CHAPTER FOURTEEN

THE GEORGE MASON AFFAIR

AS WE SAW IN CHAPTER THIRTEEN, the Supreme Court is significantly more deferential to colleges and universities than other spheres of American life when it comes to the use of racial preferences. Under Justice O’Connor’s controlling opinion in Grutter v. Bollinger, that deference rests on the Court’s assumption that racial admissions preference policies emerge from independent, autonomous educational judgments by the universities themselves, without substantial outside intervention. Indeed, O’Connor stressed the importance of college administrators carefully evaluating each individual act of racial preference for its unique contribution to particular educational environments.

This raises some important questions: Do colleges and universities actually exercise autonomy on matters of diversity? Are the premises behind the Court’s extraordinary deference to higher education truly warranted? We have seen in earlier chapters some of the difficulties universities experience when the topic of racial preferences comes up: the strong internal pressures administrators face to maximize diversity and the difficulty of engaging in thoughtful discourse on the effects of preferences. But there are broader problems as well. Universities face entirely external pressures and incentives that often constrain their freedom to do as their administrators think best on the issue of preferences.

One of us (Sander) witnessed this firsthand when UCLA Law School adapted to Prop 209 by implementing a system of class-based rather than race-based preferences. In the very first year of the program the school became the subject of an investigation by the Office of Civil Rights of the US Department of Education. The feds were responding to a complaint filed by a civil rights group that alleged that under the guise of race-neutrality, the various UC law schools were discriminating against racial minorities by relying on the LSAT and other measures of academic performance to admit students. Such criteria, the reasoning ran, disproportionately and unfairly excluded blacks and Hispanics if used without the leavening of racial preferences. This argument had little chance of success—LSAT scores were highly predictive of law school and bar performance, and as we discussed in Chapter Two, they are effective and unbiased predictors of black and Hispanic performance too—but the investigation was nonetheless intimidating. It was also more than a little ironic: No federal agency had even asked questions about the law school’s pre-209 admissions, under which, for many years, race-based student committees helped determine which applicants would be admitted. The school was, in effect, under federal investigation because it stopped discriminating based on race.

Institutional pressures to use racial preferences are deeply embedded in academic culture. A vast array of federal and foundation programs exist to promote and subsidize programs and research that seek to foster “diversity”—which is almost always taken to mean racial diversity. Although the goals of such programs are laudable and although they sometimes lead to important initiatives, many such programs lure universities toward using more aggressive racial preferences—as we saw in John Ellis’s experiences in Chapter 9. Most universities have diversity officers who are charged not only with ensuring compliance with equal opportunity laws but also with passing along the latest collective wisdom about prodiversity initiatives; the mingling of these two functions gives the recommendations of diversity officers special force.

Accreditation agencies, which determine whether academic programs will retain the ability to grant degrees recognized by official bodies, assess the extent to which schools provide “equal opportunity” and comply with antidiscrimination laws. Frequently, these standards have evolved into assumptions that schools must use racial preferences to ensure requisite levels of racial diversity. Thus, the University of Colorado Medical School recently freed itself from a long-standing cloud over its accreditation by improving its racial diversity through national outreach efforts and, one suspects, the use of more aggressive racial preferences.

Perhaps the best way to understand how these pressures operate is to examine a single case study in some depth. The rest of this chapter chronicles what happened when the George Mason University Law School (GMU Law) reduced its use of racial preferences in the late 1990s. Through a series of public records requests, we obtained an unusual window into the way accreditation processes—in this case administered by the American Bar Association—operate behind closed doors. The experience of GMU Law suggests a system very different from the autonomous world of academic freedom that received the blessing of Supreme Court deference in Grutter.

George Mason University is one of several state universities in Virginia. Its law school (GMU Law) was very young—it had been founded in 1972 and had acquired its name and a secure funding source only in 1979—but by the late 1980s it had accomplished something essentially unique among American law schools: The school had developed a coherent intellectual specialization. GMU Law became known as a school that fostered the economic analysis of law. “Law and economics”—the idea that efficiency considerations were relevant not only in designing the law but even in understanding how law evolved over time—dated only to the early 1960s but had rapidly gained currency in many judicial and regulatory circles.

