The ABA's 'Diversity' Diktat

September 2008

If you have ever wondered why colleges and universities seem to march in lockstep on controversial issues like affirmative action, here is one reason: Overly politicized accrediting agencies often demand it.

Given that federal funding hinges on accreditation, schools are not in a position to argue. That is precisely why the U.S. Department of Education, which gives accreditors their authority, must sometimes take corrective action. George Mason University's law school in northern Virginia is an example of why corrective action is needed now.

GMU'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.

The GMU law school was finally notified of its reaccreditation in 2006, after six long and unnecessary years of abuse – just in time for the next round in the seven-year reaccreditation process. Even then, the ABA could not resist an ominous warning that it would pay "particular attention" to GMU's diversity efforts in the upcoming cycle.

Perhaps the ABA believes that the Supreme Court's 2003 decision in Grutter v. Bollinger allows it to force law schools into affirmative action orthodoxy. If so, it is mistaken. In Grutter, a razor-thin majority held that the Constitution permitted the University of Michigan Law School to discriminate against whites and Asians to obtain a racially diverse class.

That decision, however, was rooted in the notion that "universities occupy a special niche in our constitutional tradition." In the majority's view, universities are not subject to the same equal-protection standards as other governmental entities; they are instead entitled to deference in their academic judgments. As Justice Sandra Day O'Connor put it, “[t]he freedom of a university to make its own judgments . . . includes the selection of its student body.”

Whatever the merit of this reasoning, the ABA is not a university, and its Council of the Section of Legal Education and Admissions to the Bar is not entitled to academic deference.

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.

That's why the U.S. Commission on Civil Rights recommended that the ABA leave issues of diversity to individual law schools. If academic freedom confers upon law schools the right to discriminate, it must also confer a right not to discriminate. Unfortunately, the ABA has instead put into effect more stringent diversity standards.

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.

It is now time to find permanent solutions to the problems of ABA abuse. Foremost on the Education Department's list should be to get the ABA out of the diversity business. It is one thing for a law school to adopt its own discriminatory admissions policies; it is quite another to force it to do so on pain of losing federal funding.

Ms. Heriot is a member of the U.S. Commission on Civil Rights and a law professor at the University of San Diego. In the 1990s, she was employed at GMU for one year, but had no involvement with the issues in this commentary.