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Wednesday, January 17, 2007

Still More on the ABA's Diversity Standards for Law School Accreditation: Case Study #3
Gail Heriot

Here is the third example of the ABA's standards on diversity in action:

The ABA Accreditation Committee's treatment of Law School #3, an up-and-coming public law school in the Southeast, seems abusive to me. At one point, it even threatened to "recommend to the Council that the Law School be placed on probation or be removed from the list of approved law schools" on account of its supposed lack of diversity. In the legal education business, that's the death penalty.   

The story began with the site evaluation team visit in early 2000. The site evaluation report was submitted thereafter.  It stated:   

"[T]he Law School has not been very successful in recruiting minority students and the number has actually declined recently.  In the full-time division, 15 (11.1% of class) minority students started ... in 1997.  In 1998, 12 (10.4%) started and in 1999 7 (6.5%) started.  In the part-time division, 10 (12.8%) minority students started in 1997.  In 1998, there were 18 (19.1%) and in 1999, 10 (9.5%) started."

The problem was not lack of outreach effort, as the site evaluation report amply demonstrated:

"At first blush, one is struck by these relatively low numbers of minority students ....  Yet the Self-Study describes a very active effort to recruit minorities in the past three years and this was confirmed in interviews with the Admissions Office staff.  Specifically, [the Law School] has sent representatives to all of the national forums sponsored by the LSAC.  They have also attended several regional and individual recruiting fairs, including many events at historically black colleges ....  Current minority students often participate in these visits.  The office also engages in targeted mailings to qualified minority applicants and minority pre-law advisors throughout the country and advertises in publications that are likely to be consulted by minority candidates.  [The Law School] supports the CLEO program and will reconsider an applicant who was denied admission but then successfully completes a CLEO program.  Finally, [the Law School] has its own three week "testing in" summer admissions program ....  In this program, the school invites applicants who have generally good admisssion credentials but for one weakness, often the LSAT score, to participate in a special three week pre-law program.  At the end of the intensive program, those students are evaluated and may be offered admission.  For example, in 1999, 135 applicants were invited to participate ..., of whom 27% were minorities.  Of the 135, 31 attended, of whom 19% were minorities.  Of the 31, 26 were admitted, of whom 12% (3) were minorities."

That should have ended the matter.  The ABA accreditation standards in effect at the time required efforts. They did not require results.  But as the ABA now concedes, it has been applying its standards now for some time as if they required results.  And it has been doing so despite the fact that federal regulations require that all accrediting standards be published.  34 C.F.R. 602.18  (The standards were amended August of 2006 to focus on results, but those amendments were many years after the Law School's site visit.)

What was the reason for the failure of the Law School's efforts at outreach?  Why weren't they yielding the results the site evaluation team wanted?  The report gave the following analysis:

"There appear to be several possible reasons why, despite these efforts, the Law School has not been more successful in recruiting minority students.  (1) [The Law School] makes virtually no need-based scholarship grants, to minority or any other applicants; essentially only federal loan money is available.  In the current market for recruiting minority students, this obviously puts [the Law School] at a significant disadvantage.  (2) [The Law School] has been unwilling to engage in any significant preferential affirmative action admissions program.  There are doubts, according to one member of the Law School administration, regarding the legality of ... such a policy.  The reluctance to compromise normal admission quality standards appears to be particularly present regarding the full-time program.  There appears to be slightly more flexibility regarding the part-time program. At least one person stated that this was in part related to the School's efforts to improve its rating in US News and World Report, which apparently only uses the admissions data on full-time programs.  (3) Finally, the view was expressed that the program at [the Law School] with ... its general reputation as a conservative law school, probably hurts its recruitment efforts among minority candidates."

The end of the site evaluation report stated that there were "serious concerns about the opportunities offered to minorities, both in faculty recruitment and in student enrollment."  It complained that "there appears to be no concrete plan of how to address that situation, other than to expand outreach to students applicants."

The site evaluation team, of course, is not supposed to give its views or conclusions in the report.  That's the province of the Accreditation Committee.  But the team's view could not have been more clear if they had said it outright:  We don't think efforts that include only outreach are good enough.  We insist on preferential treatment.   Why else would the team word the criticism the way it did?  What's wrong with a plan that relies on expanded outreach?

Then it was the Accreditation Committee's turn.  Over the next few years, it issued repeated "action letters" to the Law School.  Each one had the same theme.  Some of the letters stated that the Committee had "reason to believe" that the Law School "has not established that it is in compliance with the [diversity] standards," despite the extensive outreach efforts catalogued by the site evaluation team.  The rest used even stronger language; all of them declined to renew the school's accreditation until its diversity issues were resolved to the committee's satisfaction.  It was difficult to avoid the conclusion that the committee members agreed with the site evaluation team that no amount of outreach would be enough unless it produced the racial results the they favored.   

The first of the letters was sent on July 5, 2000 and noted that the school "has not engaged in any significant preferential affirmative action program" and that the school "makes virtually no need-based scholarship grants to minority or any other applicants." The letter demanded that the Law School submit a report "regarding the actions taken to bring the School into compliance" with the divesity standards.

By the time of the second letter (sent July 11, 2001), the school had increased its efforts to recruit minority applicants by sending the Admissions Director to personally visit "many historically black colleges and universities and other schools with significant African American enrollments."  This, too, was judged insufficient.  The letter again declared that the Committee had reason to believe the Law School to be out of compliance (and hence not entitled to re-accreditation). 

The committee turned the screws very slowly, but turn them it did.  Rather than simply revoke the Law School's accreditation, the second letter demanded specific data on the number of minority students in the upcoming entering class and the amount of scholarship monies spent for minority recruitment and financial assistance. The committee's intent was apparently to give the Law School a chance to abandon its policy against preferential treatment.

