Sunday, February 12, 2006
Bernstein: ABA Orders Law Schools to Engage in Racial Preferences in Admissions and Hiring Contrary to Law
Interesting op-ed in the weekend Wall Street Journal, Affirmative Blackmail, by David E. Bernstein (George Mason):
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 is about to order law schools to do just the opposite -- in fact, to violate the law -- and is resorting to blackmail to achieve its end.
Meeting in Chicago today, the ABA's Council of the Section on Legal Education and Admissions to the Bar will vote on new "equal opportunity and diversity" standards. If they are approved, 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.....
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....
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.
David provides more commentary on The Volokh Conspiracy. For blogosphere reactions, see:
Update: My original post included a link to a prior version of the proposed rule changes. Here is the text of the rule changes as amended in January and considered by the ABA on Saturday:
- Proposals for Final Revisions of Standards 210-212 and Associated Interpretations
- Mark-Up of Standards 210-212 and Associated Interpretations