Posted by: bridget | 8 December 2007

The Libertarians are Coming! Run for your Lives!

Slightly belated blogging on this one.

The Boston Globe reported that the US Commission on Civil Rightsis now headed up by libertarians.  No more than four of the nine Commissioners may be from any one political party.  Several of the current Commissioners had been registered Republicans who switched to Independent status before being appointed to the USCCR.   The focus of the group has changed:

Instead, the commission has put out a series of reports concluding that there is little educational benefit to integrating elementary and secondary schools, calling for closer scrutiny of programs that help minorities gain admission to top law schools, and urging the government to look for ways to replace policies that help minority-owned businesses win contracts with race-neutral alternatives.

The bipartisan nature of the Commission is meant to ensure that it does not pursue political ends.  While it would be problematic if the Commission were pursuing a conservative agenda, it is also problematic that it had a very liberal agenda in years past.  The current Commission is focused on the results of proposed legislation and areas, as well as ensuring that one set of Constitutional rights are not subverted to effectuate the ends of another set. 

The Commission’s work on the ABA’s mandate for affirmative action in law schools is but one example.  Pragmatically, affirmative action is detrimental to many of the people it purports to help.  Statistically, 50% of African-American students are in the bottom 10% of their class after their 1L year; they are two and a half times as likely to drop out (often for financial reasons; however, this may be a direct result of a loss of scholarship money after a poor 1L year); they are four times as likely to fail the bar on the first try, and six times as likely to never pass the bar.  As of 1994, black students had about 50% more debt than their white peers. 

A JD, without a license to practice, is of marginal utility.  In law, the rate-limiting step is three years and six figures of debt after admission; this is not college, where anyone admitted can make graduate, nor engineering, where those who cannot get through the curriculum may take a humanities degree, and those who graduate go straight into practice. 

The Supreme Court upheld the use of affirmative action in state schools, despite the Fourteenth Amendment violation, on grounds of academic freedom and First Amendment rights.  The ABA’s proposal mandated that schools use affirmative action.  Aside from the perversity of mandating the use of freedom (and the resulting loss of First Amendment rights), the policy is objectively harmful to the people it purports to help. There should not be anything political about a results-based analysis.

Likewise, the Commission studied HUD regulations and First Amendment rights.  Landlords are not permitted to discriminate against prospective renters on a variety of grounds (race, sex, marital status) unless, inter alia, the landlord occupies the home.  In that case, the freedom of association rights of the landlord permit her to rent – or not – to those whom she chooses – she is permitted to discriminate in her own home.  HUD’s interpretation of the Fair Housing Act, however, prohibits her from telling prospective renters that she will discriminate (i.e. “Single females only,” or “no children”).  The Commission found fault with this on several grounds: 1) it violates the First Amendment rights of the landlords; and 2) it requires landlords to waste people’s time: the prospective renters cannot determine, in advance, who will not rent to them. As a pragmatic matter, such a rule is absurd: it achieves no positive result for the people it supposedly protects, and, in doing so, inconveniences them and tramples upon the Constitutional rights of another group.

Likewise, the Commission opposed the Akaka Bill on similar grounds (See, pg. 26-28 re: Constitutional issues, and pg. 29 regarding the economic effects upon native Hawaiians).  

Surely, results-based analyses are not partisan in nature; a libertarian Commission, which questions whether policies aimed at helping various minority groups are helpful or even Constitutional, is hardly one with a radically different aim that previous Commissions whose aim was to improve the lives of minorities and women.  Too often, lawyers proceed entirely on theoretical justifications, with little consideration given to the empirical results of their policies; to the extent that the shift in the Commission’s policies reflect this approach, such is hardly grounds for criticism.



  1. Thanks the comment is funny.
    I like your diary..

  2. Go Libertarians! Glad to see some common sense injected into these decisions.

  3. Thanks, Neil. :)

    Common sense should be non-partisan.

  4. The ABA decision always struck me as ham-handed and short-sighted. (That’s two, TWO hyphenated descriptors!)

    Of course, it’s true that if you read the ABA policy, it doesn’t require racial preferences or anything of the kind. But it’s impossible not to notice the undertone, and of course everyone understood how the policy would be taken. It was also known that this would be a divisive policy statement.

    This is not a good idea. I’m still foolish enough to believe that organizations like bar associations are an important part of preserving the rule of law in a country that, at the moment, could use a refresher course in that virtue. The ABA should be using its institutional authority to call conservative and liberal lawyers alike “home” on issues that lawyers are supposed to be the guardians of. Instead, this policy statement just pissed people off and achieved nothing, since I’m not aware of a single law school that changed anything about its admissions policy because of this decision.

    Giving away free copies of Tocqueville’s “Democracy in America” would have been a more productive use of resources than this.

  5. IIRC, the policy changed one fundamental part of the admissions standards: schools are required to be diverse, even if that means admitting people who are not qualified. (The ABA might have backed off of that.)

    Giving away free copies of Tocqueville’s “Democracy in America” would have been a more productive use of resources than this.

    (Laughing) Excellent. Just when I thought I didn’t have any good contributions to Tammi’s Comment of the Week contest, you came along.

  6. To be more serious:

    The problems with the ABA policy change were that:
    1. it mandated that schools admit people whom they do not think can succeed;
    2. the only certain way to fulfill the requirement of “diversity” is to have quotas (which is essentially what happens);
    3. it removes academic freedom from schools (perhaps a top school would like to admit without regard to sex or race, and let their female and minority students know that they are equally-qualified);
    4) compliance with state constitutions and statutes is not an excuse for non-compliance with 211; and
    5) as you point it, it just pisses people off.

    This is a far cry from the move in the 1970s to demand equal access to law schools.

    I think that it’s phenomenally important to have a diverse legal profession. We’re talking about the future judges, politicians, policy-makers, law professors, and, yes, lawyers of America. (As a conservative/libertarian, I get all excited when female judges express displeasure with Roe, for example – it shows that opposition to it is not about oppression and misogyny.) Beyond that, such a fantastically important and powerful part of our society ought to be a reflection of that society.

    That does not mean that the end justifies the means (i.e. affirmative action, or mandated affirmative action) – and that is the problem I have with the ABA policy. (Of course, the fact that it would have required some state schools to violate their state constitutions is bad, too. Way to set a good example, guys.) Fixing societal problems on the law school level is just silly – why not focus on K-12 (and, as you say, use the legal power of the ABA to help disadvantaged kids succeed). I’ll add my final problem: race is not a good proxy for diversity. Once you look at all that, it seems rational for the USCCR to oppose the policy and demand more of the ABA (like, oh, not mandating that law schools violate their state’s constitutions).


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