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March 22, 2010

Shall We Rank Law Schools for Diversity?

By Roger Clegg

Two law-school professors, Vikram David Amar and Kevin R. Johnson, recently published a piece in FindLaw.com on "Why U.S. News and World Report Should Include a Diversity Index in its Ranking of Law Schools." Early on, the piece notes a research finding that, by including in its law-school index the LSAT scores and undergraduate GPAs of the students admitted and enrolled, the USNWR ranking "creates disincentives for schools to admit and enroll applicants from underrepresented groups that have not - as groups - fared particularly well in grades or on standardized tests."

The good news is that Amar and Johnson don't suggest what many on the Left would immediately demand, namely that the index and, for that matter, law schools themselves simply ignore test scores and grades if they have a politically incorrect disparate impact. The bad news is that the authors instead embrace the "welcome development" that Bob Morse, USNWR's "point person for law school ratings," has "recently expressed openness to thinking about incorporating a 'diversity index' into the rating methodology."

Amar and Johnson then agree with Mr. Morse that "measuring diversity is a very complicated issue," since after all it requires deciding which racial groups "should be included in the definition of diversity, and determining the extent to which the diversity index should go beyond race and ethnicity - to include socio-economic class, gender, sexual orientation, geography, age, and perhaps religion and other characteristics ...." True enough (and probably a good reason to rethink the wisdom of the whole undertaking).

But, Amar and Johnson continue, they disagree with Mr. Morse's suggestion that perhaps law schools in "ethnically diverse" states like California and Florida should be rated differently than "far less diverse states like Maine and Kansas." And this disagreement serves as the springboard into their discussion of why diversity ought to be factored into the USNWR index in the first place.

First, though, a word about the law. Amar and Johnson are at pains to announce more than once their own belief in a broad remedial rationale for increasing the diversity of law schools, but they also acknowledge "with some regret" that this rationale is a nonstarter as a legal matter, alluding to the fact that the Supreme Court has repeatedly rejected it. They also acknowledge that, while some use of racial and ethnic preferences is allowed as a matter of federal law, state laws like Proposition 209 in California (and its counterparts in Washington, Michigan, Nebraska, and counting) ban such preferences and thus "make the accomplishment of diversity more difficult."

This is all true, and it is good that Amar and Johnson acknowledge the legal constraints on politically correct discrimination, even if they do so "with some regret." Still, it is troubling that they want pressure to be brought to bear on law schools to engage in admissions discrimination on the basis of skin color and national origin. Such discrimination is not required by federal law, after all - it is barely permitted. And it is permitted only because the Supreme Court has been willing to defer to the educational judgments of universities. Why should those educational judgments be overridden by pressure from a news magazine?

In any event, the justification for racial and ethnic discrimination that the Supreme Court has recognized as sufficiently "compelling" is the supposed "educational benefits" that accrue from a diverse student body, where one element of that diversity is the melanin content and ancestral national origin of the students enrolled. I agree that whether it makes sense for USNWR to rate law schools in part on this diversity hinges on whether in fact it results in substantial educational benefits - whether it is relevant to "how well a law school does in producing first-rate lawyers."

Here, then, are the piece's key sentences, in which Amar and Johnson, quoting from Justice O'Connor's opinion for the Supreme Court in Grutter v. Bollinger, state these benefits:

Among other things, a diverse student body facilitates "cross-racial understanding," helps break down stereotypes, and leads to "livelier classroom discussion" that is "more enlightened and interesting." A diverse student body "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." Moreover, the "skills needed in today's increasingly global marketplace can only be developed though exposure to a widely diverse people, cultures, ideas and viewpoints."

So let's look at these purported benefits, always bearing in mind that the way this diversity will be achieved is by treating students differently - some better, some worse - based on skin color and national origin.

Helps break down stereotypes. If this means the stereotype that members of underrepresented groups are not as smart as other students, the stereotype will hardly be undermined if the law school is systematically admitting members of underrepresented groups who really are not as smart as the other students. If it means the stereotype that you can tell a lot about someone's background, experiences, and perspectives simply by knowing their skin color and national origin, there is again a fatal irony if law schools try to teach this lesson through an admissions process that engages in precisely that stereotyping. I am also skeptical that, in a culture that vilifies racial stereotyping and is at pains to debunk it, the law schools' intervention for students in their mid-twenties will have much marginal impact. Finally, teaching the rather obvious five-word truth "Blacks don't all think alike" can be taught just as well, and without engaging in racial discrimination, simply by assigning students to read judicial opinions written by Thurgood Marshall, on the one hand, and Clarence Thomas, on the other.

Leads to livelier and more enlightened classroom discussion. I have never been a full-time law school professor, but I have taught employment-discrimination courses in law school as an adjunct, and I saw no evidence of this. What law professors crave is intelligent and well-prepared students, and choosing students on the basis of anything other than how smart and hard-working they are is unlikely to enlighten classroom discussion. There is also no way to predict whether a student, once admitted, will ever raise her hand, or whether what she says will have anything to do with her skin color. And, again, if it is important to admit students who are likely to volunteer unconventional opinions in class, it is completely unclear why we should use skin color and national origin as a proxy for this quality. Finally, while lively classroom discussions can certainly ease the tedium of what is read and, especially, lectured about in law school, let's be honest: If law students are learning mostly from other law students, then they are not getting their tuition's worth.

Facilitates cross-racial understanding and, similarly, helps better prepare students for an increasingly diverse workforce and society by exposing students to diverse people, cultures, ideas, and viewpoints. The underlying assumption here is that getting along with people different from oneself is a tricky and difficult skill somehow best learned through random interactions with other law students. The fact is that treating other people as human beings is not rocket science, and it would be surprising if most people had not learned its rudiments by law school and were not able to build further on what they learned as they continue through life, with or without law-school diversity.

The African-American students who are admitted to selective undergraduate institutions come overwhelming from middle- and upper-class backgrounds, by the way, and it stands to reason that this would be even more the case with law students. And, when I was in law school, our class had maybe a half-dozen identifiable conservatives; everyone else was to our left, some very far to our left. So, then, what are the unfamiliar "cultures, ideas, and viewpoints" to which students are being exposed by giving admissions preferences to African-Americans as opposed to, say, Republicans of any color?

In sum, there is not much to these asserted benefits, and not at all clear why, to the extent there is anything to them, they have to be achieved by using race and ethnicity as proxies for background, perspectives, and experience.

And, even if there are some benefits, how substantial are they - and are they substantial enough to be given their own index and the heavy weight that Amar and Johnson apparently think they deserve? Consider, in particular, the costs that must be weighed against these benefits, many of which are educational costs.

That is, the use of racial and ethnic preferences is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment (in particular, among students who will never enjoy the educational benefits of the law school's diversity, since they were never admitted to it in the first place); it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future law firms and other employers, and clients; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the law school and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the law school; it encourages a scofflaw attitude among law-school officials; it mismatches students and institutions (as Professor Richard Sander of UCLA law school has carefully documented), guaranteeing failure for many of the former (to such a degree that, Professor Sander concludes, there are actually fewer African American lawyers now than there would have been had preferences not been used); it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and law schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership.

I am pleasantly surprised, even a bit skeptical, if the desire for a good USNWR ranking really is convincing law schools that they ought to swim against the tides of political correctness and admit students based on merit rather than skin color or national origin. In any event, it would be a bad thing were this ranking to be altered so that it became yet another excuse for law schools to engage in racial and ethnic discrimination.

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Roger Clegg is president and general counsel of the Center for Equal Opportunity.




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