The Volokh Conspiracy
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New Pacific Legal Foundation Report Based on 50 Freedom of Information Requests to Top Law Schools: ABA Accreditation Frequently Nudges Law Schools Toward Illegal Discrimination
A guest post from Alison Somin.
I have written at some length about the problems with ABA accreditation. Alas, some of the most egregious behaviors from the ABA are considered confidential. Thankfully, the Pacific Legal Foundation sent public information requests to 50 public law schools concerning their accreditation process. The ABA routinely encourages schools to engage in unlawful discrimination, and rewards schools that are engaging in unlawful discrimination. The results are at once disappointing, but entirely predictable. The mere fact that the ABA temporarily suspended its DEI mandates does not mean much. They will revert to form as soon as the political pressure is gone.
Here is an excerpt from the report:
On the one hand, 20 law schools received accreditation reports indicating failure to meet the ABA's diversity standards. Common points of failure included not having enough minority faculty, not having enough women faculty, not having enough student diversity, failing to follow through with diversity plans, concerns about the treatment of minority faculty, having limited DEI curriculum integration, not having enough LGBTQ+ support groups, and attrition concerns for minority students. On the other hand, 25 law schools received accreditation reports acknowledging or praising the schools' compliance with the ABA's diversity standards. Common commendations included having a strong commitment to hiring diverse faculty, having diversity-focused scholarships and fellowships, having pipeline programs for minority students, having active DEI committees and task forces, having diversity recruitment strategies, having inclusive classroom initiatives, having a presence of DEI leadership positions, and having faculty diversity training.
Figure 1 displays the number of law schools that received qualitative evaluations of a variety of accreditation diversity standards. Each category aligns with a question in the accreditation report. No more than 15 of the 50 law schools received qualitative evaluations in any particular category.
I asked PLF Senior Legal Fellow Alison Somin (and wife of co-blogger Ilya) to write about the report. Her post follows below.
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The American Bar Association has frequently pressured law schools into unlawful race and sex discrimination in faculty hiring and admissions, according to a recently released Pacific Legal Foundation report I co-authored with my colleague Caitlin Styrsky.
PLF's research team sent freedom of information requests to the 50 public law schools ranked highest by U.S. News and World Report. Forty-five schools ultimately responded. Twenty of the forty-five were faulted by the ABA in some way for not adequately meeting the ABA's diversity standards. Schools were criticized, among other things, for not having enough minority faculty, not having enough women faculty, not having enough racial minority students, and failing to follow through with diversity plans.
Concerns about inappropriate accreditor pressure toward discrimination is nothing new. PLF's report cites a number of news stories about the phenomenon dating back to the 1990s, both at law schools and other institutions. A United States Commission on Civil Rights report from 2007 recounts in detail the saga of George Mason University School of law (now Scalia Law School), which spent years skirmishing with the ABA about the racial composition of its student body, until it finally quietly gave up and started offering significant preferences in admissions. But to my knowledge, PLF's report is the first to look systematically at accreditor pressure at a significant number of schools.
The ABA accreditation process doesn't just provide law schools with the academic equivalent of the Good Housekeeping Seal of Approval. In most states, students must graduate from an ABA accredited law school to be able to take the bar exam and eventually become lawyers. Losing accreditation is basically a death sentence for most law schools, and they will be inclined to do anything to avoid it. In this context, the message to law schools is clear: get the ABA the demographic numbers it wants, even if you have to discriminate in violation of the law to get there.
The accreditation process was originally intended to protect students from diploma mills – scams that would take a student's money without actually providing them with much of an education. This basic consumer protection principle became especially important once federal money started to flow into higher education following the enactment of the G.I. Bill. Eventually, in 1965, Congress enacted the Higher Education Act that required federal money to go only to accredited institutions of higher learning.
Accreditation was never supposed to be about social engineering for the sake of social engineering. Yet much of what the ABA's diversity standards demand of institutions are really about nudging institutions toward pursuing the ABA's vision of social justice, not about ensuring that students receive high quality legal education. Indeed, much empirical research actually cuts the other way, suggesting that race preferences in admissions harm their intended beneficiaries.
Two years ago, the Supreme Court's Students for Fair Admissions opinion made clear that race discrimination in admissions is unlawful: "Eliminating race discrimination means eliminating all of it," Chief Justice Roberts wrote for the majority. But that promise will not be fully realized if accreditors are pushing schools to violate the law.
Even before Students for Fair Admissions, some states adopted constitutional provisions stricter than those found in federal law prohibiting the use of race or sex in public employment or education. California's Civil Rights Initiative (Prop 209) from 1996 is perhaps the best-known example, but Florida, Michigan, and a number of other states have since followed suit. For at least some law schools, it would be difficult or outright impossible to meet the ABA's diversity quotas without discriminating in violation of such laws. Yet the ABA took the position that these laws were no defense.
A recent executive order attempts to stop accreditors from pressuring schools into violating the law. The ABA has also recently temporarily suspended enforcement of its diversity standards. But an executive order can be revoked at the stroke of a pen by the next President. And, given the ABA's past enthusiasm for race and sex preferences, it will not be surprising if it decides to revive its diversity standards should the political winds shift.
All in all, legislation is necessary as a more permanent solution to the problem. PLF's report contains model language that Congress could use. Legislation on this topic has also recently been introduced by Senator Jim Banks (R-Indiana).
Some state supreme courts, including Texas, Florida, and Ohio, are considering whether they should continue to rely on the ABA as an accreditation authority. During their deliberations, they should consider the ABA's history of exerting unlawful pressure toward discrimination on law schools, as documented in PLF's recent report.
