However, as a private organization the ABA can withhold approval state institutions that apply or follow state laws with which it disagrees.

For example, if we still had segregation, would it not be proper for the ABA to withhold aproval for state law schools that refused to admit members of a particular race?

It is true that this puts students in the middle and they really have no control over the matter, which is why I believe the position is unfortunate. But, that is nothing new. Rarely have I witnesses either the ABA or law schools showing real concern for students

I’m not sure how I was being intellectually dishonest. I certainly wasn’t questioning the ABA’s freedom to take whatever position it wants (but I do appreciate the little lesson on the First Amendment — thanks).

Here’s what the ABA’s new standards have to do with “the law”: The ABA has said, “If you want to be accredited by us, you must achieve results that may require you (if you’re a public school) to break the law. We don’t care.” That statement, by itself, actually has a lot to do with “the law” — it suggests that the law is not all that important to the ABA. Moreover, the vast majority of states will not permit applicants to sit for the bar exam, and, thus, to become licensed attorneys, unless they are graduates of ABA-accredited law schools. Satisfying the ABA is therefore VERY important to law schools. If the ABA really follows its new standards, any law school that decides to opt for law obedience over compliance with the ABA standards could find itself effectively out of business.

I must therefore respectfully disagree with your claim that “[t]he ABA’s proposed actions have nothing to do with ‘the law.’”

The ABA is a private organization, free to adopt whatever standards it wants. That’s the essence of the 1st Amendment.

Schools are free not to belong or be accredited, at their choice.

The law can be violated by mere pressure to achieve a racial goal, even if the goal is not a strict requirement. The D.C. Circuit in Lutheran Church v. FCC (1998) and the Ninth Circuit in Bras v. Cal. P.U.C. (1995) and Monterey Mechanical v. Wilson (1997) held that affirmative-action guidelines merely pressuring institutions to use racial preferences to achieve “diversity” violated the Constitution, even though they left institutions free to pursue alternative, more costly or risky race-neutral diversity criteria, if they did not want to use racial preferences.

While racial “diversity” preferences may be permitted in the context of admissions under federal law (see Grutter v. Bollinger (2003)), they are generally forbidden in employment under federal law (see, e.g, Taxman v. Board of Education (3d Cir. 1996)), and are forbidden even in admissions under some state laws. See, e.g., Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (California constitution forbids all racial preferences in admissions, employment, and contracting, and federal laws permitting certain racial preferences do not preempt California law).

Below is the text of American Bar Association’s new “Equal Opportunity and Diversity� standard for law school accreditation, which will go into effect this Summer if approved by the ABA’s House of Delegates.

Stand……

The Council approved this new Interpretation, which was added to the Committee’s recommended changes at its January 2006 meeting. The purpose is to make it clear that a constitutional or statutory provision prohibiting a school from considering race in making admissions or other decisions does not insulate the school from the obligation of the Standard to demonstrate a commitment to have a diverse student body, faculty and staff.

I’m so glad the ABA has absolved law schools from our obligations to comply with the law.

Although it’s true, of course, that “considering race in making . . . decisions� isn’t necessarily required to “demonstrate a commitment to have a diverse student body. . . ,� and not all forms of “considering race� would ever be illegal.

Oh — except that the ABA notes elsewhere in its comments that “the results achieved are very relevant, though not necessarily dispositive, in evaluating effort and commitment.â€? So commitment without results (and results almost certainly would require “considering raceâ€? except in the case of happy accident to the contrary, and could, of course, require illegal action if other efforts failed) still might amount to failure to comply with the Standards, in which case compliance with the Standards (i.e., accreditation) could require the violation of statutory or constitutional proscriptions.

But it’s an association of lawyers. Why should adherence to the law matter?

Okay, it’s another serious or quasi-serious post. I know, I promised myself I wouldn’t do it, but since I have a forum and it’s not like anyone is reading this anyway, I’m going to break my own rule (again). I’ll…

From day one of law school the frightened student is taught, learn the black letter law, then no matter what your facts are, make a plausible argument from both sides of the coin. Thus when we like how the law intertwines with our client’s situation, we admantly demand a plain reading of the statute, and assert that there is no other way to look at it. Yet, the next day in a different situation, we find it deplorable that the opposing side would ignore such strong public policy that would provide for a more expansive reading of the very same statute to satisfy a different set of facts.

In addition, the student quickly observes that most legal opinions are based upon the result the court would like to see. Most courts seem to decide the end first, the make the means fit that end. Evenly a mildly clever judge can twist just about any mix of policy, common law, and statute to reach the result that she finds proper.

Thus as we emerge from our legal education, it is not preposterous for the soon to be lawyer to view the ABA’s conradictory actions as unsurprising. We are taught to demand that others see the law in the light most favorably to our position. Otherwise we would fail in our role as an advocate.

I think the question is, who exactly is the ABA advocating for?