Forced Fairness

Friday, October 9, 2009

To the world outside the college campus, the accreditation process might seem an unlikely battleground for the continuing conflict over how much affirmative action is enough. Most people affiliated with any of the hundreds of accredited schools and programs take accreditation for granted. From time to time, representatives of the various accrediting agencies may visit a campus, but their focus most often involves such weighty but insular matters as course offerings, library facilities, and tenure.

In addition, many assume that questions regarding affirmative action were resolved to the overwhelming satisfaction of academia in three momentous Supreme Court cases, beginning with the 1978 Bakke decision and ending with the Grutter and Gratz cases, decided in 2003 and involving the University of Michigan undergraduate and law school admission programs. In those three cases the court held that although race preferences are illegal for most purposes, the state does have a compelling educational interest in campus diversity, leaving both state and private institutions free to adopt narrowly tailored admission procedures favoring minorities.

But the issue is far from settled, and accreditation, it turns out, is too potent a political tool to lie dormant for long. A school or program denied accreditation faces a disastrous loss of academic standing: student applications are likely to dwindle; federal scholarship support is denied, along with grant money, public and private. If a law school loses its accreditation, many states deny its graduates the right to take the bar exam.

Some seventy-seven programs, including cosmetic arts, family therapy, and Talmudic scholarship, are under the accreditation authority of organizations designated by the secretary of education with the in-house advice of the National Advisory Committee on Institutional Quality and Integrity. Once so designated, an accrediting agency gains broad power over the programs within its jurisdiction, establishing and enforcing criteria by which each will be judged. In most cases, this includes a demand that the program under review demonstrate a strong commitment to student and faculty diversity, something the Supreme Court had expressly left to school administrations to determine for themselves. Theoretically, the education secretary has the power to strip an overstepping organization of its power, but that control over policy making is rarely exercised.

Accreditation, far from being an arcane matter, is too potent a political tool to lie dormant for long.

Of all the areas of potential dispute, by far the most active has been the accrediting of law schools, reflecting, in part, the importance of lawyers in our society. Law school admissions and the matriculation of law students have been closely monitored and documented for years. Perhaps the most compelling study of affirmative action was conducted by Richard Sander of the UCLA Law School. In that study, reproduced by the Stanford Law Review, Sander reported that the nominal beneficiaries of affirmative action in legal education often exhibit poor academic performance, relatively low graduation rates, and difficulties repaying student loans and passing the bar exams. Sander ascribed many of those problems to what he called the “mismatch factor,” something that arises when minority candidates wind up in schools in which their academic qualifications rank them at or near the bottom of the class. The mismatched students lose self-confidence, as indicated by their high dropout rates, low class standing, and in many cases failure to pass the bar exam.

Sander’s work caught the attention of the U.S. Commission on Civil Rights, which was soon able to consider it in light of a real-world conflict: the dispute between George Mason University School of Law and the American Bar Association (ABA), the group that accredits law schools on behalf of the secretary of education.


George Mason University, founded by the state of Virginia in the late 1970s, had actively recruited black law students but had attracted few who were both able and desirous of attending. The university conducted an internal study and concluded that the paucity of funding for financial aid discouraged many black students from attending, but that the critical reason for a recent drop-off in black law school enrollment involved efforts by the university to increase the caliber of its student body, which meant holding all applicants to high LSAT/GPA standards, with no special minority allowance.

The nominal beneficiaries of affirmative action often suffer from poor academic performance, relatively low graduation rates, and difficulties repaying student loans and passing the bar exams.

The more competitive admissions process took its toll on minorities, who in 1997 constituted 11.1 percent of full-time first-year students, in 1998, 10.4 percent, and in 1999, 6.5 percent. In the fall 2000 entering class there were eleven minority students, including three blacks. Thus began a lengthy series of demands by the ABA—bolstered by the threat to rescind accreditation—and replies by George Mason, culminating finally in the school’s agreement to modify admissions standards as necessary so as to enroll more African-Americans.

But intimidating George Mason University was only one way in which the 410,000-member ABA attracted adverse attention from the Commission on Civil Rights. In February 2006, the ABA council introduced a standard requiring law schools seeking accreditation or reaccreditation to demonstrate their commitment to diversity by “concrete action.” Going further, the council proposed Interpretation 211-1 of this standard, which stated: “A constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity, or national origin is not a justification for a school’s noncompliance with the standard.” That proposed interpretation angered opponents of racial preferences, who saw it as an invitation for law schools in jurisdictions with Proposition 209–type laws— California, Washington state, Texas, Florida, and Michigan—to defy the law. (Under that 1996 California ballot measure, the state constitution was amended to prohibit public institutions from considering race, sex, or ethnicity in education, hiring, or contracting.)

