The Radicalization of American Legal Education, Revisited: Why the Right's Efforts Are Good for Law Schools and the Law

By SCOTT GERBER

Wednesday, Mar. 15, 2006

In a May 2005 column, I explained why the Left's dominance in American legal education is bad for law schools and the law. I discussed how Leftist legal academics are trying to transform the law to conform to their political agenda and how institutional practices in law student admissions and law faculty hiring frequently violate the law. I also pointed out how law professors' scholarship often reflects legal education's radicalization in ways that most judges and lawyers would find startling and how the Left's position regarding on-campus military recruiting is inappropriately extreme.

I'm pleased to report that some progress is being made to rein in the Left's attempts to further radicalize legal education and the law. In this column I'll take stock of that progress, and explain why it's a step in the right (as well as the Right) direction.

The Right Weighs in: Taking Issue with the ABA's Proposed Rule that Law School's Must Violate Antidiscrimination Law to Remain Accredited

In 2003's University of Michigan affirmative action decisions--Grutter v. Bollinger and Gratz v. Bollinger--the U.S. Supreme Court ruled 5-4 that law schools and other colleges may consider the race of applicants as a factor in admissions decisions, provided that it isn't used too mechanically and that all applicants are evaluated on an individualized basis.

The Left has responded by trying to stretch the Michigan decisions as far as possible. Indeed, the American Bar Association, the accrediting body for the nation's law schools, is scheduled to vote this summer on a standard concerning "equal opportunity and diversity" that requires law schools to have a diverse student body and faculty, rather than to try to have them.

There's more. Interpretation 211-1 of the proposed standard provides: "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" the standard. (Emphasis added.)

As I mentioned in my May 2005 column, there aren't many libertarians or conservatives on the faculties of the nation's law schools. Fortunately, there are some--including the courageous David E. Bernstein, a professor at George Mason University School of Law. In a blistering op-ed in the Wall Street Journal, Bernstein accuses the ABA of engaging in "affirmative blackmail."

Bernstein's op-ed makes clear that the upshot of the proposed ABA standard would be that if law schools in California, for instance, choose to obey the provision of the California constitution that requires color-blind admissions and hiring processes, then the schools risk losing their ABA accreditation. In short, the law schools are put to a Catch 22: Disobey the law, or lose accreditation.

Bernstein writes: "If passed, the new written standards will only embolden the accreditation bureaucracy, composed mainly of far-left law professors, to demand explicit racial preferences and implicit racial quotas--all in brazen defiance of the law."

There's talk, thanks to the efforts of Bernstein and others, that the U.S. Department of Education might refuse to renew the ABA's authority to accredit law schools for federal law purposes if the ABA doesn't back down from its demand that law schools violate the law in order to remain accredited.

Even assuming the ABA is motivated by a good faith belief that the policy of diversity is so important that it should take precedence over other goals--an assumption I'm willing to make--an organization committed to the rule of law, as the ABA claims to be, should not require that the law be ignored.

The Right Weighs in Again: Dismantling Segregated Law School Programs

Among the others who are trying to remind the ABA that it can't require law schools to violate the law is Roger B. Clegg, the president and general counsel for the Center for Equal Opportunity. Clegg also has done a wonderful job of persuading colleges and universities around the nation that they can't have programs that are open only to minority students--no matter how well-meaning the creators of the programs may be.

As Clegg put it in response to a reporter's question for a recent article in The Chronicle of Higher Education, the Right is "not trying to foreclose opportunities for anybody. We are trying to open them up." Put directly, all Clegg is suggesting is that law schools and colleges should help anyone, black or white, with financial need, and anyone, black or white, who would like to succeed in college and graduate school.

Clegg's suggestion is far from unreasonable, and a number of institutions of higher education have done precisely what he recommends, although typically only after consulting with their lawyers. Unfortunately, none of the schools mentioned in the Chronicle piece as having abandoned their minority-only programs are law schools. In fact, the most recent issue of the ABA's accreditation newsletter contains an article praising segregated programs as "innovative education."

Let's hope that Clegg can remind the ABA that 1954's Brown v. Board of Education overruled 1896's Plessy v. Ferguson, and thereby repudiated the idea that "separate but equal" is ever acceptable.

The Bench and Bar Tend to Ignore Radical Scholarship

In my prior column I discussed as one example of the Left's radical approach to legal scholarship several recent books by influential law professors calling for a reduced role--and, in at least one case, for no role at all--for the federal judiciary in constitutional interpretation. Amazingly, these Leftist law professors are no longer simply making policy arguments against judicial review--the federal judiciary is conservative, legal academics are not, so let's limit or eliminate judicial review--they are now trying to claim history is on their side.

In one of the most unconvincing historical accounts I have ever read--what may be fairly called "law-office history" on steroids--Larry D. Kramer, the dean of Stanford Law School, attempts in The People Themselves: Popular Constitutionalism and Judicial Review to provide the historical evidence for the policy arguments of his Leftist colleagues.

The nation is fortunate that the bench and bar, the segments of the legal community that matter most, tend to ignore scholarship such as Kramer's. Steven G. Calabresi, a conservative law professor who helped found The Federalist Society during his law student days as an antidote to the Leftist politics of his professors, wrote in a 1997 review essay titled "The Crisis in Constitutional Theory" that judges and lawyers "see less value in constitutional scholarship today than they did twenty-five years ago." Calabresi went on to predict that judges and lawyers "will eventually stop reading and stop listening." The same may be said of the Leftist constitutional scholarship being published in the twenty-first century.

The U.S. Supreme Court Unanimously Rejects the Left's Position on On-Campus Military Recruiting

The U.S. Supreme Court's recent decision in Rumsfeld v. Forum for Academic Institutional Rights, Inc. is proof positive of Calabresi's prescience.

In that case the Supreme Court "read" and "listened" to the arguments of Leftist law professors only because it was forced to do so: the professors had packaged their political arguments into the form of a lawsuit that threatened the military's ability to recruit the best and the brightest from the nation's law schools in a time of war. But though the Court had to read and listen to the law professors' arguments, it did not have to agree with them. And it most certainly did not: not even the liberal members of the Court penned a sentence of support for the law schools.

In a unanimous opinion for a plainly impatient Court, Chief Justice John G. Roberts, Jr., essentially called the legal academy's litigation frivolous. The gist of the law schools' case was that their First Amendment rights are violated by the Solomon Amendment's requirement that they cannot receive federal money unless they allow military recruiters to interview their students, just as civilian recruiters may.

"Nothing about recruiting," the chief justice wrote, "suggests that law schools agree with any speech by recruiters." He went on, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. . . . Surely students have not lost that ability by the time they get to law school."

My prior column sounded a pessimistic note about the attempts of Leftist legal academics to transform both legal education and the law to conform to their radical political agenda. This column has been more upbeat in light of some recent efforts by the Right to counteract what the Left is trying to do.

Of course the costs of speaking truth to power are often considerable--Leftist law professors frequently try to silence or sideline those who point out that what they want is sometimes against the law (no matter how well intended). But occasionally the game is worth the candle.


Scott D. Gerber is an associate professor at Ohio Northern University College of Law and a senior research scholar in law and politics at the Social Philosophy and Policy Center. His debut legal thriller, The Law Clerk, will be published in hardcover in May by Seven Locks Press. His e-mail address is s-gerber@onu.edu

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