Lowering the bar
Perhaps because the American Bar Association was once a nonpartisan organization, short on ideology, the Department of Education granted it monopoly power to accredit law schools. Now it’s anything but nonpartisan, but for years the Department of Education has ignored the bar association’s increasing partisanship and liberal politics. But we’re encouraged that the department found the bar association’s new “diversity” standards as a reason to hold up the renewal of its accrediting license. Consider the new standards, which the ABA adopted last year in response to the Supreme Court’s Grutter v. Bollinger decision. Standard 211 (a) says, “Consistent with sound legal education policy” a law school must “demonstrate by concrete action a commitment to provide full opportunities [. . .] by members of the underrepresented groups, particularly racial and ethnic minorities.” Part B says essentially the same thing when the matter concerns the hiring of faculty.
Alone, the standards appear relatively minor, but not the bar association’s interpretation of the new standards: “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.” California, Washington, Florida and Michigan bar the use of racial preferences in state university admissions. Are the lawyers suggesting that law schools in these states must break the law or lose accreditation?
That is precisely what Department of Education attorneys were wondering when the accrediting license came up for renewal in December. The association insists that nothing in the new standards requires a law school to create an affirmative action program or break the law. To which Bill James, the department’s own attorney, replied at a hearing on the issue, “the language is so vague that [the standards and their interpretations] can be reasonably read to require just that.”
The bar association has vigorously defended affirmative action programs — and quotas — in the past. In a friend of the court brief in the Grutter decision, the bar association wrote that it is “unquestionable that the improvement in minority participation in our law schools [. . .] has been achieved largely by the use of race-conscious admissions policies such as those under attack” in Grutter. The bar association has argued that “consistent with the Supreme Court’s decision in Grutter [. . .] a law school may use race and ethnicity in its admissions process.” How can anyone doubt which “concrete action” the bar association prefers that its applicants for accreditation implement?
Nevertheless, the agency hearing the case set aside the Department of Education’s objections and extended the bar association’s accreditation authority for another 18 months. That’s still less than the usual five-year extension and the department will appeal. Education Secretary Margaret Spellings should take another close look.