Commentary

Affirmative Blackmail

According to its mission statement, a primary goal of the American Bar Association is to “promote respect for the law.” In the interest of mandating racial preferences in admissions, however, the ABA has just ordered law schools to do the opposite—in fact, to violate the law—and is resorting to blackmail to achieve its end.

Meeting in Chicago this past weekend, the ABA’s Council of the Section on Legal Education and Admissions to the Bar voted in favor of “equal opportunity and diversity” standards. Under these standards, any law school that seeks to maintain or acquire ABA accreditation will be required to engage in racial preferences in hiring and admissions, regardless of any federal, state or local laws that prohibit of such policies. Since only graduates of ABA-accredited schools may take the bar exam in the vast majority of states, the association has, in effect, a legal monopoly on accreditation standards.

The new Standard 211, styled “Equal Opportunity and Diversity,” will govern admissions and faculty hiring policies. It says nothing about treating people from different groups equally, and lots about “diversity”—a code word for affirmative action preferences. “Consistent with sound legal education policy and the Standards,” part (a) says that a law school must provide “full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities,” and it must also commit “to having a student body that is diverse with respect to gender, race and ethnicity.”

Part (b) says, “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.”

This sounds innocuous, since law schools can reasonably differ on what constitutes “sound legal education policy.” Some might think that the educational benefits of a racially heterogeneous student body justify significant racial preferences; others might give more weight to data showing significant educational costs resulting from preferences.

An empirical study by Richard Sander of UCLA, for example, confirms anecdotal evidence that student beneficiaries of such preferences tend to struggle in law school and end up at the bottom of their classes. Statistics published in the year 2000 also reveal that under current affirmative action policies, 42% of all African-American matriculants to law school either never graduate or never pass the bar (compared with 14% of whites). Some schools might conclude dooming a huge percentage of African-American students to failure is contrary to sound educational policy, and limit their “diversity” efforts to recruitment and retention.

That will not be possible, according to the “interpretations” of Standard 211, which have “equal weight” to the rules themselves. Interpretation 211-1 states that “the requirements 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.”

Racial preferences will thus generally be necessary to comply with Standard 211—despite the fact that several states, including California and Florida, ban race as a factor in law school admissions or hiring or both. Equally outrageous is Interpretation 211-2, which states that, “consistent with the Supreme Court’s decision in Grutter v. Bollinger, a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity.” This is a complete misstatement of the law, and the attorneys who wrote this are either incompetent or, more likely, intentionally dissembling.

First, Grutter held only that racial preferences in higher education are legal when used to promote diversity, not when used to promote equal opportunity. The Supreme Court has consistently disapproved of the use of racial preferences other than for either educational diversity, or to remedy past discrimination, and nothing in Grutter is to the contrary.

Second, Grutter did not hold that any law school may use race in its admissions process to promote racial diversity. Rather, the court stated that it was deferring to the Michigan Law School’s “educational judgment that such diversity is essential to its educational mission.” Other law schools may not share that educational judgment, particularly if the only way to achieve such diversity is by admitting underqualified minority students. Nothing in Grutter would permit such a law school to engage in racial preferences.

Ironically, left-wing lawyers and law professors used to scream that the Grutter litigation posed a threat to academic freedom by trying to prohibit law schools from tailoring the racial balance of their student bodies to enhance the students’ educational experience. Now they want to use the heavy hand of ABA accreditation to deny academic freedom to law schools that would not choose racial preferences.

It’s worth remembering that the fifth vote in Grutter was provided by Justice Sandra Day O’Connor, who apparently thought that her opinion would permit, but not require, law schools to use racial preferences for diversity purposes. Now that the ABA is trying to turn “may” into “must,” one wonders whether Justice Samuel Alito will be similarly sympathetic to the assertion that allowing racial preferences in admissions enhances academic freedom.

An even greater irony, however, is the ABA’s role in all of this. One can be quite certain that despite the plain language of the “interpretations” quoted above, the ABA will claim that it is not really trying to force law school faculties and administrations to violate both the law and their consciences in pursuit of racial “diversity.” But in the past, ABA accreditation officials have bullied law schools into precisely that position, even in the absence of written authority backing their demands.

The new written standards will only embolden the accreditation bureaucracy, composed mainly of far-left law professors, to demand explicit racial preferences and implicit racial quotas—all in brazen defiance of the law.

David E. Bernstein, professor at George Mason University School of Law, is the author of You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (2003).