Paul L. Caron

Saturday, April 15, 2006

More on ABA's Proposed New Diversity Standards

We previously have blogged (see complete list below) the controversy over the the ABA's proposed new accreditation standard (here and here) that would require law schools to consider race and ethnicity in admissions and faculty hiring, regardless of any state law prohibitions to the contrary.

A coalition of civil right groups have written a letter to the Department of Education in support of the proposed standards.  Here is the Conclusion:

[The Leadership Conference on Civil Rights] and the other signatories to these comments urge the Department of Education to continue to recognize the critical role of the ABA in the accreditation of law schools. As part of its underlying mission, the ABA is charged to regularly review and update its standards for legal education. Upon examination, the proposed revisions to Standard 211 are modest and entirely consistent with the effort to conform the standard to the United States Supreme Court’s Grutter v. Bollinger decision of 2003. The strident arguments lodged by antidiversity and anti-equal opportunity/affirmative action organizations are without merit and demean the entire accreditation and approval process. While critics may disagree with the Court’s decision to uphold diversity as a compelling state interest in the higher education context, the Court’s ruling was clear, and the ABA’s efforts to conform its standards to the Grutter decision are entirely appropriate and legally sound.

David Bernstein takes issue with the letter:

The most shocking of this letter's many flaws is the claim that to the extent the ABA standards conflict with state constitutional or statutory law, the ABA standards trump state law!....The letter writers are claiming that if the Federal Department of Education permits a private organization to accredit law schools, the private organization's standards implicitly become part of federal law, and thus supercede state law under the Supremacy Clause. The chutzpah, the absurdity, the audacity of this argument simply floors me.

For prior TaxProf Blog coverage, see:

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