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Friday, May 02, 2008

Academic Freedom and Law School Accreditation

A number of interesting academic freedom issues are in the news and I hope to post on a number of them in the next few days.  To begin, I have finally had an opportunity to read what Dan calls "USD Prawf Gail Heriot's sparky op-ed in the WSJ . . . about how the ABA pressures schools like George Mason on diversity objectives."  Heriot, who I very much enjoyed getting to know when I visited at USD, writes to criticize the ABA for using its accreditation status to force affirmative action admissions policies on George Mason's law school, and argues that the Department of Education should push back against such efforts.  Of course, I encourage you to read it yourselves.  I have some comments about it, mostly negative but with one significant point of agreement.  Let me start with the criticisms:

1) Heriot's language is, at times, pointlessly provocative.  She describes Grutter v. Bollinger as having held that "the Constitution permitted the University of Michigan Law School to discriminate against whites and Asians to obtain a racially diverse class."  Even if one sets to one side the mathematical argument that no one suffers as a result of affirmative action, which has never impressed me much, Heriot's language is still tendentious, and clearly deliberately so.  This is the sort of rhetoric that prides itself on its "truth-telling," but which is actually as loaded and as likely to obscure the real issues as the rhetoric of her adversaries.  Heriot is too smart and too experienced to act the part of the enfant terrible.  Keeping in mind the stricture to "think things, not words," Heriot (and her adversaries) should simply describe the programs at issue rather than try to gain a cheap advantage through the tactics of the legal advocate.

2) Heriot argues that Grutter was grounded on the deference owed to universities as academic institutions.  By contrast, she says, "the ABA is not a university, and . . . is not entitled to academic deference."  She adds that to the extent that the ABA is part of the federally designated machinery for accreditation, it is "part of the governing bureaucracy -- the kind of institution academic freedom is supposed to protect universities from."  This is entirely too cute.  First, whatever academic freedom entails precisely, and that is a contested question, it certainly applies in some cases to protect the "governing bureaucracy" of universities, and not just individual academics or departments.  The more important question, then, is whether the ABA, and other public or private regulatory bodies such as the AALS, should be treated as falling within or outside the governing structure of the universities themselves.  Heriot evidently believes that they fall outside the universities entirely and thus outside the realm of academic freedom.  But law schools themselves have freely delegated much of their self-regulating role to bodies such as the ABA and AALS.  To be sure, there is a potentially coercive element here.  But most law schools are more than happy to outsource some of their decisions to accrediting bodies: doing so lends the law schools academic legitimacy, lets them reap many material benefits, and takes advantage of the centralization of expertise in such bodies.  The law schools could always oppose policies taken by those bodies -- or, in extreme cases, withdraw from them entirely, although not without suffering serious consequences.  They do not, and that choice has meaning.  In short, Heriot is wrong to argue that there is a sharp distinction between the law schools and their accrediting bodies, because the law schools themselves have made the accrediting bodies part of their policy-formation process; the policies reached by those bodies, with the acquiescence of the law schools, are in effect the law schools' own policies, and to that extent are entitled to claim a grounding in academic freedom.

3) There are some minor questions worth raising.  First, the cut-line notes that Heriot is a member of the U.S. Commission on Civil Rights, and observes that the currently constituted Commission has "recommended that the ABA leave issues of diversity to individual law schools."  I agree with that policy position.  But I am doubtful that Heriot was such a fan of the Commission when it was differently peopled, and I wonder why she should champion it now, let alone serve as a member.  Second, Heriot concludes by writing: "It is one thing for a law school to adopt its own discriminatory [that tendentious word again] admissions policies; it is quite another to force it to do so on pain of losing federal funding."  I cannot help but wonder what views Heriot takes with respect to the Solomon Amendment and the litigation over it, and whether her views on that issue are consistent in principle with the views she expresses here.

With those serious criticisms in mind, I do share a significant point of agreement with Heriot.  Law schools and other university departments that pride themselves on academic freedom and regularly cite it as a basis for the autonomy of universities and their constituents -- and that certainly includes the law schools that argued against the constitutionality of the Solomon Amendment! -- should certainly "take alarm at the first experiment on [their] liberties."  That includes incursions on academic autonomy by accrediting bodies such as the ABA and the AALS, and this is equally true even if those incursions happen to be ideologically congenial to the law schools.  If they are to pride themselves on academic autonomy, law schools should not be willing participants in the sacrifice of their own independence.  (That is one of the reasons why Mark Tushnet was unwilling to commit the AALS to joining the law schools in litigating the Solomon Amendment when he was that body's president; he was right.)  Defenses of academic policies resting on academic freedom, including affirmative action, should be organic and internal to each academic institution, not coerced.  Law schools that support affirmative action should be equally reluctant to see the ABA or the AALS force such policies on the constituent law schools.

That leaves the accrediting agencies themselves, as well as similar bodies like the AALS.  These groups, too, have often filed briefs supporting and extolling the principle of academic freedom and the concomitant autonomy of universities and law schools.  They should live by those principles, and wield a far lighter hand in regulating the internal choices of law schools on matters that are so clearly at the heart of individual law schools' own deliberations on what their academic freedom requires of them.  It is evident that they do not always wield a light hand; they should reconsider, and the law schools themselves must take a hand in ensuring that they do.

Posted by Paul Horwitz on May 2, 2008 at 06:21 PM in Life of Law Schools | Permalink

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