Two accrediting organizations—the American Bar Association (ABA) and the National Council for Accreditation of Teacher Education (NCATE)—are each, for somewhat different reasons, the focus of debate about diversity.
The focus of the debate concerning the ABA concerns its proposed revision to Standard 211. That standard was first promulgated in 1997 under the title “Equal Opportunity Effort.” It would now be re-titled “Equal Opportunity and Diversity” and would read as follows:
“Consistent with sound legal education policy and the standards, 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, which have been victims of discrimination in various forms. This commitment typically includes a special concern for determining the potential of these applicants through the admissions process, special recruitment efforts, and a program that assists in meeting the unusual financial needs of many of these students, but a law school is not obligated to apply standards for the award of financial assistance different from those applied to other students.”
The standard is followed by an “Interpretation” which suggests nine “actions that can demonstrate a school’s commitment to providing equal opportunities for the study of law and entry into the profession by qualified members of groups that have been the victims of discrimination.” Such actions range from participating in job fairs and creating a more favorable law school environment for minority students to “developing and implementing specific plans designed to increase the number of minority faculty in tenure and tenure-track positions by applying a broader range of criteria than may customarily be applied in the employment and tenure of law teachers, consistent with maintaining standards of quality.”
Opponents of the proposed revision said that it purported to foster racial preferences in admission of students and hiring of faculty, even in states which have banned racial preferences (in public education, contracting and employment). Proponents stated that law schools “may” use race and ethnicity in the manner permitted by the U.S. Supreme Court in Grutter v. Bolinger, the 2003 case involving the University of Michigan School of Law. That case stated that the federal constitution permits, but does not require, affirmative action in university admissions.