In my last blog post, I drew attention to my Wall Street Journal op-ed, "Why Aren't There More Black Scientists? The Evidence Suggests the One Reason Is the Perverse Imapct of Racial Preferences," in which I urged Congress to put an end to efforts by accreditors to force colleges and universities to engage in race preferences (or in greater racial preferences than they would otherwise choose to). I particularly urged Lamar Alexander, Virginia Foxx and John Kline, the leaders in the re-authorization of the Higher Education Act, to action. The reason for my proposal is simple:  Race-preferential admissions policies do more harm than good, especially for their intended beneficiaries. (See Gail Heriot, "A Dubious Expediency: How Race-Preferential Admissions Policies on Campus Hurt Minority Students" (2015)).

I believe that the my legislative proposal administers a relatively light touch to the problem. No school would be prevented from engaging in race-preferential admissions if that’s what it wants to do. But schools that don’t wish to (or wish to do somewhat less of it) would be freed from the pressure currently being exerted by accreditors.

That initial blog post gave more detailed information than the op-ed on exactly how medical schools are bullied by their accreditor—the Liaison Committee on Medical Education (LCME)—into greater racial preferences. In this post, I concentrate on law schools.

Like LCME, the Council of the American Bar Association’s Section on Legal Education and Admissions to the Bar (ABA) requires law schools to demonstrate their commitment to diversity. Not long after Grutter v. Bollinger, 539 U.S. 306 (2003), the ABA ramped up its requirements for diversity, apparently in the mistaken belief that Grutter, empowered it to do so. These changes were a significant focus of discussion in a report by the U.S. Commission on Civil Rights. (See U.S. Commission on Civil Rights, "Affirmative Action in American Law Schools" at 90-137, 175-80 (2007)(“USCCR-AAALS Report”)).

In essence, the ABA enforces a “diversity cartel” among law schools, effectively insulating schools that give large preferences from competition on issues like bar passage rate with schools that would rather give smaller preferences or none at all.

The ABA is fully aware that the only way to comply with its standards is to give preferential treatment to students from under-represented minorities. In its amicus brief in Grutter, it told the Court that “[r]ace-[c]onscious [a]dmissions [a]re [e]ssential to [i]ncreasing [m]inority [r]epresentation in the [l]egal [s]ystem.” “[I]t is unquestionable,” the ABA wrote, “that the improvement in minority participation … has been achieved largely by the use of race-conscious admissions policies such as those under attack here.” Brief Amicus Curiae of the American Bar Association in Grutter v. Bollinger, No. 02-241 at 18-21 (filed February 19, 2003). Nine years later, it took the same position in its amicus curiae brief in Fisher I. Brief Amicus Curiae of the American Bar Association in Fisher v. Texas, No. 11-345 at 20-29 (filed August 13, 2012)(“Race-conscious admissions policies are essential to increasing minority representation in the legal profession”)(original in all capitals).

The ABA has not hesitated to overrule the educational judgment of the law schools it regulates. In 2006, for example, the Charleston School of Law unexpectedly failed to win accreditation from the ABA after a favorable recommendation from its Accreditation Committee. According to news reports, the ABA’s concerns focused in part on race. See James T. Hammond, Charleston School of Law: Fails to Win Accreditation So Students Can Take Bar, The State (Columbia, S.C.) (July 12, 2006). Final accreditation was not awarded until the dean had declared that “[w]hatever we have to do [to win accreditation], we’ll do it” and a new director of diversity was publicly announced. Id.; College Notes: Charleston Law Taps Diversity Director, The State (Columbia, S.C.) B3 (August 13, 2006). See also David Barnhizer, "A Chilling Discourse," 50 St. Louis L. J. 361 (2006) (describing ABA influence on faculty diversity-hiring).

The case of George Mason University School of Law is particularly troubling. Its story began with the ABA’s site evaluation team visit in 2000. The site-evaluation team was unhappy that only 6.5 percent of entering day students and 9.5 percent of entering evening students were minorities. (USCCR-AAALS Report at 181)).

