More On the ABA’s “Brazen Defiance Of The Law”

Veteran readers will recall that, following in the wake of David Bernstein’s whistle-blowing exposé in the Wall Street Journal and his subsequent blog posts on Volokh, I’ve written a number of times about what Bernstein accurately described as the American Bar Assoication’s “brazen defiance of the law” for attempting to force law schools, upon pain of losing their accreditation, to engage in racial preferences even if they chose not to and even if such practices were forbidden by state laws or constitutions. (Here, here, here, and here, but these are only the most recent; there are more.)

Now there’s more. First, read his recent post, giving a summary and laying out the new developments. I’m not going to repeat what he said.

Because of the ABA’s extravagant claims some organizations have written to the Department of Education urging it to rescind or at least review the ABA’s accrediting authority. In response, a group of pro-preference organizations have now written a letter in support of the ABA, and it is that letter that Prof. Bernstein dissects in his post, concluding:

The letter writers are claiming that if the Federal Department of Education permits a private organization to accredit law schools, the private organization’s standards implicitly become part of federal law, and thus supercede state law under the Supremacy Clause. The chutzpah, the absurdity, the audacity of this argument simply floors me.

Read the whole post.

At one point Prof. Bernstein writes:

The coalition of organizations that are supporting the ABA seem to me to be supporting racial preferences for their own sake, without regard to whether they are lawful in a particular context, and, more surprisingly, without regard to whether they will actually help their purported beneficiaries.

One quibble: everyone knows that the preferentially admitted minorities are the intended beneficiaries of the preferences that allow their admission, but they are not the purported beneficiaries. Racial preference is justified, its defenders claim, not to provide a benefit to minorities but because of the need of non-minority students to be exposed to the “diversity” brought in by the preferentially admitted, as I’ve argued here a number of times.

Finally, there was one bit of chutzpah in the preferentialists’ letter not mentioned by Prof. Bernstein but that does deserve comment. First, they quote from the final report to President Eisenhower from his Committee on Government Contracts:

Overt discrimination, in the sense that an employer actually refuses to hire solely because of race, religion, color, or national origin is not as prevalent as is generally believed. To a greater degree, the indifference of employers to establishing a positive policy of nondiscrimination hinders qualified applicants and employees from being hired and promoted on the basis of equality. (Emphasis in quote.)

And continuing, the preferentialists add:

President Kennedy embodied the concept of a “positive policy of nondiscrimination” in Executive Order 10925, which he signed in 1961. Executive Order 11246, signed by President Johnson in 1965, followed the Kennedy Order. E.O. 11246 requires that federal contractors use affirmative action and nondiscrimination in employment. Colleges and universities holding federal contracts of $10,000.00 or more are also potentially covered by the Executive Order. ABA Standard 211 reflects this “positive policy of nondiscrimination.”

What the signers of this letter brazenly ignore, however, is that both presidential executive orders explicitly defined the “affirmative action” that Presidents Kennedy and Johnson required, as I’ve pointed out here many times (most recently, here). Both orders commanded

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)

Racial preferences, by contrast, like all discrimination based on race, is the antithesis of treating people “without regard” to their race. It is not “positive,” and it is not “non-discrimination.”

UPDATE [16 April]

As usual, a good deal of worthwhile comment on this issue appears in the Comments. If you’re interested in this topic, be sure to read them all. And even if you’re not so interested, I wouldn’t want you to miss this comment by Jim Lindgren, the eminent Northwestern law professor who is also getting (or by now has gotten) a Ph.D. in Sociology from the University of Chicago. You may remember him for the leading role he played in exposing the Michael Bellesiles gun book fraud.

Prof. Lindgren’s comment on the ABA argument relates to the charge that the proposed new standard will require law schools to admit even more students who will not graduate or pass the bar, and thus his comment harks back to the recent debate over UCLA law professor Richard Sander’s finding that “diversity” admissions produce no net gain in the number of minority lawyers, mentioned in many posts here (such as here, citing more).

I have done a few bar passage studies for particular law schools. In some schools, there are a few students admitted with credentials so low that no student with LSAT scores that low had EVER passed the bar from that school. That is a small group, and not every student in that group was a minority.

For a larger group of admittees, fewer than 25% of those who stay on to graduate pass the bar. If one included dropouts, the bar passage rate would be even lower. Generally, African-Americans do as well (or nearly as well) in passing the bar as their entry credentials would predict.

As I recall (I don’t have the Census and CPS data handy and it has been a long time since I looked at it) between 1960 and 1994, the percentage of practicing African-American lawyers over the age of 30 had grown much less than people would guess, from about 2% of lawyers in 1960 to less than 3% of lawyers in 1994, despite (as I recall) roughly 7-8% African-American law school admissions starting in the early to mid-1970s.