ABA: You MUST follow the law. (Unless we don’t like it.)

Thom Lambert —  17 February 2006

WARNING: This post is off-topic for this blog (it doesn’t relate to markets). If that bothers you, don’t read any further. Moroever, I do not purport to speak for my co-bloggers. Their opinions of the issue discussed below may differ from my own.

Having issued those caveats, I cannot resist making one more comment (my first comment is here) on the American Bar Association’s utter hypocrisy regarding the rule of law.

At its mid-year meeting this week, the ABA did two notable things. First, the House of Delegates “voted overwhelmingly” to approve a resolution calling on the President to follow the law with respect to domestic spying. Among other things, the six-clause resolution “call[ed] upon the President to abide by the limitations which the Constitution imposes on a president…” (Paragraph 1), and “urge[d] the President, if he believes [the law] is inadequate…to seek appropriate amendments or new legislation rather than acting without explicit statutory authorization” (Paragraph 2). In other words, Mr. President, you must abide by the Constitution, and if you don’t like a statute, you can’t just violate it; you should go to the legislature and get it amended.

While I’m taking no position on the legality of the NSA’s domestic spying program, this little tongue-lashing seems appropriate for an organization that, according to its own press release, “works to build public understanding around the world of the importance of the rule of law in a democratic society.”

But what about the ABA’s second major action this week? After chiding the President for not following the law, the Association turned its attention to the law schools. It told them that, to be accredited (i.e., to be viable at all), they must demonstrate their commitment to racial and gender diversity “by concrete action.” That means they must show actual results, not just sincere and extensive efforts. Moreover, they’re not allowed to let that pesky little law thing get in their way. The Association specifically stated that:

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.

(Amended standards available here.)

So I’m confused. The organization dedicated to “build[ing] public understanding around the world of the importance of the rule of law in a democratic society” is telling the President he must follow the Constitution and statutes, but public law schools don’t have to (and, indeed, are not permitted to, if doing so would cause them to disappoint the Almighty ABA)? I guess the law applies only when we like what it’s telling us to do. Or maybe the rule is that lawyers are above the law. Maybe Michael Greco can explain this to me.

(It’s interesting to note, by the way, that the ABA’s website proudly posts all sorts of information about its little lecture to the President. There’s zero mention of the order telling law schools to ignore the law.)

For more on the ABA’s accreditation standards, see here, here, and here.

Thom Lambert

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I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

9 responses to ABA: You MUST follow the law. (Unless we don’t like it.)

  1. 

    I believe that the statement suggests exactly the opposite to the ABA, that “the law is important to the ABA.”

    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

  2. 

    Moe:

    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.'”

  3. 

    While I disagree with the ABA’s approach, I must comment on the lack of intellectual honesty in the criticism. The 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.

  4. 

    The fact that the ABA’s accreditation standard says that achieving numerical racial goals is only “very relevant” and not always “dispositive” does not immunize it from legal challenge, as the ABA’s president and consultant on legal education ignorantly claim.

    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).

  5. 

    The ABA’s comment on its “New Interpretation 211-1” reads as follows:

    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 . . . decisionsâ€? isn’t necessarily required to “demonstrate a commitment to have a diverse student body. . . ,â€? and not all forms of “considering raceâ€? 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?

  6. 

    Professor Lambert, I whole heartedly agree with your position. However, as a current law student the ABA’s actions seem consistent with the way law schools teach the lawyer’s role as an advocate.

    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?

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