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American Bar Association’s affirmative action proposal troubling
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The American Bar Association may well be the nation's largest professional organization for lawyers. But, unfortunately, a recent proposal by the group suggests it may not have the best interests of our nation's law schools in mind.
In February, the ABA's Council of the Section on Legal Education adopted Standard 211, a proposal that creates diversity requirements for law schools as a condition for continued accreditation by the organization. The proposal and the quandary it would create for law schools was first brought to light earlier this year by David Bernstein, a law professor at George Mason University. Others have since joined the debate.
Standard 211 states that a law school "shall demonstrate or have carried out and maintained, by concrete action, a commitment to providing full opportunities for the study of law and entry into the profession by qualified members of groups, notably racial and ethnic minorities … " In the next sentence, the proposal clearly states that this "concrete action" should occur in the admissions process, among other areas.
Unlike the Supreme Court's decision in Grutter v. Bollinger, which held that law schools may consider diversity in the admissions process through an "individualized inquiry" of each applicant, it seems the proposal put forth by the ABA would require law schools to consider the race of an applicant in an effort to achieve diversity.
While the legality of the proposal has been questioned by scholars such as Mr. Bernstein and others for a myriad of reasons, other important questions must also be answered.
More specifically, is Standard 211 the appropriate means to achieving diversity in our nation's law schools? And should the ABA be forcing law schools to consider racial diversity in the admissions process as a criterion for maintaining accreditation?
While the ABA has long been a supporter of diversity in our nation's law schools, there is also evidence to suggest that affirmative action actually does more harm than good to racial minorities. Two years ago, Professor Richard Sander, a self-disclosed Democrat and advocate of racial diversity, penned in the Stanford Law Review a widely-cited study analyzing the effects racial preference programs have on minority law students.
The data, compiled almost exclusively from the Law School Admissions Council, seems to suggest that affirmative action, contrary to popular belief, negatively affects racial minorities. For example, in Tier 1 schools, only eight percent of blacks were in the top half of their law school class. Conversely, almost 60 percent of whites were in this same bracket. Mr. Sander argues that the disparity between races can be attributed to the use of racial preferences by admissions committees to admit applicants who are not as qualified as the majority of the entering class.
And these results are found to have significant ramifications. Affirmative action often has the effect of placing less qualified black students in more competitive law schools where they tend to be at the bottom of their class and suffer from high attrition rates. However, if they had attended less competitive law schools, they would have received more competitive grades. In turn, these low grades affect racial minorities by significantly decreasing their job prospects compared to their white peers, as law school GPA rather than school prestige seems to matter most to employers.
While the merits of the aforementioned study can be debated, the mere existence of these findings — which have been discussed extensively among the academic community — suggests the ABA should not be so hasty to adopt Standard 211.
Indeed, the "concrete action" required by the proposed standard deserves more dialogue. The contention surrounding affirmative action and racial preferences existed thirty years ago, and the debate won't be settled anytime soon. As such, the ABA needs to ask itself whether this particular response to a more complex issue is worth the potential ramifications that could result from the standard's passage.
Another question that deserves serious discussion is whether the ABA should attach this diversity requirement to a law school's accreditation. Most states require that individuals must graduate from an ABA-accredited university before they can sit for the bar exam. However, if law schools chose to ignore the standards set by the ABA, they risk losing their accreditation.
Given the pressing need to maintain accreditation by the ABA, there is a strong incentive — however willing or reluctant a law school may be — to follow the diversity standard. However, to what extent should law schools be forced to relinquish the principles of academic freedom to comply with a potentially coercive standard?
In University of California Regents v. Bakke, an affirmative action case addressed by the high court over thirty years ago, Justice Powell reasoned that academic freedom allowed an institution of higher education "to make its own judgments as to … the selection of its student body." And this deference to the diversity plan of an individual institution was also accepted in Grutter. But the ABA's proposed standard does nothing more than obliterate this deference, neglecting academic freedom in the process.
Numerous questions have been raised about the passage of Standard 211, and now is the time for the ABA and the legal community to address them — not after the proposal passes in August.
Darryn Beckstrom (beckstrom@badgerherald.com) is a doctoral student in the department of political science and a second-year MPA candidate in the La Follette School of Public Affairs.
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When exactly did "diversity" become a dirty word? When political elites realized that now minorities could marry their daughters, move into their gated communities, and be their bosses?
