Wednesday, January 17, 2007

More on the ABA's Diversity Standards for Law School Accredition: Case Study # 2
Gail Heriot

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

Law School #2 is an old and distinguished law school located in a small town in the Southeast.  Its sin was to run afoul of an accreditation standard that apparently did not exist.  Re-accreditation was held up for years as Law School #2 struggled to satisfy the ABA's demands for faculty diversity.  As far as the record shows, it continues to be held up.

But, strangely, up until a few months ago there was no written accreditation standard requiring faculty diversity and federal regulations governing accrediting standards required the ABA to "[b]ase[] decisions regarding accreditation ... on ... published standards."  (34 C.F.R. 602.18.)  The ABA thus appears to have exceeded its authority--at least I interpret its standards.

Prior to August 2006, the ABA had two accreditation standards that dealt with issues of race and sex.  The first--former Standard 210 ("Equality of Opportunity")--required law schools "to foster and maintain equality of opportunity in legal education--including employment of faculty and staff, without discrimination or segregation on ground of race, color, religion, national origin, sex or sexual orientation."  Note that it explicitly applied to students, faculty and staff.  The second--former Standard 211 ("Equal Opportunity Effort")--went further in requiring what might be called "affirmative action" or "special efforts" in admissions.  Specifically, it stated that "a law school shall demonstrate, or have carried out and maintained, by concrete action, a commitment to providing full opportunities for the study of law and entry into the profession by qualified members of groups, notably racial and ethnic minorities, which have been victims of discrimination in various forms."  Prior to 2006 (when it was amended and re-named it "Equal Opportunity and Diversity"), Standard 211 applied only to students.  It did not apply to faculty or staff.

As I interpret the the two standards, they are quite different.  Former Standard 210 prohibited discrimination based on race, sex and certain other grounds in admissions and in the employment of faculty and staff.  Former Standard 211 required that affirmative steps be taken to open up admissions to groups that had been victimized by discrimination. Law schools were required to go beyond passive non-discrimination and take affirmative steps to bring these minority members into the study of law.  If former Standard 210 were interpreted to require such affirmative steps too, there would be no need for former Standard 211. It would be redundant.

No one could or did accuse the Law School of discriminating against minority members in faculty hiring.  Nevertheless, the Law School, which at the time had a faculty of 34, including 8 women, 2 African Americans and 1 Asian American and which had tried very hard to recruit more, was taken to task for its failure to recruit the number of women and minorities the ABA though desirable.  It thus went beyond the written standards in two ways.  It required affirmative efforts beyond non-discrimination in faculty hiring and it required that those efforts yield results. 

The Accreditation Committee's letter of May 28, 2002 stated:

"The Law School has adopted an affirmative action plan that requires the institution to 'make positive efforts to recruit and retain minorities and women faculty.'  However, the vast majority of potential faculty interviewed since 1997-98 (102 of 139, or 73%) have been male and non-minority (118 of 139, or 85%).  Of offers made to candidates since 1997-98, 13 of 16 (81%) have been to males, all but one of whom were white (the other was Asian-American).  Only three offers were made to women, one of whom was Asian American.  Only one African-American candidate has been invited to campus, and none has been offered a position since 1997-98.  The lack of African-American and Hispanic candidates is of significant concern."  The Accreditation Committee concluded that it had "reason to believe that [the Law School] has not established that it is in compliance with Standard 210, regarding the recruitment and hiring of minority faculty."  The Law School was asked to produce a report "regarding the actions taken to bring the School into compliance with Standard 210 ...."

Note that the ABA was citing former Standard 210 rather than former Standard 211 as its authority.  It own internal documents are more candid.  In explaining to its House of Delegates why it was amending former Standards 211 to include faculty in staff, it stated:

"Standard 211 had been primarily directed to the admission of students, although actions by the Accreditation Committee and Council have applied the same principles to faculty.  The revisions make explicit that the Standard also applies to faculty and staff as well as to students."

The documents fails to acknowledge that federal regulations required (and still require) that standards be in writing, and hence that if it's true (and the case of Law School #2 demonstrates) that the ABA had been applying former Standard 211 to require law schools to make special efforts to recruit minority faculty, it had been acting in an unauthorized manner.

The next letter from the Accreditation Committee was sent on May 20, 2003.  In it, the Committee acknowleged the Law School's extensive efforts.  Of the 15 candidates interviewed at the AALS hiring meeting that year, four were minorities and five were women.  Of the 10 candidates invited to campus, 2 were minorities and 5 were women.  Of the 4 candidates receiving offers, one was an African American woman and another was her (white male) husband.   

This was judged insufficient by the Accreditation Committee, apparently because it did not yield results, and the Law School's re-accreditation was held up.  Another report was requested.   

The next year, the Accreditation Committee's letter was sent on June 15, 2004.  Again, the Committee was dissatified with the Law School's faculty diversity, although it takes more than a page to chronicle the School's efforts to attract minority faculty.  A large part of the problem seems to be that many of the African Americans it tried to recruit declined its invitation to interview.  The Committee found the Law School had not established its compliance.  At no time did it accuse the Law School of discriminating against any women or minorities (which former Standard 210 would indeed prohibit). Instead, the problem seems to be that the Accreditation Committee was dissatisfied with the results of the Law School's affirmative efforts.  Again, former Standard 210 seems to me to only require non-discrimination; only former Standard 211 required affirmative action efforts and it did not apply to faculty (or to results). 

The next year, the Accreditation Committee sent its letter on July 5, 2005.  Again, it acknowledged the Law School's efforts.  During the 2004-05 academic year, the Law School had three visiting African American professors in residence.  One had been offered a permanent position, but turned it down, for purely personal reasons that had nothing to do with the Law School.  Another was returning for a second visit. It had invited four African American candidates to interview at the AALS hiring convention.  Three declined the invitation; the fourth was interviewed and invited to campus, but accepted another offer prior to the scheduled interview.  Over the course of the year, the school made eight permanent offers, half of which went to minority candidates.

Although the Committee was less confrontational than it had been in the previous letter, it nevertheless concluded that the Law School had "not yet established that it is in compliance with Standard 210 with respect to the divesity of its faculty."

The most recent Accreditation Committee letter was sent on July 2006--before the recent amendments to the ABA's diversity standards had been ratified by the ABA House of Delegates.  In it, the committee acknowledges in excruciating detail no fewer than 15 significant efforts to recruit minority faculty members. None had yet yielded fruit, but it was still possible that some would.  The Accreditation Committee was still not satisfied.

[David Bernstein reported last summer on the efforts vs. results aspect of the issue .  David points out that the ABA admits that its practice did not match up with its written regulations.]

See Case Study #3.

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Gail Heriot


Amazingly Orwellian. This is like reading Bull Conner's strategy sessions.

Posted by: Ryan Waxx | Jan 17, 2007 1:38:12 PM

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Posted by: Invertir en oro | May 11, 2011 1:51:57 PM