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More on the ABA's Illegal Racial Preference Requirement:

Below is the text of the Council of the ABA Section of Legal Education and Admissions to the Bar's new "Equal Opportunity and Diversity" standard for law school accreditation, which will go into effect this Summer if approved by the ABA's House of Delegates.

Standard 211. EQUAL OPPORTUNITY AND DIVERSITY

(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

(b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity.

Interpretation 211-1: 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. (emphasis added)

Interpretation 211-2: Consistent with the U.S. Supreme Court's decision in Grutter v. Bollinger, 529 U.S. 306 (2003), a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity. Through its admissions policies and practices, a law school shall take concrete actions to enroll a diverse student body that promotes cross-cultural understanding, helps break down racial and ethnic stereotypes, and enables students to better understand persons of different races, ethnic groups and backgrounds.

Interpretation 211-3: This Standard does not specify the forms of concrete actions a law school must take to satisfy its equal opportunity and diversity obligations. The determination of a law school's satisfaction of such obligations is based on the totality of the law school's actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, programs that assist in meeting the academic and financial needs of many of these students and that create a more favorable environment for students from underrepresented groups.

My initial critique can be found here, but I wanted to mention a few other things. As I've noted before, ABA officials claim that the new Standard does not require law schools to indulge in racial preferences in admissions, so long as they otherwise demonstrate a commitment to a racially diverse student body through various expensive measures (on that subject, see these comments by Christine Hurt). However, the memorandum sent around with the new Standard states that the Council recognized that "the results achieved are very relevant, though not necessarily dispositive, in evaluating effort and commitment." So, a law school dean has the following options: spend hundreds of thousands of dollars on expensive diversity recruiting efforts (special minority deans, special scholarships, special summer programs, etc.), and hope that the results satisfy the ABA, or simply ensure that by whatever means necessary--preferences, quotas, etc.--the law school matriculates enough minority students to satisfy the ABA. Guess which choice deans are going to make? Any school that refuses to go along with preferences will be bled dry through ever-more-demanding "recruitment" requirements; given the unfortunatley low numbers of well-qualified applicants in the "underrepresented minorities" pool (bracing statistics are available in the lower court opinions in Grutter) no such recruitment efforts will ever satisfy the ABA, because without preferences, the "results" simply won't be there.

Moreover, 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." And what is this "purports" nonsense? Whoever put this language apparently agrees with the wacky theory that requiring universities to treat all applicants equally is somehow unconstitutional. In any event, it's quite clear that law schools are expected to disobey the law, if necessary, to comply with Standard 211 by using racial preferences in admissions.

Also, I didn't mention it previously, but Standard 211 purports (and I do mean purports, because the ABA can't require law schools to do something that's illegal!) to require law schools to engage in racial preferences when hiring faculty and staff. There is no legal precedent suggesting that such preferences are ever lawful, and the Taxman case from the Third Circuit (Alito opinion) suggests the opposite even with regard to faculty; with regard to staff, there seems to be no plausible legal justification for preferences.

Prof. Christopher Bracey suggests that the Standard is simply meant to require law schools to either pursue racial diversity or explain publicly why they don't choose to, but it seems to me that the standards clearly require all law schools to pursue racial diversity, regardless of their views of the matter. Prof. Bracey also suggests that my op-ed on the matter is an example of "sour grapes" from the "anti-affirmative action crowd," but I actually wrote an op-ed pre-Grutter arguing that private universities, at least, should be allowed to use preferences in admissions. My objection is not to preferences per se, but the ABA abusing its accreditation authority to require all schools to use such preferences (including schools that find that they can't attract minority matriculants who are ultimately able to pass the bar), and to violate the law, if necessary, in doing so.

Finally, the memorandum noted earlier suggests that the new Standard is consistent with what the ABA's accreditation officials have already been doing. That's precisely the problem. The ABA has been trying, without written authority, to enforce preferences and quotas. The accreditors will now do so even more vigorously given that they now have written authority that requires law schools to ignore any legal or ethical objections they may have to such policies.

Click the links for interesting comments from Thom Lambert and John Rosenberg. Paul Caron has been staying on top of the controversy over at TaxProfBlog.

If you want to comment, please read my op-ed first.

UPDATE: Any informed opinions on whether the delegation of the power by most states to the ABA to determine whether graduates of a particular law school are permitted to take the bar makes the ABA a state actor? Whether the fact that "the Council of the ABA Section of Legal Education and Admissions to the Bar is the United States Department of Education recognized accrediting agency for programs that lead to the first professional degree in law" makes the ABA a state actor?

Here's one comment that arrived via email: The ABA, here, is engaging in a licensing policy, which makes it a state actor under cases like Marsh v. Chambers (the company town case) where private parties are considered state actors if they engage in traditional government functions. Also relevant are the white primary case (Smith v. Allwright) and the Jaybird Democratic club case (I forget the case name). In those cases, private all-white groups effectively barred blacks from the only route to meaningful participation in the democratic process (at that time, the Democratic primary in what were basically 1 party states). Here, the ABA controls the gates to the legal profession (at least in many states).

Obviously, these precedents are often vaguely worded and to some extent influenced by the special status of racial issues in the Jim Crow era. I don't know what a court would do with them as applied to the ABA today. But what really clinches it for me is that if the ABA were to prevail and be ruled a private actor, then states could easily elide constitutional restrictions simply by delegating public authority to private groups and then having them engage in conduct (e.g. - speech restrictions, racial discrimination, etc.) that would be unconstitutional if the state did it directly. If you can delegate the power to license law schools without it being state action, why not other types of reglatory authority? This is precisely what the white primary line of cases was intended to prevent, I would think.

