As regular readers of this blog know, the ABA has just passed a controversial new "diversity" standard, Standard 211, that seems to require law schools to act illegally and immorally by engaging in racial preferences to admit minority students who, in many (statistically predictable) cases, will have a slim chance of making it through law school and passing the bar exam. More on that in a future post.
For now, I want to focus on the old Standard 211, which I have pasted below "the fold". Unlike new Standard 211, which specifically empowers the ABA accreditation committee to consider the results of a law school's diversity efforts, the old standard was a purely efforts-based standard. As you can see, below, neither the standard itself nor its (binding) interpretations empowered the committe to consider results. Indeed, in case there was any ambiguity in this regard, the old Standard is entitled "EQUAL OPPORTUNITY EFFORT," whereas the new Standard is entitled "EQUAL OPPORTUNITY AND DIVERSITY."
Nevertheless, the ABA Council of the Section on Legal Education has just circulated a "commentary" on the new Standard, defending it from its critics (including, I assume, me). One argument made defending the new results-based standard is that, in practice, it does nothing new:
The Council also recognized that the results achieved are very relevant, though not dispositive, in evaluating commitment. Thus the second sentence of Interpretation 211-3 provides: "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 Council understands that this sentence is consistent with the current practice of the Accreditation Committee, which does consider the diversity results that a school has achieved as a factor in evaluating the school's compliance with current Standard 211.I agree with the Council that the Accreditation committee has been informally using a results-based standard in recent years, especially since the Grutter opinion came out. But I would also note that there is nothing in old Standard 211 that suggests that a law school will be judged based on results, as opposed to efforts.
Indeed, old Interpretation 211-1 lists a variety of ways that a law school could demonstrate to the satisfaction of the ABA that it has a commitment to equal opportunity (note: not diversity). Racial preferences is not among them, and indeed, the use of racial preferences is literally contrary to "equal opportunity." If anything, as written the old Standard implies that attempting to achieve specific results by lowering admissions standards for minority students would be disfavored (not, I acknowledge, that anyone believed that the ABA would punish a law school for using preferences).
The ABA's confession that it was applying an unwritten results-based standard is startling for at least two reasons. First, as noted in the case linked in co-blogger Jon's post about the Cooley Law School case, the ABA, as a quasi-state actor in its accreditation process, has constitutional due process obligations. It strikes me as inconistent with due process to have one "published" version of accreditation standards, and another version applied informally and without written authority by accreditation officials.
The other reason, even more important reason this is a startling confession is that the Department of Education is currently considering, against the objections of the American Law Deans Association and several groups that oppose racial preferences, whether to renew the ABA’s role as the official accrediting agency of law schools for federal law purposes, such as the availability of student loans to students at those schools. 34 C.F.R. Sec. 602.18 states that the Secretary of Education may only recognize an accrediting agency such as the ABA if, among other things, the agency "[b]ases decisions regarding accreditation and preaccreditation on the agency’s published standards."
In addition to the objections of the groups noted above, the Department of Education should consider the fact that the ABA is, by its own tacit admission, in gross violation of DOE regulations in enforcing an accreditation standard that was never put in writing; indeed, the purpose of new Standard 211 is to "codify" what the ABA has already been illegally doing!
You can read old Standard 211 below.
Standard 211. EQUAL OPPORTUNITY EFFORT.
Consistent with sound legal education policy and the Standards, a law school shall demonstrate, or have carried out and maintained, by concrete action, a commitment to providing full opportunities for the study of law and entry into the profession by qualified members of groups, notably racial and ethnic minorities, which have been victims of discrimination in various forms. This commitment typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and a program that assists in meeting the unusual financial needs of many of these students, but a law school is not obligated to apply standards for the award of financial assistance different from those applied to other students.
Interpretation 211-1: This standard does not specify the forms of concrete actions a school must take in order to satisfy its equal employment obligation. The satisfaction of such obligation is based on the totality of its actions. Among the kinds of actions that can demonstrate a school’s commitment to providing equal opportunities for the study of law and entry into the profession by qualified members of groups that have been the victims of discrimination are the following:
a. Participating in job fairs and other programs designed to bring minority students to the attention of employers.
b. Establishing procedures to review the experiences of minority graduates to determine whether their employers are affording equal opportunities to members of minority groups for advancement and promotion.
c. Intensifying law school recruitment of minority applicants, particularly at colleges with substantial numbers of minority students.
d. Promoting programs to identify outstanding minority high school students and college undergraduates, and encouraging them to study law.
e. Supporting the activities of the Council on Legal Education Opportunity (CLEO) and other programs that enable more disadvantaged students to attend law school.
f. Creating a more favorable law school environment for minority students by providing academic support services, supporting minority student organizations, promoting contacts with minority lawyers, and hiring minority administrators.
g. Encouraging and participating in the development and expansion of programs to assist minority law graduates to pass the bar.
h. Developing and implementing specific plans designed to increase the number of minority faculty in tenure and tenure-track positions by applying a broader range of criteria than may customarily be applied in the employment and tenure of law teachers, consistent with maintaining standards of quality.
i. Developing programs that assist in meeting the unusual financial needs of many minority students, as provided in Standard 211. (August 1997)
Interpretation 211-2: Each ABA approved law school (1) shall prepare a written plan describing its current program and the efforts it intends to undertake relating to compliance with Standard 211, and (2) maintain a current file which will include the specific actions which have been taken by the school to comply with its stated plan. (August 1997)