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The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald

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American Bar Association’s affirmative action proposal troubling

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.

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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 ([email protected]) 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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