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The ABA’s Leftist Politics
The American Bar Association is once again the subject of political controversy. At its recent annual meeting in Honolulu, Hawaii, the organization once again took official stands on a variety of political and policy issues – and once again, the ABA showed that its leaders and active members are, with few exceptions, quite left-wing in their politics and that, in their zeal to advance their own activist agenda, they are using the organization’s influence and power to impose that agenda on American society. The leftist political activism of the ABA should be a matter of concern to all Americans. Lawyers should be concerned that the nation’s largest organization of lawyers does not fairly represent their views but instead represents only the views of the leftist cabal who controls the ABA. And non-lawyers should be concerned that the ABA is using its monopolistic powers over entry into the legal profession – chiefly its power to accredit law schools and thus to determine who can or cannot be future lawyers in the United States – not only to stifle competition in legal services but also to advance a leftist agenda that is both unconstitutional and racist. The agenda to which I’m referring is the ABA’s new policy on “diversity” in law school admissions and faculty hiring – a policy that will force all American law schools to adopt racial preferences, in violation of the law as well as of individual rights. (For more on the ABA’s perverse notion of “diversity,” see the discussion below.) The leftward political turn of the ABA is not a new phenomenon – it is a trend that has been gaining momentum over the past few decades – but, historically, it’s a significant movement away from the founding principles of the organization. When it was first founded in the late nineteenth century, the ABA was a conservative organization. In addition to its efforts to foster greater professionalism in the law – efforts that included both the accreditation of law schools, to improve the quality of American legal education, and the use of competitive examinations (forerunners of today’s bar exam), to set minimum standards for entry into the legal profession – the ABA also took public stands in support of the rule of law and individual rights. In a sense, therefore, the ABA has had a long history of taking stands on political and policy questions, as well as technical questions directly concerning the law. The difference, compared to the modern ABA, is that the organization in the late-19th and early-20th centuries was conservative, in the best sense of the word: it took a stand in support of individual rights – including property rights and rights of economic liberty – in opposition to the socialist policies advocated by so-called “Progressive” leftist political activists a century ago. For example, Judge John F. Dillon in his presidential address at the 1892 ABA convention, spoke eloquently about the dangers to property rights: “We cannot close out eyes to the fact that the institution of private property is menaced, both by open and covert attacks. It is attacked openly by the advocates . . . of socialism or communism, who seek to array the body of the community against individual right to exclusive property; and in favor of the right of the community in some form, to deprive the owner of it, or of its full enjoyment.
“Property, or its rightful enjoyment, is also covertly invaded, not by the socialist, but at the instance of a . . . supposedly popular demand; in which case the attack is directed against particular owners or forms of ownership, and generally take the insidious, more specious and dangerous shape of an attempt to deprive the owners . . . of their property by unjust or discriminatory legislation in the exercise of the power of taxation, or of eminent domain, or of that elastic power known as the police power . . . .
“The great, paramount, overshadowing duty of the legal profession in this country, in our day, is to defend, protect and preserve our legal institutions unimpaired . . . against popular, or supposedly popular, demands for enactments in conflict with it.”
If today’s ABA were to be true to its founding principles, it would be speaking out against the many threats to individual rights and to the rule of law that “popular, or supposedly popular” demands for government regulations and controls pose today. Among them are the continuing abuse of eminent domain powers, in part due to the sanction of the U.S. Supreme Court, with its egregious Kelo decision last year, which eviscerated one of key limitations that the Fifth Amendment’s takings clause places on government’s exercise of eminent domain powers. In the wake of Kelo, an ABA concerned about property rights could – and should – speak out in opposition to the various ways in which governments at all levels have abused the eminent domain power. Yet the organization, as far as I know, has been silent about this vital issue. Similarly, with regard to other issues involving threats to property rights and other individual rights – for example, anti-smoking laws that deprive business owners of the ability to decide for themselves whether or not to allow customers to smoke cigarettes on their premises, or environmental laws or regulations that sacrifice property owners’ rights to the supposed rights of “endangered species” – the ABA is either silent or, perversely, takes the side of government regulators (and/or the special interests who promote the regulations) against the side of individual property owners. Instead, today’s ABA takes stands on issues that more or less parallel those taken in the political playbook, or talking points, of the Democratic Party.
