Monday, September 10, 2007

Civil Rights Commission and Affirmative Action

Diverse Online reports today that the United States Civil Rights Commission has issued a report, Affirmative Action in American Law Schools, which is available in PDF from the Commission's website. According to David Pluviose, the author of the Diverse Online article, the "U.S. Commission on Civil Rights in condemning affirmative action in law school admissions and calling on Congress to mandate law schools to publicly disclose their use of racial preferences" in the new report.

Pluviose's article is disturbing because it describes the testimony that was elicited by the Commission. A number of proponents of affirmative action testified, but their testimony was "trumped" by the research and testimony of UCLA Professor Richard Sander, who wrote a widely discussed article that appeared at 57 Stanford Law Review 367 (2004). In this article, Professor Sander argued that affirmative action hurts minority students by gaining them entrance to schools for which they are not academically prepared; when they do not do well, their chances for employment are compromised. The majority of the Commission members, all of whom are Republicans, accepted this conclusion and recommended that Congress "pass legislation requiring federally funded law schools to publicly disclose their use of racial preferences." The two Democrats on the commission dissented from the report's findings, and accused the majority of disregarding "testimony and research that contradicted Sander's findings." As one of my colleagues, Professor Gary Munneke, pointed out in an email to our faculty, the "report comes on the heels of the Department of Education's decision to hold up the ABA's application for recertification as the accrediting agency for law schools, largely because of the ABA Standards recent strengthening of Standard 212, regarding diversity. The ramifications of the Bush administration's push to overrule Grutter administratively and turn back the clock on educational opportunity are both serious and dangerous."

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