PRINCETON, NJ – The National Association of Scholars (NAS) on August 25 reaffirmed its objections to continued recognition by the U. S. Department of Education of the American Bar Association (ABA) as an accreditor of law schools. The objections are based on the ABA’s recent changes to their accreditation standards, particularly Standard 211, which would pressure law schools to implement gender, racial, and ethnic preferences in admissions requirements. [The objections were outlined in a letter send by NAS president Stephen H. Balch and Gail Heriot, chair of the NAS section on law, to the Department of Education.]
The revised accreditation standards considered earlier this year by the ABA required that law schools implement diversity requirements for admissions and hiring. Faced with protests by the NAS and other organizations that these revisions would, among other things, compel some law schools to violate the non-discrimination provisions of the constitutions of the states in which they were located, the ABA modified the wording to read, “A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment required by Standard 211 by means other than those prohibited by applicable constitutional or statutory provisions.” The American Bar Association House of Delegates ratified this revised proposal on August 8, 2006 at its meeting in Honolulu, Hawaii.
The NAS does not believe that these changes meet its original objections. The new sentence appears to be directed at assuring the public that the new Standards do not require the use of racial and ethnic preferences. But the Interpretation as it is currently drafted cannot be reconciled with the new Standards’ insistence that law schools will be judged in part by “the results achieved” (Interpretation 211-3) and with the ABA’s amicus curiae brief in Grutter v. Bollinger, in which is insisted that racial preferences are necessary to achieving diversity on law school campuses. Moreover, it contains a pregnant negative: If racial preferences are not required in states that have constitutional or statutory provisions prohibiting such preferences, does that mean that they are required elsewhere? What about the federal laws that place limitations on the use of preferences (including the Grutter decision itself)? The Standards as currently drafted suggest that outside of a few states with special laws, preferences can be employed freely.
In Grutter, the Supreme Court held that, as an academic institution, the University of Michigan Law School was entitled to deference on the issue of whether “diversity” ought to be considered a compelling purpose in connection with its academic program. It is thus a case about academic freedom. The ABA, however, is not an academic institution and is entitled to no such deference. Its actions are not designed to enhance the freedom of colleges and universities to decide for themselves what level of diversity is appropriate for their academic programs, but to limit that freedom. Given that its actions carry the imprimatur of the Department of Education, those actions will be subject to strict scrutiny – scrutiny that we do not believe they will survive.
We continue to believe that unless the ABA eliminates all requirements of racial, ethnic and gender diversity from its accreditation standards, it would be inappropriate for the Department of Education to renew recognition.
Dr. Stephen Balch is the president of NAS and Gail Heriot is the Chair of the NAS Section on Law.