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ABA Diversity Standards and Role in Law School Accreditation Questioned

The National Law Journal reports:

Two government agencies have taken aim at the ABA accreditation process, which the U.S. Department of Education relies on to determine whether law schools are eligible for certain federal programs. The ABA says its standards are in line with the law and with standards used by other accreditors.

At issue are 2006 amendments to the diversity standards set for law schools by the ABA accreditation arm, the Council of the Section of Legal Education and Admissions to the Bar. The changes came in response to the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger, which held that law schools could consider race in admissions but could not use quotas to achieve diversity. The ABA amended rule says law schools “shall demonstrate by concrete action” a commitment to achieving diverse student bodies, staff, and faculty. It also informs law schools, for the first time since the rule was originally adopted in 1980, that they may use race and ethnicity in admissions processes to promote diversity, consistent with Grutter. The rules stipulate that the ABA will evaluate schools based on the results of their diversity efforts.

Critics complain that the results-oriented approach effectively forces schools to set quotas and use preferences to achieve them.

The ABA says that’s a misconception. The rule does not require law schools to consider race, but says that they may consider it. Nor does the rule require quotas: The ABA says its accreditation committe rejected an earlier proposed version of the rules that called for law schools to enroll a “critical mass” of students, fearing that it might be viewed as a quota requirement.

But even if you believe the ABA, what about California schools that are barred by Prop 209 from considering race?

The ABA says its rule takes those schools into consideration and advises them to demonstrate a commitment to diversity through other means, such as admissions outreach to minority-heavy campuses.

Let’s collect testimony on ABA site inspections before we believe that.

But all of this is part of a larger question. The ABA has transformed over the last 25 years or so from a nonpartisan professional association into a highly partisan public interest group:

With its lurch leftwards in recent decades, the American Bar Association can no longer plausibly claim to be a nonpartisan professional-services organization for lawyers. But even as it has degenerated into another liberal advocacy group, the ABA has trumpeted the imprimatur that its continuing privileged role in the judicial-confirmation process accords it. It’s time to put an end to that.

It’s time to put an end to the ABA role as a law school accreditation agency for the same set of reasons.