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.
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)
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.
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.
Prof. Bracey on Articulating Normative Commitments to Racial Preferences:
Bracey: "But asking a law school to articulate and stand behind its normative commitments regarding race preferences -- one way or the other -- strikes me as a good thing to do." I vehemently disagree that this is what the ABA is asking law schools to do; rather, it is requiring all schools to have preferences. But I agree with Prof. Bracey that what he suggests is a good idea, and I'm not sure why he thinks I would object to this. Indeed, my preferred solution to the preferences issue in higher education would be for schools to articulate what preferences they have, how strong these preferences they are, and why they have them, and then defend their position to their constituents and the public at large.
Addled "Diversity" Logic:
Courtesy of John Rosenberg, here's an article praising the ABA's new "diversity" standard on the theory that it will require California law schools to create more African American attorneys. Putting aside the issue of Proposition 209, to the extent that as a result of the new standards California law schools bend their admissions standards in some legal or illegal way to admit more African American matriculants, it's not clear that this will have much of an effect on the number of African American lawyers, or that it would worth the cost if it did. According to the very same article, only 33% of first-time African American bar exam takers in California passed, compared to 69% of whites. Some implications that seems rather obvious to me: (1) California (and the ABA) can most easily increase the number of African American attorneys by either (a) making the bar exam easier; (b) abolishing it altogether; or (c) finding some way to increase the passage rate for African Americans; and (2) Given that 2/3 of African American bar exam takers are already failing the bar exam on their first try (and that does not account for students who failed out of law school and never took the bar), and that many of those who fail the first time will never pass, where is the logic in encouraging law schools to admit even more African American students, unless there is some evidence that these students will be stronger than recent crops of students?
I'd be very happy to see the mandatory bar exam replaced with a voluntary exam (or many voluntary exams, let the free market rule--see posts by Ted Frank and Larry Ribstein for similar thoughts). Although it's against my interests as a law professor, I think it would also be a sound idea to let undergraduate colleges offer law degrees, as they do in the rest of the common law world, which would substantially reduce both the monetary and opportunity costs of getting a legal education. Either one of these solutions would likely increase the number of minority attorneys in the U.S. far more than ABA racial prefernce requirements for existing law schools, and with far less costs in terms or ruining the lives of students who attend law school but are never able to pass the bar. Unsurpringly, however, the ABA prefers the cosmetic solution that preserves its power and keeps the current barriers to entry in place, even at the price of urging illegal actions on the law schools.
UPDATE: And here's an unintentionally ironic comment from John Sebert, consultant to the ABA, last seen shilling for the ABA's new "diversity" racial preference requirements, defending the use of LSATs in admissions in today's Chronicle of Higher Education (temp link): "It's sort of a consumer-protection issue," he said on Monday. "We want to be sure that law schools aren't admitting a substantial number of students who are unlikely to be successful in their program or in their attempts to pass the bar." So why is it okay for law schools to admit African American students with scores that guarantee that many of them "are unlikely to be successful in their program or in their attempts to pass the bar"? Remember, 42% of African American students who start law school either fail out or never pass the bar. The "failure" statistic is much lower for the better law schools, which means, logically, that it's significantly worse than 42% at some lower-ranked law schools. And, moreover, law schools can generally predict based on incoming LSATs scores which students are likely to have trouble passing the bar. Isn't there a consumer protection issue in admitting, without warning, students who you know based on prior statistics (and law schools do know!) have less, and perhaps much less, than a 50% chance of becoming lawyers? And if so, why does the ABA not only encourage, but demand this (and more of it, under the new standard)? Hat tip: Rosenberg.