Why I Quit the ABA
In mid-August 1999, I wrote an open letter to my Capital University Law School community explaining why, after many years of being a member of the ABA, I could no longer be a member because of the organization’s left-wing politics. For me, the final straw was the organization’s decision to invite Bill Clinton to be the keynote speaker at that year’s annual meeting – a decision that clearly showed both the left-wing bias and the hypocrisy of the organization, as I explain below. Here is the full text of my open letter:
August 16, 1999
Why I've Quit the American Bar Association: An Open Letter to the Law School Community
At one time the American Bar Association was an organization truly dedicated to "preserving liberty, pursuing justice," as its current motto states, and to maintaining "the honor of the profession of law," as its constitution states. The ABA's policy handbook specifies its mission "to increase ... respect for the law and to achieve the highest standard ... of ethical conduct." Today, however, the ABA has betrayed its professed principles.
In recent years, the ABA increasingly has become an advocacy organization for a variety of left-wing political causes including: support for race- and gender-based affirmative action programs, opposition to tort reform, support for federal gun control measures and continued federal funding of abortions, universal health insurance, and funding for the Legal Services Corporation and the National Endowment for the Arts.
Moreover, the ABA also has become quite partisan, virtually an organ of the Democratic Party. This political bias permeates the ABA and its activities; it is evident in its leadership staff, its programs and speakers, and its choice of award recipients. This year's annual meeting, for example, featured a keynote address by Bill Clinton -- whose invitation was announced the same week that a federal judge imposed sanctions on Mr. Clinton for having given "false, misleading, and evasive answers that were designed to obstruct the judicial process" and engaging in "misconduct that undermines the integrity of the judicial system." The ABA's disparate treatments of Clinton today and Richard Nixon in 1973-74, documented by Gerald Walpin in a recent Wall Street Journal essay ("Lie to a Court, Get Invited to Address the ABA," Aug. 9, 1999), is itself quite telling about the organization's partisanship.
The ABA's decision to invite Mr. Clinton to speak at this year's annual meeting is, for me, the final straw. As Walpin notes, the ABA has sent a message to lawyers that "it is OK to lie and obstruct justice, so long as you maintain political allies in high places." Even the Washington Post -- hardly a conservative or libertarian paper -- in its August 11 editorial condemned the ABA for "inviting a perjurer to speak to a professional association of attorneys," noting that this was "a move that could not be better calculated to entrench the larger public's contempt for lawyers as people who twist the truth for selfish ends."
The ABA no longer represents me. Nor does it represent millions of other American lawyers who truly value liberty, justice, and the rule of law.
David N. Mayer Professor of Law
Much to my surprise, my open letter received nationwide attention. It was published in The Federalist Society's Bar Watch Bulletin on September 27, 1999 and in The Washington Times on October 3, 1999; it also was reprinted in CBA Today [the newsletter of the Columbus, Ohio Bar Association] on October 15, 1999, in The Washington Times National Weekly Edition for October 11-17, 1999, and was posted online in FrontPage Magazine. It also generated a large number of individual responses, which I received both by e-mail and conventional mail. In a follow-up letter to the Federalist Society’s Bar Watch Bulletin, I summed up these responses:
I thank everyone who has written me and/or the Federalist Society in response to my open letter on the ABA. The response has been rather overwhelming. To date, via both email and U.S. mail, I've received over 110 letters, virtually all congratulatory, from lawyers, law professors and students, and non-lawyers in a variety of fields ranging from business to elementary education. . . .
Frankly, I'm amazed at the newsworthiness of my letter. I assumed that given the controversy over the ABA's invitation to Mr. Clinton to speak at this year's annual meeting (with even the Washington Post denouncing it), I would be one of hundreds if not thousands of people who would not only quit their ABA membership but publicly announce their reasons for doing so. Many of the letters I've received have commended me for my "courage," but I consider it not so much a matter of courage but rather of integrity. Having concluded that the ABA has been hopelessly corrupted by leftist politics, I cannot in good conscience continue to sanction it with my membership. I'm surprised that people view the simple act of acting according to one's principles as so extraordinary. Apparently, however, given the ABA's virtual monopoly over the legal profession, many practitioners do not feel they have the same freedom to denounce it that I have as an academic. The experience has reminded me of the importance of academic freedom and of the tenure system which helps ensure it.
