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The ABA and Law School Affirmative Action:
In yesterday's Wall Street Journal, Gail Heriot had an interesting essay on the role of the American Bar Association in requiring affirmative action programs at law schools as a condition of accreditation. (hat tip: Overlawyered)

  UPDATE: There were a few posts on this topic here at the VC two years ago; you can read the thread here.
Mordecai:
The ABA is the devil.
4.30.2008 12:39am
Ben P (mail):

Not good enough. In 2003, the ABA summoned the university's president and law school dean to appear before it personally, threatening to revoke the institution's accreditation.


wow....

as a law student, I know how badly it would screw the students over, but If I was a dean or president would be severely tempted to tell them to go screw themselves.

It may be one thing for a particular school to decide this is a policy that want to pursue, but it's another thing entirely for it to be forced on them.
4.30.2008 12:42am
Bruce Hayden (mail) (www):
So, what happens when a school gets sued for discrimination and its justification is that the ABA made them do it? Not quite as compelling as "diversity" in my view.

I still can't figure out why the ABA still has so much power. Most states require ABA accreditation in order to sit for their bar. But the ABA is essentially forcing them to violate the law in order to stay accredited - if they were to actually implement their discrimination (i.e. "diversity") standard equal handedly. But they know that if they applied the same standard to a CA state LS, as they did to George Mason, the excrement would hit the cooling apparatus.
4.30.2008 1:11am
theobromophile (www):
So, what happens when a school gets sued for discrimination and its justification is that the ABA made them do it? Not quite as compelling as "diversity" in my view.

IIRC, Sec. 211 prohibits schools from using that as an excuse to not engage in preferential admissions.

I would love to see a concerted effort by schools like Michigan, Berkeley, UCLA, UVA, and W&M. If all of them told the ABA to shove off, and all of them got other states to agree to reciprocity with VA, CA, and MI accreditation standards, there wouldn't be much point to having ABA accreditation. That, however, will happen when Hell freezes over or the Cubs win the World Series, whichever comes second.

I love the ABA's rationale - "We will force you to be academically free in the manner permitted by Grutter!"

FYI - the March issue of the National Jurist had an article about how the ABA has threatened to revoke the accreditation of law schools with low bar pass rates. Apparently, this is detrimental to minorities, who are much more likely than their white peers to spend $150,000 on a legal education and then not pass the bar afterwards.

Scylla and Charybdis....
4.30.2008 1:27am
Hoosier:
I'm a (moderate) AA supporter. So this question is purely a matter of curiosity. But let's say Chicago says "get lost" to the ABA. (The only reason I choose Chicago is that I'm a native of the city, and so casting about for blue-chip LS, it comes readily t mind. Sorry to disappoint those who thought I might be slinging inside dope.)

What happens? Chicago LS grads cannot sit for the bar exam in most states, of course. But that couldn't last without ABA looking idiotic. Chicago is not worthy of accreditation, but John Marshall is?
4.30.2008 1:27am
Hoosier:
Sorry. It's late, and I needed to name a public law school for this to mean anything in practice.

I now submit UVa.
4.30.2008 1:30am
30yearProf:
The ABA is solely in the business of making Americans who "hate" lawyers learn to love them.

It's is, and has been since the 1950's at least, a perfect reflection of the most P. C. elements of the Elite (whom every lawyer hopes to become). In the 1950's and 1960's it was a bastion of Conservatism, now in the 1990's and 2000's it is a bastion of Liberalism. The ABA, like lawyers, will argue for whichever side is paying the fee, whether that fee is in dollars or in prestige.
4.30.2008 1:35am
tvk:
Hoosier, your point is correct, but it only works with a school that, by itself, has enormous clout; or a collection of schools that together have clout. The top ten, and maybe the top twenty schools, automatically get that clout--the ABA can't do anything about them. George Mason is a well respected school and all, but it is not there yet.

This is a "collective action problem" not unlike the schools' distaste for US News rankings. If Harvard, Yale and Stanford decided not to participate in the rankings, then US News would immediately collapse. But since Harvard Yale and Stanford are the highest ranked schools, they have zero incentive to dismantle the status quo. Similarly, although any one of the top ten schools can dismantle the ABA by the "disaccredit us if you dare" trick, they have no incentive to do so because the ABA bends over backwards to accomodate those schools. It bullies only the schools that it knows it can bully.
4.30.2008 1:42am
Hoosier:
tvk—The US News analogy is a good one.

In that case, there's also a real "prisoner's dilemma" drive that is absent in the ABA case, since ABA doesn't rank.

I understand why the USNWR "Top-Ten" don't bolt. But what I cannot understand is the Big-10. There are schools in that conference that are ridiculously underrated by USNWR's methodology. Michigan not in the top 20? What a joke.