GMU Law’s focus on law and economics gave it far more prominence than it would have otherwise enjoyed. This was a thriving, booming field. But the law school was well known for another reason: It had a number of faculty well known as conservatives or libertarians. Even though the political center of the school was probably quite close to the American center, that still made it a political outlier among American law schools.

By the mid-1990s GMU Law had begun to accrue the key ingredients needed to rise in the academic rankings—influential faculty, stronger students, and a rising budget fueled by a state in good fiscal health. In the late 1990s the school started construction of a new, modern, and glass-sheathed campus building and then made a few hiring coups. A new dean (eminent scholar Mark Grady, who replaced another eminent scholar, Henry Manne) arrived in 1997 and effectively tapped more new sources of school support and generated a strong sense of GMU Law being a school on the move.

Up until the mid-1990s national rankings like the one produced by U.S. News generally ranked GMU Law as a middle-tier school. By 2000, however, it had jumped into the top third of law schools, and this in turn helped the school attract yet stronger faculty, stronger students, and more donors, which led to another rise in the rankings. By 2004 GMU Law was consistently cracking lists of the nation’s top fifty law schools—that is, about the top quarter or even top fifth of all law schools. No law school in the country had come so far in so short a period of time.

But the mood in the inner councils of GMU Law in 2003–2004 was not one of celebration. The school seemed to be nearing the climax of an existential crisis. Grady and his boss, the president of George Mason University, had been summoned to a hearing before a committee of the American Bar Association. The subject was to be whether the law school should lose its accreditation over matters of race.

Accreditation is a part of life for the vast majority of colleges and universities. Its purpose is to ensure that these institutions meet some generally agreed upon standard of basic quality—that faculty have sufficiently high credentials to be legitimate experts in the subjects they teach, that students be able enough to master the material taught, that facilities provide a decent instructional environment, and so on. Institutions of higher education must be accredited for their students to be eligible for federal student loans (an increasingly vital source of tuition funds in recent years). Medical students must graduate from an accredited school to be eligible to sit for licensing exams, and in nearly all states law students must graduate from an accredited school to be eligible to take the bar exam.

After the federal government started financing higher education through the GI Bill at the end of World War II, it began to “certify” private accrediting agencies to act on the government’s behalf, and dozens of such organizations now exist in nearly every field of education. The American Bar Association carries out accreditation for law schools through a division dominated by legal academics.

Accreditation is particularly critical for new institutions, which often face the Catch-22 of simultaneously trying to attract good faculty and students, who are reluctant to join the school until it is accredited, which is hard to secure before some critical mass of institutional structure is in place. Once accredited, institutions come up for renewal every five or seven years, but such processes are rarely traumatic (barring a financial crisis at the school). In the hands of a skillful school administrator, the accreditation process can be used as an instrument to push for particular reforms and a means to extract more funding from university or state authorities.

Getting its initial accreditation had been a challenge for the school that became GMU Law. It had twice failed to gain accreditation as an independent denominational school; only after those failures had it negotiated its absorption by George Mason University and, in 1980, successfully achieved accreditation. These difficulties were still in the institutional memory a generation later and meant that re-accreditation site visits were approached with perhaps more than the usual amount of trepidation.

The ABA’s re-accreditation process begins with a self-study by the school. Several members of the law faculty work with the deans to survey developments at the school over recent years and to address a series of topics identified by the ABA. The self-study is usually reviewed at a faculty meeting, finalized, and submitted to the ABA, which then appoints a visiting committee to spend two or three days at the school. The visitors are mostly comprised of faculty (normally including at least one current or former dean) from other law schools, who review the self-study and schedule a series of meetings with key administrators, faculty, and sometimes students at the visited school.

For its 2000 re-accreditation, GMU Law had prepared an understandably glowing self-study. As we have noted, the school had flowered in an extraordinary way. But the visiting committee did not seem impressed. “This was a particularly . . . liberal group, even for the ABA,” one GMU administrator observed later. “It was like oil and water from the outset.”