From the various responses to my letter, I've learned many other interesting things. First, dissatisfaction with the ABA is widespread and not a new phenomenon: several people wrote me of their reasons for quitting ABA membership based on controversial political positions the organization took in the 1980s and early 1990s (the ABA's policy position in support of abortion rights and its honoring of Anita Hill were most frequently mentioned). Second, I've discovered that many ABA members who would like to quit feel unable to do so because they're locked into ABA group insurance programs; this is especially true for many law professors who joined the ABA because their schools did not provide benefits such as disability insurance. (I've also discovered that the ABA lures many law students into membership through its group health insurance programs.) Third, I've learned that the ABA leadership largely has been unresponsive to members' complaints about its political stances: several people sent me copies of letters they received from ABA leaders which were not only defensive but also extraordinarily smug and condescending. (Incidentally, I've received no response from anyone at the ABA to my letter and I've heard through sources connected to the ABA that the organization intends to just ignore me, hoping to spare itself from additional adverse publicity.) . . .
The ABA has not changed in any significant way since 1999. Indeed, it has become worse.
A Leftist, Bush-Bashing Agenda
Since George W. Bush has been President, the ABA has demonstrated its left-wing bias in two major ways. First, in its role of evaluating federal judicial candidates, the ABA has continued to allow left-wing political and ideological preferences to bias its evaluation of Bush nominees, particularly if the nominees are conservatives. Second, the ABA has formed several task forces designed to critically examine the Bush administration’s use of executive power – and, in effect, has sided in a knee-jerk fashion with President Bush’s partisan critics rather than objectively considering significant questions about possible abuse of executive power. Since 1948 the ABA’s Standing Committee on the Federal Judiciary has provided the Senate Judiciary Committee with the Committee’s evaluation of every federal judicial nominee; and by and large, the Senators have taken the ABA evaluations quite seriously in exercising their power to confirm (or not to confirm) presidential nominees to the federal courts. (Faced with abundant evidence of the ABA Committee’s consistent practice of allowing its leftist bias to influence its evaluations, the Bush Administration wisely decided, in March 2001, to downplay the ABA role, by ending the tradition of providing the ABA Committee with the names of nominees before they were made public. As the Wall Street Journal noted in a July 26 editorial, “An ABA Hit Job,” the change meant that the ABA “would still evaluate the candidates for the federal bench, but it would do so from a status more consistent with the role it plays – that of a political interest group.” But, as the Journal editors also noted, it’s “too bad Mr. Bush didn’t go all the way and cut out the ABA entirely. Instead, the lawyers’ lobby retains a special role as the only national organization authorized by the Administration to interview judicial nominees. And when it has given a favorable rating to a Bush nominee, the Administration has been only too happy to shout it from the rooftops,” thereby undercutting the administration’s ability to complain about the ABA’s left-wing bias.) Current controversies over two Bush judicial nominees – Brett Kavanaugh, a nominee to the U.S. Court of Appeals for the D. C. Circuit, and Michael B. Wallace, a nominee to the U.S. Court of Appeals for the Fifth Circuit – illustrate the degree to which the ABA has continued to let partisan politics, rather than objective professional standards, dictate its evaluations. (An article in the August 2006 issue of ABA Watch, a periodical published by the conservative/libertarian Federalist Society, documents that six of the seven members of the Standing Committee appointed by the current ABA president have given money to the Democratic Party and Democratic candidates. Although ABA rules require panel members to refrain from making political contributions while serving on the Committee, the past partisan activities of the majority of the panel’s members calls into question its objectivity and its ability to evaluate judicial candidates impartially, without regard to “a nominee’s philosophy or ideology,” as the ABA claims to do.) The ABA Standing Committee violated its own rules by inexplicably re-rating Kavanaugh and not allowing him to respond to the supposed new “evidence” that resulted in his rating being changed from “well qualified” to “qualified.” (The probable reason was that left-wing advocacy groups were adamantly opposed to Kavanaugh because of his past work with Kenneth Starr’s independent-counsel investigation of the Clintons as well as his recent work in the Bush White House. In other words, purely partisan opposition – not objective standards of professional qualifications – influenced the ABA ratings. Notwithstanding the ABA evaluation and strident opposition from left-wing advocacy groups and Democratic Senators, Judge Kavanaugh’s