Grutter March 2003

Even before Grutter v. Bollinger was decided, it was predictable that a decision legitimizing any consideration of race in the law school admissions process would mobilize those who oppose efforts to address the effects of racism, past and present. At the same time, many African American law professors and their sympathetic colleagues, were worried about the pincer effect on law school ethos, the world view of faculty and administrations, of U.S. News and World Reports rankings, and the American Bar Association preoccupation with bar examination results. The definition of “merit” and who is “qualified” to attend law school, both promoted as exceedingly narrow – restricted in the end to only one variable – LSAT scores.

When the American Bar Association Council on Legal Education undertook a revision of the standards for accreditation of law schools, Standard 212, which requires law schools to promote equal opportunity and to try and create a diverse student body, there was extensive comment and debate on the matter. Those who were concerned with declining African American and Mexican American enrollment argued for a stricter standard which would hold law schools accountable. Others argued for the good faith standard, which was already in place.

The compromise explained what ‘good faith’ required – concrete steps rather than wishful thinking. the compromise caused as great a reaction among advocates of race neutrality as the Grutter decision did. Few anticipated, as we focused on the institution we saw as all powerful, the ABA, that the Bush administration would take on the ABA. Advocates of race neutrality had certainly captured the Civil Rights Commission and the Department of Education.

The Department of Education licenses the ABA as the accrediting body for law schools. It is hard to imagine any organization better qualified to do so. The Council on Legal Education adopted revised 212 in February2006.

On March 8, Abigail Thernstrom of the Civil Rights Commission and four other Commissioners wrote to the Department of Education arguing that this standard would force law schools to violate “federal constitutional requirements” and law, and impose quotas for the admission of minority students. She asked that the DOE deny the ABA the power to accredit unless it “disavowed Standard 212.” 

On March 1, the Department of Education had already announced its opposition to the diversity standard employed by the ABA. In a letter to the U.S. Government Accountability Office, Sally Stroup, the Assistant Secretary of the DOE, stated that the DOE found that Standard 212 was in violation of the agency's regulations and that the DOE believed the ABA would apply the standards in a way that would require “results” rather than “concrete actions” to create a diverse student body. Just to make sure that it did not, the DOE recommended that the ABA be required to file reports on the way in which Standard 212 is applied by the ABA in its accreditation process.

In February, March, and April, 2007, Affirmative Action in Law Schools Briefing Report was listed as an agenda item of the Civil Rights Commission. On March, 2007, Gail Heriot, a well known ideologue who opposes affirmative action, joined the Commission.

On June 16, 2007, the Commission held hearings with speakers on both sides of the issue, including Richard Sander and Richard O. Lempert. The Report of the Commission, dated April 2007, but released in September, purports to rely on the hearings held in June of that year.

What was startling was the recommendation of the Commission: a demand that the beneficiaries of race conscious admissions practices be the subject of constant observation – that the admission criteria, attrition, bar passage rates and career success of black and brown students be tracked in a longitudinal study which they presume would show the harm arising from race conscious remedies.

On January 3, 2008, the Congressional Research Service issued "Political Balance Requirements at the United States Commission on Civil Rights," finding that a reviewing court would likely find the stacking of the Commission with Republicans violative of the political balance requirements of 42 U.S.C. 1975 (b) (2000).  The legitimacy of any actions taken by the Commission are thus in question.   

For a fuller discussion of SALT's Affirmative Action Committee, click here.