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Is the American Bar Association making illegal demands for diversity when it accredits law schools? Two government agencies have taken aim at the ABA’s accreditation process, which the U.S. Department of Education relies on to determine whether law schools are eligible for certain federal programs. The ABA says its standards are in line with the law and with standards used by other accreditors. At issue are 2006 amendments to the diversity standards set for law schools by the ABA’s accreditation arm, the Council of the Section of Legal Education and Admissions to the Bar. The changes came in response to the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger, which held that law schools could consider race in admissions but could not use quotas to achieve diversity. The ABA’s amended rule says law schools “shall demonstrate by concrete action” a commitment to achieving diverse student bodies, staff, and faculty. It also informs law schools, for the first time since the rule was originally adopted in 1980, that they may use race and ethnicity in admissions processes to promote diversity, consistent with Grutter. The rules stipulate that the ABA will evaluate schools based on the results of their diversity efforts. In June the Department of Education threatened to revoke the ABA’s accreditation authority if it didn’t change how it administered its diversity rules and other standards. The department uses assessments of colleges and universities by approved outside accreditors like the ABA to determine whether the institutions are eligible to participate in programs like federal student financial aid. Two months later, in August, a report from the U.S. Commission on Civil Rights criticized the ABA for setting diversity standards that the commission says are better left to individual law schools. The ABA, which annually accredits about 190 law schools, says that the rule is similar to standards used by other accrediting agencies, such as the National Council for Accreditation of Teacher Education and the Liaison Committee on Medical Education. “I considered it a very standard and very sensible thing to do,” says Steven Smith, former chair of the ABA’s accrediting council and dean of California Western School of Law, who helped craft the rules. Affirmative action critics say the rule changes encourage law schools to impose racial preferences in violation of Grutter. “It seemed pretty clear to us that the changes were being made in an effort to increase the pressure on law schools to get their numbers right in admissions and hiring,” says Roger Clegg, president and general counsel of the Center for Equal Opportunity (CEO), which opposes affirmative action. “If that meant using racial or ethnic and gender quotas or preferences, then so be it.” The ABA says that’s a misconception. The rule does not require law schools to consider race, but says that they may consider it. Nor does the rule require quotas: The ABA says its accreditation committe rejected an earlier proposed version of the rules that called for law schools to enroll a “critical mass” of students, fearing that it might be viewed as a quota requirement. Citing the new diversity rules, CEO and other groups, such as the National Association of Scholars, an organization of conservative academics, last year petitioned the Department of Education not to reapprove the ABA as an accreditor of law schools. The ABA’s accreditation renewal was postponed for a year, and in fall 2006 Department of Education staff issued a critical report, which recommended that the ABA’s accreditation authority be renewed for only 18 months. This past June, Education secretary Margaret Spellings gave the ABA 12 months to demonstrate compliance with 15 regulations that she said the association had failed to follow, including rules that cover the application of the diversity standard. Not all of the regulations cited are related to the standard: The issues range from academic calendars to the membership of accreditation committees. But in her letter, Spellings singled out the diversity standard, requiring the ABA to show in a compliance report that it is being administered consistently. If the ABA fails to show compliance, she said, its petition to be recertified as an accreditor would be denied. Two months later, the Civil Rights Commission issued a report urging the ABA to drop the diversity rule. It also recommended that Congress and the ABA require law schools to disclose information on racial preferences in admissions. The report cited testimony collected in a June 2006 hearing conducted by the commission. Among the witnesses was Richard Sander, a professor at the University of California at Los Angeles Law School and author of a controversial study arguing that minority admissions prefer�ences in law schools hurt minority students, especially African Americans. David Bernstein, a professor at George Mason University School of Law, also testified that the ABA’s diversity rule “requires law schools to act unlawfully,” in the case of schools in states such as California that have banned affirmative action. (The ABA says its rule takes those schools into consideration and advises them to demonstrate a commitment to diversity through other means, such as admissions outreach to minority-heavy campuses.) The two Democrats on the eight-member Civil Rights Commission, Arlan Melendez and Michael Yaki, wrote a dissent that criticizes the commission report for “lack of serious scholarship.” Melendez and Yaki also claim that the report is part of a political attempt to sabotage affirmative action in law schools. The ABA must submit another petition for renewal of recognition, due in December. But its critics are already looking for more ammunition. CEO has filed public record requests at dozens of law schools, seeking information on the accreditation process. “We’re looking for any kind of pressure that the ABA is bringing to force law schools to use racial or ethnic hiring or admissions preferences,” Clegg says. At press time Clegg’s organization had posted the results of several such searches on its web site. “They show that the ABA is pressuring law schools to use racial and ethnic preferences,” Clegg says. One set of documents shows that the ABA criticized George Mason’s law school in 2000 for having too few entering minority students, but found the school compliant in 2005. The ABA has no plans to drop the diversity rule, a spokeswoman says. The chair of the ABA accrediting committee, Arizona Supreme Court justice Ruth McGregor, says that the bar association has taken steps to deal with the problems that the Education Department cited, and has revised bylaws and internal procedures to ensure consistent application of its rules. “We’ve made all those changes in the last year, and we’ll be able to point that out when we submit our application for recertification,” she says.

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