nomination was confirmed by the Senate in May.) The evident partisanship in the Wallace case is even worse. In May the ABA panel rated Wallace as “unanimously not qualified” for the federal bench. As the Journal pointed out in its July 26 editorial, Wallace is a highly regarded attorney in private practice in Mississippi, where his nomination has bipartisan support. He clerked for the late Chief Justice William Rehnquist and in the early 1980s served as counsel to then-Congressman Trent Lott. In 1999 Mr. Lott hired him back as special counsel during the Clinton impeachment trial. As the Journal editors note, “that’s not a professional background likely to endear the nominee to liberals,” but the “real disqualifier” is that during the Reagan and George H.W. Bush administrations, Mr. Wallace served on the board and also was chairman of the federally-funded Legal Services Corporation. Critics of the LSC have long pointed out that its ostensible mission, to provide legal help for the poor, has provided a platform for leftist political activism. Wallace’s real crime, in the eyes of the ABA panel, was to try to reform the LSC. Wallace’s reform efforts put him into conflict with two outspoken opponents: an attorney named Michael Greco and the then-president of the New Hampshire bar, Stephen Tober. Greco is now president of the ABA, and Tober is charman of the ABA committee that nixed Wallace. As the Journal editors pithily note, “Mr. Wallace’s reforms were adopted [at the LSC], and now it’s apparently payback time.” And, as the sorry episode illustrates, it’s also “past time to cut the ABA out of the vetting process altogether.” The ABA’s partisan agenda, as yet another left-wing special interest group, is also quite evident in the organization’s recent efforts to bash President Bush and his administration’s stance on executive power. Rather than remaining neutral (as perhaps the organization should) on political issues that divide its membership – and on which attorneys could, and indeed do, take opposing well-reasoned positions – the ABA has chosen, in effect, to go to war against the Bush administration, becoming one of its leading partisan critics. One case in point is the ABA’s recent statement in opposition to Mr. Bush’s presidential signing statements. At the ABA annual meeting in Honolulu earlier this month, the House of Delegates approved a report and resolution by a task force declaring it is “contrary to the rule of law and our constitutional system of separation of powers” for the president to claim authority to disregard, or decline to enforce, all or part of a law he has signed, or to interpret that law in a manner inconsistent with the intent of Congress, because he believes it to be unconstitutional. According to the ABA task force, the president has but two options: he may veto the entire bill, or enforce it in full. At first glance, the ABA stance might seem a justifiable defense of the rule of law, as well as the constitutional principle of separation of powers, against an apparent power grab by President Bush. Indeed, Bush’s aggressive use of the device – he has objected to more than 500 provisions in more than 100 pieces of legislation, nearly as many as the 575 signing statements issued by all his predecessors combined – is troubling, as legal scholar Richard Epstein notes in a recent Cato Institute op-ed, “The Problem With Presidential Signing Statements.” Critics are right to fear the unconstitutional expansion of the executive branch’s power; but as with all interesting constitutional questions, there is another side that ought to be considered – but which has been entirely overlooked by the ABA’s simplistic approach. The ABA stance essentially means that the president is constitutionally required to disregard the Constitution itself, in enforcing laws (or interpretations of laws) that he reasonably believes to be unconstitutional. That extraordinary proposition turns on its head over two centuries of American constitutional law, as well as the explicit language of the Constitution itself, which in Article II requires the president to take an oath of office that he will “preserve, protect and defend the Constitution of the United States,” to the best of his ability. As legal scholar Robert F. Turner points out in a recent op-ed, the practice of presidents following their oath – that is, following the Constitution itself – rather than following unconstitutional laws passed by Congress has a long and distinguished history. Since James Monroe, presidents have refused to implement unconstitutional provisions of statutes. And, as Turner notes, “the issuance of formal signing statements either to identify provisions that are inherently unconstitutional that will not be enforced, or to instruct the executive branch how an ambiguous provision is to be interpreted to avoid constitutional difficulties, has a long pedigree, having been done by Abraham Lincoln, Woodrow Wilson, Theodore and Franklin Roosevelt, Jimmy Carter, Bill Clinton (who used them far more often than did Ronald Reagan), and many other presidents.” (Turner, “Presidential Signing Statements and the ABA,” Washington Times, August 6, 2006.) By ignoring all this history – and thus creating the false impression that President Bush’s aggressive use of the device is unprecedented (when perhaps what is