Several days ago I discussed (here) some serious criticisms of the American Bar Association’s proposed use of its accreditation authority to coerce law schools into employing racial preferences, even when doing so threatens to violate state law or constitutional provisions.
Both the letters from the Center for Equal Opportunity and the National Association of Scholars emphasized that the ABA’s emphasis on “results,” not just attempts, would inevitably force law schools to institute racial quotas, even though they would be camouflaged as “goals.”
For example, here is a passage from the NAS letter (not quoted previously):
A number of differences between the old and new versions jump out–some of which are in the title, some of which are in the text, and some of which are in the official interpretations.
For example, the title change from “Equal Opportunity Effort” to “Equal Opportunity” makes it clear that the emphasis will no longer be placed on “effort.” Numerical results will matter. This theme is made even more concrete in the interpretations. The original version stated that the “satisfaction of [each law school’s] obligations is based on the totality of its actions.” The new version expands the basis on which law schools will be judged to include “the results achieved.” (Compare old Interpretation 211-1 to new Interpretation 211-3.)
No law school that is up for its seven-year review will fail to recognize the implicit message: A law school must do what’s necessary to obtain the undefined, unspecified diversity “results” that will satisfy the ABA or face the disastrous possibility that its accreditation will be revoked or held up. If that means employing racial, ethnic, or gender preferences that the law school faculty believes are academically ill-advised, then so be it. Anything is better than de-accreditation.
New Interpretation 211-2 informs law schools for the first time that they “may use race and ethnicity” in their admissions decisions. The reality, however, is that under the ABA Accreditation Standards, they must do so. As the Supreme Court recognized in Grutter v. Bollinger, short of generally relaxing its admissions standards, the only realistic method by which an elite law school can get the kind of diversity the ABA advocates is to lower its admissions standards for underrepresented minorities considerably.2 Mid-level and less competitive law schools must follow suit if they want similar levels of diversity, since minority students whose academic credentials would have qualified them for admission at those schools are often instead attending elite schools as the beneficiaries of preferences.
This general theme continues. A clause in the original text of Standard 211 that stated, “a law school is not obligated to apply standards for the award of financial assistance different from those applied to other students”, has been deleted in the new version. The obvious implication here is that it will no longer be true that law schools are not so obligated.
Just in case some law schools fail to understand the ABA’s message, it has taken the extraordinary step of deleting the word “qualified” from its new version of Standard 211. Hence, instead of requiring law schools to provide opportunity to “qualified members” of minority groups, the new version requires law schools to provide opportunity to “members.” Evidently, in the future, qualifications will not be so important.
Roger Clegg’s letter for the Center for Equal Opportunity made the same point:
Interpretation 211-3 states that “the totality of the law school’s actions and the results achieved” determine compliance (emphasis added).
Most law schools will probably welcome the ABA’s proposed new draconian compliance requirements, hoping they may provide an Eichmann defense when they’re sued for racial discrimination (“But, your honor, we were just following the ABA’s orders!”) Others, like George Mason, won’t.
For a good example of a debate inside one law school over the issues raised by the ABA’s proposed standards, and a glimpse of what those standards would in all likelihood require everywhere, take a look at this good article about the law school at the University of Mississippi in National Review Online by Anthony Dick, a recent UVa graduate and writer for the Cavalier Daily who is now an editor at NR.
Even as the school itself has taken steps to create the appearance of constitutional compliance in its admissions policies, the faculty has passed a resolution seeking to establish a de facto racial quota. Passed in December 2005, the resolution declares that “underrepresented minority students” should be admitted in sufficient numbers to compose a “critical mass” of between 15 and 20 percent of the student body.
John M. Czarnetzky, a law professor who was present when the faculty resolution was being debated, has written an open memo (read it here) exposing how the resolution opens the door for unconstitutional admissions practices. While certain parts of the resolution are carefully worded to create the impression of diligent constitutional compliance, others are designed to force the adoption of rigid minority-admissions practices that plainly violate the Constitution. “To the extent that the resolution requires a result,” Czarnetzky writes, it is unconstitutional — and the faculty members have made it abundantly clear that they expect results.
Czarnetzky’s memo, linked above, is quite clear, and quite persuasive, about the likely “results” of adopting the recommended policy.
To the extent that the resolution requires a result, however, it would be unconstitutional, and it would be outside of the permissible bounds of committee decision making as outlined by counsel and by the Supreme Court.
… the policy is intended to deprive the committee of discretion in the admission of African-American applicants in favor of a quota enforced in several different ways, including – a range of index numbers wherein minority applicants, in practice largely African-Americans, will receive what will amount to superiority treatment; the definition of critical mass as 15-20% minority enrollment, intended to be, in practice, primarily or exclusively African-Americans….
I regretfully conclude that, although each of these provisions theoretically could be part of a constitutional admissions process, as applied the committee would be forced to impose a quota for minority, in practice, African-American students in order to comply with the wishes of the faculty as reflected in the resolution.
… In discussions in the ad hoc committee itself, and more boldly in the full faculty, proponents repeatedly asserted that “the purpose of the resolution is to deprive the committee of discretion” and words to that effect. Moreover, one faculty member informed the full faculty that, if the 15-20% figure is not met, he would come to the faculty and assert that the admissions committee had failed to meet that goal because they “are against affirmative action” and are the “only thing standing in the way of” achieving that level of minority enrollment.
Given these forthright assertions that the resolution is intended to handcuff the committee by taking away discretion in admissions decisions, and the assurance that strong-arm tactics tinged with allegations of racism would be used if the resolution’s “goals” are not met, it is obvious to me as a member of the committee that the proponents of the resolution would use its “goals” as a hammer to enforce a quota. All of this appears to be true regardless of the actual pool of applicants in any given year, and regardless of historical experience at this school, both in connection with the pool of applicants and the success in law school of the least qualified applicants admitted to the school.
Given the promises of its proponents as to how the resolution will be “enforced” in practice, it is simply a distinction too subtle to survive even casual scrutiny to claim that the resolution merely states “goals” rather than an unconstitutional quota.
The remainder of the memo criticizes the “misuse of the diversity rationale” in much the same way that the ABA’s critics criticize its misapplication of Grutter.
If law schools are compelled to comply with the ABA’s proposed new “diversity” standards, many of them will of necessity be forced into adopting measures such as those criticized at Ole Miss by Prof. Czarnetzky. It will not be a pretty sight.