Tuesday, February 14, 2006
ABA Responds to "Affirmative Blackmail" Charge
On Sunday, we blogged David Bernstein's WSJ op-ed, Affirmative Blackmail, arguing that a proposed rules change to the ABA's accreditation standards will force law schools to engage in racial preferences in admissions and hiring even if contrary to state laws such as those in California and Texas. The President of the ABA has published a response in today's WSJ, ABA's Proposed Revisions of Law School Standards:
The Feb. 11 Rule of Law column "Affirmative Blackmail" by David E. Bernstein unfortunately misrepresents the impact of proposed revisions to the ABA Standards for the Approval of Law Schools. The proposed changes would only mandate that law schools "demonstrate, by concrete action . . . a commitment" to a diverse faculty and student body. In so doing, a law school would be permitted, not required, to consider race and ethnicity in its admissions process.
The proposal is consistent with the Supreme Court decision in Grutter v. Bollinger, which the author also misconstrues. Although the results that a school achieves would be relevant in assessing a school's commitment, the results would not determine whether a school had demonstrated such a commitment.
- Chronicle of Higher Education: Bar Association Moves to Strengthen Diversity Requirements for Accreditation of Law Schools, by Katherine S. Mangan
- Discriminations, by John Rosenberg
- Objective Justice, Bernstein on the ABA, by Sean Sirrine
- The Volokh Conspiracy: Update on the ABA and Affirmative Action, by David E. Bernstein
- The Wall Street Journal, Fewer Blacks Enter Law School, Prompting Plan for Monitoring, by Nathan Koppel
The ABA president doesn't seem to grasp the fact that the ABA can be held liable for violating the civil rights laws merely by pressuring an institution to use race, even if the use of race is not strictly required by its accreditation standards.
The D.C. Circuit, which has jurisdiction over offices of the ABA, has held in Lutheran Church v. FCC (1998)and its progeny that racial goals imposed on an institution violate the constitution when they result in pressure to use race, even when the regulated entity could theoretically use more cumbersome non-racial criteria to achieve the same racial bottom-line.
While the Supreme Court in Grutter upheld by a 5-to-4 vote a race-conscious admissions policy to promote "diversity," it did not address the context of employment, which is also regulated by the ABA's draft accreditation standards.
There, the case law poses obstacles to the ABA. Many of the federal appeals courts have either held (as in the case of Taxman v. Board of Education, 91 F.3d 1547 (3d Cir. 1996) and Messer v. Meno, 130 F.3d 130 (5th Cir. 1997)) or suggested (as in the D.C. Circuit's Lutheran Church decision) that diversity is not a compelling interest outside the admissions context.
The Third Circuit's decision rejecting diversity as a reason to consider race in employment was joined in by Judge Sam Alito, who is replacing Justice O'Connor, who provided the pivotal fifth vote to uphold using race in admissions the Grutter case.
Under 42 USC 1981, the ABA itself can be held liable for pressuring schools to engage in unlawful racial preferences.
The same may or may not be true under California's Prop. 209 (Cal. Const. Art. I, sec. 31), which bans using race in California state colleges (including law schools), both in admissions and in employment. I don't know whether the ABA could be held liable for aiding and abetting unlawful discrimination under Prop. 209 for pressuring California law schools to use race in admissions, although I imagine that it could, by analogy to case law under 42 USC 1983, which permits secondary liability.
All of the above assumes that the ABA's head is being accurate when he says in his letter to the editor that the use of race is not strictly required by the draft accreditation standard. Some commenters dispute this claim, and the full text of the draft accreditation standard doesn't appear to be publicly available yet.
Posted by: Hans Bader | Feb 14, 2006 8:30:13 AM
It would be nice if the ABA would post the actual text as passed.
Posted by: Duncan FrissellDuncan Frissell | Feb 14, 2006 7:43:37 AM
Contrary to the ABA president's letter, see what the committee responsible actually says.
""This makes it clear that [admissions] results are relevant," says John Sebert, who oversees the committee's main function: accrediting law schools. In a majority of states, a person can't become a licensed attorney without graduating from an ABA-accredited law school."
Taken from the Nathan Kopel WSJ article linked above.
Posted by: Hey | Feb 17, 2006 11:57:38 AM