The United States Commission on Civil Rights  took up affirmative action at law schools during a five-hour session Friday highlighted by political posturing, jousting over statistics and moments of incivility.
A George Mason University law professor -- joined by a number of the commission's own members -- aired concerns that the American Bar Association, which oversees the accreditation of law schools, is pressuring institutions to practice unlawful racial preferences in admissions. Two other professors invited to address the group engaged in a broader debate about the costs and benefits of affirmative action at law schools.
David Bernstein, the George Mason law professor, said the bar association “wants law schools to violate the law” by mandating that institutions use racial preferences in their admissions policies or face accrediting penalties. Steven R. Smith, chair of the Council of the ABA Section of Legal Education and Admissions to the Bar, vehemently denied the allegations and defended his association’s written standards  by saying they don’t require schools to use quotas or even use race or ethnicity in their admissions decisions.
The ABA recently revised its diversity standards and will go before its House of Delegates in August for approval. Smith, whose association was scheduled to appear last month before the Education Department’s National Advisory Committee on Institutional Quality and Integrity, told the civil rights commission that he was looking for feedback on the updated standards.
The passage under scrutiny comes from the ABA council's longstanding Standard 211 , which, in the updated version, would be titled “Equal Opportunity and Diversity,” rather than “Equal Opportunity Effort.” The text reads: “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 study body that is diverse with respect to gender, race, and ethnicity.” There is also a new proposed section of the standard that would read, "a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity."
Smith, who is dean of the California Western School of Law School, said the changes to the standard, including the inclusion of the word “diversity,” are meant to give schools more guidance and reflect the Supreme Court's 2003 decision  in Grutter v. Bollinger, which upheld the affirmative action admissions policy at the University of Michigan Law School as a way of promoting equal opportunity.
Smith said the importance of diversity is clearly articulated in former Supreme Court Justice Sandra Day O’Connor’s majority opinion. “We will see schools being more creative in how they promote diversity,” he said.
Still, Smith found his defense a tough sell to the mostly conservative commissioners, many of whom questioned the need for a change in language. ( Federal law dictates  that the president choose four members of the eight-member panel and Congress the other four, and that the commission have no more than four representatives of any political party at a time. But that can result in Republicans appointing "independent" members who are highly skeptical of the use of race, and Democrats doing the reverse when they control the selection process.)
Gerald A. Reynolds, chairman of the panel, told Smith that “it seems wholly inappropriate to force values on a school.” A number of commissioners also disagreed with Smith’s assertion that law schools are in agreement over the importance of racial diversity.
Bernstein and a number of commissioners said they take issue with the “diversity” addition and the inclusion of “race” in the standard. Richard Sander, a law professor at the University of California at Los Angeles, focused his comments not on institutions’ consideration of race but on the negative effects he sees affirmation active having on black law school students. He said the most recent data available -- which are from 1991 -- show that black students are 2.5 times more likely than white students not to graduate law school, and four times more likely to fail the bar on their first attempt. “We are essentially setting them up for failure under this system,” he told the commission.
Sander argued that a cascade effect is in place, in which the top-tier law schools, using what he calls a “racial double-standard,” admit minority students who, in a race-blind system, would be accepted into second-tier schools. The second-tier schools thus admit what Sander says are unqualified minority applicants because the schools feel pressure to have a diverse student body. If minority students at first-tier schools struggle academically, they can become disheartened and dropout, he said.
Sander’s argument is predicated on the idea that a student is better off flourishing at a lower-ranked school than floundering at a more elite institution. Richard Lempert, a University of Michigan law professor, disagreed with Sander’s premise. He said that black students are better off at elite law schools because of the doors the schools open. “We need to tell people what the risks are of failure and let them decide for themselves,” Lempert said. “If there is no affirmative action, blacks are less likely to get high-paying jobs and careers that lead to judgeships. Someone who you think will fail might be on bar review, and someone who you think will pass the bar review might fail.”
Lempert’s argument that there is still a “moral imperative” for affirmative action is based largely on studies he has conducted over the past 25 years at Michigan. He said the numbers show that although minority students generally entered with lower credentials and left with lower grades than their white counterparts, few flunked out and most enjoyed fruitful careers. The bar-passage rate was not substantially lower for those students, his work shows.
But like many of Smith’s arguments in favor of affirmative action, most of Lempert’s comments fell on deaf ears. Commissioner Jennifer Braceras went so far as to question Lempert’s motives: “I’m concerned you are justifying affirmative action because of your own white guilt,” she said.
“I don’t feel guilty at all,” Lempert responded.
“It’s not about what’s best for black students. It’s about aesthetics,” or having the looks of a diverse campus, another commissioner, Abigail Thernstrom, asserted.
Reynolds, the chairman, said that if the point is to give black students a fair shot in the admissions process, why not lower the bar for everyone and “do away with the conversation of racial preferences?”
Lempert maintained that the high price of law schools and a sometimes “hostile environment” once a minority student enrolls can also lead to higher-than-average dropout rates. Sander responded by saying that “there’s a crushing process of discovery in the first or second years for black students who realize they are there because of affirmative action."
Added Thernstrom, who is a political independent but a frequent critic of the use of racial preferences: “If [students] are saying, ‘You’re an affirmative action baby,' the admissions policy is generating the stereotypes.”
But Michael Yaki, one of two Democrats on the panel, came to Lempert’s defense, saying: “We create the stigmatization. When we are saying, ‘they are going to fail,' we perpetuate the stigma, and it bothers me to the core.”
There were testy moments throughout the briefing, as speakers questioned each other’s motives, as well as their credentials. Commissioners interrupted each other, hands were raised and ignored, and feelings appeared to be hurt. Despite the occasional incivility, there was one point of unanimous agreement: the need for more data on minority student performance once in law school. “More transparency is always better,” Braceras said.
Many supported a proposed amendment (which failed in the U.S. House of Representatives) from Rep. Steve King (R-Iowa) to the Higher Education Act renewal that would force schools that receive federal funding to provide the Office for Civil Rights a statement about whether race is a factor in their admissions process.
“My sense is that black students aren’t always aware that they fall into the desperate category,” said Ashley L. Taylor, Jr., one of the panel's four Republicans.
Both Lempert and Sander called for the commission to bring together a group of politically neutral social scientists to sift through existing data on affirmative action in law school, to which Thernstrom asked: “Is there such a thing as a neutral social scientist?”