Sam Scoove (mail):
Racial requirements pushed upon law schools by the ABA will only further aid the American economy in facilitating the outsourcing of legal services to India and other more qualified and less costly sources.

In any process, quality has a cost. Injecting inferior inputs into the system will have a significant upward pressure on costs, from the cost of a legal education (which now must allocate further resources to ensure some of the underqualified applicants do not flunk out) to the cost of hiring and maintaining diversity hires in firms (which is also inevitable given the ABA's directive - it's not good enough to produce underqualified law school students without a firm to also subsidize their existance upon graduation).

Likewise, the pool of exceptional individuals interested in pursuing a legal career is diminishing. Why would any brilliant mind seek a professional certification that unqualified individuals can more readily obtain, at a disadvantage to the exceptional candidate? There are countless other advanced educational pursuits that have greater credibility and lack the already serious stigma of a JD. That the ABA would dillute the brand by forcing a certain lack of quality is incredible.

In many businesses, we recognize that one exceptional employee is normally carrying the 3-4 mediocre ones who might match 25% of their productivity and quality, as well as the 1-2 completely unproductive ones. Add another 3-4 underperformers and 1-2 nonperformers to your firm and calculate the rate you'll have to charge your clients.

Unfortunately, you're already double the international market, and businesses are learning there are alternatives. The positive outcome is that this should relegate the importance of the ABA and the US legal community to that of the AFL-CIO in about 10-15 years.
2.18.2006 4:32pm
logicnazi (mail) (www):
So I'm a grad student at UC Berkeley and though I'm not familiar with the situation in law schools I understand it involves even more focused attempts to recruit and admit minorities. I will comment on the minority policies that I know about (grad schools/undergrad) and I suspect the same comments will apply to law schools.

What makes me so mad about the entire situation is that tons of money is used to fight for the few qualified minority applicants to grad school or undergrad when elementary schools that could really use that money are right next door. At the grad school level the battle for high minority representation overall has already been lost, there just aren't that many minorities who graduated college and have a desire to go on to grad school. Spending money on recruitment is just a way that UCB can fight with Harvard and other elite universities to divide up the small number of minorities.

I have yet to meet anyone who seriously denies that the biggest barriers to minority participation occur far before grad school and usually before undergrad. Their elementary schools aren't as good, families aren't as well off etc..If universities really cared about improving the status of minorities in this society they would use the money to help local schools.

Apart from not bothering to consider the question of whether affirmitive action is truly helpful to minorities at large this sort of 'regulation' is awful because it demands money be spent at the place it is least effective. If they are concerned about doing right why not require that the schools all donate to local schools in poor areas.
2.18.2006 4:33pm
Derek Simmons (mail):
Oh "A" B A. For a second there I thought you said "N" B A.
2.18.2006 5:08pm
Henry Schaffer (mail):
If they [law and grad school] are concerned about doing right why not require that the schools all donate to local schools in poor areas.

If only some do this, then there no way to assure that they will benefit. Others can simply reap the benefits by putting their money into recruitment!

If a tax on all schools is to be instituted, why stop there? Why not make it a general tax, and have society-wide support for local school? :-)
2.18.2006 5:27pm
Dave Hardy (mail) (www):
One simple approach--I'm told there is some manner of project where, for a $100 and a DNA sample, they'll run it and give you info on your genetic heritage. We're all crossbreeds -- I didn't know I was 1/8 Indian until I was in my 40s. With any luck, we'll all find that any of us could qualify as minorities! (I actually have a census record indicating that an uncle was Afro-American, altho that appears to be an error. His wife was, she likely was the one home when the census taker arrived, and he just assumed her husband was the same).

Then ABA will be put to the interesting question of whether it takes 1/72 minority blood to make one a minority (with the added twist that with DNA typing it is possible to figure out whether a person really is precisely 1/72 of any type!)

Once read a humorous calculation that 355% of the US population is of minority or sorta-minority status. It was of course of the 51% = female, 12%=Afro-American, 10% = hispanic, 5%=gay, ignoring the overlap to generate a number over 100% variety.
2.18.2006 5:31pm
BU2L (mail):
Henry:


If only some do this, then there no way to assure that they will benefit. Others can simply reap the benefits by putting their money into recruitment!


Henry, I don't think he was suggesting that schools actually do this - just pointing out the hypocrisy that will necessarily be part of the process prescribed by the ABA.
2.18.2006 5:34pm
FXKLM:
Doesn't it seem rather counterproductive for the ABA to pick a fight on affirmative action immediately after the makeup of the Supreme Court has shifted in the opposite direction? My prediction is that this rule will provoke a few lawsuits, which will eventually result in SCOTUS overturning Grutter.
2.18.2006 5:45pm
jstokka (mail):
I hope the ABA officials don't break their arms patting themselves on the back.

They need one of these, I dont leave home without it.
2.18.2006 5:52pm
Rhade:
There are countless other advanced educational pursuits that have greater credibility and lack the already serious stigma of a JD.

What the hell are you talking about?