Interesting Comment from an Earlier Post on the ABA's Diversity Rules:
Prof. Paul McKaskle of University of San Francisco comments:
As to the main issue raised in the post and by most commentators--the issue of affirmative action to increase the number of African-American attorneys, as I noted at the outset, the real problem is, in terms of law schools as a whole, there are simply not enough "qualified" applicants (whatever "qualified" may mean). Top tier law schools can admit whatever percentage of African-American students that they feel is appropriate and most will at least graduate and pass the bar. Second tier law schools will have more problems (given that African-American students who most closely resemble the qualifications of their white students have been accepted at top tier schools) and probably the African-Americans actually admitted will do less well in law school and on the bar. Further down the pecking order the likelihood of admitting a "sufficient" number of African-Americans to satisfy "diversity" or whatever goal a school (or the ABA) deems appropriate who will be successful becomes even less likely. So, the goal of increasing the number of African-American lawyers will not be met. All that will have happened is that the "better" schools will have successful African-American students (though a disproportionate number of them will be at the bottom of the class) and lesser schools, no matter how many African-Americans are admitted, will have a poor success rate in graduating them and getting them past the bar exam.
The main measure used by law schools as to whether law students will be successful is the LSAT. It is a rather imperfect measure to say the least, but no better measure now exists except how one does in the first year of law school. At my law school, the co-efficient between LSAT and ultimate passing of the bar is .30. The co-efficient between first year law grades and passing the bar is .90. The LSAT really doesn't tell much about a particular individual, rather it tells much about large numbers of individuals. Of the hundreds of individuals who have, for example, a 170 LSAT, the only useful information for a law school is that some fairly high percentage of them (perhaps 90%) will do well in law school. But some much smaller percentage of the 170 LSAT scorers will do poorly and may even flunk out. Of the hundreds of individuals who have a 140 LSAT, a very small percentage will do well in law school (perhaps only 5 or 10%) and most will do poorly and are likely flunk out. When a law school fills a first year class, it tries to maximize the number who will do well and minimize the number who do poorly. The obvious answer, admit as many high LSAT scorers as possible. (Most law schools do take other factors in consideration, mostly undergraduate grades. The correlation between ugpa and law school success is much weaker than for LSAT, but the two in combination is slightly more predictive than either one alone. But, LSAT is the primary determinant in admissions at most law schools--at least those law schools which cannot fill the entire entering class with students with 170 or better LSATs such as is likely at Yale.) I teach at a law school with "wobbles" between second and third tier status on the USNews listings (though our median and quartile LSATs are well up into the second tier) and if we wanted to double the number of African-American students actually enrolled we would have to accept students in the low 140s are even high 130s LSATs to reach this goal. Based on past statistics, the likelihood that very many of these students would graduate and become successful lawyers is very small.
One commentator suggests that even a small increase in African-American lawyers is better than none. Perhaps so, but at what cost. Most law schools cost in the neighborhood of $30,000 a year, and while there are some scholarships (especially at top tier law schools) the "additional" African-Americans admitted at lower tier schools are likely to have to finance their entire education. There is also income lost by postponing alternative employment. Thus, most of the cost of African-American students who fail is going to be borne by segments of the African-American community. If ninety percent of the African-American admittees admitted to top tier or near top tier law schools succeed, very likely that, overall, it is good for the African-American community as a whole (especially since at top tier law schools there is likely to be generous financial aid). But if only half succeed at a lower tier law school, is this a worthwhile bargain for the African-American community? (I have at least one colleague who thinks so.) But I think it is far more questionable as to the worth to the African-American community if only 20% or 10% succeed. If one out of five succeeds, the resources of the African-American community has had to invest close to a half-million dollars for each successful lawyer, and that doesn't count the psychological cost to those who failed. That is a moral question upon which I think it would be interesting to hear the opinion of the ABA.
I'm not convinced that he quite has all the numbers right, but I do think his comment reflects the growing discomfort by many professors at law schools outside the top tier, including professors who generally favor affirmative action, that "diversity" requirements that fail to account for the relevant applicant pool are forcing schools to admit students whom the schools know are statistically unlikely to ever become attorneys. Professor McKaskle makes additional interesting, related points. Read the whole thing.
Proposal to Forbid Law Schools from Relying on the LSAT:
Here are details of a proposal to prohibit law schools from relying on the LSAT, because of the "disparate impact" the test has on African American and Mexican law school applicants. This proposal will be brought to the relevant ABA committee in June. I wouldn't normally give this a snowball's chance of passing, but who would have thought that the relevant ABA committee would pass a proposal that blatantly misconstrues Grutter and requires law schools to disobey the law, all in pursuit of "diversity"?