They could act together, they have an incentive to refuse to play, and in a big section of the country that would be a severe blow to the sense that the rankings are meaningful. It would no doubt lead other public universities to opt-out as well. (Washington is under-valued as well, as an example.)

Think of us here in Indiana. Students who think they want to stay in-state often take the ACT; like other big public u's, IU fills its full-fee ranks with kids from other states after the best in-state applicants have been offered a spot; the kids from other states usually didn't get into the flagship state school at home, and often have SAT scores well below the equivalent ACT avg for in-state admits; since they took the SAT, but the huge set of high-performing kids from Indiana who enroll did not, IU has a surprisingly low average SAT. And this hurts it badly in USNWR.

Question: If you are the chancellor of IU, why don't you get together with your counterparts at MI, WI, MN, IL, and do something about this?

Why not? Don't get it.
4.30.2008 2:00am
Brian G (mail) (www):
Our state Supreme Court has been making hay to the state law school about the low minority bar passage rate. The February 2008 bar exam had a ridiculously high passage rate.

Coming soon to a state near you: The affirmative action bar exam where being non-white and non-Asian is worth a nice chunk of points.
4.30.2008 2:25am
JoDa:
Yep, I can confirm the validity of this ABA pressure. ABA privately threatened to revoke the accreditation of my law school because of our mere 20% minority rate. Of course, we just happen to be a very regional school located in a state with a 90.5% white population. ABA didn't find this fact relevant at all.
4.30.2008 2:50am
dharma (mail):
I love Gail Hariot, and I think the article makes many good points.
Also, consider how requiring diversity critical mass criteria affects the view of minorities in law school. Purely anecdotally, it seems like a lot of people tend to believe that a minority law student is not as acedemically worthy as a white student. That's a real shame to the many minority law students who earned their placements.
4.30.2008 3:36am
Tony Tutins (mail):
I see one obstacle to GMU's increasing its non-Asian minorities: Playing with the numbers on lsac.org, I would say George Mason is in the top 25 schools in terms of selectivity. But it is not within the top 25 ranked schools. Other things being equal, people want to go to the best law school they can get into. Here, any solid GMU candidate can get into George Washington, and the average GMU admittee can also get into WUSTL, Illinois, Iowa, Minnesota, and Alabama.

Because GMU is in the most selective 25 out of some 200 law schools, GMU should be able to dip a little further into the applicant pool, if necessary, and still get solid JD candidates.

I am a little surprised that, as selective as it is, GMU's bar passage rate is only 77%. This suggests that the bar passage rate of the least selective 100 law schools is less than 50%, which I don't believe is true. GMU should offer some bar exam prep workshops to its 3Ls, so they have a taste of it before crunch time.

Were there no possibility of lowering their standards a bit to get solid JD candidates, GMU could always game the system by admitting low aptitude candidates and flunking them out after 1L. Sticking such people with $50K worth of debt would be unconscionable, however.

A more ethical way to increase minority enrollment would be to grow their own candidates, perhaps by identifying undergrads or even high school students with talent and helping them prepare for law school via writing and other tutoring programs.
4.30.2008 3:43am
Cornellian (mail):
Personally I think the ABA is largely bluffing on the diversity thing. There's no way they could get away with revoking GMU's accreditation on that ground and they know it, so they'll fume and bluster for a while, then back down.
4.30.2008 3:48am
Tomas:
So in states that bar affirmative action in public schools how are the public law schools supposed to stay accredited? UCLA, Berkeley and Michigan come to mind as places where outright affirmative action is not allowed. I also think that JoDa makes an interesting point - who decides using what methodology whether a law school sufficiently represents minorities? For example, I find UCLA's lack of black students (in a state that is less than 8% black) less troublesome than a law school in the south that has 10% black enrollment. Does UCLA need to reflect the state, Southern California, the Southwest, or the entire country?
4.30.2008 5:44am
Curious Law Student:
Can anyone tell me why lawyers actually join the ABA? Is it status? Is it for their resume? After all, you don't even have to join the state bar; you just have to pass the bar examination to be able to practice law. With that said, what are the reasons why a lawyer would join either, especially the ABA?
4.30.2008 8:25am
T.S. Jones:
Having recently canceled my membership due to the ABA's amicus brief in Heller and its positions in general, the ABA's diversity nonsense is hideous. In the name of doing good they hurt more people. I remember in my first year of law school there were clearly some minorities who academically didn't belong there. Sure enough after the first year 3/4 of this group were gone, but thanks to the ABA they now had a year of tuition debt. Good work, ABA. Certainly idiots are useful, the ABA doesn't even rise to that level.

