 March 24, 2006 Ms. Robin Greathouse RE: Recognition of Accrediting Agencies, State Agencies for the Approval of Public Postsecondary Vocational Education, and State Agencies for the Approval of Nurse Education, Federal Register Vol. 71 No. 24, Feb. 6, 2006 Dear Ms. Greathouse: The Leadership Conference on Civil Rights and the other signatories listed hereunder respectfully submit the following comments in support of the petition for renewal of recognition filed by the American Bar Association (“ABA”), Council of the Section of Legal Education and Admissions to the Bar (“Council”), with the U.S. Department of Education. Opponents of the diversity standards recommended by the Council have misconstrued the ABA’s efforts to promote diversity and equal opportunity in legal education. In fact, the proposed “Equal Opportunity and Diversity Standard” is a modest effort to comply with current law. Moreover, the opponents’ comments threaten to enmesh the entire accreditation process in ideological and partisan political agendas. To allow such efforts to succeed would have a deleterious impact on other accreditation programs and upon the maintenance of quality standards in higher education. The Leadership Conference on Civil Rights and Signatories The Leadership Conference on Civil Rights (LCCR), the country’s oldest, largest, and most diverse civil and human rights coalition, is composed of nearly 200 national member organizations. Americans for a Fair Chance (AFC), a project of LCCR’s sister organization, the Leadership Conference on Civil Rights Education Fund’s (LCCREF), seeks to educate the public about the importance of affirmative action and other programs aimed at expanding equal opportunity and preventing discrimination. AFC is a project in partnership with the Asian American Justice Center, Lawyers’ Committee for Civil Rights Under Law, Mexican American Legal Defense & Educational Fund, NAACP Legal Defense and Educational Fund, Inc., the National Partnership for Women and Families, and the National Women’s Law Center. ABA Accreditation Process Since 1921, the ABA has been promoting consistent standards of legal education. The Council of the ABA Section of Legal Education and Admissions to the Bar is the accrediting agency recognized by the United States Department of Education for programs that lead to the first professional degree in law. The Council reviews proposed Standards and adopts them to ensure that they focus on matters that are central to quality legal education. The Council has established an extensive process for comments and revisions, seeking input from law school deans, law faculty, university presidents, leaders of the bar and judiciary, and others interested in legal education.1 Once Standards are adopted, it is the Council that ultimately decides on the approval of a law school and its compliance with the Standards. Because the Council operates separately and autonomously from the other functions of the ABA, the integrity of the accreditation process is maintained. ABA Standard 211 As part of its process and in regular review of its standards, on February 11, 2006, the ABA’s Council of the Section of Legal Education and Admissions to the Bar approved changes to ABA Standard 211 governing equal opportunity standards. The changes approved by the Council will be presented to the ABA House of Delegates for concurrence at the ABA’s August 2006 meeting. The title of the revised Standard, “Equal Opportunity and Diversity,” reflects the U.S. Supreme Court’s decision in Grutter v. Bollinger, in which the Court found that diversity was a compelling interest consistent with the U.S. Constitution. Therefore, it is entirely appropriate for the ABA to add “diversity” to the title of this section. In fact, as the Supreme Court recognized, diversity in educational enterprises – including law schools – is critical to promote the fullest use of the nation’s talent and enrichment of the academic experience for all students. Also, the body of the proposed revision reflects the spirit and letter of the current version of Standard 211. While some language was deleted for clarity and to minimize redundancy, the intent of the Standard – to encourage action (i.e., “concrete steps”) to promote equal opportunity and diversity -- remains the same. Those who would argue that the revised language constitutes a major change and an impermissible step are misconstruing and exaggerating the implications of the proposed ABA Standards. The proposed standards seek to reinforce existing law, ensure that the Standards comply with the Grutter decision, and allow law schools the flexibility and innovation they need to meet these requirements. Moreover, this nation’s civil rights history demonstrates that simple non-discrimination policies are inadequate to achieve a student body or workforce that reflects the increasing racial and ethnic diversity of the United States. This principle has long been recognized in the law as well. For example, in its final report to President Eisenhower, the President's Committee on Government Contracts, headed by Vice President Nixon, concluded: Overt discrimination, in the sense that an employer actually refuses to hire solely because of race, religion, color, or national origin is not as prevalent as is generally believed. To a greater degree, the