The visitors were unimpressed by the school’s rise in the rankings (“the ranking systems have well-known flaws,” one commented). They glanced unsmilingly around the new glass-sheathed atrium and seemed to think the new building was rather cold. They returned to a common theme over and over during the site visit: Why was the law school so overwhelmingly white? As the committee would soon write in its official report: “In 1999, there were only seven entering minority students (6.5 percent) in the full-time division. In the part-time division, 9.5 percent of the 1999 entering class was minorities, down from 19.1% in 1998.” The numbers were true enough, and behind them lay an interesting story. In its early years GMU Law had used fairly conventional racial preferences; admissions standards varied by race, and the school’s admissions roughly approximated the racial makeup of the applicant pool. In 1995 about 12 percent of GMU Law students had been nonwhite—a number somewhat lower than national averages but a fair approximation of its applicant pool and similar to the numbers at other Virginia schools. Given the scale of its preferences, though, the minority numbers were a bit low, perhaps because nonwhite students were more likely to be put off by its conservative reputation or less likely to be attracted by the law and economics curriculum.

At the same time, the use of racial preferences was generating growing dissent among GMU Law faculty. Students admitted with large preferences tended to have academic trouble at the school. Frequently they did not graduate, and many of those who did failed the bar exam. This pulled down the school-wide bar passage rate, which had attracted unfavorable notice for being only a little above the statewide average. Meanwhile, Hopwood, along with recent Supreme Court decisions strongly suggested that racial preferences were falling out of judicial favor, especially in the Fourth Circuit, which included Virginia.

Faculty and administrators at GMU Law cannot remember any moment when a collective decision was made to phase out (or at least minimize) racial preferences in admissions, but that is exactly what happened, very gradually, during the admission cycles from 1996 to 2000. In 1995 black applicants had been about eight times as likely to be admitted as whites with comparable credentials, as one can show through a logistic regression analysis. By 1999 there still appeared to be some preference (the coefficient on “black” was positive), but it barely registered statistically. It seems most plausible that by this time the school was merely using race as a tie-breaker for otherwise comparable black and white students.

But because of the cascade effect we discussed in Chapter Two, a reduction of racial preferences at this single school funneled minority students away from it. There were hundreds of blacks who were fully competitive for admission in 2000 to a race-neutral GMU, but those blacks were being eagerly sought after by much more elite schools. And they were being sought out not just with admissions offers but also with offers of scholarship money—the lure was enormously powerful. The only blacks and Hispanics likely to attend GMU Law through a race-blind admissions process would be the very occasional student who had a special interest in the school’s curriculum, had a strong reason to be in northern Virginia, or for some reason needed to take advantage of the school’s low in-state tuition.

Interestingly, at the same time as it implemented a more or less race-neutral admissions policy, GMU Law was doing something else that made it very unusual among law schools. The school operated a summer program in which students (disproportionately but not entirely minority students) whose academic qualifications fell short in the admissions process could enroll and study an intensive, focused legal curriculum for six weeks—essentially, a miniature version of the first year of law school. At the end of the program students took exams, and those who passed the exams were offered admission to the school.

The beauty of this policy was that it provided a way to increase racial diversity while avoiding the mismatch problem. LSAT scores and undergraduate grades were reliable indicators of law school performance when applied to large numbers of students, but there was a good deal of individual variation. Some people with good academic indices would turn out not to “take” to legal analysis very easily, and the reverse was true for some people with weaker credentials. GMU Law’s summer program provided a way to find just those students whose credentials understated their actual ability to do well at the school and benefit from the school’s curriculum. And indeed, the students admitted through the summer program had high success rates. This was “affirmative action” in its very best sense.

The visiting committee from the ABA, however, did not see it that way. Its report went on: “The school makes virtually no need-based scholarship grants to minority or any other applicants. The School has not engaged in any significant preferential affirmative action admissions program. One of the School’s administrators expressed doubts regarding the legality in the Fourth Circuit of such a program. There appears to no written plan describing the School’s current program and the efforts it intends to undertake relating to compliance with Standard 211.” Standard 211 was the “civil rights” provision of the ABA’s accreditation policy. The Standard provided that “a law school shall foster and maintain equality of opportunity in legal education, including employment of faculty and staff, without discrimination or segregation on the basis of race, color, religion, national origin, gender, sexual orientation, age or disability . . . a law school shall not use admissions policies or take other action to preclude admission of applicants or retention of students on the basis of race [and the other categories listed earlier].” By a fair interpretation of this language, GMU Law was exceptionally in compliance. Not only was it the rare school that did not discriminate on the basis of race in admissions; it also had funded an unusual and successful program aimed at identifying potentially successful applicants who would be screened out by a mechanical reliance on numerical credentials.

