A question of interpretation

The blogosphere has been engaged in a lively - well, it can't really be called a "debate" when 95% of the commentators come out on one side, but whatever -  about Standard 211, a proposed new rule by the ABA that would require schools to provide "full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities" and to adopt the goal of "having a student body that is diverse with respect to gender, race and ethnicity." Standard 211 would further mandate that "[c]onsistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to having a faculty and staff that are diverse with respect to gender, race and ethnicity."

Even arch-libertarian David Bernstein calls these provisions "innocuous," noting that law schools can differ over what constitutes "sound educational policy."  The real source of controversy is a binding interpretation of the standard that the ABA also proposes to adopt:

Interpretation 211-1: 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.

Before I say anything else, I should mention that I'm inclined to agree with many of the substantive criticisms of Standard 211, both because of the practical problems many schools face in compliance and because mandating "diversity" as a goal seems a fairly intrusive limit on academic freedom, one that, as David Bernstein notes, seems in tension with the result in Grutter.  (That is, Grutter allows academic institutions to use race-based affirmative action in pursuit of diversity only if their educational mission so requires.)

I am, however, puzzled by the near-universal reading of Interpretation 211-1, even by the standard's few defenders, as a requirement that law schools must violate state laws that ban the consideration of race in admissions or employment decisions.  First of all, Standard 211 does not itself require the use of racial preferences in admissions or employment.  Such preferences might be the most obvious ways of achieving the goal of a diverse faculty and student body, but they are certainly not the only way; the University of California has managed to achieve a fair degree of racial diversity in the wake of Proposition 209.  Law schools can obviously step up recruitment efforts, give targeted scholarships if state law permits, emphasize subjects of interest to underrepresented groups in the law school curriculum, and so on.  One can argue that such efforts are likely to be burdensome or pointless, but it seems hard to argue that a school that pursues them vigorously will be out of compliance with Standard 211. 

Moreover, I see no way in which Interpretation 211-1 changes this conclusion.  Yes, the language ("purports to prohibit") is a little snide, but 211-1 doesn't force law schools to do anything other than what the standard already requires; it simply cautions them that state law banning racial preferences is not an excuse for noncompliance.  But since nothing in Standard 211 requires law schools to use racial preferences, it is possible for law schools to comply with the standard without violating state law.  Thus, the Interpretation seems simply to be emphasizing that law schools subject to Prop. 209-ish laws are not exempt from compliance with the standard, even where state law prohibits the most obvious means of compliance.

I should add that, even under this reading, Interpretation 211-1 seems rather unfair.  Public universities in California have a difficult enough time attempting to achieve diversity in conformance with state law without getting added grief from the ABA.  And one may be suspicious about the ABA's intentions; perhaps, in practice, under-the-table racial preferences will be the only way that public law schools in California and Texas will be able to satisfy the standard.  But the standard and interpretation do not require such a result, and it seems pointlessly inflammatory to pretend that they do.

   

Comments

[Belle Lettre]

Thanks for blogrolling me! I love your blog--I am reading through your old posts, and am finding your writing most interesting and insightful. I also enjoyed your comments over at Concurring Opinions.

One of my good friends is getting her MFA in Poetry, and another in Fiction, so you are definitely one of the cooler blawgers out there!

I'll be sure to blogroll and read you regularly. Thanks for stopping by my lil' ol place in the woods.

[Drew]

Glad to see you're back! I totally agree - if the standard is uncontroversial, the interpretation should be uncontroversial as well. The "purports to prohibit" does seem unnecessarily snide, and I suppose one could believe that the drafters needed the extra wiggle room provided by the "purports to" because it is not clear that compliance with the standard would comply with such state laws, but even so, the criticism seems weak.