In the marketplace, JDs are rather fondly looked upon. How many of those other 'advanced educational pursuits' can net a 25 year old a six figure salary? I've found that the 'stigma' you talked about is mostly perceived by those who have spent nearly a decade getting a degree that probably won't getting a job....
2.18.2006 5:54pm
In re: Rhade (mail):
Rhade, I would hazard that you over-estimate the earnings power of the American law degree. It is only the slight fraction of American law graduates who have the opportunity to garner an immediate six-figure salary. Those same people, of course, are the capable, bright, energetic, and driven folk who would have been doing quite well financially even without the potent jd.
2.18.2006 6:07pm
Starlight (mail):
The ABA is totally PR driven. So many lawyers spend so much time and effort defending the "bad" guys in every dispute (civil, criminal, or whatever) that some of the dirt is bound to rub off (irrespective of all the "right to counsel" arguments ever made). There is a kernel of truth (often more) in every lawyer joke.

The ABA sees it's primary job as distracting the public from the profession's bad results (of their good deeds, of course) and they'd burn their mothers at the stake to do so. They'll certainly adopt any POLITICALLY CORRECT position that is needed to keep that old "honorable" profession image polished. Image, Image, Image.

No one at the ABA cares if a PC policy actually hurts minority students because so many flunk out or actually hurts minority communities (which do not need more marginally-proficient lawyers). True story: in the 1970's one national law school (name of school omitted) changed from grading by names to grading by blind exam numbers when the local BLSA group claimed the professors were discriminating. Result, twice as many minority students failed. Equal OPPORTUNITY doesn't necessarily (nor often) produce equal RESULTS.
2.18.2006 6:09pm
Cornellian (mail):
I wonder why racial diversity is the only from of diversity of interest to ABA policy makers. I'm not talking about ideological diversity, which is pretty nebulous anyway, since terms like "liberal" and "conservative" means all kinds of things depending on who's using them. I mean why not religion, disability or sexual orientation? All of those groups (certain specific religions in the case of religion) have a fair claim to historical ill treatment. Why not them?

The "notwithstanding the law" approach is interesting. Obviously the ABA must know they can't direct people to violate the law - they're not idiots. I'm guessing that they'll want people to demonstrate they're running all the way up to the prohibited line and jumping up and down on it, a sort of reverse onus on law schools to demonstrate they're doing everything clever lawyers can think of to get more "diverse" student bodies and faculty short of a clear violation.

I can't say I've ever exhaustively researched the issue, but I'm a skeptic about the argument that ABA is a state actor. That seems like a real stretch to me.
2.18.2006 6:24pm
Tom Holsinger (mail):
Professor Bernstein,

That is an interesting issue - whether the ABA is subject to injunctive relief under 42 USC 1983, and attorney fees under 42 USC 1988. I doubt that is what they had in mind.

Hmmm, I wonder if, together with state laws prohibiting affirmative action, there is some arguable mispresentation here. Across state lines. That might bring in 18 USC 1961, which would be emotionally satisfying as well as financially rewarding.
2.18.2006 6:29pm
Tom Holsinger (mail):
Without doing any legal research, my second thought is that yes, the ABA would be a state actor in these circumstances. It is using the coercive power of state authority. Also consider this from the Hobbs Act - 18 USC 1951(b)(2):
"The term "extortion" means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."

I'm nostalgic for my private practice days when I used 18 USC 1961 in development law.
2.18.2006 6:37pm
Anthony (mail) (www):

Any informed opinions on whether the delegation of the power by most states to the ABA to determine whether graduates of a particular law school are permitted to take the bar makes the ABA a state actor? Whether the fact that "the Council of the ABA Section of Legal Education and Admissions to the Bar is the United States Department of Education recognized accrediting agency for programs that lead to the first professional degree in law" makes the ABA a state actor?


I had to do a little research in this area for my student note; these seem to be the most relevant Supreme Court cases (though I could be missing some since this was only a very tangential issue in my paper, so I didn't have to dig too deep):

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (holding that a private school that received 99% of its funding from the government, was regulated by the government, and performed a public function was not a state actor because the state did not compel or influence the school's discharge of employees)

Blum v. Yaretsky, 457 U.S. 991 (1982) ("[O]ur precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment.") (citations omitted)

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (stating that state action is present when a private entity wields powers that are "traditionally exclusively reserved to the state") (emphasis added)

So, whether the ABA is a state actor would likely hinge on whether school accreditation is considered an exclusive function of the state. I'm not sure that's necessarily an easy argument to make though, given that ABA accreditation is voluntary, several states allow non-ABA grads to take the bar exam, the government has only gotten into the higher education accreditation business rather recently, etc.
2.18.2006 6:50pm
Mr_Thorne (mail) (www):

In some sense, diversity is a zero-sum situation. The more 'minority' candidates you hire, the fewer 'majority' candidates you hire.

It's interesting that law firms place so much emphasis on 'diversity.' Check out any major law firm's Web site, find the employment or recruiting section, and you'll also find some statement about the firm's 'commitment to diversity.'

Given the zero-sum nature of who gets hired by this firm, attracting people BECAUSE of their particular racial and ethnic features is very much like repelling people others because of THEIR racial and ethnic features. If you prefer to hire African Americans, then you prefer NOT to hire Jews (seeing as so very few AAs are Jews). You can't have one without the other.

If the diversity efforts of all these firms is a success, then the percentage of lawyers who are Jewish (and employed) has to drop.