Nobody could argue that GMU’s problem was lack of outreach. Even the site evaluation report conceded that GMU had a “very active effort to recruit minorities.” Indeed, it described those efforts at length. It noted, however, that GMU 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 academic credentials, GMU was at a recruitment disadvantage. (Id. at 182.)

GMU’s faculty members did not all have the same views on affirmative action. Some members considered even small admissions preferences to be morally repugnant; others believed they would hurt rather than help their intended beneficiaries. But some were willing to put a slight thumb on the scale in favor of African Americans and Hispanics. What set GMU apart from many laws schools was that a strong majority opposed the overwhelming preferential treatment commonly practiced elsewhere. The site-evaluation report noted its “serious concerns” with GMU’s policy. Id.

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. Back and forth the negotiations went. Although GMU could and did step up its already-extensive recruitment efforts, it 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 percent in 2001 and 16.16 percent in 2002. Id. at 183.

None of this was enough. The ABA didn’t want slow, deliberate movement in its direction; it wanted utter capitulation. Shortly after the Court’s decision in Grutter, an emboldened ABA summoned the GMU president and the law school dean to appear before it personally and threatened the institution with revocation of its accreditation on account of its alleged diversity problem. GMU responded by further lowering minority admissions standards and expanding resources devoted to diversity, all in hopes of soothing the ABA’s wrath. As a result, 17.3 percent of its entering students were minority members in 2003 and 19 percent in 2004. USCCR-AAALS Report at 183.

Still the ABA was not satisfied. This time their focus was on African-American students specifically. “Of the 99 minority students in 2003, only 23 were African-American; of 111 minority students in 2004, the number of African Americans held at 23,” the ABA complained. It didn’t seem to matter that sixty-three African Americans had been offered admission or that the only way to admit more was to lower admissions standards to alarming levels. It didn’t even matter that many students admitted under those circumstances would incur heavy debt, but never graduate and pass the bar. GMU’s skepticism about racial preferences was heresy, and the ABA was determined to stamp it out. Id. at 184.

GMU finally got its re-accreditation after six long years of abuse—just in time for the next round in the seven-year re-accreditation process. Id. Sure enough, the ABA’s 2007 site evaluation team report again raised concerns that GMU was not in compliance with ABA diversity standards.

Meanwhile, an important question was not being asked: What happened to the minority students who were admitted in the first round against the GMU’s faculty’s better judgment? The ABA was apparently not so interested in that. The ABA was not making an educational judgment about pedagogy; it was preening itself in an effort to show its highly superficial concern for social justice.

But GMU’s dean, Daniel D. Polsby, was very interested in the fate of his students. In a letter dated January 3, 2008 to Hulet H. Askew, the ABA Consultant on Legal Education (the “Polsby Letter”), responding to the ABA’s 2007 site evaluation report, Dean Polsby patiently explained the damage inflicted by the ABA’s enforcement of diversity standards.

As the ABA failed to recognize, when students attend a school at which their entering academic credentials are well below those of their peers, they will usually earn grades to match. During the period from 2003 to 2005, while GMU was under pressure to increase its racial diversity, African-American students experienced dramatically higher rates of academic failure (defined in GMU’s academic rules as a GPA below 2.15). Fully 45% of African-American law students at GMU experienced academic failure as opposed to only 4% of students of other races.

Dean Polsby put the problem plainly: “We have an obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail.” Polsby Letter at 14.

Part of the tragedy, of course, is that the empirical evidence (as explained in my above-mentioned article, "A Dubious Expediency: How Race-Preferential Admissions Policies on Campus Hurt Minority Students") indicates that many of these students would have stood a greater chance at success in their goal of becoming lawyers if they had attended a law school at which their entering academic credentials had been more like the median student’s. But the ABA prevented that.

Lamar Alexander, Virginia Foxx and John Kline can eliminate the damage being caused by such over-zealous accreditors.  I urge them to do exactly that.

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Read Part 1. Or learn more.