June 23, 2006

ABA’s Arrogance Comes Home to Roost

The Justice Department asked a federal court today to hold the American Bar Association in contempt for violating various provisions of a 1996 consent decree that prohibited the ABA from misusing the law school accreditation process. Although I don’t have any more information than what’s contained in a DOJ press release, that’s enough to make me wonder whether the ABA may have finally gone too far in pushing its diversity agenda. Let me explain.

Earlier this year, the ABA council charged with accrediting law schools amended its standard on diversity to virtually require that law schools engage in racial preferences in hiring and admissions. Professor David Bernstein has a good article on the changes, but it’s worth repeating the most arrogant provision. A binding interpretation of the amended standard 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 [the diversity standard]." In other words, the ABA is saying to schools in states that ban racial preferences – most famously California and Florida – “don’t give us that ‘but it’s against the law’ excuse.”

Critics of racial preferences have called attention to the ABA’s new diversity standard, and folks at DOJ may have been listening. Today’s DOJ press release explains that the ABA violated six provisions of the consent decree, including one that requires the ABA to “provide proposed changes to accreditation standards to the United States for review before such changes are acted on by the ABA's [accrediting council].” I don’t know whether the new diversity standard is among those the ABA failed to submit for review. But I’m willing to bet that, at very least, the controversy over the standard caused folks at DOJ to take a closer look at the ABA’s accreditation standards in general. And when you take a closer look, you never know what violations you might find.

Hat tip to Daniel Freedman for the DOJ press release.

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