indifference of employers to establishing a positive policy of nondiscrimination hinders qualified applicants and employees from being hired and promoted on the basis of equality. (Emphasis added.)2 President Kennedy embodied the concept of a “positive policy of nondiscrimination” in Executive Order 10925, which he signed in 1961. Executive Order 11246, signed by President Johnson in 1965, followed the Kennedy Order. E.O. 11246 requires that federal contractors use affirmative action and nondiscrimination in employment. Colleges and universities holding federal contracts of $10,000.00 or more are also potentially covered by the Executive Order. ABA Standard 211 reflects this “positive policy of nondiscrimination.” Moreover, seeking a diverse student body or workforce is fully consistent with the principles of merit. Excellence may be found in all races and ethnicities and both genders. Contrary to the statements of misinformed critics of affirmative action, promoting equal opportunity and diversity does not imply the lowering of admissions or employment standards. Instead, it requires a robust effort to identify candidates for admissions or employment – or, to use a term often used in the affirmative action context, “casting a wide net” for applicants -- who are fully capable of succeeding in the educational program and who enrich the campus community with their varied perspectives. While the word “qualified” was deleted in the revised Standard 211, the memorandum prepared by John Sebert, Consultant on Legal Education, explains that the term was deleted as unnecessary given the existence of other standards related to student selection and retention. Thus, contrary to the histrionics of some that “in the future, qualifications will not be so important,” expectations of quality remain intact in these Standards and have not been modified by the proposed revisions. Also, the term “underrepresented” was added to clarify groups that were covered by this Standard, thus focusing on the areas of most need.3 The language of the proposed Standard that states: “The requirement 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,” is also consistent with current law and entirely appropriate. The language simply makes clear that schools are not relieved of their obligations to pursue lawful means of achieving what the Supreme Court has already recognized is a compelling interest. Thus, the ABA is not pressuring law schools “into breaking the law,” but is acting in a manner that is consistent with the law. The Council’s interpretation of the proposed Standard makes clear that law schools can be creative and flexible in meeting their equal opportunity and diversity obligations; neither the Standard nor the interpretation mandates particular actions. Moreover, just as state laws do not excuse law schools from compliance with their current ABA obligations to “provide full opportunities for the study of law and entry into the profession” to under-represented minorities, there can be no concern that state-based initiatives will prevent compliance with the revised standard. Rather, the ABA has provided law schools with tremendous flexibility in determining the most appropriate “concrete action” necessary to achieve a diverse student body, or workforce, for that particular school. Further, despite the rhetoric of a few, Standard 211 does not mandate or promote illegal “quotas.” Nothing in Standard 211 requires law schools to achieve a fixed number of under-represented students. The interpretative language of the Standards also makes clear the Council’s practice to look at the actions of individual law schools in their totality rather than in a rigid, inflexible manner. In any event, as in the case with federal statutes and executive orders, such provisions supersede state laws and constitutions. Particularly, when the accrediting body is overseen by the U.S. Department of Education by virtue of the recognition process, the matters involved in the establishment and imposition of accreditation standards take on the color of federal action. Conclusion In conclusion, LCCR and the other signatories to these comments urge the Department of Education to continue to recognize the critical role of the ABA in the accreditation of law schools. As part of its underlying mission, the ABA is charged to regularly review and update its standards for legal education. Upon examination, the proposed revisions to Standard 211 are modest and entirely consistent with the effort to conform the standard to the United States Supreme Court’s Grutter v. Bollinger decision of 2003. The strident arguments lodged by anti-diversity and anti-equal opportunity/affirmative action organizations are without merit and demean the entire accreditation and approval process. While critics may disagree with the Court’s decision to uphold diversity as a compelling state interest in the higher education context, the Court’s ruling was clear, and the ABA’s efforts to conform its standards to the Grutter decision are entirely appropriate and legally sound. We would appreciate the opportunity to discuss any of the issues raised in these comments or other questions you may have. Thank you for the opportunity to express our views in this important matter. Sincerely,
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