There are three noteworthy oddities in the memo (by Prof. Vernellia Randall) accompanying the proposal. The first is that it states that the "LSAC recently reported that virtually no law school is implementing Grutter." Given that all Grutter did was allow (but not require) law schools to use racial prefernces to achieve racial diversity if they have determined that racial diversity is a compelling educational interest, it's not clear what "implementing Grutter" could possibly mean. My best guess is that Prof. Randall (who is webmaster of the bizarre "Whitest Law Schools" website) seems to associate Grutter with the idea that every law school should have a "critical mass" of Black and Latino students. Grutter certainly allows law schools to pursue a "critical mass" under the circumstances noted above, but doesn't require them to, and indeed forbids it for reasons other than the "diversity as a compelling educational interest" rationale.
Another oddity is the claim that law schools are relying too heavily on the LSATs at the expense of minority students to raise their ranking in U.S. News, which uses schools' LSATs in its ranking. (She writes: "Perhaps the most pervasive reason is that many schools are undertaking a crude attempt to increase their ranking in the U.S. News and World Report at the expense of admission of minorities.") I've heard this claim often, and I'm sure that part of what is motivating the ABA's recent aggressive actions against law schools without "enough" minorities is the view of some professors that law schools who aren't taking their "fair share" of African-American students are shirking, and are benefitting in the US News rankings at more "progressive" (what is progressive about admitting and then failing out Black students?) schools' expense.
This view, however, neglects how U.S. News works. Average LSATs are irrelevant. Rather, the magazine has traditionally looked at median LSATs (last year they switched to 25 and 75 percentile scores). If you simply replace your lowest LSAT white students with even lower LSAT Black or Latino students this will have no effect on your median (or 25th or 75th percentile, unless a school already has 25% plus Blacks and Latinos) LSAT. Thus, schools that do not engage in vigorous affirmative action preference policies are not getting any meaningful competitive advantage from U.S. News.
The third oddity is the concern only with inputs (number of minority students being admitted to law schools) and not with outputs (how many actually graduate and pass the bar). As I've noted before, at many law schools more than half of African American matriculants never become attorneys. Shouldn't this problem be dealt with before requiring law schools to change their standards to favor even less-academically ready applicants?
Update on the ABA's New "Diversity" Standard:
The Michigan Daily has an informative (albeit, as you might expect, rather Michigan-centric) story on the standard, noting criticism by me that the standard is intended to and will have the effect of requiring some law schools [the author says "small"; I tried to get across "resource poor" and "non-elite"] to break the law. The article also contains interesting quotes from Michigan Law School Dean Evan Caminker, who is critical of the ABA's growing tendency to micromanage law schools.
I've heard that many law school deans have become fed up with questionable and expensive policies imposed on them by the ABA, including pressure to tenure law librarians, clinicians, and legal writing professors; pressure to keep even non-"productive" faculty members' teaching loads low; pressure to limit the use of adjuncts; pressure on law schools that have tried their darnedness to attract minority students to spend more and more of their scarce resources on that goal; and so on. If the ABA leadership thinks that the law school establishment is going to rally to its defense on the "diversity" issue, I think it is sadly mistaken. Having abused its accreditation powers for so long in so many ways, there isn't much of a reservoir of support for the ABA to call on.
Relatedly, the ABA's authority to accredit law schools for federal law purposes for is up for renewal at the Department of Education. I learn from John Rosenberg, via the Chronicle of Higher Education, that the Center for Individual Rights, Center for Equal Opportunity (text here), and the National Association of Scholars (text here) have all written to the DOE arguing that unless the ABA is willing to give up its new, illegal diversity rules, reaccreditation should be denied. The Rosenberg link contains some choice quotes.
The Center for Equal Opportunity has also asked the DOE to procure the help of the Justice Department in investigating the ABA for violating federal law.
I'm beginning to think that the ABA has seriously overplayed its hand, and the result may be a weakening of its stranglehold over legal education that goes well-beyond its authority on the "diversity" issue.