Interpretation includes both federal and state constitutions and statutes.

What’s more, the decisions of the U.S. Supreme Court narrowly allowing such discrimination in some circumstances do not require it, and those decisions stress the Court’s deference to higher educators’ judgments. The ABA, an association of lawyers, is entitled to no such deference; it should have no authority to dictate to higher educators what their judgments should be.

Finally, the coerced use of such discrimination and preferences raises not just legal problems, but a myriad of moral, fairness, and policy problems as well–not least of which is the emerging evidence that the victims include not only the students who might have succeeded at a law school had they been admitted (but were not, because of their race, ethnicity, or sex), but also the students who were admitted because of their race, ethnicity, or sex (and failed because their academic qualifications were mismatched with the admitting law school). See Richard H. Sander, A Systematic Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367 (2004).

In an interesting twist, Clegg adds “One last request”:

We understand that the ABA itself receives federal money, and is thus covered by Title VI and Title IX. We request, therefore, that the Education Department’s Office for Civil Rights investigate the ABA’s action in coercing or attempting to coerce law schools (themselves also covered by Title VI and Title IX) to engage in racial, ethnic, and sex discrimination.

The letter from the National Association of Scholars, signed by NAS president Stephen Balch and University of San Diego law professor Gail Heriot, is equally strong. It strenuously objects to the Standard’s statement (in Interpretation 211-1) that

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.

Calling this provision “astonishing,” the NAS letter states:

It is difficult to avoid the interpretation that the ABA is attempting to pressure law schools into breaking the law. If so, it is highly irresponsible. Doing so under color of authority of the Department of Education is simply appalling.

Interestingly, John Sebert, consultant to and apparently spokesman for the ABA, is quoted by the Chronicle as denying that charge:

John A. Sebert, the bar association’s consultant on legal education, said law schools in those states could find other ways, through recruiting or similar efforts, to achieve diversity. He denied that the ABA was trying to force law schools to meet specific numerical quotas to demonstrate their commitments to diversity.

“The council expressly rejected requests that it include a requirement that schools achieve a critical mass of students from underrepresented groups because that kind of requirement could in fact be criticized as being a quota,” he said on Wednesday.

This is interesting, among other reasons, because the ABA specifically defended the University of Michigan’s argument in Grutter that a “critical mass” of minority students was absolutely essential. I am not aware that the ABA has admitted anywhere else that the effort to obtain such a “critical mass” can fairly be criticized “as being a quota.”

In any event, Sebert’s unpersuasive denial was perfectly anticipated in the NAS letter:

No doubt ABA members will protest that that is not what they meant. They will likely argue that they meant the law schools prohibited by law from engaging in preferential treatment will be required to find other methods of keeping up their minority numbers. But the ABA’s own statements before the Supreme Court belie that argument. In its amicus curiae brief in Grutter v. Bollinger, the ABA complained bitterly about the impossibility of complying with the laws of those jurisdictions that ban what the ABA euphemistically calls “race conscious admissions standards” and its own expansive vision of diversity. It told the Supreme Court that “race conscious admissions are essential to increasing minority representation in the legal system.” “It is unquestionable,” the ABA wrote, “that the improvement in minority participation in our law schools, and thus in our legal system, has been achieved largely by the use of race-conscious admissions policies such as those under attack here.” According to the ABA, prohibiting racially preferential admissions policies nationwide, as California and Washington have done statewide, would cause “a precipitous decline in minority participation in the institutions of our legal system” and “undo much of what has been accomplished in the last several decades.” (Amicus Brief at 18-21.)

What a nice irony it would be — no, it would be more like poetic justice — if the ABA’s attempt to use its accrediting authority to coerce law schools into using racial preferences led the Department of Education not to renew its accreditation authority.


See further discussion by David Bernstein, here, and Paul Caron’s discussion of the ABA, with more links, on his excellent TaxProfBlog.

Say What? (2)

  1. The Volokh Conspiracy March 10, 2006 at 12:01 am | | Reply

    Update on the ABA’s New “Diversity” Standard:

    The Michigan Daily has an informative (albeit, as you might expect, rather Michigan-centric)

  2. vnjagvet March 10, 2006 at 1:12 pm | | Reply

    This is truly a cause worth fighting.

    Thanks for continuing the battle.

Say What?