really unprecedented is the scope of unconstitutional legislation being passed by Congress) – the ABA reveals its partisan bias against Bush and his party. When one considers the other task forces that the ABA has created in recent months, it is impossible to avoid concluding that the lawyers organization is engaged in a systematic campaign of opposition against the Bush administration. As the Federalist Society’s current issue of ABA Watch reports, “Several task forces were established to investigate the role of the executive branch in the war on terrorism. Task forces on the `Treatment of Enemy Combatants’ and `Domestic Surveillance in the Fight Against Terror’ have cautioned that greater judicial discretion is needed as a check over presidential decision-making. Two more task forces were organized in the past year with similar missions.” Moreover, “several members of ABA leadership, including current president Michael Greco, have emerged as leading critics of the Administration’s use of executive power. Greco has devoted several of his speeches and interviews to pronouncing his concerns about President George W. Bush’s alleged abuse of the separation of powers. In particular, he has been sharply critical of President Bush’s use of executive branch authority to fight the war on terrorism, particularly with respect to the NSA’s terrorist surveillance program.” The ABA also has challenged the Bush administration position in two amicus briefs the ABA filed in federal court in the Jose Padilla and Yaser Hamdi cases, concerning enemy combatants. (“The ABA, the Separation of Powers, and Executive Power,” ABA Watch, August 2006.) Again, at first glance, the ABA’s opposition to Bush administration policies might be lauded as a principled defense of the rule of law and of separation of powers. But the one-sidedness of the ABA stance is underscored by its hypocrisy, in failing to oppose – and indeed, as noted above, even honoring – Bill Clinton, in his unprecedented use of presidential powers in the eight years before 2001. As is superbly documented in the book The Rule of Law in the Wake of Clinton (Roger Pilon ed., The Cato Institute, 2000), Clinton’s administration undermined the rule of law in a myriad of ways. With regard to the expansion of executive power, in particular, Clinton abused the presidential executive order authority – in effect, legislating in opposition to Congress as well as directly defying court decisions concerning labor law and other important policy matters. Yet the ABA was silent about Clinton’s abuse of executive powers, just as it was silent about the Clinton administration’s own “domestic spying” initiative -- its “Echelon” program, which used the NSA to randomly eavesdrop on U.S. telecommunications to find various possible violations of federal laws, including drug laws and so-called “white collar”crimes – well before such electronic surveillance could arguably be justified in the fight against Islamic terrorism. As the Wall Street Journal noted in another recent editorial, the ABA report on presidential signing statements is “a transparent political exercise.” Even the composition of the 10-member task force was not “balanced,” despite the ABA’s claims that it included three “conservatives.” All three are well-known critics of the Bush administration’s broad interpretation of executive power. And, as the Journal editors noted, “the ABA excluded such Democrats as former head of the Clinton Administration’s Office of Legal Counsel Walter Dellinger, who wrote a 1993 memo saying the President has an obligation to disregard unconstitutional laws.” (As the editorial also notes, Clinton’s signing statement on the Consolidated Appropriations Act for 2000, for example, took issue with a number of provisions regarding the conduct of foreign affairs that “raise serious constitutional concerns,” such as limiting his ability to negotiate a treaty on climate change. “`Wherever possible,’ Mr. Clinton said, `I will construe these provisions to be consistent with my constitutional prerogatives.’ But ‘where such a construction is not possible, I will treat them as not interfering with those prerogatives and responsibilities.’” “The ABA’s Agenda,” July 31, 2006.) As the Journal editors note, all this would have made Clinton “a Constitutional scofflaw, according to the ABA” – but the “lawyers’ lobby” was silent about Clinton’s presidential signing statements, just as it was about all his other constitutionally-suspect chicanery. Like many other partisan critics of the Bush presidency, the ABA has no credibility because of its hypocritical record in giving Clinton’s administration a free pass. If a Democrat currently occupied the White House, I doubt that the ABA would be as concerned about the constitutional separation of powers and broad uses of executive power as it now claims to be.
The ABA’s new “Diversity” Mandate: Racist and Unconstitutional
At its recent annual meeting in Honolulu, the ABA House of Delegates also approved a controversial new “diversity” standard, Standard 211, requiring law schools to take race into account in admitting students and in hiring faculty. The new standard provides: “A law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity. . . . [And law schools] shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race, and ethnicity.”