As I see it, Standard 211 is aimed at reducing the percentage of lawyers in the U.S. who are Jewish. It's just as simple as that.
2.18.2006 6:59pm
sbron:
An above comment is typical of many who have
qualms about AA, but assume that more money is the
solution

"I have yet to meet anyone who seriously denies that the biggest barriers to minority participation occur far before grad school and usually before undergrad. Their elementary schools aren't as good, families aren't as well off etc..If universities really cared about improving the status of minorities in this society they would use the money to help local schools."

For a quite different take on the issue of
underrepresentation of certain groups the following
appeared today in the Rocky Mountain News (The author
was the four-term _Democrat_ governor of Colorado.)

2.18.2006 7:31pm
Hans Bader (mail) (www):
The Taxman case cited above (Taxman v. Board of Education (3d Cir. 1996)) is not, as Professor Bernstein says, an Alito opinion.

Alito did indeed concur in that Taxman decision, which certainly does cast doubt on the legality of the ABA's accreditation standards as applied to hiring decisions, by holding that whether or not "diversity" justifies the use of race in admissions, it does not justify the use of race in employment decisions.

But he did not author that decision. He merely joined in it. It was an en banc 8-to-4 decision of the Third Circuit. If I recall correctly, Judge Carol Mansmann wrote the Taxman decision.

The Taxman case supports Professor Bernstein's criticism of the ABA's pressure to adopt race preferences.

But even more relevant are:

(1) Cases such as Lutheran Church v. FCC (DC Cir. 1998) and Monterey Mechanical v. Wilson (9th Cir. 1997) which hold that merely pressuring an institution to use race generally violates the law, even if the institution is not strictly required to use race, and could theoretically use more costly race-neutral alternatives to comply; and
(2) Cases like Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), which clarify that federal case law permitting race preferences to promote "diversity" does not preempt state laws forbidding all racial preferences, such as California's Proposition 209 (now contained in Article 1, Section 31 of the California Constitution).
2.18.2006 7:34pm
sbron:
Had problems with the link to the Richard Lamm
editorial -- try again

http://tinyurl.com/aqm4y
2.18.2006 7:35pm
Hans Bader (mail) (www):
Anthony is quite right that the ABA does not qualify as a state actor, but probably wrong to assume that it has to be a state actor to be liable for pressuring law schools to use race.

Section 1981, which has been construed by the Supreme Court to reach both private and public racial discrimination, limits racial preferences in admissions and employment (see, e.g., Gratz v. Bollinger (2003), footnote). And case law permits not only employers but individuals and entities who aid, abet, or compel their discrimination to be held liable.

To a lesser extent, private entities can be held liable for colluding with state actors (like public law schools) to unconstitutionally discriminate under Section 1983. (See the Supreme Court's decision in Addickes v. S.H. Kress &Co.). This is so even though a private entity like the ABA is not subject to the Constitution as applied to its own internal hiring decisions.
2.18.2006 7:42pm
scepticalrepub:
Even before reaching your update on state actor/Section 1983 problems, my first question was would some disgruntled, rejected white applicant sue the ABA with a novel RICO cause of action. The mendacity and doublethink expended on this issue by the activist left is frightening.
2.18.2006 7:47pm
stealthlawprof (mail) (www):
With all due respect to those who have already opined on the state action question, I laughed when I read the question. The state action doctrine is a complete muddle. The doctrine was conceived in the sin of result-oriented jurisprudence; many of the early results advanced worthy policies but could have and should have been attained by other means. From that inauspicious beginning, the doctrine has not improved. The state action opinions have no rhyme or reason to them; they remain result-oriented, ad hoc decisions. No one can predict the results; no one knows what the Justices will eat for breakfast the morning the case goes to conference.
2.18.2006 8:22pm
Tom Holsinger (mail):
Bear in mind that the ABA need not be a state actor to be liable under 42 USC 1983. It is enough to be a co-conspirator with a state actor. Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983). RICO is even looser.
2.18.2006 8:28pm
Claude Dancer (mail):
This overreaching by the ABA could ultimately undermine its monopoly on law-school accreditation. If the ABA persists in its position on affirmative action, there will be law schools (both public and private) that cannot legally comply. These schools will have to find other means of accreditation. Perhaps they will organize an alternative accreditation organization that might attract a number of other schools.

Is the solution to sue the ABA and force it to change this policy? Or should we let the policy go into effect and hope that it leads to the creation of a competing accreditation body?
2.18.2006 9:00pm
Pyrthroes (mail):
While the lawyers have their day, bruiting ABA as a "State actor" whose accreditation guidelines may thereby override duly enacted legislative statutes, mere private citizens may well inquire: Where does this process stop? If elected representatives pass laws which a self-appointed nomenclatura of credentialed specialists [lawyers, of whatever hue] may cheerfully set at nought, why not designate Roofing Contractors as "State actors" and promulgate Codes ensuring that only triple-premium Union workers with proven Mafia connections can ever nail a shingle? In logic, the principle is identical to ABA's stultifying arrogance; in "law", of course, we have just seen that there is no principle. Since Statutes comprise mere words, and word-meanings lie with Humpty Dumpty, the ABA might just as well include in its accreditation requirements a stipulation that No Irish Need Apply, and hasten jovially on from there.

