A Chequer-Board of Nights and Days

Much has been made of the adherence maintained by a number of higher education institutions towards the policy of affirmative action. What hasn't been discussed at length is the fact that this adherence comes largely from the need of higher education institutions to bow and scrape before agencies that have the power to deny accreditation to institutions that do not toe the line regarding affirmative action.

Via Southern Appeal comes this editorial by Professor Gail Heriot (who is well known to people who read The Right Coast), which outlines the degree to which higher education institutions must bow and scrape when it comes to the issue of affirmative action. The need to bow and scrape very nearly got George Mason University School of Law in trouble with the American Bar Association:

GMU's problems began in early 2000, when the American Bar Association visited the law school, which has a somewhat conservative reputation, for its routine reaccreditation inspection. The site evaluation team was unhappy that only 6.5% of entering students were minorities.

Outreach was not the problem; even the site evaluation report (obtained as a result of Freedom of Information Act requests) conceded that GMU had a "very active effort to recruit minorities." But the school, the report noted, had been "unwilling to engage in any significant preferential affirmative action admissions program." Since most law schools were willing to admit minority students with dramatically lower entering academic credentials, GMU was at a recruitment disadvantage. The site evaluation report noted its "serious concerns" with the school's policy.

Over the next few years, the ABA repeatedly refused to renew GMU's accreditation, citing its lack of a "significant preferential affirmative action program" and supposed lack of diversity. The school stepped up its already-extensive recruitment efforts, but was forced to back away from its opposition to significant preferential treatment. It was thus able to raise the proportion of minorities in its entering class to 10.98% in 2001 and 16.16% in 2002.

Not good enough. In 2003, the ABA summoned the university's president and law school dean to appear before it personally, threatening to revoke the institution's accreditation.

GMU responded by further lowering minority admissions standards. It also increased spending on outreach, appointed an assistant dean to serve as minority coordinator, and established an outside "Minority Recruitment Council." As a result, 17.3% of its entering students were minority members in 2003 and 19% in 2004.

Not good enough. "Of the 99 minority students in 2003," the ABA complained, "only 23 were African American; of 111 minority students in 2004, the number of African Americans held at 23." It didn't seem to matter that 63 African Americans had been offered admission, or that many students admitted with lower academic credentials would end up incurring heavy debt but never graduate and pass the bar.

GMU's case is not unique. In a study conducted several years ago, 31% of law school respondents admitted to political scientists Susan Welch and John Gruhl that they "felt pressure" "to take race into account in making admissions decisions" from "accreditation agencies." Several schools, like GMU, have been put through the diversity wringer.

The GMU law school was finally notified of its reaccreditation in 2006, after six long and unnecessary years of abuse - just in time for the next round in the seven-year reaccreditation process. Even then, the ABA could not resist an ominous warning that it would pay "particular attention" to GMU's diversity efforts in the upcoming cycle.

This should, of course, frighten educators. GMU's law school is genuinely excellent, of course (blog readers know that a whole host of lawbloggers and econobloggers are from GMU) and the fact that it has to continually adjust and lower its admissions standards just to curry favor with the ABA should outrage people. Diversity is a wonderful thing but whence comes the authority of the ABA to determine whether diversity standards have been met and whether students at a particular school will be able to get access to student loans?

The good news, as Professor Heriot points out, is that the Department of Education is closely examining this issue and the ABA's own accreditation. Here's hoping that the Department either forces the ABA to get off the backs of law schools, or that it pushes the ABA out of the accreditation process altogether.