DOE - ABA: The Ubiquitous Disintegration of Federalism
By Marion Edwyn Harrison (02/15/07)
Even in Washington, D. C. one never - or certainly hardly ever - realizes the extent to which the Federal Government intrudes into, sometimes dominating, activity which historically was that of the States and which doubtless most reasonably informed people would think continues to be a matter for the States. The immediate example is a relationship between the American Bar Association ("ABA") and the Department of Education ("DOE").
Every lawyer, virtually any layman who has dealt with an attorney, and probably most other literate laymen, know that each State of the Union and the District of Columbia has its own bar. Probably a far smaller percentage of laymen know that ABA is a voluntary organization; that a majority of licensed attorneys in the United States do not belong to it; that its percentage-of-attorneys-as-members has declined; and that, while continuing (mostly through its 22 Sections devoted to various areas of law) to contribute worthwhile research, reporting and other activity, as a totality ABA is much into liberal politics and causes.
An example of ABA leftist activity and DOE interaction presently hovers, awaiting further action by one or both entities. What has DOE got to do with ABA, especially when States, not the Federal Government, license attorneys?
In the 18th and 19th and early 20th Centuries many individuals (perhaps most famously, Abraham Lincoln) “read law” - that is, they studied on their own, usually in the office of a practicing attorney. Over the years more and more States began to require that an individual seeking admission to the State Bar and not already admitted elsewhere must have graduated from an accredited law school. (There were variations. In Virginia, where I took the bar examination, at that time only two of three years of law school were required. If one passed, he was admitted, as I fortunately was, while still in law school. Although I opted to finish, and later got a Master of Laws degree, a basic law degree was not required.) More and more States began to require that one’s law school be accredited. In 1923 ABA commenced performing a useful service, that of inspecting and evaluating law schools and their programs - among the more obvious criteria (in no particular order), faculty-student ratios, subject matter of courses, availability and comprehensiveness of library, faculty criteria, so forth.
In 1952 the Federal intrusion, as one may so characterize it, began. The Federal Government recognized, and exclusively recognized, the ABA accreditation. DOE now is, shall we say, big-time, in the ABA accreditation business. Even worse from the viewpoint of a federalist, taxpayers’ money is dished out to law schools (not surprisingly, through DOE). However, until more recent years DOE’s role ranged from nominal to somewhat nominal.
The ABA Section of Legal Education and Admissions to Bar (which was one of my liaison assignments when I was on the ABA Board of Governors) now strongly promotes - indeed, wants to require - expansive affirmative-action criteria for law schools. DOE, on the same substantive quest but less way-out, and ABA are at loggerheads, or at least more than subtle disagreement, about requiring inclusion of race, ethnicity and sex in law-school admissions criteria.
As a matter of Federal law, law schools are not required to promote affirmative action as long as there is no discrimination, although they may employ affirmative action if they choose, consistent with a 2003 Supreme Court of the United States decision.
The likelihood is that ABA would be more, not less, militant in forcing affirmative action upon law schools if DOE had no role and law schools received no Federal funding. However, neither antagonist in the ABA - DOE accreditation criteria dispute (and probably few law school administrators and faculty) would opt for discontinuance of DOE oversight and Federal taxpayers’ money.
As often occurs, few informed people realize the extent of Federal participation or intervention - call it as you will - and funding in a matter which historically has been exclusively State jurisdiction and which by its very nature is not a Federal Government function. Federal activity truly is ubiquitous.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation. He served four years as an American Bar Association Governor, ten in its House of Delegates, was a Section Chairman, etc.
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