United States v. American Bar Association, Civ. No. 95-1211 (CR) (D.D.C.); Supplemental Response of the United States to Two Additional Public Comments Concerning the Proposed Final Judgment

[Federal Register Volume 60, Number 239 (Wednesday, December 13, 1995)]
[Notices]
[Pages 64077-64078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30289]



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DEPARTMENT OF JUSTICE
Antitrust Division


United States v. American Bar Association, Civ. No. 95-1211 (CR) 
(D.D.C.); Supplemental Response of the United States to Two Additional 
Public Comments Concerning the Proposed Final Judgment

    Pursuant to Section 2(d) of the Antitrust Procedures and Penalties 
Act, 15 U.S.C. 16(d), the United States publishes below two additional 
written comments received on the proposed Final Judgment in United 
States v. American Bar Association, Civil Action No. 95-1211 (CR), 
United States District Court for the District of Columbia, together 
with its response thereto.
    Copies of the written comments and the response are available for 
inspection and copying in Room 3235 of the Antitrust Division, United 
States Department of Justice, Tenth Street and Constitution Avenue, 
N.W., Washington, D.C. 20530 (telephone 202/514-2481) and the 
inspection at the Office of the Clerk of the United States District 
Court for the District of Columbia, Room 1825A, United States 
Courthouse, Third Street & Constitution Avenue, N.W., Washington, D.C. 
20001.
Rebecca P. Dick,
Deputy Director of Operations.

United States' Supplemental Response to Two Additional Public 
Comments

    The United States is filing this Supplemental Response to respond 
to letters from law professors Marina Angel and Leslie Espinoza to the 
Attorney General about the proposed Final Judgment. The Antitrust 
Division's notice under the Antitrust Procedures and Penalties Act 
(``APPA'') directed that public comments be sent to John F. Greaney, 
Chief, Computers and Finance Section, Department of Justice, Antitrust 
Division. Because Professors Angel and Espinoza sent their letters to 
the Attorney General instead of Mr. Greaney, we had not received those 
letters when we filed our ``Response To Public Comments'' on October 
27. Since the Government's Response states that it will treat as timely 
all comments received up to the time of filing that response, we 
provide this Supplemental Response to these two letters from law 
faculty.\1\

    \1\ As the deadline for public comments has expired, any future 
letters received by the Justice Department will be treated as 
citizen letters and will not be filed with the Court.
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    The Government has carefully reviewed the letters from Professors 
Angel and Espinoza. Entry of the proposed Final Judgment remains in the 
public interest.

1. Professor Marina Angel (Exhibit 1)

    Professor Angel is under the impression that the Antitrust Division 
seeks to eliminate enforcement of the American Bar Association's 
(``ABA'') antidiscrimination accreditation standards. ABA Accreditation 
standards 211-213, dealing with discrimination, are not affected by the 
proposed Final Judgment. Nor is the enforcement of those standards. Law 
schools will continue to maintain faculty salary records. Accreditation 
inspection teams may review these records to investigate discrimination 
complaints. The proposed Final Judgment prevents the ABA, but not other 
organizations, from collecting and disseminating salary data. 
Additionally, site inspection teams may not compare salary levels at 
one law school with those at another, since the Complaint alleges that 
this had been done to raise salaries illegally, but may review the 
records of the inspected school to resolve discrimination allegations.

2. Professor Leslie G. Espinoza (Exhibit 2)

    Professor Espinoza is concerned that the consent decree would 
prevent the Society of American Law Teachers from collecting salary 
data from law schools that may be used to determine if salary levels 
are discriminatory. The consent decree is not intended to relax the 
ABA's antidiscrimination accreditation standards, and it will not have 
that effect. The Society of American Law Teachers procures salary data 
from law school deans that may be used to ascertain whether salary 
levels are discriminatory. While the ABA will no longer be permitted to 
collect and disseminate faculty salary data and to use it in the 
accreditation process to increase faculty salaries, law schools will 
continue to maintain salary data and other organizations may collect 
it. In this regard, we realize that organizations, such as the American 
Association of University Professors, have collected and published 
faculty salary data for many years. While the ABA may not collect and 
use salary data to raise general salary levels, accreditation 
inspection teams may fully investigate allegations of discrimination at 
a law school, including allegations of discriminatory salaries, and may 
review salary records at that law school to resolve the discrimination 
allegations.

