A review Monday of the American Bar Association's accrediting arm by a U.S. Department of Education advisory committee was expected to focus on the ABA's diversity standard. And it mostly did. But after more than four hours of testimony and debate, the advisory panel opted to strike all reference to “diversity” from its assessment of the accrediting agency's performance, which was highly critical in other ways.
The National Advisory Committee on Institutional Quality and Integrity, which advises the education secretary on accreditation, found the ABA's Council of the Section of Legal Education and Admissions to the Bar to be systematically guilty of a pattern of ambiguity and inconsistency, as recommended in a report prepared by the education department's staff. But, in a startling series of events, the advisory committee overruled the staff finding that the ABA council had overstepped its authority in introducing a newly revised and broadly written “equal opportunity and diversity standard” ( Standard 212, formerly known as 211 ) requiring law schools to “demonstrate by concrete action” their commitment to a diverse student body.
“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 okay,” said George A. Pruitt, president of Thomas Edison State College, in New Jersey. Pruitt, a member of the committee, introduced the successful amendment striking from the final report the staff findings harshly criticizing and requiring significant new reporting about the new diversity standard. The overall review of the law school accrediting agency is otherwise highly critical, and it extends recognition of the agency for just 18 months, instead of the standard five years.
The ABA council, which has stamped its seal of approval on 195 U.S. law schools, approved a new diversity standard at its August meeting revising a policy that was initially introduced 26 years ago. The standard does not specify what “concrete action” an institution should take, instead outlining a number of options, including race-based admissions preferences, special recruitment efforts and programs designed to meet the academic and financial needs of underrepresented groups. Institutions in states where race-based preferences are prohibited in public university admissions or employment decisions would have to find another way to meet the ABA council’s diversity standard. The standard is not quota-based, but it is in fact its very flexibility that was called into question Monday.
While William Rakes, chair of the council, argued that the revised standard, drafted in response to the Supreme Court’s 2003 Grutter v. Bollinger decision  upholding the use of affirmative action in University of Michigan law admissions, was “not significantly different” than the one previously in place, the council’s opponents have criticized the new standard as significantly more results-oriented -- without delineating the results that the council is seeking. They argued that public law schools in states where race-based preferences are or are soon to be illegal -- California, Florida, Washington and Michigan -- would be pressured to break the law in order to attain accreditation.
As Gail Heriot, chair of the National Association of Scholars  Section on Law, pointed out in her testimony before the committee Monday, the ABA has been a big proponent of “race conscious” admissions, having called them “essential to increasing minority representation in the legal system” in a brief filed in the Grutter case.
The Education Department’s staff took a similar view, arguing that the standard “would be unevenly applied and might even require [institutions] to violate state law,” as the department representative, Bill James, said in presenting the staff's findings at Monday's hearing. In fact, the department’s biggest beef was the potential inconsistent application of the diversity standard, facilitated by the standard’s broad language and a lack of effective controls. What one side called “flexible” the other called “ambiguous,” and James said the unclear expectations would be likely to lead to unpublished interpretations of what compliance with the diversity standard would mean.
The ABA council, meanwhile, rejected the department’s findings as politically motivated, as Rakes referenced a November Washington Post article  indicating that some political appointees in the Bush administration’s Education Department were sympathetic to opponents of the new diversity standard. “We’re concerned that certain political appointees may have pre-judged us,” Rakes said.
But Pruitt ultimately saved the ABA’s diversity standard, pointing out that while the council’s track record on inconsistency is, well, consistent, there’s no record of any complaint in its application of the diversity standard -- making the department’s preventative measure calling for the ABA to submit to onerous reporting requirements documenting its implementation of the diversity standard “a dangerous precedent” for other accrediting agencies seeking to enhance diversity. Two of Pruitt’s colleagues dissented.
While the council was spared on the diversity issue, it was sacked on a lot of other fronts. Rather than having its authority extended for the typical five-year period, its recognition was extended for just 18 months. The council was criticized for, among other things, inconsistent and unclear measures regarding acceptable bar passage rates and insufficient training for accrediting teams.
Other items in the department report certified by the committee include a need for the ABA to adopt a transparent and written procedure for handling complaints through its proposed grievance committee, to modify its written policies to indicate that it will notify the public within 24 hours of any final decision on a school’s probation or withdrawal of its accreditation and, more generally, to ensure that it publishes its accreditation standards, including any previously unpublished “common law.”
“They have secret standards that they have used for years that they have never published,” said John Nussbaumer, associate dean for Thomas Cooley Law School in Michigan, which challenged the ABA in a lawsuit  rejected by the U.S. Court of Appeals for the Sixth Circuit in August “These were secret standards that they just released today,” he added, refererring to the council’s explanation earlier Monday regarding how it interprets acceptable bar passage rates. Typically, explained Hulett H. Askew, an ABA consultant, a first-time passage rate of over 70 percent is sufficient. If below 60 percent, the council will always ask for additional information, such as passage rates on subsequent attempts, and if between 60 and 70 percent, it will take into consideration whether the rates are more than 10 percentage points below state averages, which differ due to varying cut scores. Passage rates in up to three states can be considered.
Askew outlined a series of steps that the ABA council has taken to address the Education Department’s concerns -- with the exception of the diversity standard, as the council objected to the federal agency’s position there -- and said some changes are already in place and others are expected to be by August 2007, when the council holds its next meeting.
Nearly two dozen individuals spoke at Monday’s committee meeting, their positions about evenly split in support of and against the ABA’s petition for renewal of recognition. While some, such as Nussbaumer, criticized the council’s secrecy, others, like Mary C. Daly, dean of the St. John’s University School of Law, in New York City, praised it for its “openness and transparency” and its flexible commitment to honoring the circumstances and missions of individual institutions.
In addition to offering comments for and against the diversity standard, other law school administrators and scholars spoke on topics including the council’s assertion of authority on conditions of faculty hiring , particularly tenure and tenure-like appointments, and its emphasis on input-based measures, perceived as a barrier to low-priced, less exclusive law schools dedicated to opening the legal profession to a broader and yes, more diverse, population.