Department of Education: Crackdown on Diversity

, The American Lawyer

Law deans thought they could breathe a sigh of relief in 2003 after the U.S. Supreme Court ruled on two suits challenging affirmative action at the University of Michigan. While some tweaks were needed, it appeared that law school diversity standards were largely above scrutiny. But what followed over the next few years was a series of battles in which the U.S. Department of Education and conservative groups such as the Center for Equal Opportunity (CEO) mounted broad challenges to university and accreditor policies on diversity in admissions.

In Grutter v. Bollinger, the U.S. Supreme Court upheld the University of Michigan Law School’s “narrowly tailored use of race in admissions decisions.” (In the other Michigan case, the Court struck down the affirmative action program used in the university’s undergraduate admissions.) But opponents of affirmative action, such as CEO, soon seized on the language of Justice Sandra Day O’Connor’s majority opinion to attack on-campus diversity initiatives. CEO alone sent col-leges and universities more than 200 complaints about policies that were allegedly not “narrowly tailored” enough or that otherwise appeared not to comport with the high court’s language. The group threatened to request Education Department investigations of any school that did not roll back its affirmative action policies, says CEO president and general counsel Roger Clegg.

Clegg says his group never actually filed a complaint against a law school with the Education Department, but it did provide input for a complaint that led to an Education Department investi-gation into Seton Hall University School of Law. In 2003 the Department of Education began investigating a complaint by David Wilson, a white lawyer who claimed that the law school’s minority job fair was discriminatory. Wilson also complained about a scholarship program tar-geted at minority law students. (The Department of Education did not respond to requests for comment.)

“In my view, we were not doing anything that was not within the bounds of the Constitution,” says Seton Hall dean Patrick Hobbs. Nevertheless, in February 2008, Seton Hall agreed to open up the fair to nonminority students. At press time it was still negotiating with the Education De-partment over its scholarship program. Hobbs says that other law school deans have told him they’d like to emulate the scholarship program, but are holding off because of concerns about the Education Department investigation of Seton Hall.

Meanwhile, the American Bar Association’s accreditation standards for law schools also came under fire from activists and the Education Department. In 2006 the association’s accreditation body, the Council of the Section of Legal Education and Admissions to the Bar, approved a new rule calling on law schools to demonstrate a commitment to diversity by “concrete action.” Af-firmative action critics, such as CEO and the conservative National Association of Scholars, claimed the rule called on law schools to impose racial preferences that violated the Supreme Court ruling. Following complaints from CEO and others, the Education Department in June 2007 threatened to revoke the ABA’s status as the accreditor of law schools until it complied with a checklist of 15 regulations. Some, though not all, covered the new diversity standard. In response to the checklist, the ABA first proposed requiring that law schools have a bar pas-sage rate of 70 percent. That evoked protests from diversity advocates, including several law school deans, the Hispanic Bar Association, the National Bar Association, and others.

“The problem is that many students of color don’t score as well on the bar [the first time they take it] as their Caucasian counterparts,” says E. Christopher Johnson, vice president and general counsel at General Motors North America, an opponent of the measure.

The ABA then modified the requirement to a pass rate of 75 percent or no more than 15 percent-age points below the average pass rate over a five-year span. In the final months of President George W. Bush’s tenure, the ABA’s accreditation issues were still not resolved. The ABA says the Education Department is set to take up its accreditation standards again in December.

What effect all of this may have had on the actual demographics of the law student population is uncertain. The ABA says minority students last year made up 22.4 percent of first-year enroll-ment, up from 21.5 percent when Bush was elected in 2000. Yet the proportion of blacks en-rolled in their first year slid from 7.8 percent to 7.1 percent, and the presence of Hispanics grew only slightly during that time. Only Asian American populations increased substantially, from 6.7 percent to 7.9 percent. While it’s impossible to say exactly how anti–affirmative action ef-forts affected those numbers, they probably didn’t help. Says Johnson: “If students of color can’t get into law school, they can’t become lawyers.”