Legal Commentary

More ABA Mischief?

By David Bernstein

Taxprof notes:

The Standards Review Committee of the ABA Section of Legal Education and Admissions to the Bar has proposed revising accreditation standard chapter 3 (Program of Legal Education) to incorporate ?Student Learning Outcomes.?  The committee will discuss the proposed standards as part of the AALS Annual Meeting Program on Friday January 8, 2010, from 4:00 p.m. ? 5:45 p.m. in the Napoleon Ballroom on the third floor of the Hilton New Orleans Riverside.

Looking at the proposal, we find that ?the learning outcomes shall include?:

(3) knowledge and understanding of:
(ii) the legal profession?s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity and respect for the rule of law;

No further explanation is provided as to what ?knowledge and understanding of ... respect for diversity? entails.   My suspicion is that this is just p.c. pablum inserted to satisfy constituencies that demand it.  And there?s nothing inherently wrong with ?respect for diversity,? if this means ?respecting and treating fairly all clients and colleagues regardless of their background.?  Indeed, this is praiseworthy.

However, given the past record of ABA accreditation committees, who have rather loosely interpreted ABA guidelines to try to enforce a political agenda on law schools?for example, requiring strong affirmative action preferences in admissions when there was no textual basis in the accreditation guidelines for such a requirement?one could easily imagine this language being misused in the future.   Teaching ?respect for diversity? could easily be interpreted as teaching that law schools, law firms, etc., should and must engage in affirmative action preferences.

Without further clarification, the ABA could easily threaten the accreditation of a law school if a substantial percentage of the faculty signed a brief opposing Grutter?like diversity admissions; or if students interviewed by the accreditation people complained that the faculty seems to them insufficiently supportive of ?diversity? (i.e., affirmative action) in its teaching; or if professors assigned academic papers arguing that homogenous organizations or societies function better than heterogeneous ones; or if the law school failed to discipline students who undertook a satirical ?affirmative action bake sale?; and so forth.  After all, any of these hypotheticals could arguably decrease students? ?respect for diversity,? depending on how this phrase is interpreted.

I won?t be attending the committee meeting, but I hope someone who does attend raises these concerns, and asks the committee to clarify the guidelines such that they make clear that teaching ?respect for diversity? does not obligate a law school or any of its constituents to take any given position on the desirability of affirmative action preferences, or any other political position (such as the pluses or minuses of homogenous and heterogeneous organizations).

Full post as published by The Volokh Conspiracy on December 31, 2009 (boomark / email).