Peter Kirsanow and Gail Heriot (of ACR Project Board) Submit Legislative Proposal on Accreditation to Congress
On February 18th, two U.S. Civil Rights Commissioners (and ACR Project Directors) proposed an improvement to the Higher Education Act. You can read a copy of their letter below.
Commissioners Peter Kirsanow and Gail Heriot highlight that accreditors now can condition federal funding on any standards they choose. Accreditors have long used their field-wide authority over the federal purse to compel racially balanced admissions, hiring, and promotional decisions. They have done so regardless of whether their standards so force intentional discrimination that federal laws ban.
Perish the thought that your institution should violate the law by engaging in racial preferences. But by hook or by crook you must come up with a student body and a faculty that are sufficiently diverse to measure up to our standards. If you fail, you will be de-accredited.
The Commissioners flag that accreditors know that their “diversity” mandates compel differential treatment based on race and other demographic factors. One accreditor (the ABA,* which accredits law schools) has said so at least three times in Supreme Court amicus briefs.
They note that current law arguably prevents the Education Department (which licenses accreditors) from exercising any oversight over accreditors’ standards. They argue Congress should address this issue (and that–under the Higher Education Act–it may be the only entity that can). They suggest that Congress enact a small amendment to the Higher Education Act, restoring the freedom of each college or university to pursue the “diversity policies” of its choice without interference from accreditors (or anyone else), as long as they comply with substantive law.
* – 3 days after the Commissioners’ letter, the ABA announced it “suspended enforcement of the accreditation standard originally titled ‘Diversity and Inclusion[.]’” “Suspend[ing] enforcement” does not retract the standard. The issue remains live in the law-school context. It remains more-so elsewhere: other accreditors do not appear to have taken parallel, even partially corrective actions.