And to answer Curious Law Student, most lawyers join the ABA for the section publications and other practice specific items. The general magazines (ABA Journal) are chock with PC-filled articles by and large.
4.30.2008 9:33am
alias:
My firm would pay for an ABA membership if it wanted it. Also, the ABA signs people up without their consent for a year of free membership the first time they get admitted to a state bar. It took me month to get off of all their mailing lists.
4.30.2008 10:00am
Kenvee:
Curious Law Student,

Actually, some states (like Texas) DO require that you join the state bar. Mandatory bars have different restrictions on the type of politicking they can do, though.

As for why they join the ABA, beats me. I had my "one year free out of law school" membership, but then I cancelled it when I realized that the ABA pretty much actively hates me and what I do. (I'm a *gasp* prosecutor.)
4.30.2008 10:01am
Virginian:
I twice cancelled free ABA memberships (after each of the two state bars I passed). I told them when I cancelled that I did not want my name associated with a liberal advocacy group.
4.30.2008 10:22am
ejo:
the simple fact is that the law schools/universities are inhabited by folks who are quite happy with this sort of conduct-they will lie, fight, cheat and do whatever it takes to have their unlawful AA policies continue. if they can use the fig leaf of the ABA, a left wing advocacy group, to continue, they will.
4.30.2008 10:26am
yankev (mail):

And to answer Curious Law Student, most lawyers join the ABA for the section publications and other practice specific items. The general magazines (ABA Journal) are chock with PC-filled articles by and large.
Exaxctly. Also access to high quality CLE. The opportunity to work on section committees is also quite a draw for the few who choose to be active -- as I was until my Section decided to hold its most important activities at times when observant Jews are barred from participating.

ABA members also get discounts from Hertz, a number of hotel chains, vendors of office supplies and equipment, and I know not what. During the 8 years I was in sole practice, I relied on their retirement program, which allowed me to set up a qualified plan for about $25 in fees, and still provides me with no-fee administration.

And in return, all I have to do is abandon any hope of stopping the ABA from speaking in my name to advocate positions that are 180 degrees from mine on a wide variety of issues having little or nothing to do with its core competency.
4.30.2008 10:29am
justwonderingby:
The ABA - like all PC folks - are thugs.
4.30.2008 11:08am
Tony Tutins (mail):

And in return, all I have to do is abandon any hope of stopping the ABA from speaking in my name to advocate positions that are 180 degrees from mine on a wide variety of issues having little or nothing to do with its core competency.

The very same thing that keeps me from joining AARP.
4.30.2008 11:18am
Hans Bader (mail) (www):
The ABA can and should be sued under 42 U.S.C. 1981 and the Supreme Court's Gratz decision for pressuring schools to adopt illegal racial quotas.

I explained the legal arguments that applicants and George Mason administrators could use to sue the American Bar Association and its accreditors yesterday at www.OpenMarket.org:

GMU Law School Should Sue ABA Over Racial-Quota Mandates

Posted by Hans Bader, 04/29/2008 @ 1:49 pm

The American Bar Association is continually threatening to pull the accreditation of George Mason University Law School for failing to adopt illegal racial quotas in admissions. That's what San Diego law professor (and member of the U.S. Commission on Civil Rights) Gail Heriot notes in the Wall Street Journal. The ABA first forced GMU — one of the few law schools without a marked liberal bias — to use what the ABA itself refers to as "preferential affirmative action admissions program" to radically increase its minority percentage from 6.5 percent to 19 percent. But the ABA still wasn't happy with the results, which were insufficiently extreme for the ABA's quota-mongers (never mind that the qualified applicant pool for a law school of GMU's caliber is lower than 19 percent minority, as is the percentage of non-white lawyers even in heavily-minority states like California, so it's not as if having 19 percent minorities is a sign of discrimination. Indeed, the ABA conceded that GMU has long had a "very active effort to recruit minorities," even before adopting racial preferences in admissions). So now the ABA is demanding what are in essence racial quotas.

The ABA's actions violate 42 U.S.C. 1981 and the Supreme Court's ruling in Gratz v. Bollinger (2003), which held in footnote 23 that racial quotas violate 42 U.S.C. 1981 (which bans both private and public discrimination) as well as the Fourteenth Amendment (which bans only governmental discrimination). Moreover, the ABA and its accreditors are liable for pressuing GMU to engage in racial discrimination under 42 U.S.C. 1981, which allows not only employers and other institutions to be held liable for racial discrimination, but also individual discriminators. And GMU and its president and law school dean, who were personally summoned to appear before the ABA in order for them to be pressured to maximize GMU's racial quotas, have standing to sue over those quota mandates under Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), which held that the Lutheran Church had standing to sue the FCC to keep the FCC from pressuring it to take race into account in hiring employees for its religious radio stations in order to satisfy a "diversity" mandate.