Apologia pro vita sua! Lacking "informed" puissance, who are we to scrutinize our Magisteriums, anent the ABA? This is what passes for serious debate? Why not get just one genuine Representative to rise in the State Legislature and tell the ABA precisely where to go. Meantime, as perfectly well-educated, non-corrupt, sentient public figures, we will from hereon do our own "accrediting." Let's start by abolishing Ambulance Chasing 101, followed by in-depth reviews of Barratry and Champetry. You dig?
2.18.2006 9:36pm
Sam Scoove (mail):
What the hell are you talking about? In the marketplace, JDs are rather fondly looked upon.

I'm talking about the business world in the US, as well as much of the legal community I've dealt with over 20 years. Of every truly competent attorney I've worked with, they've either left for general counsel positions in companies or completely left the law, obtained MBAs and become senior managers or CEOs. I'm talking about managing partners of the largest firms in top 50 markets. I'm talking about people who got tired of being forced to fabricate bills for work done by clerks at the attorney rate. The best attorneys in the top firms I've dealt with understand there is something wrong.

How many of those other 'advanced educational pursuits' can net a 25 year old a six figure salary?

Sounds like dot-com to me. This is a bubble overdue for correction. As one who launched the very first dot-com in the north-central US, earned a $150K salary plus absurd equity and option positions at age 25 without a college degree (since corrected and then some!), I have a clue. Nothing any attorney does on a daily basis at age 25 justifies that level of income. Especially when there's a "rest of the world" out there that does a better job, worked harder than you, researches in your sleep, and is paid 1/10th your wages. 25-year-old, meet reality.

The international market shocked many in IT and manufacturing but shouldn't have. We all got fat dumb and happy, expecting $60K wages for a GM employee pushing parts around the plant, and $90K wages for C++ programmers who wouldn't recognize CMMI if it bit them on the butt.

The disparity between US legal costs and the international market makes dot-com and manufacturing disparities look minor. Unless the ABA can coerce the Congress into enacting trade barriers on outside legal services (which the people that pay their fees will not allow), it's time for the legal community to expect normal wages for their work if they wish to compete with superior services from India.

Either our legal community needs to understand we all have a role in producing value without excessive cost, or it will be taken care of elsewhere.
2.18.2006 11:12pm
Kazinski:
What happens if a rejected law school student in a state that outlaws racial preferences sues the ABA under RICO statutes?

It is not out of the question for a state like Washington or California to "disbar" the ABA by removing all state recognition and removing any role in regulating lawyers from the ABA by initiative.
2.19.2006 1:01am
Mary Katherine Day-Petrano (mail):
"That is an interesting issue - whether the ABA is subject to injunctive relief under 42 USC 1983, and attorney fees under 42 USC 1988. I doubt that is what they had in mind."

Tom, it is too bad the ABA feels the need to address on racial diversity; 1983 is SOOOOO muddled as the above posts attest. And no one has even mentioned the applicability of Federal Courts Improvement Act in the context of 1983. If, on the other hand, there were disability preferences and affirmative action, Title II of the ADA under the above-delegation scenario to the ABA in attorney licensing, would make the ABA a State instrumentality as defined by 42 USC Sec. 12131(1) subject to Title II of the ADA and Title II's implementing regulation, 28 CFR Sec. 35.130(b)(6). In that case, the ADA's express conflict preemption provision, 42 USC Sec. 12201(b) would preempt conflicting State laws abolishing disability affirmative action. And the Federal Courts Improvement Act does not apply to the ADA. Ahhh, but we are talking about racial diversity rather than disability, and this leaves us with a much weaker Civil Rights Act of 1964, as opposed to the ADA.

I do not think, given the above-scenario of the State delegation to the ABA in attorney licensing, there is any need for the ABA to implement a disability affirmative action rule before a disabled person could seek remedy -- it would appear disabled people could proceed against the ABA as a Title II instrumentality even absent such ABA rule. See, US Airways v. Barnett (US) (the disabled may be entitld to preferences).

"It is not out of the question for a state like Washington or California to 'disbar' the ABA by removing all state recognition and removing any role in regulating lawyers from the ABA by initiative."

Kazinski, actually that is a little more far fetched than the idea the US Department of Education could remove the accrediting authority of the ABA under the Higher Education Act of 1965, as amended, which in turn accredits the States Bar Examiners and State law schools. The DOE is required, in the case of disability enforcement, to ensure the ABA is meeting the requirement of the Rehabilitiation Act of 1973 and Title II of the ADA in attorney licensing, since DOE is one of the federal agencies charged with enforcement authority of the RA and ADA. I wonder why Professor Bernstein left this part of the equation out of the thread. It is an interesting avenue of redressing the actions of the ABA.

"Racial requirements pushed upon law schools by the ABA will only further aid the American economy in facilitating the outsourcing of legal services to India and other more qualified and less costly sources."

I really doubt it. Americans can't even handle being referred to India in dealing with Sprint or HP. How can anyone realistically propose India could become sufficiently competent in (1) easily understandable English language as spoken by people born in America, (2) in order to competely grasp the complexities of American transational and litigation laws. I just don't see that happening, especially considering all the additional nuances and variety of State and Federal Courts' procedural and local rules. Way too compex for outsourcing for India. (That's just an objective observation from personal first-hand experience, not a statement of prejudice, and I have had many friends and acquaintances from India whom I like and admire).
2.19.2006 2:42am
Mary Katherine Day-Petrano (mail):
"competely"=competently
2.19.2006 2:43am
Beerslurpy (mail) (www):
Sorry Sam Scoove, as someone who spent the past decade in the software industry, I have to disagree.