But in the Orwellian lexicon of law schools—and thus the world of academics participating in ABA accreditation processes—Standard 211 did not mean “be race-blind in admissions”; instead, it meant, in effect, just the opposite: Take what measures are necessary to make sure that your student body looks as diverse as your applicant pool, and if your applicant pool is less diverse than the local population of college graduates, take measures to diversify your applicant pool. This was the classic double-speak of affirmative action. But here it was more than public relations; here it was about to create a direct conflict between the values of GMU Law and the values of the ABA accreditation committee.

The site visit committee barely mentioned the school’s summer program. It did not evaluate the outreach efforts of the admissions office. It certainly did not contend that the admissions office discriminated against minorities. The ABA’s sole focus was on the actual numbers of minority students—especially black students—enrolled, and the heart of its dissatisfaction lay with the fact that only three blacks were matriculating in the current first-year class. The concluding section of the committee’s report laid out a variety of findings and minor admonitions, and it listed two issues on which “the Committee concludes that it has reason to believe that George Mason University School of Law has not established that it is in compliance with the Standards” for accreditation. One issue—a trivial one—concerned whether the head of the school’s library had full standing as a member of the faculty; the other concerned the school’s lack of racial diversity.

Based on the report, the ABA’s section on legal education followed its standard procedure for schools that “might” be out of compliance with accreditation standards: It deferred any decision on re-accrediting GMU Law and asked that the school submit a report by May 1 of the following year, giving its response and explaining any corrective actions.

Dean Grady responded the following spring, showing some level of concern but not great distress. He discussed the various small problems noted in the ABA’s 2000 report and the steps GMU Law had taken to clarify or solve them. He noted that the law school had adopted a formal affirmative action policy, which “committed” the school to “the fullest opportunity for entry into and participation in the legal profession. This commitment includes making special efforts to reach out to members of racial or other minority groups which have been victimized by discrimination.” Grady elaborated on minority recruitment strategies and conceded that minority enrollment remained “distressingly low.”

The ABA’s response was more pointed than its prior report. The nondiver-sity issues were considered settled. The remaining issue was the school’s diversity performance and its compliance with Standard 211. Re-accreditation would be deferred again; the ABA asked that the president of the university along with the dean of the law school submit a report by May 2002 reporting both the number of entering minority students in the fall of 2001 and “information regarding the amount of scholarship monies spent for minority recruitment and financial assistance in 2000–01 and 2001–02, as well as the amount budgeted for 2002–03.” The ABA’s message was unambiguous: We are not interested in process. We are interested in numerical results.

GMU Law felt between a rock and a hard place. Its skepticism about racial preferences had been intensified by the realization that students admitted with preferences over the past half-dozen years had frequently had very poor outcomes. But the school’s accreditation appeared to be in genuine jeopardy, and there seemed no way to satisfy the ABA short of reinstituting preferences. If the school lost ABA accreditation, none of its other recent achievements would matter; the school would essentially be out of business.

In the 2001–2002 academic year, then, GMU Law did two things. First, it gingerly waded back into the realm of racial preferences in admissions. Whereas in 2001, again, blacks had been about twice as likely to be admitted as whites with comparable academic indices, in 2002 blacks were six times as likely to be admitted. If, for example, a white student with a 158 LSAT and 3.3 college GPA had a 10 percent chance of admission, then a black applicant with the same numbers would have a 60 percent chance of admission. In the more prestigious day program (which drew stronger applicants and was more visible), blacks were nine times as likely as comparable whites to be admitted. The school also shifted scholarship funds from merit-based recruitment to race-based recruitment. In 2002 roughly half of all scholarship monies were awarded to black students, even though these students accounted for fewer than 3 percent of all incoming first-years.