If anything, the ABA should be congratulated for allowing law students to see something besides the "sea of white" that is so often associated with the legal profession.
To what extent should law schools be forced to relinquish the principles of academic freedom to comply with a potentially coercive standard?
Excellent Question - The answer lies within the flawed process within the current selection for admissions into law school.
What MCRI will now expose (regardless of passage) is the business process that was defined nearly thirty (30) years when ETS and the Law School Admissions Council parted ways and the Law School Admissions Service organization undertook the responsibility of coordinating all activities associated with the selection process which included both the academic success of each candidate once in law school and their financial success upon graduation.
What you have now touched upon is the business behind the business of the candidate selection process into law school. The ABA has been dealing from the bottom of the deck, forcing One United Michigan to do their leg work in presenting opinions for passage of MCRI.
But what the ABA failed to take into account is that the Honorable John Ashcroft and Alberto Gonzales of the US Attorney Generals Office, the Honorable Gregg Abbott of the Texas State Attorney Generals office and a member of the Texas State House of Representatives have sought out the author who's book includes the complete and detailed proposal that would now resolve university admissions for law school and with modifications can be applied to medical school and undergraduate selections for our high school seniors should this nation choose to build the format.
The Case number assigned by the Department Of Justice is DJ 169-73-0 in a letter received by the author dated April 5th 2005.
We have been played as fools by the ABA !!
Ricky Sanders is absolutely right !! The fabrication of failed selections by the ABA and each law school selection committee has never been addressed.
The best thing that could have happened to this country is MCRI !!
It will now force the research, exposing the corruption of the ABA and past awards of law seats, thus presenting a resolve and with the DOJ having a complete and detailed model, they will now solve this problem in no time flat.
The old folks knew of way in addressing this very issue that has now become the forefront of discussions within this nation.
Our goal at LSAS/LSAC was simple: Ensure that all cultures would have complete representation (affordable) within the legal system, without the sacrifice of the earned GPA, no human bias attached within the selection process and guarantee of their financial success of each young attorney into the profession of law.
Once again, Beckstrom is missing the point. First of all, affirmative action does not imply admitting unqualified people. She would know this if she read the line that she herself quoted: "a commitment to providing full opportunities for the study of law and entry into the profession by QUALIFIED members of groups, notably racial and ethnic minorities" (my emphasis). More importantly, Beckstrom, "what is your beef with a diverse student body?!"
So a black student with a 3.0 is more QUALIFIED than a white student with a 3.9? Affirmative action is garbage.
The percentage of qualified black applicants to law schools is significantly lower than the percentage of blacks in the general public. Therefore, there shouldn't be a quota on the number of blacks a law school should admit. Race should be completely omitted from all types of applications for schools, jobs, etc. Then we wouldn't have this problem, the best applicants would always get in whether they are black, white, Asian, Latino, Native American, etc.
Also, a black student finishing in the bottom half of his/her law school class has just as good job prospects as he would otherwise, since employers are required to adhere to affirmative action standards as well. Therefore, a black student who finishes in the middle of his law school class is just as likely to get a job as a white student who finishes in the top 20%. And that simply isn't fair.
But white people have put us in this quandary, which wouldn't even exist if the white settlers weren't dumb enough to bring slaves over.
I have had the pleasure of meeting Prof. Rick Sander and I was deeply impressed by his ability to examine the issue of racial preferences in law school admissions objectively in spite of his lifelong commitment to racial preferences and other remedial forms of 'race sensitivity'.
During our meeting we discussed an important possible followup to his study: the very short tenure of black lawyers at the law firms who actively recruit them. I told Rick that I have been told by more than one major law firm here in DC that virtually none of their black recruits stay around long enough to be considered for the partner track. Rick concurred that he had received similar feedback. I believe this phenomenon surely is closely related to the factors (race-sensitive admissions policies) Sander identified in his study which set black law students up for failure.
Having said all of that, I remain deeply troubled by policies such as the ABA's standard 211. I firmly believe that equal opportunity is NOT the same as proportional representation. Standard 211 is all about proportional representation by group membership (ethnicity and race, mostly) and have very little to do with equal opportunity.
I appreciate Mr. Silvi's reference above to the Michigan Civil Rights Initiative. If passed by a majority of Michiganders, the initiative will require Michigan to treat all of its citizens equally under the law without regard to their race or ethnicity. Eureka! What could be more fair and equitable?