Low­er­ing the bar

The Washington Times Weekly - - Editorials -

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.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.