The Volokh Conspiracy

Oren, it's not that favoring (or even enforcing) a diversity standard is "arbitrary", it's "arbitrary" enforcement because the ABA accreditation people have never been willing to spell out, in writing, just what would satisfy them re efforts to promote diversity. For any given law school, the ABA could impose any rule/standard it wanted, and that's exactly what it did in the past.

It's amazing how quickly all this happens. What were Breyer's words - "Never has so much been undone so quickly by so few."
Best,
Ben

The sooner the courts completly shut down now and in the future all programs that uses racial preferences, the sooner the schools can get to the real business of improving the schools. Research has shown that affirmative action in law school admissions hurts rather than helps minorities that "benefit" from admission to law schools that they are otherwise would not gain admission to. The Seattle School district spends so much time and energy worrying about diversity, they can't competently run the district and waste millions keeping schools open that should be closed, coming up with definitions of racism that label thinking for one's self and thinking ahead as attributes of "whiteness":

Cultural Racism:
Those aspects of society that overtly and covertly attribute value and normality to white people and Whiteness, and devalue, stereotype, and label people of color as "other", different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers.

Remember it was the same geniuses that crafted that cultural racism statement that came up with the racial "tiebreaker" scheme struck down earlier this week by the SC.

Back in the '70s, the ABA used its accreditation power to require law schools to admit women. Over the past 30 years, we've seen a shift from a requirement of equal opportunity (or rather, removing overt bars to opportunity) to equal results - and the only way for law schools to safely satisfy the new standards is to impose quotas. The pipeline of talented minority law applicants is simply less than that which would be needed for an equally-qualified, "diverse" class in each law school.

I'm not sure if "arbitrary" is the right word (although it is somewhat arbitrary to have a preconceived idea of what a diverse student body is - a number below which is not diverse and above which is diverse, irrespective of the actual applicant pool) - I would choose "irrational." The ABA is trying to legislate away reality, which is that there aren't enough talented minority students in the pipeline. There is no rational way for a law school admissions committee to "demonstrate by concrete action" that they are committed to a standard which does not reflect reality.

In other words: good news. Thanks, DB.

I agree that the requirement may or may not be good policy, but it is not arbitrary on its face (as applied may be another matter).

Also, although doubtless Kennedy's concurring opinion in Grutter will eventually become law, it has not done so yet, and the ABA is entitled to rely on Grutter as decided. Its efforts to stretch Grutter, while unlikely to succeed in the Court, are understandable.

In my view, the fact that the Equal Protection Clause does not apply to Congress, and the 14th Amendment has an Enforcement Clause, both permit Congress to have more leeway than the states in establishing policies on issues of race amelioration, and hence Congress could enact the ABA's standards for giving law schools money under the Spending Clause. However, it has not done so, and the current Court would likely not find such a law constitutional.

I personally don't think an accreditation agency acting on the government's behalf should go beyond what Congress requires in imposing social policies on educational institutions. This is especially the case where, as it here, it has the support of neither Congress nor the Judiciary.

Kazinski,

That definition completely astounds. I have come across that before. I still have not figured out the "having a future time orientation" bit -- do you have any idea what that means?

Its also interesting to see the inclusion of "emphasizing individualism [which this country was founded on] as opposed to a more collective ideology". It may be true that it is "culturally biased" to have a preference for the laws, ideology and institutions of one's own country-- but it should certainly not be discouraged in our schools!

"Future time orientation" is, I believe, a reference to the economic notion of "time preference".

http://en.wikipedia.org/wiki/Time_preference

Different groups -- economic classes, or subcultures -- are sometimes described as having different time preferences. A long time preference may be associated with "WASP" or "Puritan" notions of responsibility: planning for the future, deferring present enjoyment, sublimation of immediate urges, and so forth. Lower-class institutions such as payroll loan companies and crack cocaine dealers are sometimes cited as taking unfair advantage of their clients' short time preferences -- impoverishing a person's future in order to provide short-term pleasure.

It's one thing to say that people with different time preferences should be political equals, or should be respected as human persons. It's quite another thing to say that they should be economic equals. A person with a long time preference will tend to save; one with a short time preference will tend to splurge. It seems reasonable in a libertarian sense to let both endure the consequences.

So, if schools accidentally teach students to care about the future (consequences and so forth) they are bigoted because they aren't giving equal worth to cultures which live in the now, and take peyote every day, kind of thing

?
What about we Irish, who live in the past?

The ABA called me just last week touting the benefits of membership. I was polite enough to tell them that I had no intention of ever joining them.

I'm surprised that they want me, since they have worked against me getting into law school in the first place.