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.