By Gail Heriot
The ABA is very big on diversity. To satisfy its standards, nearly all law schools must seriously relax their admissions standards for minority students. But how many of so-called beneficiaries of affirmative action are graduating and passing the bar? And how many are winding up with nothing to show for their trouble but students loans? The evidence is not encouraging.
For years, the ABA has used its clout to demand that law schools toe the affirmative action line. In the 1990s, fully 31% of law schools admitted to political scientists Susan Welch and John Gruhl that they "felt pressure" "to take race into account in making admissions decisions" from "accreditation agencies."
Law schools must take pressure from the ABA seriously. As the U.S. Department of Education's designated law school accreditation agency, the ABA, through its Council of the Section of Legal Education and Admissions to the Bar, has the power to decide whether a law school will be eligible for federal funding. Unless the ABA approves, for example, a law school's students will be ineligible for student loans. And that is just the beginning. Most states do not allow the graduates of non-ABA-accredited law schools even to sit for the bar examination. A law school that is not in the good graces of the ABA is thus not a law school at all.
While nowhere in the ABA's diversity standards does it specifically demand that law schools maintain relaxed admissions standards for minority applicants, it has already publicly admitted that diversity in law schools can only be maintained through such double standards. Indeed, that was the thrust of the ABA's amicus curiae brief in Grutter v. Bollinger, the case that (unsuccessfully) challenged the University of Michigan Law School's preferential treatment for minorities in admissions.
Specifically, the ABA told the Supreme Court that "[r]ace-[c]onscious [a]dmissions [a]re [e]ssential to [i]ncreasing [m]inority [r]epresentation in the [l]egal [s]ystem." "[I]t is unquestionable," the ABA wrote, "that the improvement in minority participation in our law schools, and thus in our legal system, has been achieved largely by the use of race-conscious admissions policies such as those under attack here." According to the ABA, prohibiting racially preferential admissions policies nationwide, as California and Washington have done statewide, would cause "a precipitous decline in minority participation in the institutions of our legal system" and "undo much of what has been accomplished in the last several decades."
This was not a minor issue in that litigation. It is scarcely conceivable that the Supreme Court would have allowed the University of Michigan to engage in preferential treatment for minority applicants if it had found such treatment to be simply one among many plausible methods to enroll a racially-diverse class. Nearly everyone agreed that a racially-diverse class could not be enrolled at the University of Michigan (or any law school given the fierce competition for minority law students) without either preferential treatment for minority students or a drastic across-the-board lowering of the law school's entry requirements.
Not long after the Supreme Court decided Grutter v. Bollinger, the ABA responded to the apparent green light the race-based admission by tightening its diversity standards (a subject for another essay) and by increasing the pressure on law schools that it perceived to be not diverse enough.
The best example of this is George Mason University Law School - an up-and-coming law school in Northern Virginia with a somewhat conservative reputation. GMU's problems began in early 2000, when the American Bar Association visited the law school for its routine reaccreditation inspection. The site evaluation team was unhappy that only 6.5% of entering students were minorities.
Outreach was not the problem; even the site evaluation report (obtained by the Center for Equal Opportunity's FOIA request) conceded that GMU had a "very active effort to recruit minorities." But the school, the report noted, had been "unwilling to engage in any significant preferential affirmative action admissions program." Since most law schools were willing to admit minority students with dramatically lower entering academic credentials, GMU was at a recruitment disadvantage. The site evaluation report noted its "serious concerns" with the school's policy.
Over the next few years, the ABA repeatedly refused to renew GMU's accreditation, citing its lack of a "significant preferential affirmative action program" and supposed lack of diversity. The school stepped up its already-extensive recruitment efforts, but was forced to back away from its opposition to significant preferential treatment. It was thus able to raise the proportion of minorities in its entering class to 10.98% in 2001 and 16.16% in 2002.
The ABA was not satisfied. A few months after the Supreme Court's decision in Grutter v. Bollinger, it summoned the university's president and law school dean to appear before it personally, threatening to revoke the institution's accreditation.
GMU responded by further lowering minority admissions standards. It also increased spending on outreach, appointed an assistant dean to serve as minority coordinator, and established an outside "Minority Recruitment Council." As a result of its efforts to please the ABA, 17.3% of its entering students were minority members in 2003 and 19% in 2004.
The ABA was still not satisfied. "Of the 99 minority students in 2003," the ABA complained, "only 23 were African American; of 111 minority students in 2004, the number of African Americans held at 23." It didn't seem to matter that 63 African Americans had been offered admission, or that many students admitted with lower academic credentials would end up incurring heavy debt but never graduate and pass the bar. What mattered were the numbers. Even a class that was 19% minority was insufficient if only 23 of them were African American.
At no point did the ABA ask about the graduation rate or the bar passage rate of students who were admitted under the lowered admissions standards that they were requiring of GMU. That evidently was not important either.
GMU was finally notified of its re-accreditation in 2006 - just in time to start the seven-year cycle over again. When the ABA again visited in 2007, its site evaluation team again expressed doubts about the school's diversity efforts and it seemed that GMU might be in for a rough time again. This time the GMU dean shot back with the facts. Fully 45% of the African American students that the ABA had pressured GMU to admit experienced academic failure (defined under GMU's academic regulations as a GPA below 2.15) in their first year. In contrast, only 4% of other students did. In a letter to the ABA, the dean complained of the difficulty of complying with the ABA's diversity policy:
"We have an obligation to refrain from victimizing applicants, regardless of race or color, by admitting them to an educational program in which they appear likely to fail. This obligation is recognized in Standard 501(b), but we believe it exists independently of any ABA regulations. Adhering to this principle is the greatest obstacle to our efforts to increase the diversity of the George Mason student body."
GMU's failure rate for affirmative action admittees is hardly unique. Only 45% of African Americans who entered law school in 1992 passed the bar on their first attempt as opposed to over 78% of whites. The rest dropped or failed out of school, decided not to take the bar exam, or failed it. Even after multiple attempts, only 57% of African Americans succeeded. The gap was thus never closed. Many of those who never succeeded were left with huge student loans. Indeed, these days, it is utterly routine for law students to graduate with loans well in excess of $160,000. Some of those students are, of course, minority students.
The saddest fact is that research now suggests that affirmative action policies don't just bring students into law school who have little chance of success, they also bring in students who could have succeeded, but end up failing on account of affirmative action policies that put them in the wrong law school for them. According to the analysis of Dr. Richard Sander, there are today approximately 7.9% fewer, not more, practicing attorneys as a result of the race-based admissions policies. Minority students attend law schools at which their entering credentials are well below those of their classmates. As a result they do poorly when they might have done much better at a less academically competitive class. Sander found, for example, that 51.6% of African-American law students had first-year GPAs in the bottom 10% of their class as opposed to only 5.6% of white students. These students are thus more likely to be disillusioned and drop out, fail out, or simply learn less than they would have if they had attended a school that better matches their level of academic preparedness.
Some faculty members at law schools would like to move towards fixing this problem. The ABA's stranglehold on accreditation standards, however, make sensible admissions policies impossible.
Gail Heriot is a Professor of Law at the University of San Diego