Affirmative Blackmail

David E. Bernstein, OpinionJournal, Feb. 15, 2006

According to its mission statement, a primary goal of the American Bar Association is to “promote respect for the law.” In the interest of mandating racial preferences in admissions, however, the ABA has just ordered law schools to do the opposite—in fact, to violate the law—and is resorting to blackmail to achieve its end.

Meeting in Chicago this past weekend, the ABA’s Council of the Section on Legal Education and Admissions to the Bar voted in favor of “equal opportunity and diversity” standards. Under these standards, any law school that seeks to maintain or acquire ABA accreditation will be required to engage in racial preferences in hiring and admissions, regardless of any federal, state or local laws that prohibit of such policies. Since only graduates of ABA-accredited schools may take the bar exam in the vast majority of states, the association has, in effect, a legal monopoly on accreditation standards.

The new Standard 211, styled “Equal Opportunity and Diversity,” will govern admissions and faculty hiring policies. It says nothing about treating people from different groups equally, and lots about “diversity”—a code word for affirmative action preferences. “Consistent with sound legal education policy and the Standards,” part (a) says that a law school must provide “full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities,” and it must also commit “to having a student body that is diverse with respect to gender, race and ethnicity.”

Part (b) says, “Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity.”

This sounds innocuous, since law schools can reasonably differ on what constitutes “sound legal education policy.” Some might think that the educational benefits of a racially heterogeneous student body justify significant racial preferences; others might give more weight to data showing significant educational costs resulting from preferences.

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That will not be possible, according to the “interpretations” of Standard 211, which have “equal weight” to the rules themselves. Interpretation 211-1 states that “the requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 211.”

Racial preferences will thus generally be necessary to comply with Standard 211—despite the fact that several states, including California and Florida, ban race as a factor in law school admissions or hiring or both. Equally outrageous is Interpretation 211-2, which states that, “consistent with the Supreme Court’s decision in Grutter v. Bollinger, a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity.” This is a complete misstatement of the law, and the attorneys who wrote this are either incompetent or, more likely, intentionally dissembling.

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