Should the ABA accredit law schools?

On March 8, the National Association of Scholars (NAS) issued a public statement calling on the U.S. Department of Education to oppose renewal of recognition of the American Bar Association (ABA) as the accrediting body for legal education. What is at stake is this: only ABA-accredited schools can currently accept federal student aid money. A law school that doesn’t obtain or loses ABA accreditation can continue to operate – and some do – but they are restricted to students who don’t depend on federal grants and loans to help pay for their expenses.

Obviously, the law as it now stands gives the ABA enormous influence over law schools. Since many of them would have a much smaller student body if they lost the students who need federal aid, they are as obedient as trained poodles to the whims of the ABA’s accrediting council. But so what?

The NAS press release explains why they oppose continuation of the ABA as the gatekeeper for access to federal dollars. Recently, the ABA has proposed new accrediting standards that would compel law schools to adopt “diversity” policies having nothing to do with educational excellence and which would sink law schools further into the morass of social engineering. “Unless the ABA eliminates all requirements of racial, ethnic, and gender diversity from its accrediting standards,” continuing to give it power to declare law schools acceptable or not is, the NAS argues, “inappropriate.”

It isn’t as though the idea of pushing “diversity” has just occurred to the ABA for the first time. The accrediting standards now in force call upon law schools to provide “full opportunities” for “qualified members of groups, notably racial and ethnic minorities, which have been victims of discrimination in various forms.” What makes the proposed new standards particularly objectionable is that they ratchet up the extent to which a school must subordinate itself to the crusade for the optimal degree of diversity. The new standards demand that law schools “demonstrate by concrete action” their commitment to “full opportunities.”

When you look at the wording of the standard and the official interpretation the ABA provides, it is evident that numerical results will matter in determining whether a law school is in compliance or not. Formerly, a school could meet the standard by showing its efforts at becoming more “inclusive” (to use another pet phrase), but now the demand for “concrete action” is likely to force law schools to go with quotas in order to satisfy the ABA.

The irony here is that in the two University of Michigan “affirmative action” cases decided in 2003, the Supreme Court said that strict numerical quotas would violate the 14th Amendment if used by a public institution, causing the justices to declare the University’s undergraduate admission policy unconstitutional, while they allowed the facially less deterministic law school policy of considering race, ethnicity, and so on as “plus factors” to stand. The ABA appears intent on making law schools act in ways that the Court told universities they couldn’t.

More troubling yet is the language the ABA has added to the interpretation for Standard 211. It reads, “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.” What that means is that in states where preferences in admissions or hiring is made illegal, law schools will have to act as if the law were otherwise if they are to maintain their accreditation. Has the ABA been taken over by people who regard “diversity” as so crucial that it’s worth civil disobedience?

We should keep in mind that when the Supreme Court made its ruling in the University of Michigan cases, it did not say that a university or law school had to strive for “diversity.” It only said that it was a permissible goal provided that it was not pursued in a mechanical, quota-driven fashion. The ABA, with its new accrediting standards, apparently wants to overrule the Supreme Court and declare that quotas are obligatory unless a law school wants to lose its accreditation.

NAS is absolutely right in wanting to throw a roadblock in the way of the ABA’s attempt to employ the leverage it has as the accreditor of law schools to force them to bow to its “diversity” mania. An intriguing question is to ask, “What if they got their wish?” If the Department of Education agreed and revoked the ABA’s power, then what? Wouldn’t we need some other organization to accredit law schools?

In my view, no. Accreditation – of law schools as well as undergraduate institutions – is no guarantee of good academic quality. When the ABA or other accrediting associations evaluate a school, the focus is scarcely on the nature of the instruction at all. Rather, the key to getting and staying accredited is overwhelmingly a matter of inputs and procedures. When the ABA passes judgment on a law school, it looks at such matters as the size of the library, the teaching load of the faculty, and (of course) the extent to which the school is “diverse.” Whether the classes are taught competently is not directly investigated, but they are presumed to be as long as the school’s inputs and procedures look all right.

Accreditation, in short, is neither necessary nor sufficient to ensure academic quality.

The reason why the government insists that only accredited law schools (and other postsecondary institutions) can receive federal student aid funds is the fear that money will be squandered on worthless “degree mills” unless eligibility is restricted to apparently respectable institutions. But there is a better way to do that than vesting power in the American Bar Association to make law schools conform to its model. That is for the Department of Education to penalize fraudulent institutions. It wouldn’t be hard to identify “law schools” where no classes are taught and no exams are given.

Linking eligibility to receive federal money with accreditation by a single organization puts too much power in the hands of that organization. This is a good time to rethink that policy entirely.

George Leef is the Director of the John William Pope Center for Higher Education Policy. Reprinted with permission.