U.S. Education Officials Question Diversity Standard

Critics Say the American Bar Association's New Criterion Promotes Racial Quotas at Law Schools

The Education Department's general counsel is challenging the American Bar Association's new standard on diversity in enrollment and hiring, which calls for the law schools it accredits to take "concrete action" to attract more minority students, faculty and staff.

The 400,000-member law association, which has accredited nearly 200 law schools nationwide, said it updated its standards last year after a 2003 Supreme Court ruling that said law schools could use race and ethnicity as factors in admissions with certain restrictions.

The new standard gives no specific benchmarks, but the association said it would judge results on "the totality of the law school's actions."

Some Education Department officials said the ABA's new standard effectively promotes quotas and could force schools in states that ban affirmative action to break the law. Some civil rights organizations said the new standards did not go far enough "to stem the decline" in minority enrollments in law schools.

ABA officials say the department is misinterpreting the standard and pushing an anti-affirmative action agenda while violating its own procedures for reauthorizing the ABA as an accrediting agency.

The move, critics say, is the latest in a series of legal challenges on affirmative action, including a decision by Michigan voters in November to ban the use of race in deciding public university admissions and government hiring. It comes as the ABA is seeking the Education Department's authority to continue accrediting U.S. law schools.

Supreme courts and bar examiners in all 50 states use ABA approval as a qualifying factor in making law school graduate licensing decisions.

At a Dec. 4 hearing, department officials raised a number of concerns with the ABA's stewardship of the law school accreditation program, including whether it was consistently enforcing its own policies regarding the maximum time it allows a law school to remain out of compliance with its standards -- two years.

But the most controversial issue at the hearing was about the diversity standard.

Bill James, a department official who presented the case for the government, said during the hearing: "The ABA is now requiring schools to implement quotas for enrollment and hiring of racial and ethnic minorities and women. While the agency says that Standard 212 and its interpretations do not require quotas or preferences, the language is so vague that they can be reasonably read to require just that."

William Rakes, chairman of the ABA's council on legal education and admissions to the bar, countered that the association's application "has turned into a policy issue relating to affirmative action, relating to diversity, as opposed to a consideration as to whether" the ABA is consistently applying its own standards.

The ABA said it had a similar standard that promoted diversity for 26 years unchallenged.

Ultimately, the National Advisory Committee on Institutional Quality and Integrity, an appointed panel charged with making the decision, voted to extend the ABA's role for 18 months rather than the usual five years and required the association to improve the way it carries out the task of accrediting law schools. But the committee dropped the staff recommendation to include any action on the diversity standards.

The committee sent its report to Education Secretary Margaret Spellings, and general counsel Kent Talbert said the federal agency would appeal the decision to leave the standard alone. Department spokeswoman Jane Glickman said it was not known when the appeal would be made or when Spellings would rule.

Rakes issued a statement saying the ABA "is disappointed" about the appeal and noted that the department's "own regulations for recognizing accrediting agencies do not speak to diversity standards, and therefore, cannot justify the requirement of removing diversity standards from an accrediting agency's oversight of institutions of higher education."