The ABA’s ‘Diversity’ Diktat

Gail Heriot, Wall Street Journal, April 28, 2008

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[George Mason University’s law school’s] problems began in early 2000, when the American Bar Association visited the law school, which has a somewhat conservative reputation, for its routine reaccreditation inspection. The site evaluation team was unhappy that only 6.5% of entering students were minorities.

Outreach was not the problem; even the site evaluation report (obtained as a result of Freedom of Information Act requests) conceded that GMU had a “very active effort to recruit minorities.” But the school, the report noted, had been “unwilling to engage in any significant preferential affirmative action admissions program.” Since most law schools were willing to admit minority students with dramatically lower entering academic credentials, GMU was at a recruitment disadvantage. The site evaluation report noted its “serious concerns” with the school’s policy.

Over the next few years, the ABA repeatedly refused to renew GMU’s accreditation, citing its lack of a “significant preferential affirmative action program” and supposed lack of diversity. The school stepped up its already-extensive recruitment efforts, but was forced to back away from its opposition to significant preferential treatment. It was thus able to raise the proportion of minorities in its entering class to 10.98% in 2001 and 16.16% in 2002.

Not good enough. In 2003, the ABA summoned the university’s president and law school dean to appear before it personally, threatening to revoke the institution’s accreditation.

GMU responded by further lowering minority admissions standards. It also increased spending on outreach, appointed an assistant dean to serve as minority coordinator, and established an outside “Minority Recruitment Council.” As a result, 17.3% of its entering students were minority members in 2003 and 19% in 2004.

Not good enough. “Of the 99 minority students in 2003,” the ABA complained, “only 23 were African American; of 111 minority students in 2004, the number of African Americans held at 23.” It didn’t seem to matter that 63 African Americans had been offered admission, or that many students admitted with lower academic credentials would end up incurring heavy debt but never graduate and pass the bar.

GMU’s case is not unique. In a study conducted several years ago, 31% of law school respondents admitted to political scientists Susan Welch and John Gruhl that they “felt pressure” “to take race into account in making admissions decisions” from “accreditation agencies.” Several schools, like GMU, have been put through the diversity wringer.

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As the Education Department’s designated law school accreditor, the council decides whether a law school’s students will be eligible for federal loans. As state accreditor, it decides which schools’ graduates may sit for the bar examination. It is thus part of the governing bureaucracy—the kind of institution academic freedom is supposed to protect universities from.

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So now it is up to the Education Department to bring the ABA to heel. In 2006, when the ABA’s status as accreditor was itself up for renewal, opposition came from many quarters on many grounds. Surprised, the Education Department put the ABA on a short leash, giving it only 18 months before its next renewal, and requiring it to submit its official correspondence for inspection.

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