The new language for Standard 211 and its accompanying interpretation revises the language of the old Section 211, which mandated a commitment to “equal opportunity,” but qualified it by specifying that be done “consistent with sound educational policy” and by applying it only to “qualified” members of racial and ethnic minority groups. The old standard’s accompanying interpretation also listed a variety of ways that a law school could demonstrate to the satisfaction of the ABA that it had a commitment to equal opportunity. These included special recruitment efforts, such as targeting colleges that have substantial numbers of minority students, or developing financial-aid programs that assist the unusual financial needs of many minority students. Under the old standard, however, the use of racial preferences was not among the suggested ways; and indeed, it would have been inconsistent with the “equal opportunity” mandate to give certain persons a preference in student admissions or faculty hiring because of their gender, race, or ethnicity. Perhaps most significantly, the old standard required law schools to make an “equal opportunity effort” (as the old Section 211 was titled), while the new standard requires schools to achieve a particular result with regard to “equal opportunity and diversity” (as the new Section 211 is titled). In other words, the new standard requires law schools – by making their compliance with the mandate a condition for their ABA accreditation – to achieve a certain result, measured by the gender, race, and ethnicity of its student body and its faculty. That would seem to require law schools to act “illegally and immorally by engaging in racial preferences” to admit minority students – students who “in many (statistically predictable) cases, will have a slim chance of making it through law school and passing the bar exam,” as George Mason University law professor David Bernstein recently pointed out on the Volokh Conspiracy blog (“Startling Confession by the ABA,” August 17, 2006). The deletion of the caveat protecting “sound education policy” in the new standard is particularly troubling. If, as Professor Bernstein persuasively argues, law schools will be pressured by the new standards to admit less-qualified students simply because of their race or ethnicity, it will be these minority students who will suffer most by the new ABA rule. Bernstein points out that an empirical study by Richard Sander of UCLA “confirms anecdotal evidence that student beneficiaries of such [racial] preferences tend to struggle in law school and end up at the bottom of their classes. Statistics published in the year 2000 also reveal that under current affirmative action policies, 43% of all African-American matriculants to law school either never graduate or never pass the bar (compared with 14% of whites).” Given this evidence, he adds, “Some schools might conclude dooming a huge percentage of African-American students to failure is contrary to sound educational policy, and limit their `diversity’ efforts to recruitment and retention.” Under the old standard, they could make that rational choice; however, under the new standard, they will be pressured to admit certain students because of their race – in order to meet the quotas that will convince the ABA that they’ve met the standard – regardless the cost to the very students the policy supposedly benefits. As Professor Bernstein also noted in an op-ed earlier this year, when the ABA’s Council of the Section on Legal Education and Admissions to the Bar was proposing the new “diversity” mandate, the new Standard 211 forces law schools to engage in racial preferences in admissions and hiring “regardless of any federal, state, or local laws that prohibit such policies.” (Schools must meet the standard in order to acquire or maintain ABA accreditation; and as Professor Bernstein notes, “Since only graduates of ABA-accredited schools may take the bar exam in the vast majority of states, the association has, in effect, a legal monopoly on accreditation standards” – a problem that will be discussed in the next section, below.) Indeed, the new language of Interpretation 211-1 states that “the requirements 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.” In other words, the new standard requires schools to use race preferences in violation of the law, especially in states such as California and Florida (or, perhaps, in Michigan, if a referendum banning “affirmative-action” programs at state schools there passes in November), which have explicitly prohibited racial preferences in admissions and hiring. Although the ABA president defended the new standard by claiming that it merely prohibits rather than requires racial preferences, Professor Bernstein points out that, practically speaking, racial preferences generally will be necessary to comply with Standard 211. Under the old standard, he notes, “ABA accreditation officials have bullied law schools” into the position of violating both the law and their consciences in pursuit of racial “diversity,” even without written authority backing their demands. Under the new standard, with that new authority, the ABA “accreditation bureaucracy, composed mainly of far-left law professors,” will be emboldened “to demand explicit racial preferences and implicit racial quotas – all in brazen defiance of the law.” (David Bernstein, “Affirmative Blackmail,” Wall Street Journal, February 11-12, 2006.) The ABA has tried to justify its new standard by pointing to the Supreme Court’s 2003 decision in Grutter v. Bollinger, one of the University of Michigan “affirmative-action” cases, in which the Court held that a law school may take race into account in admitting a “diverse” student body. The new Interpretation 211-2 maintains that, “consistent with the Supreme Court’s decision in Grutter v. Bollinger, a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity.” That claim, as Professor Bernstein