ABA Standard 211: A One-Sided Coin?
A few months ago, this op-ed piece appeared in the Opinion Journal. In it, David Bernstein — a professor at the George Mason University School of Law — offers an alarmist critique of proposed revisions to Standard 211, an ABA rule effecting all ABA-accredited law schools.
The existing Standard 211 is about equal opportunity in law school admissions. The proposed revision is about equal opportunity and diversity. According to the proposed revision, law schools must increase their enrollment of “members of underrepresented groups, particularly racial and ethnic minorities.” This applies not just to students, but faculty and staff as well.
The standard includes this proviso:
The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 211.
Uh Oh! Is the ABA telling public schools — such as the University of California — that they should (or must) violate the state’s constitution, which contains this proviso:
The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
Professor Bernstein calls it affirmative blackmail — if you run a law school, then either you give special consideration to members of certain ethnic groups despite laws that prohibit such discrimination, or you lose your ABA accreditation.
____________
The ABA offered this response to Bernstein’s article.
There’s a good discussion of ABA Standard 211 over at the Volokh Conspiracy. There’s also a discussion of this at blackprof.com.