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Op-Ed: Bar Organizations Across the Nation Urge the ABA to Continue to Require Law Schools to Demonstrate a Commitment to Diversity

November 8 , 2007 -- Bar associations from across the nation, urge the American Bar Association to continue to require law schools to demonstrate by concrete action, a commitment to having a student body that is diverse. Speaking on behalf of their diverse memberships that encompass all races, religions, genders and sexual orientations, the associations see no justification for veering from this long-standing practice and believe that to do so would serve no other purpose than to advance an anti-affirmative action agenda set in motion by those recommending the change. 

Recently the U.S. Commission on Civil Rights released a report titled "Affirmative Action in Law Schools," calling for law schools to disclose to their applicants the racial preference policies that they use in the admission process. Additionally, the report "asks the American Bar Association to permit law schools the freedom to determine whether diversity is essential to their academic mission." The report also recommended that states require the authorities responsible for granting admission to the bar, to disclose bar passage rates broken down by academic credentials.

In 2006, the USCCR held a hearing in which the purpose became apparent: to further the anti-affirmative action work of UCLA Professor Richard Sander. Sander's highly criticized 2004 article, "Systemic Analysis of Affirmative Action in American Law Schools," purported to present findings that suggest that top tier law schools were accepting minority law students because of affirmative action policies without which these students would only qualify for lower tiered institutions. The commission, who's hearing lasted under two hours, heard select testimony from Sander, one opponent, Professor Richard Lempert and testimony from two others slated to represent the pro and con side on the American Bar Association Accreditation Committee standards regarding diversity in law schools.

Several experts have challenged Sander's use of the data and methodology. Indeed academics and social scientists have dismissed his findings. Bar leaders are outraged that the Commission would rely on such questionable data, and limited input, on a matter of such widespread interest and potential impact.

"The U.S. Census has estimated that there are now about 44,800 black lawyers compared with 4,000 black lawyers in 1970; in 1980, about 15,700 and in 1990, 24,700. When one reflects that the super-majority of those 44,800 attended schools that previously were white-only institutions and were admitted to those schools through affirmative action, the success of the policy becomes unmistakable," wrote Commissioners Michael Yaki, a San Francisco attorney, and Arlan Melendez, chairman of the Reno-Sparks Indian Colony, in their dissent to the USCCR's report.

As attorneys and citizens, we believe in equal opportunity. Many of us have experienced unconscious bias, which, as we know, can lead otherwise well-meaning decision makers (such as law school admissions teams) to make decisions that favor the majority applicant. We should all be concerned about the Commission's position, which taken to its logical conclusion, will threaten equal access to minority applicants. Without a doubt, the Commission has turned its back to its historical roots.

Over fifty years ago, a bipartisan effort consisting of a Republican president and a Democratic Congress created the USCCR to be at the forefront against violence, lynching and Jim Crow laws. The Commission's mission was to investigate and recommend changes to truly realize the inclusion and true emancipation and integration of minorities into society.

This remains the same today for the six Republican and two Democratic appointed commissioners, although it is not reflected in the Commission's recent positions taken on the Voting Rights Act (the Commission abstained from taking a position on its extension); Title IX as it relates to young women in sports (the Commission majority heavily criticized Title IX); and the subject of affirmative action in law schools, according to Commissioner Yaki.

Not withstanding its historical roots, the USCCR report agreed with Sander, finding that racial preferences in law school admissions may contribute to poor academic performance and completion rates among some minorities. In addition, the USCCR called on Congress to pass legislation requiring federally funded law schools to publicly disclose detailed data on the extent to which they take race into account in making admissions decisions and recommended that the ABA no longer require the law schools that they accredit to "demonstrate a commitment to diversity" as a criteria for accreditation.

Without a requirement that law schools commit to achieving a diverse student body, many underrepresented students, in particular African American, Native American, Latino, Asian Pacific Islander, as well as LGBT and students with disabilities, would not have become lawyers and only a small fraction would have attended the country's elite law schools.

In California, as "minorities" collectively are becoming the "majority," the fact that the USCCR is proposing a system that would decrease the number of minority attorneys is startling. If the USCCR's recommendations become reality, the integrity of and trust in our legal system will be in jeopardy.

Several bar organizations support the opinion that the USCCR's recommendations are wrong and they collectively request other organizations to join the effort to preserve the requirement that law schools demonstrate a commitment to diversity in their admission and retention of students and ask that you: 1) contact your Congressional representative and ask that an inquiry be launched into the composition and actions of the USCCR, and 2) contact the American Bar Association's Council of the Section of Legal Education and Admissions of the Bar and ask that they reject the USCCR's report and recommendations.

The bar organizations currently supporting this effort are: The Bar Association of San Francisco, National Bar Association, California Association of Black Lawyers, San Francisco La Raza Lawyers Association, Asian American Bar Association of the Greater Bay Area and the Charles Houston Bar Association.

The Bar Association of San Francisco (BASF) is a nonprofit voluntary membership organization of over 8,000 attorneys, law students and legal professionals in the Bay Area. Founded in 1872, BASF is one of the largest and most dynamic metropolitan bar associations in the U.S., with a long and distinguished record of community action, public service and service to the legal profession.

Questions about media relations, BASF issues currently in the news, San Francisco Attorney magazine, marketing and communications:

Ann Murphy, Director of Communications & Public Relations
(415) 782-9000 x8792

For general communications inquiries:

Sayre Happich, Assistant Director of Communications & Public Relations
(415) 782-9000 x8104