Monday, October 21, 2024
The ABA's Shift From Diversity Mandate To ‘Holistic’ Admissions Is Backdoor To Racial Preferences
Mark Pulliam (James G. Martin Center for Academic Renewal), The ABA Retreats From Its Diversity Mandate—or Does It?:
“Holistic” admissions are an obvious backdoor to racial preferences.
The ABA’s detailed accreditation requirements micro-manage every aspect of law school, including admissions, facilities, governance, curriculum, faculty hiring and tenure, and even internal policies regarding free speech. Leaving aside the question why the ABA has been accorded these awesome (and monopolistic) regulatory powers, it is axiomatic that the ABA cannot force law schools to violate the law, including the 2023 decision of the U.S. Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which prohibited race-based preferences in admissions. The ABA’s heavy-handed “diversity” requirements for law schools—bordering on mandatory racial quotas—collide with the non-discrimination ruling in that case. ...
In the past, the ABA has threatened to revoke law schools’ accreditation if they persisted with meritocratic admissions—that is, granting admission to the candidates with the highest GPAs and LSAT scores—if this prevented schools from achieving the ABA’s desired demographic profile in their student bodies. The primary goal of “affirmative action” and “diversity” is to increase the number of African-Americans and members of other “under-represented” ethnic or racial groups in law school, despite their objectively weaker academic records. In other words, as I wrote in 2021 [The ABA's Long March Continues], “In the name of ostensibly improving the quality of law schools, the ABA requires them to lower their admission standards and enroll less-qualified (or even unqualified) students.” Under the holding of Students for Fair Admissions, these types of racial preferences are now blatantly unlawful. ...
The ABA’s interpretive guidelines make it clear that the euphemistic verbiage of Standard 206 requires racial preferences. Interpretation 206-1 states, “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 206” (emphasis added). To produce the required quotas, law schools must do whatever it takes to achieve “diversity,” even if color-blindness is legally required. Not surprisingly, the ABA recently realized that Students for Fair Admissions dictates a more subtle approach. ...
The ABA’s proposed interpretative guidelines strongly suggest that law schools adopt “holistic” admissions policies, specifically “admissions policies, processes, and practices aimed at evaluating each applicants’ [sic] potential holistically, including consideration of the applicant’s individual experiences and challenges and the contribution that the applicant is likely to make to the legal profession such as making affordable legal services available to all people.” Wink, wink. This is code for “diversity.” Tellingly, objective metrics such as grades and LSAT scores are not mentioned. The proposed revisions to Interpretation 206-1 conclude with the disingenuous statement that “compliance with Standard 206(a) does not require a law school to take race or any other identity characteristic into account in making an individual admissions decision.” ...
In my estimation, the ABA’s proposed revisions to Standard 206 are nothing but semantic window dressing covering mandated racial quotas. Merit is the best assurance of academic success and future professional competency. “Holistic” admissions are a poor substitute for the traditional use of objective metrics such as grades and test scores. Some legal scholars share my assessment. Northwestern University law professor John McGinnis told me in an email that “the requirements of holistic admissions are clearly an attempt to encourage schools to undertake admission standards that will make it harder to prove discrimination.”
If the ABA were truly concerned about promoting the highest level of professionalism and quality among lawyers, it would encourage—even require—law schools to rely on applicants’ objective merit to determine admissions. Instead, the ABA pursues woke social engineering through sophistry such as “holistic” admissions, which amounts to an unseemly end run around the ban on racial preferences. The ABA’s proposed revisions are an invitation for future litigation, producing a sequel to Students for Fair Admissions in which the Court must rebuke recalcitrant law schools for ignoring its admonition that “the student must be treated based on his or her experiences as an individual—not on the basis of race.”
Perhaps the ABA’s devious effrontery will lead state supreme courts (and the U.S. Department of Education) to re-think their reliance on the ABA to handle quality control at the nation’s law schools. That would be a just and amusing outcome.
Editor's Note: If you would like to receive a daily email with links to legal education posts on TaxProf Blog, email me here.
https://taxprof.typepad.com/taxprof_blog/2024/10/aba-shift-from-diversity-mandate-to-holistic-admissions-is-backdoor-to-racial-preferences.html