The American Bar Association’s guidance has an Orwellian tinge: race preferences are merely an option, and here are some tricky surrogates if you need them. But one way or the other, you had better get the numbers right.

Combining its displeasure at the ABA’s treatment of George Mason with its new charge to challenge laws resembling Proposition 209, five members of the Commission on Civil Rights—a majority—called for an injection of truth into the affirmative action admissions process. They recommended that schools employing affirmative action disclose the extent to which standards for minorities differed from those of nonminorities and what had been the performance of affirmative action beneficiaries.

For good measure, a commission majority derided ABA’s challenge to Proposition 209–type states and recommended replacing the ABA as the accrediting agent for the Department of Education.

Confronted with such effective, high-level dissent, the ABA sought to modify its challenge to the laws yet achieve the same results. The ABA now declared that the school involved would have to “demonstrate the commitment required by Standard 212 by means other than those prohibited by the applicable constitutional or statutory provisions.”

How could the school do that? Consistent with the Michigan cases, Interpretation 212-2 provides that “a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity.” Interpretation 212-3 declares that it will not specify the precise steps a law school must take to pass muster, that judgment will be based “on the totality of the law school’s actions and the results achieved.” Leaving nothing to chance, however, the ABA goes on to list several tried and true initiatives, including “a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a more favorable environment for these students from underrepresented groups.”

When read carefully, the ABA’s treatment of the issue has an Orwellian tinge: race preferences are merely an option, and here are some tricky surrogates if you need them. But one way or the other, you had better get the numbers right.

That goes for faculty, too, despite longtime faculty resistance to affirmative action in granting tenure. A student beneficiary of affirmative action may, at most, affect the program in which she is participating for four years, but an unqualified faculty member granted tenure through affirmative action can contribute to lower departmental standards over the course of a working lifetime. Bakke and the Michigan cases were consistent with this precept, underlining the right of schools to make judgments about the value of diversity in a student body. But the ABA has gone further, not only permitting but requiring affirmative action in student admissions and then taking the extra step of bringing faculty tenure decisions under the wing of affirmative action.


It may well be that in today’s intellectual environment many university administrators would happily accept the ABA injunction. But a practice that appears illegal on its face cannot be maintained simply because the predominant campus intellectual winds are blowing in that direction.

The ABA, of course, has a great interest in attracting high-quality students to programs of legal education. Thus, while requiring affirmative action on one hand, it is also urging colleges and universities to adopt tougher law school admissions standards and has proclaimed that a putative law student scoring below 141 on his LSATs should rarely be admitted, as experience shows that he is unlikely to do well in law school.

Sometimes the two aspects of ABA policy collide, with startling results. Take the case of the Thomas M. Cooley Law School. Located on three widely separated campuses in Michigan, the school boasts more than 2,900 students, making it the largest law school in the country. No one, however, will ever call Cooley the Harvard of the Midwest. Before each admission cycle it publishes its minimum acceptable LSAT score; in days past, it was just a hair above the 141 below which the ABA urges rejection. It also uses a formula that merges LSAT and GPA scores, with anyone achieving the published number eligible to enroll. Admission is first-come, first-served until all places are filled. Everything at Cooley is race-neutral. Once a student is enrolled, a well-organized academic booster program helps most graduate. School officials say that all but about a percent or two of student loans are eventually repaid. Bar exam passage rates exceed 80 percent. Until recently, roughly 22 percent of the students were black, the highest in the country, excluding historically black colleges and universities.

A practice that appears illegal on its face cannot be maintained simply because the predominant campus intellectual winds are blowing in that direction.

The ABA found Cooley’s low LSAT scores intolerable. Threat followed threat until the ABA presented Cooley with a “show cause order” to explain why it should not lose its accreditation. At a New York symposium, one senior ABA official said such a step was necessary “to maintain quality and prevent consumer fraud.” The school decided the risk of an accreditation loss was too great and immediately raised the standard. Virtually overnight, black enrollment fell from 22 percent to 10 percent.

John Nussbaumer, a professor and associate dean at Cooley and a passionate critic of current ABA practice, published a study in the winter 2006 issue of St. John’s Law Review reviewing the admissions experiences of 84 U.S. law schools during 2002–4. Looking for any correlation between rising standards and falling African-American attendance, here is what he reported:

  • Eighty-two percent (69 out of 84) of the schools studied raised their 25th-percentile LSAT scores during the two-year period, meaning that the lowest quarter of those admitted now had a higher bar to surmount and that fewer students who in the past would have won places by virtue of affirmative action would now be admitted.

  • Sixty-two percent (43 of 69) of the schools that raised their 25th-percentile score saw their African-American student enrollment decrease by an average of 19 percent.

  • Although total student enrollment at all schools increased from 70,803 to 74,857 students (a 5.7 percent increase), total African-American enrollment decreased from 5,277 students to 5,074 (a 3.8 percent drop).