My opinion is that outsourcing looks really good on paper, but rarely delivers. There are the obvious logistical problems, but most important IMO are the severe problems with culture and context, both from a business and a programming perspective. A brilliant team can design and specify a great product down to the smallest details, but when people from a different culture actually implement it, they do what makes sense to them, revealing all of the assumptions that your details rested upon. Similarly, they will communicate with your team in a manner than makes sense to them and assumes that certain information doesnt have to be conveyed because it is always true. Things will often be missed, only to be discovered a week before the final deadline a year later. It is not an easy problem to solve, and it really makes outsourced projects a pain in the ass. I've worked with projects outsourced to indians, chinese, russians, ukrainians and poles.

The people that tend to get the most out of outsourcing are (a) consulting firms, who love low-paid warm bodies they can bill out at 200 an hour and (b) international firms that already have established management in each country that also communicate well with one another and understand the differences (c) fields in which a sudden spike in demand can be satisfied overseas without paying through the nose for the small number of available american experts. COBOL comes to mind. All languages eventually go this route.

Anyway, I disagree with your statement about legal costs for the above reasons that outsourcing generally fails and these additional reasons:
-you cant outsource lawyering because the costs of our legal system are due to the design of the system, not the person doing the work. Indians who can pass a state bar exam and give authoritative legal advice would be foolish to not charge the market rate for such services. Indians who can't do this arent going to replace lawyers. People in other countries are learning how to program because there is a demand for it within their countries. Where the programming languages are the same, we can make use of their skill. This isnt true of law. Indians may be learning law, but it wont be US law, at least not to the extent necessary to practice US law in the US.
-congress is composed of lawyers in large part and our expensive legal system represents an effective means of stably preserving the power structure. The dichotomy between "business clients" and "lawyers" is a false one. I think we have too many laws, but this is a result of too much congressional power combined with large amounts of money trying to twist it to their ends. Good luck fixing the cost of our legal system without fixing congress.

Back on topic:
Who cares how many unqualified minorities get admitted into law school? If they arent qualified, they end up flunking out, failing the bar or failing in their carreers. Their inadequacy causes their failure. Deferring this failure until after the law school admissions process is a bit cruel in my opinion, but this is not my problem. If anything, this is a benefit to me as it increases my relative class rank.
2.19.2006 3:22am
Federal Dog:
"Who cares how many unqualified minorities get admitted into law school? If they arent qualified, they end up flunking out, failing the bar or failing in their carreers. Their inadequacy causes their failure. Deferring this failure until after the law school admissions process is a bit cruel in my opinion, but this is not my problem. If anything, this is a benefit to me as it increases my relative class rank."


I imagine that applicants rejected in favor of unqualified, but preferred, racial minorities would be the ones who care about the practice.
2.19.2006 7:41am
Bruce Hayden (mail) (www):
I think many here underestimate the potential impact of, for example, Indian legal work. Much of the work of that $150k new associate at a top firm does is legal research. Yes, he/she is very smart, hard working, etc. But a top graduate of an Indian law school is likely to be just as smart, even more hard working, and is very happy to make 1/4 what the American does, as long as she/he can live in India. Westlaw and Lexis are presumably equally available in India as here, and if not, or maybe even if, there is probably less legal limitations on duplicating their legal databases. The Indian law schools are, as far as I know, based, as ours is, on English Common Law, and English, if not their first language, is at worst, a close second. Accents can, and are routinely by the better outsourcing companies, significantly reduced, or almost even eliminated. And, besides, legal memos are, by defintion, written.

So, how long until we see corporate law departments starting to question why a big firm is billing them for the work of a $150k fresh out, when they could have outsouced the legal research to India for half or less of the cost?

There is no real legal reason that most of this work has to be done by U.S. attorneys. After all, they aren't representing the clients, and, indeed, in many firms, often don't even meet the clients. Legal research is classic backroom work that I think can be relatively easily and economically outsouced.
2.19.2006 9:48am
Bob Smith (mail):
>This overreaching by the ABA could ultimately undermine
>its monopoly on law-school accreditation.

True, but I'm not sure it matters. As long as most states only permit ABA graduates to take the bar exam law schools have no choice but to comply. Otherwise, their graduates will have no jobs. Breaking that monopoly would be a monumental task. Breaking the AMA's monopoly would be a cakewalk by comparison.
2.19.2006 12:15pm
Bruce Hayden (mail) (www):
Maybe, but this may be an incentive for more states to pass what CA has done, and with them in the lead (no matter how grudgingly), when the bulk of CA law schools lose their ABA accredidation (the ones that are accredited), plus a couple more big states, and there will be pressure to change. Imagine, for a minute, Berkley and UCLA all losing ABA accredidation. Ditto for Florida state law schools. I wouldn't be surprised if Texas followed these states.

I actually think it is going to be quite humorous. A bunch of schools are probably going to break relevant state and federal laws to conform to this provision. And then be surprised when they are caught with their pants down, as students, taxpayers, etc. sue over their attempts to conform to the ABA requirements. Indeed, I suspect that even some programs that appear on their face could be questioned using the ABA requirements as indicia of intent to violate the law (esp. if they had been warned about their nonconformance by the ABA).

