CONSTITUTIONAL OPINIONS: Don't Pass This Bar
Hillyer, Quin
CONSTITUTIONAL OPINIONS Don't Pass This Bar The Department of Education smacks down the ABA. p RESIDENT GEORGE W. BUSH'S Department of Education has sent a subtle but clear message,...
...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...
...In response to the ABA committee's overtly political agenda, four concerned groups-the Center for Individual Rights, the Center for Equal Opportunity, the American Civil Rights Institute, and the National Association of Scholars (NAS)--plus five members of the U.S...
...Commission on Civil Rights, wrote letters to the Department of Education challenging the ABA's proposed new standard...
...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...
...As the Court wrote way back in the Bakke case in 1978, "there are serious problems of justice connected with the idea of preference itself...
...Instead, regardless of any record of discrimination, the schools are newly charged with showing "a commitment to haviflg a student body that is diverse with respect to race, gender, and ethnicity...
...The word "qualified" was specifically excised from the previous version of the standard...
...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...
...As well it should...
...In response to the ABA's race -based power play, the Department of Education has put off renewal of recognizing the ABA as an official accrediting body from June until December...
...The department was to consider the renewal this month, before the ABA's House of Delegates meets in August...
...So far, the department isn't succumbing to the ABA's discriminatory power grab...
...Quite the contrary: Recent empirical evidence demonstrates that, contrary to what had been assumed, racially discriminatory admissions policies may actually decrease the number of minority attorneys who pass the bar rather than increase that number...
...So what the ABA would require law schools to do is something they are in factprohibitedfrom doing absent a particularly compelling interest in diversity--an interest which the high court says is nearing the end of its "reasonable durational limits...
...The standards won't become official until the ABA's House of Delegates approves them at its August meeting...
...Significantly, the NAS letter, written by NAS President Stephen Balch and by University of San Diego Law Professor Gall Heriot, chair of the group's Section on Law, dismantles the notion that opposition to racial preferences somehow equates to opposition to minority advancement...
...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...
...Finally, the clincher: "The requirement of a constitutional provision or statute that purports to pro48 THE AMERICAN SPECTATOR JULY/AUGUST 2006 QUIN HILLYER hibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justifcation for a school's non-compliance with Standard 211...
...At issue is ABA accreditation Standard 211, which seeks to ensure "equal opportunity" in law school admissions and faculty hiring...
...This is significant...
...What the clause means is that in deciding whether a law school merits accreditation, the ABA--a private organization--will consider its own, newly promulgated diversity requirement to actually trump all (federal and particularly state) constitutional provisions and statutes to the contrary...
...The postponement serves notice to the House of Delegates that it should probably refuse to approve the changes in the standard proposed by its own council, lest its activism imperil its own gate-keeping power...
...In an April 5, 2006, letter to the ABA, the Department of Education's accreditation division scolded the ABA for "fail[ure] to provide notice" of its proposed changes and noted that the changes have drawn official protest from outside groups on the grounds that they mayviolate "federal and state antidiscrimination provisions...
...Racial preferences--in contradistinction to "constitutional provision[s] or statute[s]," without regard to whether a candidate is "qualified"-are discriminatory on their face...
...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...
...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...
...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's clear is that their bar passage rate is lower than the bar passage rate of their similarly credentialed peer group at less competitive law schools...
...As Bernstein points out, any pretense otherwise is blown out of the water byaletter from a"coalition of leftwing advocacy groups" to the Department of Education in defense of the proposed standards...
...The reason is simple: Minority students who are preferentially admitted to elite law schools frequently do poorly there, while their similarly credentialed peers at less competitive law schools perform significantly better at their schools...
...The result maywell be that racially preferential policies actually reduce the number of minority students who pass the bar...
...Quin Hillyer is executive editor of The American Spectator...
...In short, even though the voters in the states of California and Washington, for instance, have specifically barred, by statewide constitutional initiatives, the use of race-based preferences in school admissions, this private cartel known as the ABA would somehow assume the power to "supersede" those state laws...
...Supreme Court reaffirmed that "all racial classifications imposed by government" are presumptively invalidunless "they are narrowly tailored to further compelling governmental interests...
...JULY/AUGUST 2006 THE AMERICAN SPECTATOR 49...
...T HE ABA'S PROPOSED CHANGES FLY in the face of both Grutter and its companion case, Gratz v. Bollin9er, in which the U.S...
...Through its power of accreditation, the ABA's Council of the Section of Legal Education and Admissions to the Bar (what a mouthful9 effectively makes itself the gatekeeper for a career in law...
...Perhaps these "misplaced" minority law students end up frustrated and alienated as they are forced to compete with their better-credentialed fellow students at schools where the skills and knowledge necessary for bar passage are not usually emphasized...
...As it was put by Roger Clegg of the Center for Equal Opportunity, "For such discrimination to take place with the imprimatur of the United States Department of Education would be especially unacceptable...
...The new requirements are to be adjudged based not only on demonstrable effort to achieve diversity, but also on "the results achieved...
...It stinks to high heaven...
...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...
...Also dropped is the explanation that the requirement is aimed at those groups "which have been victims of discrimination in various forms...
...In that letter, the groups such as the People for the American Way and the Americans for Democratic Action explicitly claim that "as in the case with federal statutes and executive orders, such provisions supersede state laws and constitutions...
...p RESIDENT GEORGE W. BUSH'S Department of Education has sent a subtle but clear message, awelldeserved one, to that liberal pressure group and overly self-important lawyers' cartel known as the American Bar Association...
...For reasons both legal and practical, then, the Department of Education's decision to postpone renewal of the AB/Vs accreditation power is wise...
...If it stands firm and makes the ABA desist, the department will provide a real, yes, education in the value of right reason...
...He's right...
...Of that last clause, George Mason University Law Professor David Bernstein wrote on the legal blog"The Volokh Conspiracy": "The chutzpah, the absurdity, the audacity of this argument simply floors me...
Vol. 39 • July 2006 • No. 6