04/29/2008 @ 1:49 pm |
4.30.2008 11:35am
Brian G (mail) (www):

Can anyone tell me why lawyers actually join the ABA? Is it status? Is it for their resume? After all, you don't even have to join the state bar; you just have to pass the bar examination to be able to practice law. With that said, what are the reasons why a lawyer would join either, especially the ABA?


I have been crap from them since I passed the bar and a bill every month which goes immediately in the trash. I agree with the others in that I would never give a dime to a liberal advocacy group.
4.30.2008 12:05pm
Brian G (mail) (www):
I forgot the most important part Curious Law Student:

There is NO reason to join the ABA. None. Zero. Zilch. Nada.
4.30.2008 12:06pm
Tony Tutins (mail):
never mind that the qualified applicant pool for a law school of GMU's caliber is lower than 19 percent minority, as is the percentage of non-white lawyers even in heavily-minority states like California, so it's not as if having 19 percent minorities is a sign of discrimination.

But, according to lsac.org data, GMU, at under 15% minority, is an outlier among its peer institutions. Further, I do not understand what "a school of GMU's caliber" means in this context, because both higher ranked and lower ranked local schools have higher percentages of minority students. Is there some sort of carve-out exception for GMU?

Institution >=15%.........Percent Minority

American University.....34
Catholic University.....17.2
UDC.....................43.8
Duke....................24
George Washington.......26.4
Georgetown..............23.8
Howard..................84
Maryland................30.9

Consider further that Virginia is 20% black and Maryland across the river is 30% black. Yet more Hispanics attend GMU than black students. (Virginia is some 6% Hispanic.)
4.30.2008 12:12pm
hawkins:

I am a little surprised that, as selective as it is, GMU's bar passage rate is only 77%.


Must be old numbers. This year GMU had the highest passage rate in Virginia - 93% for first time takers.
http://www.law.gmu.edu/news/2007/852
4.30.2008 12:15pm
Tony Tutins (mail):
hawkins: the GMU bar passage data on lsac comes from "Summer 05; Winter 06"
4.30.2008 12:34pm
bobby b (mail):
"Can anyone tell me why lawyers actually join the ABA?"

People who have discovered within themselves a near-brilliant insight into what's wrong with other people and what those other people need to do to in order to help make society over in the proper ways love to join organizations of like-minded people who have the ability to recognize and emphasize each others' brilliance in mutually supportive ways.

Think "onanism with an adoring audience."
4.30.2008 12:50pm
Eric Rasmusen (mail) (www):
Why do good law schools bother to get accreditation? A key part of Professor Heriot's article answers this: a school needs it to get Dept. of Education funds. Thus, it would be easy for the DOE to solve the problem, by ending that requirement (and maybe doing its own accreditation).

This tells us why the top universities couldn't just snub the ABA: the ABA would look foolish, maybe, but the school would lose the funds.
4.30.2008 1:41pm
JohnCK (mail):
Seems to me that some enterprising US attorney could bring a RICO case against the ABA for conspiring to deny civil rights and equal protection to White and Asian law school applicants. The ABA is on full notice of what the law is yet is engagin in an interstate conspiracy to ensure that it is not followed.
4.30.2008 1:46pm
Cornellian (mail):
The ABA has a number of specialized subsections that are quite good. Joining them gives you a chance to network with your fellow antitrust, real estate, UCC etc. lawyers, you get their section newsletter with recent developments in the law and you can do all that useful stuff completely oblivious to what the general ABA leadership thinks about issues unrelated to your practice. Lots of lawyers are members for that reason and that doesn't imply anything about what that particular member thinks about diversity, affirmative action or any other issue.
4.30.2008 1:52pm
Connecticut Lawyer (mail):
What I do not understand is why the US Dep't of Education has granted to the ABA the authority to determine what law schools to accredit (which affects the eligibility of students for federal aid). The ABA does not come close to representing the legal profession - only about 1/3 of all lawyers belong (I quit about 20 years ago) and is no more representative of the profession as a whole than is, say, the Federalist Society. The Government should fire the ABA from its accreditition role, just as it fired the ABA from its job of vetting judicial appointments, and for exactly the same reason: the ABA is at best a special interest group servicing the private interests of those lawyers who belong to it, and at worst a liberal advocacy group. What possible reason is there for it to have any kind of public responsibility?
4.30.2008 2:03pm
wooga:

I twice cancelled free ABA memberships (after each of the two state bars I passed). I told them when I cancelled that I did not want my name associated with a liberal advocacy group.

I got a 'free membership' in the mail, and then proceeded to call the ABA personnel and screamed at some poor sap to immediately take their 'free' membership and shove it where the sun don't shine. Very good stress relief.
4.30.2008 3:29pm
Trevor Hill (mail):
Unfortunately, all of you who abjure the ABA contribute to its polarity. Wouldn't it be at least more fun to join up and make hell on the accreditation committee?
5.1.2008 5:10pm