Conclusion

    The ABA used the accreditation process to fix and raise faculty 
salaries. They collected extensive salary data and used it to pressure 
schools to raise their salaries to an artificial level. The consent 
decree is narrowly tailored to prevent such illegal collusion in the 
future. It does not affect the ABA's enforcement of antidiscrimination 
accreditation standards.

    Dated: November 3, 1995.

        Respectfully submitted,
Anne K. Bingaman,
Assistant Attorney General, Antitrust Division.
John F. Greaney,
D. Bruce Pearson,
Jessica N. Cohen,
James J. Tierney,
Molly L. DeBusschere,
U.S. Department of Justice, Antitrust Division, Computers and Finance 
Section, Judiciary Center Building, 555 Fourth Street, N.W., 
Washington, DC 20001, 202/307-6122.

Temple University, School of Law

1719 N. Broad Street (055-00), A Commonwealth University, Philadelphia, 
Pennsylvania 19122, (215) 204-7861, Fax: (215) 204-1185

October 16, 1995.
The Honorable Janet Reno,
Attorney General, Department of Justice, R. 4400, Tenth and 
Constitution Avenue, N.W., Washington, DC 20530, FAX 202-514-4371

    Dear Attorney General Reno: I was shocked to learn that the 
Justice Department is seeking to eliminate enforcement of the 
antidiscrimination Accreditation Standards of the ABA.
    I didn't substantially financially support the election of 
President Clinton to have you destroy what limited 
antidiscrimination protection law school faculty, staff and students 
currently enjoy.
    I suggest you explain your antidiscrimination position to your 
Antitrust Division.


[[Page 64078]]

        Sincerely,
Marina Angel,
Professor of Law.

MA/teb
Enclosure

Boston College

885 Centre Street, Newton, MA 02159-1163, Law School, (617) 552-8550, 
FAX (617) 552-2615

By Facsimile: 202-514-4371

October 17, 1995.
The Honorable Janet Reno,
Attorney General, Department of Justice, R. 4400, Tenth and 
Constitution Avenue, N.W., Washington, D.C. 20530

    Dear Attorney General Reno: I am very disturbed that the consent 
judgment proposed in the matter involving the ABA Accreditation 
Standards and your antitrust division would eliminate the most 
important antidiscrimination provision of the ABA standards: review 
of salary and/or fringe benefits by race and gender.
    The ability of the ABA Standards to put teeth in 
antidiscrimination policy is important. The ability of review teams 
to have access and to force disclosure of actual data is crucial. 
Last January, I testified before the ABA Special Commission to 
review accreditation standards. I have enclosed a copy of my 
testimony. I hope that it will help illuminate what an important 
role accreditation plays in the integration of law schools, and 
ultimately the profession.
    I also am a member of the Board of Directors of the Society of 
American Law Teachers (SALT). SALT has long been concerned about the 
systematic salary discrimination against women and minorities. 
Indeed, SALT publishes an annual nationwide salary survey. That 
survey has been used by many women and minorities to address salary 
inequity in their own law school. SALT obtains the data from law 
school deans. The deans are generally willing to release it because 
it is released in any event in the ABA accreditation process. The 
deans also are unable to claim they do not have it--because the ABA 
process requires them to keep it.
    I hope that the Clinton administration will take a second look 
at the proposed consent judgment. As so often happens, those who are 
most affected by certain provisions are outsiders to the power 
process that negotiated the proposed judgment. Please do not 
hesitate to call with any questions.

        Sincerely,
Leslie G. Espinoza,
Professor of Law.

AALS Section on Minority Groups Newsletter

May 1995.