With these changes GMU Law admitted forty-one blacks to its day or evening program in 2002, ten of whom accepted the offers and matriculated. The first-year class also included six Hispanics and one American Indian—a total of 6.5 percent of the entering class. The ABA remained unimpressed; in the summer of 2003 the accreditation committee observed that the law school’s letter “does not report significant progress in complying with Standard 211, and does not differ much from what was reported by the School to the Committee a year ago, in June of 2002.” The law school, the committee concluded, had shown a woeful “lack of progress in achieving student diversity. The number of minority students, especially African-American, Hispanic, and Native American students, continues to be extremely low.” Moreover, the ABA apparently concluded that it had been overly indulgent to the law school. It decided to schedule a probationary hearing for April 2004 in Baltimore, to which both the law school’s dean and the university’s president were to appear to “show cause why the School should not be placed on probation or removed from the list of approved law schools.”

This was a rather dramatic escalation of affairs. No longer was the ABA merely holding up GMU Law’s reaccreditation; now matters were coming to a head, and the law school’s continued existence was on the line. To say that the school’s administrators were angry and frustrated would be an understatement. GMU Law had abandoned race-neutrality; it was granting very large racial preferences to black applicants; black admittees were receiving financial aid from the school at more than ten times the rate of whites; the number of minorities at the school had sharply increased—what exactly did the ABA want? The ABA would not say.

Strikingly, the ABA showed no interest in any other form of diversity. It did not inquire into the socioeconomic makeup of George Mason students (and has not, so far as we can determine, made such an inquiry part of any of its accreditation visits). It did not inquire into whether the school had political diversity or had enough students trained in economics to sustain the school’s special mission to pursue the economic analysis of law. It showed no interest in regional diversity (always lower at state schools) or whether students brought a sufficient level of real-world experience into the classroom to enrich discussion.

Faced with what was now clearly a life-threatening crisis, the school acted on multiple fronts. GMU Law again increased the size of racial preferences used for blacks and began using racial preferences for Hispanics as well. The school created a special faculty committee on “Minority Recruitment and Retention” (with members elected by the faculty). It devoted about two-thirds of the school’s entire recruitment budget to minority recruitment, including visits to historically minority schools, minority student career fairs, and the like. Commendably, to help deal with the academic fallout of increased racial preferences, the school also invested more resources in academic support, focusing on students with low entering credentials.

In a lengthy prehearing report to the ABA in November 2003, Dean Grady took a more assertive tone. He laid out in relatively stark terms the size of the racial preferences the law school was using (the median LSAT of black students starting in the fall of 2003 was ten points lower than that of any other group) and the academic consequences of these preferences:

Although we do not treat scores and numbers as the final word on any admissions decision, our analysis of student performance over the past five years has demonstrated that numerical qualifications do place some boundaries around our discretion. Students with LSAT scores below 150 are more than six times as likely to experience academic difficulty . . . more than thirteen times as likely to be dismissed for academic cause, and almost twice as likely to fail the bar exam on their first attempt.

Grady described in massive detail the evolution of the school’s efforts to increase diversity. The law school was now sending its own message: What did the ABA expect it to do? And could it seriously believe more aggressive preferences were in the best interest of the admitted students?

By raising such questions, Grady was implicitly invoking another part of ABA’s accreditation criteria—Standard 501, which stipulated that “a law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar.”

Although the evidence is sketchier on this point, GMU Law and the university’s president also appear to have started making some inquiries. They determined that the ABA’s own accreditation authority came from the US Department of Education, which could review the ABA’s exercise of its power and revoke its authority. The school made inquiries among other law school deans about how the ABA applied Standard 211 to them.

Perhaps because of a rising sense that further steps against GMU Law would create a major fight, the ABA took a step back. In January 2004 it announced itself pleased by Dean Grady’s latest report. It canceled the de-accreditation hearing but still contended that there was “insufficient evidence” to conclude the Law School was meeting its obligations under Standard 211. GMU Law was still in limbo.

Mark Grady had left the deanship by this point—at the end of the 2003–2004 academic year—and another eminent scholar, Daniel Polsby, had taken up the reins. The school continued to adopt more race-conscious policies. Preferences for blacks rose again in the 2004–2005 admissions cycle; blacks applying to the law school’s day program were now fifteen times as likely as similar whites to be accepted. The school instituted a special tuition increase (going beyond levels recommended by state authorities) to fund additional recruitment scholarships, again focusing on minority candidates. By 2005 there was no longer much to distinguish GMU Law’s preference practices from any other law school, and indeed, Polsby pointed out to the ABA that in the fall of 2005 its first-year class would have roughly the same proportion of nonwhite students as the other Virginia public law schools (around 17 percent, two-thirds of whom were blacks and Hispanics).