Yes, it is an effective monopoly, but essentially requring law schools to break the law in the name of diversity, etc., is going to cost them that monopoly.
2.19.2006 1:14pm
Kazinski:
If the ABA de-credentials a smaller state flagship law school like the Universtity of Washington, for following a popular, and popularly enacted state law, the results are liable to be a lot more severe for the ABA than they will be for the law school. The ABA is a poewerful organization, it is not more powerful than a state government, or a pissed off populace armed with the initititive. Especially when the populace outlawed racial preferences via initiative.
2.19.2006 3:53pm
Beerslurpy (mail) (www):
I agree with Bruce Hayden that this conflict between state and federal law and the rules of the ABA are likely to resolve themselves in a way unfavorable to the ABA.

I agree that the first few years out of school anyone is essentially useless in their chosen intellectually demanding profession. 5 years is probably when they actually become useful. Using outsourcing to eliminate the artificial shortage of legal researchers can only happen if it happens in a way that doesnt threaten the legal profession itself.


I imagine that applicants rejected in favor of unqualified, but preferred, racial minorities would be the ones who care about the practice.

IMO anyone who cant get at least 70-80 questions right out of 100 on the LSAT is probably not cut out for law school anyway. The test just isnt that hard. Getting less than 10 wrong is hard (thanks mostly to the puzzles section), but 20-30 is really heading into the range of borderline illiteracy or lazyness. Who you put in the bottom half of the class doesnt really matter.

Also, a lot of schools seems to be admitting above average 1L class sizes (including lots of unqualified people) and letting people just flunk out or slog through all 3 expensive years and fail the bar 10 times.
2.19.2006 5:23pm
Tom Holsinger (mail):
Consider how fast the NCAA backed down from its no-Indian names rule when Florida's Seminole tribe threatened suit for interference with contract. The NCAA had threatened to kick out the University of Florida over the Seminoles name of its football team, but the Seminoles had sold those rights to UOF and got some of the yearly revenues from televised UOF football games.
2.19.2006 6:01pm
Bruce Hayden (mail) (www):
Tom's post brought up another idea for a cause of action against the ABA. The law degrees of any state law schools that lose their accredidation because of this would be significantly reduced, because ABA accredidation is required for application for most state bars. This would preclude most of those high starting salary jobs, at a minimum, even if a state did eliminate ABA accredidation requirement for its own bar. It would similary reduce the ability of law grads from these schools to move to other states after graduation.

So, with the reduced earning capabilities for these grads, I would think there might be a possibility for some type of class action tort action, such as intentional interference with prospective competitive advantage, or, maybe even intentional interference with contract for any who have job offers revoked because of this. But if we are talking tort, maybe even negligence - you arguably have all the requirements here, though duty would probably be hardest to show (maybe it could be argued that the ABA has a fiduciary duty to these aspiring lawyers based on its accreditation role).
2.19.2006 8:27pm
Pyrthroes (mail):
Concerning the ABA, AMA et.al. there is much to be said for private professional organizations taking responsibility for policing the quality of their credentials. BUT: To act effectively, such institutional groups MUST be monopolies-- otherwise, who could trust "dueling diplomas" or match relevent qualifications by venue? HOWEVER, monopolies by nature exhibit an "economic" tendency to charge premiums regardless of "market conditions"-- in this case, the "currency" is ABA accreditation, and the "charge" is what it's worth in terms of public policy to confront power-grabs from Leftists seeking Rentier status for arrogant partisan agendas.

We do not consider this a "legal" question. Insular and self-indulgent, this ABA initiative bootstraps its modestly advantageous monopolism to a classic "paradox of contradictory self-reference." (No supposedly educated lawyer I know admits even a passing acquaintance with Epimonides.) To wit: There is a Bar Association in this State that accredits all those, and only those, who do not Accredit themselves. Does this Bar Association accredit itself?

This is the question that wrecked Bertrand Russell, destroyed Hilbert's initiatives, finally led to Godel's Theorem concerning axioms and self-consistency (the basis of Turing's "Halting Problem", thus all subsequent computer science). It seems a heavy load to place upon such narrow shoulders as the ABA's... but (pace Orwell) ignorance is not strength, nor are meanings merely what Humpty Dumpty chooses to assert. However our vaunted ABA responds, their only answer is: We are laws unto ourselves. Buzz off, People, neither your interests nor principles mean anything to us.

Do we digress? Not if you think democratically elected, representative Legislatures (for all their faults) have any interest in defending duly promulgated Statutes. As certified trendy-Lefties, these ABA panjandrums may think their writ runs wide and deep. In fact, forget their foolish legalisms. It is way past time such in-group proselytizers were emphatically shown the door.
2.19.2006 9:18pm
Clint:
logicnazi-

You wrote: "If universities really cared about improving the status of minorities in this society they would use the money to help local schools. "

I assume you meant this more as a critique than as a suggestion... but it got me thinking.

I would imagine that a university like Harvard could greatly improve its minority applicant pool by providing voucher-like Harvard Scholarships to carefully chosen underpriviledged youths to attent the private elementary and secondary schools of their choice.

Even with no contractual obligation, how many of these students would graduate high school on Harvard's dime and then run off to Princeton for college?
2.19.2006 10:08pm
Tom Holsinger (mail):
Bruce,

RICO is the way to go if a theory of interstate extortion or interstate can be dreamed up. RICO offers treble damages as well as attorney fees. 42 USC 1983 offers injunctive relief plus the attorney fees.
2.19.2006 10:59pm
Mary Katherine Day-Petrano (mail):
"IMO anyone who cant get at least 70-80 questions right out of 100 on the LSAT is probably not cut out for law school anyway. The test just isnt that hard. Getting less than 10 wrong is hard (thanks mostly to the puzzles section), but 20-30 is really heading into the range of borderline illiteracy or lazyness. Who you put in the bottom half of the class doesnt really matter."