  • The percentage of African-American students enrolled decreased from 7.6 percent to 7.0 percent.

Similar trends have been identified by research teams working at the direction of the Congressional Black Caucus. The most stunning fact is the failure of the nation’s educational system to produce enough black students who can take their places alongside those of other races and ethnicities. According to data provided by the Congressional Black Caucus, in 2002–6, out of 50,320 total African-American law school applicants, only 18,700 were admitted to at least one school—a shutout rate of 63 percent. (The comparable rate for white applicants was 35 percent.) The most recent data (from 2007) show the numbers getting worse: not only had the total of African-American applicants dropped 2.7 percent, to 9,090, but the number of African-American applicants who were actually admitted to a single law school fell 0.7 percent, to 3,890 students.

The ABA Council and its supporters are corrupting the problem-solving process in the realm of racial justice by mistaking symptoms for the disease and then treating the symptoms incompetently, or worse.

The numbers further show that African-American law student enrollment peaked in the 1995–96 academic year, with 9,779 students enrolling out of a total of 129,397 students, reflecting a 7.6 percent African-American presence. In the 2006–7 academic year, black enrollment dwindled to 9,529 students out of a total enrollment of 141,031, or a mere 6.8 percent. Worse, the decline occurred during a period in which the ABA fully or provisionally approved nineteen new law schools, overall law school enrollment increased 9 percent, and overall minority enrollment—including both Hispanics and Asian-Americans—increased 53 percent.

Most recently, in the 2007–8 academic year, African-American enrollment was down again, this time to 9,483 students out of 150,031.


An observer’s heart cries out for a quick fix, but one conclusion is inescapable: the ABA approach is deeply and fundamentally wrong. The ABA council and its supporters are the latest in a long line of social activists in this country who are corrupting the problem-solving process of racial justice by mistaking symptoms for the disease and then treating the symptoms incompetently or worse. Virtually every qualified sociologist who has spent time examining centers of urban black life has come away talking about single parenthood, delinquent dads, the disappearance of community role models, failing schools, academic disengagement, the drug culture, and similar afflictions. It will take the mobilization of human resources in entire communities to fight these problems, as well as time, money, and candor.

By contrast, the activist groups both inside and outside the ABA see the minority problem in terms of numbers and thus set their sights on those devices that inform us about numbers, much as someone distressed about cold winters might spend her time destroying thermometers. African- Americans make up nearly 13 percent of the U.S. population but only about 4 percent of its lawyers. So if too many are being rejected from law school because of poor performance on the LSAT, discredit that test, dispense with it, or downgrade its significance. If the numbers still are not right, begin applying new admissions criteria, giving credit for overcoming personal tragedy, race discrimination, or any other quality that can be manipulated to minority applicant advantage.

Although the razor-thin majority in Grutter held that student body diversity is a compelling state interest and that the University of Michigan Law School could constitutionally discriminate against whites and Asians to achieve this interest because its particular program was narrowly tailored, its decision was also restricted by another important premise. As the ruling says:

[The United States Supreme Court has] long recognized that given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. . . . The freedom of a university to make its own judgments as to education includes the selection of its student body. . . . By claiming the right to select those students who will contribute the most to the robust exchange of ideas, a university seeks to achieve a goal that is of paramount importance in the fulfillment of its mission.

The ABA’s action with regard to George Mason’s law school runs afoul of the court’s opinion and thus of the Constitution for two key reasons. First, the Grutter court specifically states that freedom of speech, guaranteed by the First Amendment, also guarantees a university the freedom to select its own student body. The ABA denied George Mason’s law school this constitutionally mandated right when it forced the university to completely abandon its long-standing race-neutral admission policy in favor of one that met the specifications of the ABA’s own diversity blueprint. Put another way, if Grutter gives universities the right to discriminate in the interest of diversity, it also gives them the right not to discriminate. In doing so, the court “takes into account complex educational judgments in an area that lies primarily within the expertise of the university” and gives “a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.” The ABA does not leave schools vying for accreditation that same option.

As evident in the George Mason debacle, the legal problem with the ABA’s approach is this: it looks like a mandatory quasi-quota system, one that forces law schools to implement programs to achieve unstated but very real percentages of minority students to maintain their accreditation, which sounds a lot like the programs banned in Bakke and Gratz.

No one urges that the ABA be muzzled. If the organization wishes to endorse racial preferences, it is free to do. It can publish studies suggesting good results from affirmative action or challenging the conclusions or methods of others. It can conduct seminars for university deans and administrators who wish to remain current with the latest developments in the field—what seems to be working well and what does not. What it cannot do is use its coercive power to force obedience by schools that have concluded that substantial race preferences simply don’t work.