There was not much more the ABA could ask, and in February 2006 its accreditation officials notified GMU Law that, after nearly six years, it was “in compliance” with Section 211. It would receive re-accreditation.

 

FIGURE 14.1. The Fall and Rise of Preferences at GMU Law

Source: Public records data disclosures by George Mason University Law School, and Yakowitz and Sander, “The Fall and Rise of Affirmative Action at George Mason University Law School” (2010).

Still, GMU Law was not quite out of the woods. Later in 2006 the ABA adopted a new Standard 212, which addressed “Equal Opportunity and Diversity.” It provided in relevant part that

Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity. . . . A law school shall demonstrate [a similar commitment] to having a faculty and staff that are diverse with respect to gender, race, and ethnicity.

The ABA also approved supplemental interpretations of the standard, including this passage: “Through its admissions policies and practices, a law school shall take concrete actions to enroll a diverse student body that promotes cross-cultural understanding, helps break down racial and ethnic stereotypes, and enables students to better understand persons of different races, ethnic groups, and backgrounds. . . . The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved.” One of the first law schools to be evaluated under the new standard would be . . . GMU Law. Because ABA accreditation occurs on a seven-year cycle, and because the last site visit had been in 2000, a new accreditation cycle would begin in early 2007.

This site visit was friendlier than the last one. The visitors were prepared to give the law school considerable credit for its dramatic—indeed unheard of—rise in the rankings. But the school’s black population was still only 4 percent of total enrollment. (And this was George Mason, with a politically diverse faculty in a world of overwhelmingly liberal law schools.) The visitation committee submitted a report praising many of the school’s achievements, pointing out a few technical matters it should address, and criticizing the school, once again, for its lack of racial diversity.

Polsby concluded that he was in a good position to take the offensive. Soon after receiving the site visit report and before the ABA accreditation committee could act upon it, Polsby prepared a lengthy report that conveyed the frustration that had built at the school over seven years. Recounting the school’s six-year effort to win re-accreditation, he observed,

At no point during this six-year period did the Committee or any other office of the ABA ever explain how we had failed to demonstrate compliance, or state what more was required in order to demonstrate our compliance. What did become quite clear to us during this ordeal was that our efforts to attract minority students would never satisfy the Committee until they produced some unspecified increase in minority enrollment, especially of certain groups. But we were never told how many students of which races and ethnicities we had to enroll in order to satisfy the ABA. Nor were we ever told what steps we were required to take in order to satisfy whatever implicit quotas the ABA was seeking to impose upon us.

With all deference, this process was unfair to us, as well as to some of the students whom we were pressured to admit, and who later failed out of the law school at great cost to them in terms of time, money and emotional distress. It also fails to live up to the ABA’s own commitment to principles of justice and due process. In any case, there must be no repetition of this adjudicatory opacity in connection with the current accreditation cycle. We have demonstrated—and will again demonstrate below—full compliance with the Standards. If somehow and for whatever reason, the Committee does not agree with this conclusion, there must be no more guessing games. The ABA must tell us in plain language what we must do in order to demonstrate compliance. I can assure you—and I am confident that you are well aware—that [I am] very far from the only law dean to hold this point of view.

Polsby had correctly taken the measure of the ABA. The specter of losing accreditation was extremely powerful, but if one called the ABA’s bluff and demanded to know what specific numbers would satisfy Standards 211 and 212, it was suddenly vulnerable. Any attempt to impose a specific quota on a law school would almost certainly not survive a legal challenge, and President Bush’s Department of Education might be moved to revoke the ABA’s entire accreditation authority.

The ABA fully understood the import of Polsby’s letter. GMU Law faculty had, the year before, helped to persuade the US Civil Rights Commission (USCCR) to hold a hearing on the ABA’s use of its accreditation power to push schools toward the use of preferences. The head of the ABA accreditation committee had been summoned and asked pointed questions. The USCCR would soon be issuing a report. The authorities at the ABA concluded that, after all, GMU Law had been curbed in its race-neutral experiments—indeed, it had completely abandoned any hint of race neutrality. It was time for the overseers to move on. The accreditation committee, meeting in early 2008, chose not to cite the law school on either Section 211 or Section 212. Its criticisms focused on such minutiae as the academic status of the school’s librarian and the need for clearer procedures in its externship programs. The battle with GMU Law over racial targets was over.

