Civil Rights Commission Hearing on ABA "Diversity" Policy: Inside Higher Ed and the Chronicle of Higher Education (subscription only) are carrying stories about Friday's U.S. Commission on Civil Rights Hearing on proposed ABA Standard 211, which would in effect require law schools to use racial preferences in admission or risk their accreditation. Unfortunately, neither article is very good, and neither captures the essence of what was said,...According to Bernstein:
(3) Officially, the ABA maintains that not only will the new Standard not require law schools to engage in racial preferences, but that the ABA has never tried to pressure or force law schools to use such preferences in the past. The latter claim, as is well-known in the legal academy, is simply false. This may be the result of accreditation committee members going beyond the letter or even spirit of the law, but no one wants to butt heads with officials who hold an institution's accreditation in their hands.Having lived through a massive diveristy effort at the University of Maryland, College Park as an undergrad, I can tell you that diversity efforts do not produce anything more than a diverse entering class. There is not guarantee that diversity efforts, whether voluntary or not, produce a more diverse graduating class. This holds true, or perhaps even more true, in law school as well. Law school requires a certain attitude and preparation that frankly is not found in everyone, regardless of race. Those attending law school are a self-selected group to begin with and if the group that seeks to attend law school is devoid of minority representation, how then should schools proceed?
(4) Various commissioners focused on the fact that the proposed standard's official "interpretations" requires the ABA to consider not just law school diversity recruiting efforts, but also results. The ABA representative (Dean Steven Smith) had no good answer when asked how--given the unfortunately small pool of "qualified" African American applicants available to elite schools--a results-based standard could be met without resort to preferences.
Let us assume that a state law school is coming up for accredidation review, let us say, the Vermont Law School. Assuming that most state law schools garner their entering class from in-state students (most but not all), and Vermont is not known for a racially diverse population, how then is Vermont Law School supposed to behave under these guidelines? Should they import students? A good idea, but what if the already self-selected pool of applicants decide they don't like cold weather and snow for most of the school year? Where does that leave the school if its application pool is bereft of minority applicants through a conspiracy of geography, local population and other factors beyond the control of the school? Should the ABA punish the school?
Admittedly, Vermont Law School is not likely to be listed in the top ten law schools anytime soon, but the problem with an initiative like that proposed by the ABA is that it places what a student is above who a student is and whether that student is prepared to enter law school.
I attended Catholic University Columbus School of Law. I think my class was pretty diverse, in terms of age, experience, ethnicity and the like. I think the school did a good job of selecting people for admission who were prepared for the rigors of law school, particularly evening division law school. I would like to think that those who were admitted were admitted for their talents and preparation, not for the color of their skin. However, I also know that I have my doubts about it. If this ABA rule were to become the norm, I would know that some people were admitted not because the school thought them adequate candidates, but that the school needed to fulfill some arbitrary rule imposed by the ABA to keep its accredidation. There is a vast difference between a suspicion that could be false or disproved and one that is guaranteed to be true.