also observes, is an outrageous misstatement of what the Court actually held in Grutter. First, Grutter held only that racial preferences in higher education are legal when used to promote diversity, not when used to promote “equal opportunity.” The Court, in fact, specifically held that a school may not establish a quota for minorities; that would be “outright racial balancing, which is patently unconstitutional.” As Bernstein observes, “The Supreme Court has consistently disapproved of the use of racial preferences other than for either educational diversity, or to remedy past discrimination, and nothing in Grutter is to the contrary.” Second, “Grutter did not hold that any law school may use race in its admissions process to promote racial diversity. Rather, the Court stated that it was deferring to the Michigan Law School’s `educational judgment that such diversity is essential to its educational mission.’” As he observes, Grutter left other law schools who did not share that educational judgment free to refrain from the use of race preferences in their admissions process, “particularly if the only way to achieve such diversity is by admitting underqualified minority students.” The new ABA standard, in contrast, would seem to require all law schools to follow the Michigan model – and thus to use “the heavy hand of ABA accreditation to deny academic freedom” to law schools that would not choose racial preferences.” “Diversity,” of course, is the new code word for what used to be called “affirmative action,” and that phrase, in turn, is simply code for racial preferences. As I discussed in my essay “Affirmative Racism” (January 23, 2006), so-called “diversity” or “affirmative action” programs are contrary to the principle of equal treatment under the law – and thus, when engaged in by government (including public institutions of higher education), are indeed in violation of federal antidiscrimination law as well as the Equal Protection clause of the Fourteenth Amendment. These programs are also, by definition, racist. As I explain in that essay, racism is among the worse forms of collectivism: it is wrong because it disregards each person’s own individuality and instead treats persons as members of particular groups (whether based on race or ethnicity or other categories such as sex, sexual orientation, or religion). Proponents of so-called “diversity” policies like that of the ABA are, in fact, perverting the word and undermining genuine diversity. As I wrote in that earlier essay, “Proponents of affirmative action justify it with arguments that are, in fact, racist. The most common justification given today for racial preferences in college admissions or in hiring is the so-called “diversity” rationale . . . What affirmative-action proponents really advocate is the use of individuals as pawns in a game of social engineering – a game that harms not only the students who are the victims of “reverse discrimination” (white male students, generally) but also those students (whether members of “minority” racial/ethnic groups or females, etc.) who are supposed to benefit from the program. Rather than treating persons as unique individuals and judging them by relevant factors such as their intelligence or aptitude, their skills, or their character, the use of affirmative action to promote so-called “diversity” subordinates individuality to group stereotypes. . . . “This [new] notion of `diversity’ is a form of Orwellian double-speak: like other terms used by George Orwell in his novel 1984 (for example, freedom when used to mean slavery) it perverts the real meaning of the word by turning it on its head. Diversity, properly speaking, should celebrate individuality: the uniqueness of each individual human being, the ability of each person as a free-thinking individual to transcend whatever influences (whether cultural or biological) that might give that person presumed identity as a member of a group (whether racial, ethnic, religious, sexual, etc.). Instead, it seems, the proponents of `diversity’ in this peculiar sense – people who use race as a proxy for thought – do not truly value real diversity: in college admissions, for example, the only form of diversity that really counts . . . , intellectual or ideological diversity. Rather, their own arguments for racial diversity assume that all persons of a particular racial group think alike – which is stereotyping at its worst. That is why `diversity,’ in this peculiar sense, is in fact an invidious form of racial discrimination, or racism: it relies on stereotyping that disregards individuality and real diversity.”
The new ABA standard is premised on the unsound assumption that a law school “community” – its student body and its faculty composition – should exactly mirror certain characteristics (the sex, race, and ethnicity) of society at large, and therefore that schools must make special efforts to admit or hire persons who belong to “underrepresented” groups. These characteristics, however, are superficial and irrelevant to the educational mission of law schools. If the ABA were truly concerned about “diversity” in the composition of law schools’ student and faculty populations, it would focus instead on the forms of diversity that really count, noted above – that is, intellectual or ideological diversity – which, under the same rationale offered by the proponents of Standard 211, might require schools to “demonstrate by concrete action a commitment” to hiring “underrepresented” groups on law school faculties, like Republicans (especially social conservatives) or fundamentalist Christians, for example. Legal education would not be dominated, as it now is, by a left-wing political/ideological orthodoxy. The new ABA standard is nothing less than an attempt by the leftists who control the ABA to blackmail American law schools into violating the law, as well as violating standards of justice, morality, and sound educational policy.
