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The ABA-Affirmative Action Controversy

Do the ABA's new regulations regarding law school recruitment require law schools to discriminate based on race?  This turns out to be a fascinating question, as the governing guidelines are rather vague.  Fittingly, a tax professor is hosting the guidelines.  Let's take a look, shall we?

Under the guidelines (emphasis added unless otherwise noted), "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 ...."  This seems simple enough, though one is likely looking for a concrete definition of "concrete action." 

Off the cuff, we'd likely consider "concrete action" to include lots of things ranging from recruitment efforts directed towards traditional black colleges, minority scholarships, and even affirmative action.  So far, so good.  The ABA isn't requiring anyone to anything illegal or unconstitutional, nor is the ABA requiring law schools to implement an affirmative action program.  They just want "concrete action."  Let's move on.

In the interpretive section (basically, notes explaining the rules) has this to say:

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.

This is an odd duck.  No law, for example, prevents schools from offering minority scholarships (that is, scholarships that only racial or ethnic minorities are eligible for) to students.  No law prohibits law school recruiters from handing out brochures at traditional black colleges. So why is this note in there?

If a state law prevented a law school from taking certain forms of "concrete action," who is the ABA to tell law schools they must break the law?  It's rather odd that an organization that has drafted rules of professional conduct that demand that lawyers never advise a client to break the law, here seems to be suggesting that law school deans break the law.  Never did I expect a legal organization to say that compliance with the law is not a defense.  What an odd, odd duck.

The next interpretive comment reads:

Consistent with the U.S. Supreme Court’s decision in Gruter v. Bollinger, 539 U.S. 306 (2003), a law school may use race and ethnicity in its admissions process to promote equal opportunity and diversity. Through its admissions policies and practices, a law school shall take concrete actions to enroll a diverse student body ....

It's interesting that "concrete actions" is located right next to a Supreme Court case involving affirmative action, isn't it?  When a lawyer reads regulations, he parses not just the regulation's text, but also its location relative to other regulations.  Here, "concrete actions" is located directly next to affirmative action.  It would be reasonable to infer that affirmative action is required.

The next interpretive comment reads:

This Standard does not specify the forms of concrete actions a law school must take to satisfy its equal opportunity and diversity obligations. [Aha, then affirmative action is not required!] The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved.

This is especially interesting.  The ABA will not look just as whether a law school is making a good effort: The ABA will also look at the "results achieved."  What is a school tries like the dickens, but is unable to enroll enough minorities?  Would they fail?  Who knows, as the guidelines are unclear. 

What is clear is that a school not wishing to jeopardize its ABA accreditation would just set a quota of minority students (the "results achieved" prong).