Testimony Before the Special Commission To Review the Substance and 
Process of the American Bar Association's Accreditation of American Law 
Schools

Professor Leslie G. Espinoza, Chair, AALS Section on Minority Groups, 
January 6, 1995

    Good Afternoon, I would like to thank the Commission for 
affording the AALS Section on Minority Groups this opportunity to 
comment on the ABA/AALS Accreditation process. Within the time frame 
permitted by these hearings, I will make two points.
    First, in addressing issues of accreditation the legal 
community, particularly those of us in the academy, should be 
mindful of the monopoly power we exercise. Our monopoly control is 
profound. Indeed, it is protected and perpetuated by us. Persons who 
engage in the unauthorized practice of law can be prosecuted--under 
the law.
    And the ability to determine who is authorized to practice law 
is primarily controlled by the law school community. We are the 
gatekeepers to the profession. For admission to practice, nearly all 
state bars require graduation from an ABA accredited law school. 
Admission to law school is controlled by individual law schools 
through their admissions offices. Admission is also controlled 
nationally through the consortium of laws schools that forms the Law 
School Admissions Council. The LSAC is the organization that designs 
and administers the LSAT. At the other end of the process, law 
school curriculum largely drives the content of bar examinations--
increasingly so since the universalization of the Multistate Bar 
Examination.
    With the privilege of power comes responsibility. Access to law 
is fundamental for the protection of personal and public rights. 
Indeed it is often lawyers who are responsible for the recognition 
or creation of those rights. Lawyers dominate legislatures as both 
elected officials and legislative staff. It is the duty of law 
schools, encouraged and enforced through the accreditation process, 
to ensure that the future legal community is responsive to the 
society as a whole.
    The need to be legally relevant and responsive to the whole 
community is the second point I will make today. Historically 
exclusion of persons of color from law was nearly complete. This was 
particularly true for women of color. Frankly, this is still largely 
the case. Richard Chused's study in 1986 documented the absence of 
outsiders in the academy. One third of law schools had no minority 
professors, one third had only one. In 1992, Professors Merrit and 
Reskin empirically documented the double standard in the hiring of 
minority women in the academy. The exclusion of persons of color 
from the academy continues.
    The impact of those outsiders who have gained entry is 
significant given our small numbers. We have worked to increase the 
number of and to support minority law students. We have contributed 
to the legal literature, in theory, substance and method. We have 
changed the discourse by bringing our voice to the law. Despite 
these contributions, there is much more work to do.
    Accreditation has been the foundation for our inclusion in the 
academy. It forces accountability. Importantly, accreditation 
requires law schools to have historic accountability. Self studies 
and site team reports view processes in the law school. The 
standards require scrutiny of admissions, placement, curriculum, 
hiring of faculty, tenuring process and results and administration. 
Thus the accreditation process has been the only forum for 
addressing issues of inclusion and discrimination in all aspects of 
the institution.
    I will end with reference to the letter by the consortium of 
fourteen deans that gave rise to these hearings. The members of the 
Section on Minority Groups fear that what underlines the deans' 
challenge to accreditation. The letter questions the need for law 
schools to explain, ``any departure from the pattern that has been 
prescribed for all schools--why, for instance, the clinical faculty 
are treated differently than the research faculty in some respect, 
or what plans exist for increasing square footage in the library, or 
how the `right' composition of the faculty will be achieved.'' The 
members of the Section on Minorities do not doubt that this is coded 
language for an attack on the ``diversity'' or ``multicultural'' 
requirements in the ABA standards.
    Finally, the letter from the 14 deans indicates that there are 
some law schools at the apex of the pyramid of all law schools--
``schools with unquestionably strong educational programs [that] are 
not quickly given the ABA's seal of approval * * *'' These law 
schools, the letter implies, should be beyond the review of 
accreditation. The Second on Minority Groups strongly disagrees. 
Indeed, the arrogance of many of the elite schools has too often 
blinded them to their own exclusionary practices in hiring and 
student composition. The accreditation process must apply uniformly 
to all law schools in order to ensure a diverse and relevant legal 
profession for the next century.

[FR Doc. 95-30289 Filed 12-12-95; 8:45 am]
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