The Law School continued to try to improve in order to obtain re-accreditation, but as far as I can tell it stuck to its guns regarding preferential treatment in the full-time division--at least at first.  Its recruitment efforts were detailed in the Accreditation Committee's third letter (July 16th, 2002).  Among the law school accomplishments:  (a)  the proportion of minority members in the entering class climbed to 10.98%; (b) the total amount of scholarship money awarded to minority students climbed to $86,048 or 31% of the total scholarship funds available; and (c) the school increased the number of minority recruiting events in which it participated and the number of targeted mailings in which it was engaged as well as increased the involvement of minority students and alumni in recruiting.   

This was also not enough--although the Accreditation Committee gave no hint concerning what would be enough.  Once again the committee concluded that "it has reason to believe that [the Law School] has not established that it is in compliance" with ABA diversity standards.  It demanded another report.

Something important happened before the fourth letter (dated July 28, 2003) arrived.  The Supreme Court decided Grutter v. Bollinger, in which it upheld the constitutionality of the University of Michigan Law School's racially preferential admissions program.  The ABA interpreted this (incorrectly in my view) as a green light for its diversity agenda.  It was ready to get tough with the Law School--whether toughness was called for or not.

Curiously, although the Law School had been able to document significant progress toward racial diversification that year, this seems to have had no effect on the committee.  (It's unclear whether the Law School had given up its opposition to preferential treatment by this point.) According to the letter, in the fall 2002 class, "there were 260, 16.16% of whom identified themselves a member of minority groups (compared to 10.98% in fall 2001 entering class)."  And the dean had told the committee that he believed that 2003 would be even better.  The total amount of scholarship money awarded to minority students increased to $94,404, which represented approximately 50% of the total scholarship funds available.  The Law School continued its participation in the CLEO program and its own three-week "testing in" summer admissions program.  In addition, it continued its already-extensive outtreach efforts catalogued in earlier reports.

Whatever the Accreditation Committee wanted--and that somethng was probably preferential admissions standards--it felt it was not getting it from the Law School.  The 16.16% minority enrollment level wan't good enough.  This was the letter in which it threatened to recommend revocation of accreditation.   

A few months later, the Law School reported back that its entering class of 2003 had reached 18% minority.  In the meantime, it had established a Minority Recruitment Council composed of alumni and "respected friends" from the regional legal community to meet monthly with the dean.   The faculty has established a Minority Recruitment and Retention Committee.  The Admissions Office travel budget had been increased by $20,000 to fund expenses relating to minority outreach. And the school promised to hire a Minority Recruitment and Placement Coordinator.  As a result, in its fifth letter (sent February 25, 2005), the Committee was less confrontational.  But it nevertheless stated that it continued "to have reason to believe that the School has not established compliance" with its diversity standards. The struggle wasn't over.

The Law School was in a quandary.  What exactly did the Accreditation Committee want?  How many minorities members did it have to have?   No one at the ABA was saying.

Things didn't get any better for the Law School with the next (sixth) letter, which was sent on December 15, 2004.  By then, the school's entering class was 19% minority.  The committee, however, was called the improvement only "modest."  "This is particularly so for African Americans," it wrote, "whose number have stalled."  "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."   

Most extraordinarily, the Accreditation Committee chose this letter to bring up a new diversity issue.  While the site evaluation team had remarked on the issue of faculty diversity before, the committee had not included it as a action item in its letters until the sixth letter. The Law School was directed to look into this matter.  While it was doing so, its accreditation would continue to hang in limbo.

(For reasons addressed in my previous post, the ABA seems to have had no authority to act on the issue of faculty diversity and outreach.)

That's where the documents I have leave off.  I don't know the end of the story.

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Gail Heriot


The admission process should be color blind. How long do we have to wait until we do the right thing. The days of skin color being the ticket to admission or exclusion are gone with the wind. The ABA Accreditation Committee needs to get with the times.

Posted by: Carlos Verde | Jan 18, 2007 8:16:33 PM

Keep shining this light - eventually they will get the oppobrium they deserve

Posted by: gazzer | Jan 18, 2007 8:30:54 PM

If you think about it, the term "Diversity Standard" is an oxymoron.

Posted by: Chants | Jan 18, 2007 8:44:33 PM

They should give the ABA what it wants, very publicly

1) 100% of all scholarship money to black students
2) 50% quota for black students
3) Zero admissions qualifications for black students
4) Guaranteed graduation for black students.

Advertise it that way, with an explanation that this is strictly in response to ABA demands.

Posted by: Tank | Jan 18, 2007 11:24:11 PM

Demographic analysis of inherited IQ demonstrates that we will never achieve the desired "diversity" in a law school sought by the ABA. Only by creating preferences can the numerical levels be achieved. And preferences violate the law. So until reality is accepted, insanity will rule. And white students will suffer, as usual.

Posted by: David Wilson | Jan 19, 2007 2:48:33 PM

David Wilson is exactly correct.

Read "The Bell Curve" for a more detailed analysis.

Posted by: M. Simon | Jan 19, 2007 8:08:02 PM

Messrs. Wilson and Simon:

I don't have the particular expertise necessary to an informed opinion on your assertions. I will say, though, is that the war over "diversity" is a war of semantics. By making such statements you vindicate those who assert that opposition to affirmative action is racism (which I recognize is a miscategorization of what was actually said) and thus strengthen their hand. The way to fight affirmative action is through careful investigation like the original post here, and not by bringing in red herrings.

Posted by: Ubertrout | Jan 26, 2007 9:19:11 AM

I agree with Ubertrout. Although I respect Charles Murray greatly, I think that people make their own destiny rather than inherit it.

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