Opposition to ABA race preference policies
By Terence J. Pell
President, Center for Individual Rights, March 8, 2006
Ms. Robin Greathouse
Accreditation and State Liaison
United States Department of Education
Room 7105, MS 8509
1990 K Street, N.W.
Washington, D.C. 20006
Sent via E-mail to: Robin.Greathouse@ed.gov
Re: Renewal of Recognition of the ABA Council of the Section on Legal Education and Admissions to the Bar as Law School Accrediting Agency
Dear Ms. Greathouse:
On behalf of the Center for Individual Rights, a nonprofit public interest law firm, I write to oppose the renewal of the American Bar Association Council of the Section on Legal Education and Admission to the Bar (the “ABA”) as a “nationally recognized accrediting agency” within the meaning of 34 C.F.R. Part 602.
The ABA has pending an application for renewal which will be considered at the June, 2006 meeting of the National Advisory Committee on Institutional Quality and Integrity (The Advisory Committee). These comments are submitted pursuant to February 6, 2006 Notice in the Federal Register soliciting public comments, 71 Federal Register 24 at pp. 6059-6061.
Pursuant to 34 C.F.R. Section 602.1, the Secretary recognizes accrediting agencies “to ensure that these agencies are…reliable authorities regarding the quality of education or training offered by the institutions or programs they accredit.”
Recently, the ABA proposed to change its accreditation standards with respect to the use of race in law school admissions. The proposed changes would penalize law schools that have elected to pursue race-neutral or non-discriminatory policies in admissions. Moreover, the policies subvert state statutory and constitutional provisions that forbid the consideration of race in admissions.
Unless withdrawn or substantially modified, the proposed changes demonstrate that the ABA is not a “reliable authority” regarding an important aspect of law school education and, therefore, that the Secretary should not renew its status as a “nationally recognized accrediting agency.”
The Proposed Changes
On February 11, 2006, the ABA Section on Legal Education and Admission to the Bar adopted changes to Standard 211 of its accreditation standards. If approved by the ABA House of Delegates at its August, 2006 meeting, Proposed Section 211 would require law schools to:
“…demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.”
The written interpretations accompanying Proposed Standard 211 state that a law school will be judged by the “results achieved” rather than solely by the “totality of its actions” as under the existing Standard 211. (Compare the existing Interpretation 211-1 with the proposed Interpretation 211-3).
Significantly, Interpretation 211-1 of the Proposed Standard provides that:
“The requirement 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 Standard 211.”
Taken together, Proposed Standard 211 and its Interpretations authorize ABA accreditors to pressure law schools to abandon race neutral admissions policies if they do not produce the numerical results that the ABA deems necessary. When wielded by an accreditor against a school facing loss of accreditation, Proposed Standard 211 is an blunt instrument that effectively subverts policies favoring non-discriminatory admissions policies.
The Secretary has recognized the important educational objectives that are served by limiting the use of racial double standards in admissions. She has urged colleges and universities to aggressively experiment with a variety of race neutral admissions procedures in lieu of racial preferences. The Secretary’s carefully calibrated approach reflects the fact that lowering admissions standards for certain racial groups entails educational and ethical trade-off’s which should not be undertaken lightly.
Several states have explicitly prohibited the consideration of race in admissions. Schools in these states must achieve racially diverse student bodies through such means as increased recruitment and outreach and the use of broadened admissions criteria beyond grades and standardized test scores.
Proposed Standard 211 subverts state law in this area. Laws in California and Washington (and the law under consideration in Michigan) prohibit the use of race in admissions subject to several narrow exceptions. Among the exceptions is a provision that allows the consideration of race if necessary to qualify for participation in federal funding programs. Since a law school must be accredited in order to receive federal funds and participate in federal student loan programs, a school could use Proposed Standard 211 to exempt itself from state law that otherwise preclude the use of racial preferences in admissions.
Not only does Proposed Standard 211 fail to accord deference to the decision by voters in these states to forbid the consideration of race in state programs, it provides an explicit means by which schools can exempt themselves from these laws.
Historically, the federal Department of Education has been careful not to interfere with state educational policy. If the Secretary were to renew the ABA’s recognition as a national accrediting agency, she would be allowing a private entity to use its authority under color of federal law to subvert the law of several states that explicitly prohibit the consideration of race in admissions.
In this instance, the ABA appears to be acting not as a reliable authority of accepted educational practices but as a partisan in a larger political fight over racial preferences. Proposed Standard 211 represents a back-door effort by the ABA to repeal voter-enacted constitutional and statutory provisions prohibiting the consideration of race in admissions in so far as they apply to publicly funded law schools. The Secretary should not permit the ABA to use its accreditation authority to advance its partisan political interests in this manner.
For the foregoing reasons, CIR urges the Secretary to withhold recognition of the ABA as a “nationally recognized accrediting agency” unless it agrees to withdraw or substantially modify Proposed Standard 211. The ABA’s accreditation standards must make clear that it will not revoke accreditation or otherwise seek to affect the accreditation status of any school for pursuing non-discriminatory and/or race-neutral policies in admissions or the provision of services to students.
In addition to (or in lieu of) the above, we urge the Secretary to issue regulations that (i), prohibit any nationally recognized accrediting agency from attempting to affect the accreditation status of any school that elects to pursue non-discriminatory admissions procedures, and (ii) provide that no school shall be denied federal funding because of a lack of accreditation where the lack of accreditation is attributable solely to the school’s adherence to a policy of non-discrimination and race neutrality in admissions or the provision of services to students.
Terence J. Pell
Center for Individual Rights
1233 20th St., N.W., Suite 300
Washington, D.C. 20036
202-833-8400, ext. 113