Several updates in the controversy over the ABA's proposed changes to the diversity requirement in its law school accreditation standards:
1. David Bernstein, who spearked the public debate last Saturday with a Wall Street Journal op-ed, has a detailed follow-up post on The Volokh Conspiracy, More on the ABA's Illegal Racial Preference Requirement:
ABA officials claim that the new Standard does not require law schools to indulge in racial preferences in admissions, so long as they otherwise demonstrate a commitment to a racially diverse student body through various expensive measures ....However, the memorandum sent around with the new Standard states that the Council recognized that “the results achieved are very relevant, though not necessarily dispositive, in evaluating effort and commitment.” So, a law school dean has the following options: spend hundreds of thousands of dollars on expensive diversity recruiting efforts (special minority deans, special scholarships, special summer programs, etc.), and hope that the results satisfy the ABA, or simply ensure that by whatever means necessary---preferences, quotas, etc.---the law school matriculates enough minority students to satisfy the ABA. Guess which choice deans are going to make? Any school that refuses to go along with preferences will be bled dry through ever-more-demanding "recruitment" requirements; given the unfortunatley low numbers of well-qualified applicants in the "underrepresented minorities" pool (bracing statistics are available in the lower court opinions in Grutter) no such recruitment efforts will ever satisfy the ABA, because without preferences, the "results" simply won't be there.
Moreover, an earlier version of the proposed Standard stated that a law school is required to pursue racial diversity, "so long as it does so in a lawful manner." This language was replaced with language that not only does not caution law schools to obey the law, but seems to require them to violate the law, when necessary, to use racial preferences: “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.” And what is this “purports” nonsense? Whoever put this language apparently agrees with the wacky theory that requiring universities to treat all applicants equally is somehow unconstitutional. In any event, it’s quite clear that law schools are expected to disobey the law, if necessary, to comply with Standard 211 by using racial preferences in admissions.
Also, I didn’t mention it previously, but Standard 211 purports (and I do mean purports, because the ABA can't require law schools to do something that's illegal!) to require law schools to engage in racial preferences when hiring faculty and staff. There is no legal precedent suggesting that such preferences are ever lawful, and the Taxman case from the Third Circuit (Alito opinion) suggests the opposite even with regard to faculty; with regard to staff, there seems to be no plausible legal justification for preferences.
2. Rick Garnett at PrawfsBlawg, The ABA's "Equal Opportunity and Diversity" Standard:
[L]et's assume or imagine that the ABA does mean to require, or even to urge, that law schools violate laws that "purport" to prohibit considering these factors in admissions. Is that a bad thing? I mean, is there a case to be made for urging, in the name of (what the ABA regards as) law reform, expressive violations by law schools of (what the ABA regards as) offensive laws?
Another thought: What would be the reaction of the proposal's supporters to a friendly amendment, providing that, in addition to (or, as part of) "sound legal education policy and the Standards," a private law school's "religious identity and mission" is a factor that may shape that school's decisions about how and to what extent to comply with the proposed ABA requirement that they "shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity"?
3. Glenn Reynolds at InstaPundit:
Given its earlier antitrust problems, I'm surprised the ABA is taking such an aggressive line here. Legal consequences aside, though, I think the ABA is in danger of further marginalizing itself, accelerating its move from an umbrella legal-profession organization to just another political interest group.
4. Tom Smith at The Right Coast, Not Quite Sure What the ABA Is Thinking:
I don't quite see how the ABA thinks this is going to work. Isn't this a bit like putting a big "sue me" sign on your back? It puts small, but undeniably cute law schools such as USD in a particularly difficult position, I would think, since I would guess it is easier to stand up to the ABA if you are UCLA or Boalt Hall, and you have the state of California behind you. But then, both those schools may not want to stand up to the ABA on this one. It is going to be a big, confusing mess. Happy deaning to you deans out there.
For prior TaxProf Blog coverage, see here, here, here, here, here, and here.
Update: David Bernstein has more in Prof. Bracey on Articulating Normative Commitments to Racial Preferences:
Bracey: "But asking a law school to articulate and stand behind its normative commitments regarding race preferences – one way or the other – strikes me as a good thing to do." I vehemently disagree that this is what the ABA is asking law schools to do; rather, it is requiring all schools to have preferences. But I agree with Prof. Bracey that what he suggests is a good idea, and I'm not sure why he thinks I would object to this. Indeed, my preferred solution to the preferences issue in higher education would be for schools to articulate what preferences they have, how strong these preferences they are, and why they have them, and then defend their position to their constituents and the public at large.