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ABA Criticized Over Diversity Mandate at Accreditation Renewal Hearing

ABA Criticized Over Diversity Mandate at Accreditation Renewal Hearing

The American Bar Association’s effort to expand diversity at the nation’s law schools was among the concerns raised during the organization’s hearing to renew its accreditation authority. The National Advisory Committee on Institutional Quality and Integrity, which advises the U.S. Department of Education on whether to approve accreditation agencies, faulted the ABA’s diversity drive, among other things, approving authority for only 18 months instead of the traditional five years. The ABA must report to the committee next December on its efforts to correct the deficiencies cited by the committee.

While problems ranging from the ABA’s failure to enforce school probation periods uniformly to failure to notify the public when a school loses accreditation hurt in its renewal bid, the ABA’s revision of its diversity standard proved to be the most controversial. The new standard calls on law schools to offer opportunities to “members” of minority groups, whereas the old one referred to “qualified” members. The new rule also replaces the instruction that admissions consideration be given to “victims of discrimination” with one referring to “underrepresented groups, particularly racial and ethnic minorities.” The ABA now extends its diversity standard to faculty and staff. whereas the previous standard applied only to students.

ABA officials say they rewrote the rules in an attempt to comply with the U.S. Supreme Court’s ruling in the 2003 Grutter v. Bollinger case, in which the court ruled that, with certain restrictions, law schools could use race and ethnicity as admissions factors. The ABA also sought to clarify rules for laws schools in the four states that currently prohibit racial and gender preferences in admissions. The new standard says state bans don’t get law schools off the hook — they must find other ways to diversify, such as using special recruitment efforts, financial aid and academic assistance.

NACIQI staff blasted the ABA’s new standards, calling the language “vague and ambiguous” because it “inevitably requires the agency to use unpublished criteria when evaluating a law school.” The committee’s report noted that while the standard exempted schools from using preferences in states that prohibit them, it “can be read to require other law schools to use such preferences. … This dichotomy will result in inconsistent diversity admissions and
hiring standards.

“In stark contrast with [the prior standard], which provided detailed guidance and required the development of a diversity plan and written records and files of specific actions, the new standard and interpretations demand ‘concrete action’ but [do] little to provide concrete examples of how a school might comply,” the report continues. NACIQI also criticized the new standards for not specifying what actions or results the ABA would assess. With such vague guidelines, “the use of unwritten criteria and unpublished standards appears unavoidable,” the report says.

— By Charles Pekow

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