Education Secretary Margaret Spellings has upheld the recommendation of a federal advisory committee that she extend for 18 months her department's recognition of the American Bar Association body that accredits law schools. But the secretary, expressing clear disapproval of the accreditor's controversial new "diversity" standard, is also -- against the recommendation of the advisory panel -- requiring the law school accreditor to report about how it applies the diversity standard.
In December, when the ABA's Council of the Section of Legal Education and Admissions appeared before the department's National Advisory Committee on Institutional Quality and Integrity, the Education Department's staff -- at the urging of political appointees at the department, according to several people familiar with the situation -- was told that it faced punishment if it did not alter a standard it used to ensure racial and ethnic diversity among law school student bodies.
The staff report asserted that the law school accreditor's "ambiguous" diversity standard, which has come under persistent criticism from groups that oppose affirmative action, could be inconsistently applied in ways that would pressure institutions to break the law in states where affirmative action has been banned. The law school accreditor's written “equal opportunity and diversity standard” (Standard 212, formerly known as 211) requires law schools to “demonstrate by concrete action” their commitment to a diverse student body.
The staff report cited a significant number of other perceived problems with the ABA council's performance with which members of the advisory committee generally agreed, and the panel endorsed the staff's overall recommendation that the department should extend the law school accreditor's recognition for only 18 months instead of the typical 5 years.
But some members of the advisory panel -- led by George A. Pruitt, president of Thomas Edison State College, the committee's longest serving member -- objected at the December meeting to the staff's recommendation on the diversity standard. “I am very concerned that we’re taking an agency that has a lot of problems ... and the one area that we’ve chosen to hang our hat on and beat them up on is the one area where I think they’re OK,” Pruitt said. Pruitt argued that the staff had misconstrued the standard as insisting that law schools take certain actions to maintain diversity, and noted that no law school had complained about how the accreditor had applied the diversity standard.
Pruitt also objected to the staff's call for the ABA to submit to onerous new reporting requirements documenting how it carried out the diversity standard, calling it a “dangerous precedent” for other accrediting agencies seeking to enhance diversity. Along with Arthur E. Keiser, president of Keiser Collegiate System, he proposed a successful amendment that stripped the finding about the diversity standard (and the reporting requirements) from the recommendation that the committee ultimately approved for the ABA council.
Recommendations by the accreditation advisory committee, which goes by the acronym NACIQI (nuh-see-kee), are just that -- recommendations to the education secretary. The department's political leaders were reportedly very upset by the turn of events at the December meeting, according to people familiar with the situation. Ten days after the committee met in December, the department's staff, as is its right, signaled that it would appeal the committee's recommendation about the ABA council, even though it was upheld except for the language on the diversity standard. A formal appeal was never submitted, though.
Fast forward to this week. In a June 20 letter obtained by Inside Higher Ed, Spellings said that she would uphold the 18-month recognition period. However, she made abundantly clear that she disagreed with the committee's vote not to accept the staff's recommendation about the diversity standard. "I note that the council did not directly and persuasively address the staff's finding that the council failed to comply with ... requirements to maintain effective controls against inconsistent application of Standard 212" (the diversity standard) "and its interpretations," Spellings wrote.
She insisted that the accreditor provide a mountain of documents by December, when it again must seek renewed recognition from the department, showing that it has met the department's requirements for all of its standards, "including (but not limited to)" the diversity standard. The secretary does not appear to have required the law school accreditor to report on application of its diversity standard at many points throughout the 18-month period, as the staff's original recommendation would have done.
Critics of the ABA's diversity standard speculated -- and an Education Department official confirmed -- that the language in the secretary's letter meant that she was requiring the ABA to prove that it is fulfilling the department's requirements in carrying out the diversity requirement. "It certainly would seem as if she has restored this as an item on the agenda to which ABA must respond, and I think that's a positive development," said Stephen Balch, president of the National Association of Scholars. The scholars' group had urged the department last year to deny the ABA council's authority to operate if it did not abandon its new diversity requirement.
ABA officials, however, did not seem to view the secretary's letter as a rebuke, as least to judge by the terse written statement they released.
"The Section of Legal Education and Admissions to the Bar is pleased that Secretary Spellings has agreed with the National Advisory Committee on Institutional Quality and Integrity and renewed the Section’s recognition as the national accrediting agency for law schools," William R. Rakes, a Virginia lawyer and chairman of the ABA accrediting section, said in a prepared statement. "The section looks forward to continuing work with the Department of Education to assure full compliance with each and every criterion set by the department for accreditation agencies. We take seriously each point raised by the staff of the Department and by NACIQI, and have worked diligently to address them."
Officials of the accreditor declined further comment.