But,

"I agree that the first few years out of school anyone is essentially useless in their chosen intellectually demanding profession. 5 years is probably when they actually become useful."

And this is not a contradiction? If the LSAT (like the curent standardized multiple choice/essay bar examination) is predictive of measuring the people who can meet the "essential functions" to practice law, then why should it take up to five years after graduating law school to become "useful?"

I can tell you why -- standardized tests do not measure the "essential functions" of law practice, and that is why most passers of such tests take up to five years to learn the "essential functions" to become "useful."

I can remember the first motion I tried to write for a real court after law school. I cited a few too many cases and it was quite novice, but I won my motion (bankruptcy, redeeming and cramming down a vehicle). In the end, one can pass all the standardized tests in the world and never really learn how to meet the "essential functions" of carrying through not just one, but several, cases in litigation at the same time. If these standardized tests were truly predictive, then no one would need to study for them, pay BarBri a fortune, or take five more years following graduation to come up to "useful" speed on the practice of law. If standardized testing were truly predictive, the example of Kathleen Sullivan would never have happened. One of the finest lawyers in the Country, and her skills were not sufficient to pass a bar examination absent "teaching to the test." I'll bet she has never walked into any Court and argued the best answer is "choice "B."

The medical profession uses more performance and clinical testing, and medical graduates walk out of school into residencies with a license. There is a lot to be said for reforming attorney licensure testing toward performance and clinical testing, require a year of post-graduation "residency," and walk out of law school with a license.

Changing the format of the testing does not in any way mean a lowering of the qualification standards; what it does is conform the testing to measure all of the "essential functions" required of an attorney to practice law not currently tested on standardized bar examinations(including research skills, negotiation skills, real-time litigation skills including the moves necessary to repair errors, use of forms to draft pleadings, local rules, etc.). It also would require the testing format to make a much tighter fit correlating "essential functions" being tested to the actual tasks practicing lawyers perform. In the way that on any given day a person who can hands-on drive a car should be able to get behind the wheel and pass a road test, a candidate for an attorney's license should be able to sit down, roll up the sleeves, and demonstrate the ability to meet the "essential functions" of law practice.

The fact a person cannot pass a standardized test does not mean the person is illiterate, lazy, or that we should not care who is at the bottom of the class. It might mean the person is disabled and the mismatched test is not testing "essential functions" but instead marginal factors that serve to screen out people who are otherwise qualified. And people with disabilities are not the only group who suffer disproportione exclusionary harm from the current standardized testing, as these tests are also exclusionary toward African Americans. It is a little known fact that African Americans were post-civil war viewed as suffering from drapetomania, a form of psychiatric disability caused by their blackness made up by white men(I am not making this up as internet research can confirm), which is the underlying reason for Florida's most notorious bar admission case -- Virgil Hawkins.

As the Florida Bar told Florida Supreme Court Justice England, Mr. Hawkins should not be granted bar admission 'until he turned white' (the "cure" for the psychiatric disability of drapetomania), or 'the KKK rides out of Gainsville.'

And overcoming such barriers in a nutshell is what it's all about.
2.19.2006 11:14pm
SouthernLawyer (mail):
Off topic:

Tom, it was Florida State, not UF.

On topic:

While I'm discouraged at the number of minority, particularly African-American lawyers, the ABA's "mandate" doesn't strike at the heart of the problem. Forcing schools to make allowances, based on race, for students who otherwise would not have qualified academically, is a "too little, too late" response. Why isn't the ABA working with school boards to ensure programs are in place to nurture minority students at grade school levels, particularly those who attend schools where a "culture of learning" is virtually absent?
2.20.2006 12:48pm
Hoosier:
Some of the above discussion about the zero-sum admissions race leads me to wonder about my alma mater's situation. Notre Dame Law seeks to maintain a certain percentage of Catholic students and faculty, and has affirmative action for both Catholic students and Catholic faculty (though the second of these is almost superfluous. Check the composition of the currect SCOTUS).

ND would have a significant burden on its hands, were the ABA policy to be enforced. The tiny fraction of blacks who are Catholic means that almost every admitted black student would be a non-Catholic. Hispanics do tend to be RC, but are statistically unlikely to leave their home state for education. This is especially true for women.(I used to teach at a university in Texas, and we reaped the benefit of this tendency not to wander too far from family. Our Mexican-American contingent was large and gifted.)

I'm afraid that compliance by ND Law would severly restrict the number of Jewish and white and Asian Protestants at the school. The alternative, of course, is for ND to water-down it's religious identity by accepting a minority of RC students. I guarantee this won't happen.


Other alternatives (other than the conversion of Black America to the Sacred Heart of Our Lady)?
2.20.2006 2:46pm
Hoosier:
"its"
2.20.2006 2:47pm
Beerslurpy (mail) (www):
Mary Katherine Day-Petrano, you misconstrued what I said.

The intelligence and literacy necessary to score well on the LSAT is one prerequisite to becoming a good lawyer.

Experience is another.

Lack of either makes one useless as a lawyer, just as lack of technical knowledge and lack of experience makes one useless as a software engineer. Someone without the initial talent and intellect will not improve with experience.
2.20.2006 8:38pm