Peter Kirsanow on the ABA's "Diversity" Standard for Law Schools:

National Review Online:

The ABA maintains that the latest revision doesn’t require law schools to use race or ethnicity in admissions nor does it require that law schools violate federal or state laws prohibiting the consideration of race or ethnicity. A superficial reading supports such contention. After all, interpretation 211-2 states that law schools may use race and ethnicity in admissions, not that they shall. And revised 211-1 seems to direct schools in jurisdictions that prohibit racial discrimination in admissions to use methods other than preferences to achieve diversity.

Testifying before the U.S. Commission on Civil Rights last month, however, Professor David Bernstein of George Mason University Law School dissected the revisions to reveal that the standards remain, at best, inconsistent with the requirements for lawful racial preferences established by the Supreme Court in Grutter v. Bollinger:

Standard 211 requires law schools to take concrete action to demonstrate a commitment to having a diverse student body. Interpretation 211-2 dictates this be done through a school’s admissions policies and practices. Interpretation 211-3 states that the ABA will measure whether a law school has satisfied its diversity obligation by the totality of the law school’s actions and “the results achieved.”

There are at least two problems with the Standard.

First, it violates Grutter by taking away from the law school the discretion to determine whether diversity is essential to its mission. Under Grutter, the Supreme Court will defer to a law school’s judgment in this regard; i.e., the Court gives the school a presumption of good faith in defining its mission.

Standard 211, however, completely overrides the school’s discretion in determining whether diversity is essential to its mission. Instead, the ABA mechanically imposes diversity (more accurately, the ABA’s narrow definition of diversity) upon every school’s mission, regardless of an individual finding of pedagogical need. This destroys the presumption of good faith critical to the legality of a school’s racial preference program. Without the element of good faith, such programs devolve into raw racial balancing and don’t survive strict scrutiny.

Second, the Standard provides no safe harbor. Since the Standard measures a school’s compliance by results achieved, the only way a school can satisfy 211 practically is by using massive preferences.

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ABA Denies Provisional Accreditation, in Part Because of "Diversity" Concerns:

As the U.S. Civil Rights Commission hearing on the ABA's "diversity" requirements last month, the ABA's representative stated that no law schools had ever been denied accreditation for failing to meet "diversity" requirements. Even if that statement was true then, it's not true now. The ABA has denied Charleston Law School provisional accreditation, in part because the ABA is not yet satisfied with its commitment to "diversity." The law school, its future on the line, will now do the only sensible thing under the circumstances, and admit wildly underqualified minority applicants who will go on to fail the bar exam in wildly disproportionate numbers. But there is a saving grace: thanks to the ABA, which condemned the law school for relying too heavily on electronic resources, while they are in law school they will be able to read cases in the official reports, rather than rely on identical PDF files from Westlaw. Makes me proud to be a member of the ABA.

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Getting the ABA Out of the Law School Accreditation Business:

Readers of this blog know that there is an ongoing controversy over the American Bar Association accreditation standards for law schools, and co-blogger David Bernstein, among others, have pointed out numerous flaws in the ABA's approach.

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Nor is the point purely theoretical. As soon-to-be guest blogger Andrew Morriss explains in this paper (pp. 4-9), ABA accreditation of law schools emerged in the early twentieth century as a way of eliminating competition from independent law schools and apprenticeship systems. Many if not most ABA accreditation requirements since that time have similar causes.

If viewed as mechanisms for maintaining a cartel system rather than as efforts to advance the public interest, the ABA's most controversial accreditation policies suddenly start to make sense. For example, the ABA's support for methods of affirmative action that admit students most of whom are likely to either drop out of law school or fail the bar obviously serves the economic interests of already practicing lawyers. After all, had those same admissions slots gone to people who are likely to graduate and pass the bar, there would be more competition in the profession. Like David Bernstein, I am not categorically opposed to all forms of affirmative action. But it is striking that the ABA has chosen the form most likely to advance the interests of its members and least likely to actually help minority students (not to mention minority consumers of legal services).

Similarly, the requirement that schools have a variety of expensive, but redundant library resources and other programs that most students do not need (discussed in Prof. Morriss' article linked above) greatly increases the cost of establishing a new law school and thereby further reduces competition.

To be completely clear, I am NOT arguing that the ABA should be prevented from certifying schools as meeting what it considers to be appropriate standards. I am merely suggesting that ABA accreditation should not be required by law as a prerequisite for allowing a school's graduates to take the bar. If ABA accreditation really is a sign of school quality, then applicants can take that into account in making their decisions on what school to attend, just as they currently consider US News rankings and other data. If some form of legally mandated accreditation is needed (and I highly doubt that it is), the system should be run by an independent agency insulated as much as possible from control by the ABA and other interest groups representing practicing lawyers. There should be similar insulation, by the way, from influence by established law schools, since we too have an obvious self-interest in limiting competition by preventing new entry into the legal education market.

The ABA's own survey data show that the public has far less confidence in lawyers than members of most other professions. Personally, I do not believe that lawyers are, on average, less trustworthy than other professionals (then again, I'm a lawyer!). But we certainly are NOT trustworthy enough to be allowed to run a government-supported cartel under which we can prevent would-be competitors from joining the industry.

Those state governments that require ABA accreditation of law schools have in effect appointed a committee of foxes to control access to their chicken coops. We should not be surprised if the foxes have taken the opportunity to gobble up some of the chickens. The really surprising thing is that so many people seem to accept the foxes' self-serving rhetoric that they are doing it for the benefit of chicken farmers.

UPDATE: I am not saying that ABA officials are consciously lying when they claim that their accreditation standards are meant to serve the public interest. Many probably believe their own rhetoric. However, this provides little comfort, since people have a great capacity to believe that whatever benefits them is also good for the general public. Every interest group has its version of "What's good for GM is good for America," and the ABA is no exception.

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More Evidence of ABA Lies re Accreditation and "Diversity":

To hear ABA officials tell it, all the ABA's accreditation officials are looking for with regard to law school equal opportunity and diversity is a good faith effort. And the ABA, according to them, never abuses its power by threatening to deny accreditation to a law school simply because it hasn't met some arbitrary goal, much less quota.

This is widely known to be balderdash in the legal academy, but it's hard to get information on specific instances, because no one likes to admit that his school has been in trouble with the ABA. Occasionally, however, a story seeps out. Here's David Barnhizer, law professor at Cleveland State, discussing a school at which he was a dean candidate:

Two main criticisms were voiced as serious concerns by the AALS/ABA report to the extent that immediate action was needed to avoid a negative final accreditation report. One criticism was that of twenty-three faculty members, only eight were women. It was expected that something must be done immediately to fix this problem. I had several problems with this particular situation and none of them related to the issue of women law faculty. One problem was the fact that the school had added women to a previously largely male faculty at a substantial pace. Since 1983, eighteen faculty members had been hired with ten being men and eight women. While perhaps it could have been ten women and eight men, it still seemed to me the school should be commended for its commitment rather than condemned and threatened.

David Barnhizer, A Chilling of Discourse, 50 St. Louis U. L.J. 361 (2006).

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