Time to End the ABA’s Monopoly over Legal Education
Critics of the ABA’s leftist politics finally have begun to question the role the ABA plays in policing the gateways of entry into the legal profession. Since 1952 the ABA Council of the Section of Legal Education and Admissions to the Bar has been approved by the U.S. Department of Education as the recognized national agency for accrediting law schools. And, as noted above, most states require graduation from an ABA-accredited law school as a prerequisite for admission to the bar. Thus, the ABA in effect holds a monopoly over legal education in the United States, which allows it (to borrow a term from antitrust law) to “leverage” that monopoly to control entry into the legal profession. And by “monopoly,” I mean a true monopoly, under its original meaning in Anglo-American law: a legal barrier to competition, a special privilege granted by government under its coercive power to use force, to limit freedom of entry into certain fields. Put another way, the nation’s largest lawyer organization holds, under law, the ability to forcibly bar persons from the practice of law – to forcibly limit entry into the profession, and thus to shield its own members from competition. That’s a true monopoly, or cartel, of the worst form – and unfortunately, to a great extent, it’s (perversely) permitted, under antitrust laws, because it’s done with the cooperation of government. (In 1995 the U.S. Department of Justice filed an antitrust lawsuit against the ABA in the U.S. District Court for the District of Columbia, on the relatively narrow grounds that the ABA had been involved in anticompetitive conduct when it allowed its law school accreditation process to be misused by law school personnel who had a direct economic interest in the outcome of accreditation reviews. The ABA settled the suit, in a 1996 consent decree, which required the ABA to change some of its procedures; among other things, it prohibited the ABA from fixing faculty salaries and compensation, from boycotting state-accredited law schools by restricting the ability of their students and graduates to enroll in ABA-approved schools, and from boycotting for-profit law schools. On June 23, 2006 the ABA was fined $185,000 by the Department of Justice for its failure to comply with six provisions of the 1996 consent decree.) The Department of Education , largely in response to criticisms of the ABA’s new racist standard, has decided to postpone from June until December its decision to renew its recognition of the ABA as an official accrediting body. As Quin Hillyer writes in a recent issue of The American Spectator, “If the department doesn’t recognize the ABA council as the accrediting body for law schools, the ABA’s cartel is broken.” In its April 5, 2006 letter to the ABA, the Department of Education’s accreditation division scolded the ABA for “fail[ure] to provide notice” of its proposed changes and noted that the changes have drawn official protest from outside groups on the grounds that they may violate federal and state antidiscrimination laws. Among those who have written letters to the Department of Education are four concerned groups – the Center for Individual Rights, the Center for Equal Opportunity, the American Civil Rights Institute, and the National Association of Scholars – as well as five members of the U.S. Commission on Civil Rights, which held hearings in June on law schools and diversity standards. (“Don’t Pass This Bar: The Department of Education Smacks Down the ABA,” American Spectator, July/August, 2006, pp. 48-49.) The Department of Education ought to cease recognizing the ABA as an accrediting agency, in light of the organization’s overt political activism as well as its new mandate requiring law schools to engage in racial discrimination in admissions and hiring policies. As Roger Clegg of the Center for Equal Opportunity aptly put it, “For such discrimination to take place with the imprimatur of the United States Department of Education would be especially unacceptable.” Moreover, the states should take away the ABA’s gate-keeping power by abolishing the requirement that prospective lawyers must graduate from ABA-accredited schools. As George Mason University law professor Ilya Somin noted this summer on the Volokh Conspiracy blog, “The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. . . . We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.” (Ilya Somin, “Getting the ABA Out of the Law School Accreditation Business,” July 14, 2006.) At one time in America there existed a free market in the practice of law, just as there existed free markets in other fields and occupations. It’s time to begin restoring that free market by abolishing the ABA’s gate-keeping power and instead having a free market in legal education.
| Link to this Entry | Posted Thursday, August 24, 2006 | Copyright © David N. Mayer |
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