Don't Pass This Bar

By Hillyer, Quin | The American Spectator, July/August 2006 | Go to article overview

Don't Pass This Bar


Hillyer, Quin, The American Spectator


The Department of Education smacks down the ABA.

PRESIDENT GEORGE W. BUSH'S Department of Education has sent a subtle hut clear message, a well-deserved one, to that liberal pressure group and overly self-important lawyers' cartel known as the American Bar Association.

The ABA is, or at least was, poised to adopt, in August of this year, rules changes that effectively threaten certain law schools with lack of official accreditation unless the schools violate their own, anti-discriminatory state laws concerning affirmative action-not to mention arguably violating the Constitution and various federal statutes as well.

What the ABA quite clearly seeks is to force law schools to use race-conscious admissions and hiring practices to increase the number of minorities, even if it means an end-run against applicable statutes and court decisions. It stinks to high heaven.

In response to the AB As race-based power play, the Department of Education has put off renewal of recognizingthe ABA as an official accrediting body from June until December. This is significant. Through its power of accreditation, the ABA's Council of the section of Legal Education and Admissions to the Bar (what a mouthful!) effectively makes itself the gatekeeper for a career in law. Also, a large amount of federal funding, especially student financial assistance under Title IV of the Higher Education Act of 1965, is tied to a school's official accreditation. But the ABA's accreditation power is itself dependent on the Department of Education's approval: If the department doesn't recognize the ABA council as the accrediting body for law schools, the ABA's cartel is broken.

In an April 5,2006, letter to the ABA, the Department of Education's accreditation division scolded the ABA for "failfure] to provide notice" of its proposed changes and noted that the changes have drawn official protest from outside groups on the grounds that they may violate "federal and state antidiscrimination provisions."

At issue is ABA accreditation Standard 211, which seeks to ensure "equal opportunity" in law school admissions and faculty hiring. In February, the ABA council voted to adopt multiple changes to that standard (and to its official interpretations thereof, which carry the same binding weight as the standards). The standards won't become official until the ABAs House of Delegates approves them at its August meeting. Among the changes:

In the requirement to take "concrete action" to admit members of "racial and ethnic minorities," no longer must those minority candidates be "qualified." (The word "qualified" was specifically excised from the previous version of the standard.)

Also dropped is the explanation that the requirement is aimed at those groups "which have been victims of discrimination in various forms." Instead, regardless of any record of discrimination, the schools are newly charged with showing "a commitment to having a student body that is diverse with respect to race, gender, and ethnicity." The new requirements are to be adjudged based not only on demonstrable effort to achieve diversity, but also on "the results achieved."

Despite the ruling in the 2003 Supreme Court case of Grutter v. Bollinger to the effect that some affirmative action racial preferences are allowable, specifically at the educational discretion of the law schools and the states that govern them, the revised Standard 211 would say not that the schools "may" take actions toward achieving diversity, but that they "shall take concrete actions to enroll a diverse student body that promotes cross-cultural understanding, helps break down racial and ethnic stereotypes," et cetera-regardless of the institution's own educational judgments. (Whereas the Court reaffirmed in Grutter that '"good faith' on the part of a university is 'presumed' absent 'a showing to the contrary,'" now the schools are presumed by the ABA to be deficient unless the "totality" of the "results achieved" are ensured through "concrete action" that the schools "shall" take. …

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