September 2008
If
you have ever wondered why colleges and universities seem to march in lockstep
on controversial issues like affirmative action, here is one reason: Overly
politicized accrediting agencies often demand it.
Given that federal funding hinges on accreditation, schools are not in a
position to argue. That is precisely why the U.S. Department of Education, which
gives accreditors their authority, must sometimes take corrective action. George
Mason University’s law school in northern Virginia is an example of why
corrective action is needed now.
GMU’s problems began in early 2000, when the American Bar Association visited
the law school, which has a somewhat conservative reputation, 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 as a
result of Freedom of Information Act requests) 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. Not good enough. In 2003, the ABA 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, 17.3% of its entering students were minority members in 2003 and 19% in
2004.
Not
good enough. “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.
GMU’s case is not unique. In a study conducted several years ago, 31% of law
school respondents 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.” Several schools, like GMU, have been
put through the diversity wringer.
The
GMU law school was finally notified of its reaccreditation in 2006, after six
long and unnecessary years of abuse – just in time for the next round in the
seven-year reaccreditation process. Even then, the ABA could not resist an
ominous warning that it would pay “particular attention” to GMU’s diversity
efforts in the upcoming cycle.
Perhaps the ABA believes that the Supreme Court’s 2003 decision in Grutter v.
Bollinger allows it to force law schools into affirmative action orthodoxy.
If so, it is mistaken. In Grutter, a razor-thin majority held that the
Constitution permitted the University of Michigan Law School to discriminate
against whites and Asians to obtain a racially diverse class.
That decision, however, was rooted in the notion that “universities occupy a
special niche in our constitutional tradition.” In the majority’s view,
universities are not subject to the same equal-protection standards as other
governmental entities; they are instead entitled to deference in their academic
judgments. As Justice Sandra Day O’Connor put it, “[t]he freedom of a university
to make its own judgments . . . includes the selection of its student body.”
Whatever the merit of this reasoning, the ABA is not a university, and its
Council of the Section of Legal Education and Admissions to the Bar is not
entitled to academic deference.
As
the Education Department’s designated law school accreditor, the council decides
whether a law school’s students will be eligible for federal loans. As state
accreditor, it decides which schools’ graduates may sit for the bar examination.
It is thus part of the governing bureaucracy – the kind of institution academic
freedom is supposed to protect universities from.
That’s why the U.S. Commission on Civil Rights recommended that the ABA leave
issues of diversity to individual law schools. If academic freedom confers upon
law schools the right to discriminate, it must also confer a right not to
discriminate. Unfortunately, the ABA has instead put into effect more stringent
diversity standards.
So
now it is up to the Education Department to bring the ABA to heel. In 2006, when
the ABA’s status as accreditor was itself up for renewal, opposition came from
many quarters on many grounds. Surprised, the Education Department put the ABA
on a short leash, giving it only 18 months before its next renewal, and
requiring it to submit its official correspondence for inspection.
It
is now time to find permanent solutions to the problems of ABA abuse. Foremost
on the Education Department’s list should be to get the ABA out of the diversity
business. It is one thing for a law school to adopt its own discriminatory
admissions policies; it is quite another to force it to do so on pain of losing
federal funding.
Ms.
Heriot is a member of the U.S. Commission on Civil Rights and a law professor at
the University of San Diego. In the 1990s, she was employed at GMU for one year,
but had no involvement with the issues in this commentary.
The Wall Street Journal, April 28, 2008, Page A19.
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