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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:

http://taxprof.typepad.com/taxprof_blog/2006/02/bernstein_aba_o.html

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[source, source] Meeting in Chicago today, the ABAs Council of the Section on Legal Education and Admissions to the Bar... [Read More]

Tracked on Feb 13, 2006 12:09:56 PM

» The ABA’s “Brazen Defiance Of The Law” II from Discriminations.us
Several posts below (“The ABA Mandates Brazen Defiance of the Law,” Feb. 11) I pointed to an article by David Bernstein in the Wall Street Journal arguing (persuasively, I thought) that a proposed new American Bar Association standard on legal... [Read More]

Tracked on Feb 14, 2006 11:41:33 AM

» The ABA’s “Brazen Defiance Of The Law” II from Discriminations
Several posts below (“The ABA Mandates Brazen Defiance of the Law,” Feb. 11) I pointed to an article by David Bernstein in the Wall Street Journal arguing (persuasively, I thought) that a proposed new American Bar Association standard on legal... [Read More]

Tracked on Feb 14, 2006 11:45:34 AM

Comments

Let the flame wars begin...

Posted by: Jack Bogdanski | Feb 12, 2006 1:29:45 PM

If they pass this, then do the ABA and the members of the committee open themselves to a 1983 action?

Posted by: AYY | Feb 12, 2006 11:40:09 PM

Sounds like the perfect place for a little RICO action to me.

Posted by: SDN | Feb 13, 2006 4:45:49 AM

I like the RICO idea, esp. combined with 1983. I'd originally throught anti-trust, but the 1983 RICO idea is much easier and better.

Can you see it now? The ABA held to be a racketeer and a civil rights violator all in one lawsuit?

Posted by: Bruce Hayden | Feb 13, 2006 6:28:57 AM

The ABA rules don't just reach admissions -- the subject of the Supreme Court's Grutter decision -- but also employment.

Judge Alito, while on the Third Circuit, joined an 8-to-4 decision by that court banning the use of race in employment to promote "diversity." See Taxman v. Board of Education of Piscataway, 91 F.3d 1547 (3d Cir. 1996) (en banc). (Judge Alito is replacing Justice O'Connor, who provided the decisive fifth vote to uphold the affirmative-action plan in Grutter).

So they're not just defying California law, which prohibits racial preferences in admissions, they're also defying Third Circuit (and Fifth Circuit) law banning the use of race to promote "diversity" in employment.

And the ABA is itself potentially liable under 42 USC 1981, which permits non-employer liability for aiding and abetting, for fomenting unlawful racial discrimination in employment.

Posted by: Hans Bader | Feb 13, 2006 12:27:12 PM

The ABA's action doesn't just potentially violate California state constitutional law against racial preferences in admissions.

It also may violate federal appellate rulings against racial preferences in employment.

The Supreme Court's 5-to-4 Grutter decision upholding racial preferences to promote "diversity" applied to admissions, not employment.

And the pivotal fifth vote in that case, Justice O'Connor, is being replaced by Judge Samuel Alito, who joined the Third Circuit's 1996 ruling in Taxman v. Board of Education of Piscataway, 91 F.3d 1547, that race cannot be used to promote "diversity" in the employment setting, as opposed to in admissions.

So if the ABA succeeds in preventing a law school from hiring a white applicant for a faculty position, it may be potentially liable under 42 USC 1981, which bans racial discrimination in employment contracts, and permits not only the employer, but anyone else responsible for the discrimination, to be held liable.

Posted by: Hans Bader | Feb 13, 2006 12:42:47 PM