Last month's decision in the voluntary public school integration cases purported to interpret rather than overturn Grutter v. Bollinger, which upheld the University of Michigan Law School's affirmative action program in admissions. Moreover, Justice Kennedy's separate opinions in both Grutter itself and in the schools cases make clear that there are at least 5 votes on the Supreme Court to permit narrowly tailored programs of race-based affirmative action that aim to achieve and maintain student body diversity in law schools (and higher education more generally). Now the Bush Administration's Department of Education is trying to undermine that result indirectly.
In order to be eligible for federally backed student loans, a law student must attend an accredited law school. The Department of Education has long designated the American Bar Association as the accrediting body for law schools. Recently, however, the Bush Education Dept renewed the ABA's status as the accrediting body for only 18 months rather than the usual 5 years. The Education Dept is unhappy with (among other things) ABA Standard 212, which requires accredited law schools to make affirmative efforts towards student body and faculty diversity. The standard allows schools in jurisdictions (like California) that bar expressly race-based measures to comply through race-neutral means.
That's not good enough for the current administration, however. The Department of Education has pressured the ABA to change Standard 212 and from a certain perspective---albeit not mine---I suppose that could be defensible. Voluntary affirmative action, the Administration might say, should be voluntary. If an institution wants to pursue student body and faculty diversity, then it should be allowed to, but so long as affirmative action is not constitutionally required as a remedy for adjudicated past acts of discrimination---which it no longer is at any major American law school---a law school shouldn't be required to pursue diversity. Yet the ABA Standard, which has the de facto force of law via the Dept of Education's recognition of the ABA as the credentialing body for law schools, requires law schools to do just that.
That's a plausible position, but it's not the position of the Dep't of Education. Its pressure on the ABA is designed to make it hard for law schools to pursue diversity, not to make it voluntary. Under that pressure, the ABA now proposes to make bar passage rates an element of accreditation. (Read the details here.) Officially, the Department of Education and the ABA (under pressure) are concerned about the quality of education, but this is pretty clearly also a means of limiting affirmative action at non-elite law schools. (The bar passage rates at elite law schools are sufficiently high that admissions policies would be largely unaffected by the new rule.) Students with weaker numerical qualifications coming into law school fail the bar in larger numbers than those with stronger ones; by requiring higher bar passage rates at the back end, the new standard would limit the ability of law schools to admit students with weaker numbers (but with other qualifications, including their contributions to student body diversity) at the front end.
The proposed changes are objectionable in at least four ways. First, bar passage rates are a very crude measure of the quality of a legal education. Second, to the extent that the issue is consumer protection, simply publicizing bar passage rates should be sufficient to warn prospective students that admission into law school as a 1L does not guarantee admission into the profession after graduation. Third, under the pressure of US News rankings, law schools already have ample incentive to pay attention to their bar passage rates, so the pressure of the new standard would only be felt at those schools that fare poorly in those rankings and/or have made a commitment to taking a chance on students with weaker numbers notwithstanding the price they thereby pay in the rankings. So long as students know what they're getting into (see "Second"), there is no good reason to limit schools' flexibility to pursue such an approach to admissions. And fourth, whether accreditation ought to turn on bar passage rate should ultimately be a matter for the judgment of the legal profession and legal academy, not the ideologues of the Bush administration.