Consistent with sound legal education policy and the Standards, a law school 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.
Seems well-intended enough. But when the ABA Council for the Section of Legal Education and Admissions to the Bar first adopted the new diversity requirement of Standard 211 in February it also promulgated Interpretation 211-1 which stated:
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 (Emphasis added)
Immediately upon 211-1’s issuance a firestorm ensued. Many interpreted 211-1 as warning law-school administrators, “If you want accreditation you better do whatever it takes to attain diversity. And no hiding behind the law.” The insouciance conveyed by the use of the word “purports” suggested that the ABA was putting itself above, e.g., the people of the state of California, who passed Proposition 209, as well as the Supreme Court. A number of think tanks, professors, and others petitioned the Department of Education to review the new Standard. (Disclosure: Although I believe the ABA was well-intended, I was among five members of the U.S. Commission on Civil Rights who sent letters of concern in our personal capacities.).
In early June the ABA clarified 211-1 by adding the following sentence:
A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment required by Standard 211 by means other than those prohibited by the applicable constitutional or statutory provisions.
The ABA maintains that the latest revision doesn’t require law schools to use race or ethnicity in admissions nor does it require that law schools violate federal or state laws prohibiting the consideration of race or ethnicity. A superficial reading supports such contention. After all, interpretation 211-2 states that law schools may use race and ethnicity in admissions, not that they shall. And revised 211-1 seems to direct schools in jurisdictions that prohibit racial discrimination in admissions to use methods other than preferences to achieve diversity.
Testifying before the U.S. Commission on Civil Rights last month, however, Professor David Bernstein of George Mason University Law School dissected the revisions to reveal that the standards remain, at best, inconsistent with the requirements for lawful racial preferences established by the Supreme Court in Grutter v. Bollinger:
Standard 211 requires law schools to take concrete action to demonstrate a commitment to having a diverse student body. Interpretation 211-2 dictates this be done through a school’s admissions policies and practices. Interpretation 211-3 states that the ABA will measure whether a law school has satisfied its diversity obligation by the totality of the law school’s actions and “the results achieved.”
There are at least two problems with the Standard.
First, it violates Grutter by taking away from the law school the discretion to determine whether diversity is essential to its mission. Under Grutter, the Supreme Court will defer to a law school’s judgment in this regard; i.e., the Court gives the school a presumption of good faith in defining its mission.
Standard 211, however, completely overrides the school’s discretion in determining whether diversity is essential to its mission. Instead, the ABA mechanically imposes diversity (more accurately, the ABA’s narrow definition of diversity) upon every school’s mission, regardless of an individual finding of pedagogical need. This destroys the presumption of good faith critical to the legality of a school’s racial preference program. Without the element of good faith, such programs devolve into raw racial balancing and don’t survive strict scrutiny.
Second, the Standard provides no safe harbor. Since the Standard measures a school’s compliance by results achieved, the only way a school can satisfy 211 practically is by using massive preferences. As noted in a previous column, Professor Richard Sander has demonstrated that schools can’t fill their diversity seats unless they employ racial preferences so heavily weighted that they violate the Supreme Court’s standards in Grutter and Gratz v. Bollinger.
Professor Bernstein also underscores the Catch-22 of Standard 501 (b), mandating that schools not admit applicants who don’t appear able to graduate and pass the bar, and proposed Interpretation 501 (2) that requires a law school’s admissions policies be consistent with a commitment to diversity. Professor Bernstein points out the obvious: About half of all black matriculants to law school never become lawyers. Law schools, therefore, must be lowering admissions criteria — contrary to 501 (b) — in order to admit black students for reasons of diversity.
Professor Bernstein wryly notes that “it’s not only okay, but actually required to admit students whom you know are likely to fail — but only if they are black students.” Professor Bernstein further maintains that “if the ABA was composed of hardcore racists they could not come up with a more pernicious plan.”
It should be noted that at the commission hearing the ABA appeared very receptive to a number of suggested amendments to the new Standard. The new Standard and Interpretations become effective in August.
– Peter Kirsanow is a member of the National Labor Relations Board. He is also is a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the positions of either organization.