The academic world described in Justice O’Connor’s Grutter opinion is one in which schools carefully deliberate about how best to educate their students. Racial preferences are, preferably, not used at all, but if they are, it is only because the school cannot devise any race-neutral method of enrolling a student body that has sufficient racial diversity to accomplish the school’s fundamental pedagogical goals. Even then, each applicant is carefully evaluated for the ways in which that student’s unique background can contribute to the school’s diversity, and the school engages in an ongoing search for ways to phase out any use of race at all.

The academic world that the George Mason affair reveals is entirely different. A school that decides that racial preferences are not essential to its academic mission—and, indeed, determines that conventional racial preferences are hurting the students who receive them—is hauled up before a national body and threatened with the loss of its accreditation, a step that would effectively destroy the school. The national body acts under a system of regulations that law schools collectively adopt, whose specific requirements are murky but whose import is to require each law school to use the same size and scope of racial preferences as its peer schools. The fact that GMU Law was clearly succeeding as an academic institution—even the fact that it had instituted special programs (like its summer program) designed to promote access to legal education for students missed by ordinary preference programs—did not help it at all. In this world the ideas of academic freedom, of searching for race-neutral alternatives, and of phasing out preferences are not simply ignored: They constitute highly dangerous acts.

When we obtained through public records requests extensive data on GMU Law’s admissions and its student outcomes over the period from 1995 to 2007, our colleague Jane Yakowitz (now an assistant professor of law at the University of Arizona) analyzed the files and generated the data in Figure 14.1. She also found that black admittees during this period graduated at a 70 percent rate, and (for those who were tracked) had a first-time bar passage rate of about 43 percent. Combining these numbers meant that a black matriculating at GMU Law had roughly a 30 percent chance of graduating and passing the bar on her first attempt. It was hard to argue this was an acceptable outcome. Indeed, students at the historically black Howard University Law School, only a few miles away, had academic indices very similar to blacks at GMU Law but had a graduation-and-first-time bar passage rate of about 57 percent, nearly twice as high. These differences are entirely consistent with the mismatch hypothesis, as most blacks at Howard of course had academic indices close to the class average, whereas blacks at GMU Law, during the years of large preferences (when many more enrolled), had academic indices many, many percentile points below their typical classmate.

Indeed, the GMU Law data made possible a direct test of the mismatch hypothesis. During its rapid rise in the rankings the median academic index of students at the law school had risen rapidly from year to year. Students admitted with preferences in 2006 and 2007 had academic indices similar to students admitted with much smaller or no preferences in the late 1990s. When Yakowitz compared these students, she found that the students with academic indices closer to their classmates had substantially better outcomes. Thus, as with the University of California undergraduate outcomes we considered in Part III, changing internal policies of a school made possible a test of the mismatch hypothesis, and mismatch did indeed exist and harmed student outcomes.

This is strong evidence that the ABA was abusing its authority in two ways. First, Standards 211 and 212 conflicted directly with the strictures of Grutter to respect the academic freedom and diversity calculus of individual institutions. Second, it violated Standard 511 by pressing—in effect, forcing—GMU Law to admit students who faced long odds against becoming lawyers and who would have been much better served by attending a different law school.

The US Commission on Civil Rights issued a report following up on its 2006 hearing. A majority of its commissioners concluded that

[The ABA] should revise the recently adopted Standard 212 to delete the requirement that law schools seeking accreditation demonstrate a commitment to diversity. The standard should instead be revised to permit law schools, consistent with Grutter v. Bollinger, the freedom to determine whether diversity is essential to their academic mission. . . . Law schools should voluntarily provide disclosure to the public and, at the very least, to potential applicants on student academic performance, attrition, graduation, bar passage, student loan default, and future income disaggregated by academic credentials. . . . [The ABA] should, pursuant to its accreditation authority, require law schools to disclose the details recommended [above].

The ABA has not adopted these recommendations. So far as we are aware, its leaders have never even considered them.